West Virginia Advisory Opinions March 30, 1992: AGO 1992-04 (March 30, 1992)

West Virginia Attorney General Opinions

1992.

AGO 1992-04.

To respond to these two (2) questions, we have reviewed the West Virginia Code, the West Virginia Division of Personnel's Administrative Regulations, and West Virginia case law. The general purpose of the State Civil Service System, administered by the Division of Personnel, is defined in Chapter 29, Article 26, West Virginia Code, as follows:

. . . to attract to the service of this state personnel of the highest ability and integrity by the establishment of a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, removal, discipline, classification, compensation and welfare of its civil employees, and other incidents of state employment. All appointments and promotions in the classified service shall be made solely on the basis of merit and fitness . . . .

W. Va. Code § 29-6-1 (1986) (emphasis supplied). This purpose is reiterated in Section 2.01 of the Administrative Regulations.

To achieve the standards set forth in the "General Purpose" section of the statute, the State Personnel Board has been authorized by the Legislature to promulgate regulations:

[f]or the rejection of candidates or eligibles within the classified service who fail to comply with reasonable requirements in regard to such factors as age, physical condition, character, training and experience, who are addicted to alcohol or narcotics, or who have attempted any deception or fraud in connection with an examination, or where in the judgment of the board there is reasonable doubt of the loyalty of the candidate or allegiance to the nation.

W. Va. Code § 29-6-10(8) (Supp. 1991) (emphasis supplied).

Administrative regulations were properly promulgated and implemented to comply with W. Va. Code § 29-6-10(8). These regulations provide, in part:

Under the supervision and direction of the Board, the Director may refuse to examine an applicant, or after examination, may disqualify such applicant or remove his name from a register, or refuse to certify any eligible on a register if:

. . . .

5. he has made a false statement of material fact in his application;

6. he has previously been dismissed from any public service for delinquency, misconduct, or other similar cause; . . . .

143 C.S.R. 1 § 7.04(a).

The Legislature, in W. Va. Code § 29-6-21(a) (Supp. 1991), has expressly prohibited an applicant from making "any false statement, certificate, mark, rating or report with regard to any test, certification or appointment." Therefore, Section 7.04 of the Administrative Regulations is in compliance with the Legislative mandate prohibiting any false statements in regard to an examination.

The Legislature has authorized the State Personnel Board to promulgate regulations administering the selection or rejection of applicants within the examination process. These duly promulgated regulations also address the penalties attached to the use of fraud in connection with an examination. As set forth above, they give the Director the right to refuse to examine an applicant, or to disqualify an applicant under certain circumstances, e.g., making a false statement on an application or being dismissed from public service due to misconduct.

However, as a caveat, please note that the Regulations provide that this action is to be taken under the supervision and direction of the Board . In our opinion, that indicates that the Personnel Board must approve any action which would disallow an applicant from taking an examination or would disqualify an applicant from the candidate process once he has taken the examination.

SUMMARY

Pursuant to W. Va. Code § 29-6-10(8) (Supp. 1991), and the Administrative Regulations promulgated thereunder, the Director of Personnel, with the approval of the State Personnel Board, has the authority to refuse to examine an applicant or to disqualify an applicant, after examination, who has made a false statement of material fact in his application or has previously been dismissed from any public service for delinquency, misconduct, or other similar cause.

Very truly yours,

MARIO J. PALUMBO

ATTORNEY GENERAL

By:

TERRY M. FIDENOUR

ASSISTANT ATTORNEY GENERAL