The Honorable James W. Davis, Jr.
AGO 04022020
No. 04022020
West Virginia Attorney General Opinion
State of West Virginia Office of Attorney General
April 2, 2020
Patrick
Morrisey Attorney General
The
Honorable James W. Davis, Jr
Hancock
County Prosecuting Attorney
1114
Ridge Avenue
New
Cumberland, WV 26047
Dear
Prosecuting Attorney Davis:
You
have asked for an Opinion of the Attorney General about the
proper procedure for filling a vacancy in the Weirton Fire
Department for the position of fire chief. This Opinion is
being issued pursuant to West Virginia Code § 5-3-2,
which provides that the Attorney General "may consult
with and advise the several prosecuting attorneys in matters
relating to the official duties of their office." To the
extent this Opinion relies on facts, it is based solely on
the factual assertions in your correspondence with the Office
of the Attorney General and communications with the City of
Weirton related to your request.
In
2002, the Weirton City Council "create[d] a single
combination fire department, consisting of both paid and
volunteer fire fighters." Weirton Heights Volunteer
Fire Dep % Inc. v. State Fire Comm % 218 W. Va.
668, 669, 628 S.E.2d 98, 99 (2005). The Weirton Fire
Department currently has a vacancy for the chief position.
Because this is a paid firefighter position, filling the
vacancy is governed by West Virginia Code Chapter 8, Article
15, Part IV. See W. Va. Code § 8-15-11(a). The
open fire chief position in Weirton must therefore be filled,
"so far as practicable, by promotions from among
individuals holding positions in the next lower grade in the
department." Id. § 8-15-22. But "no
individual shall be eligible for promotion from the lower
grade to the next higher grade until such individual shall
have completed at least two years of continuous service in
the next lower grade." Id.
At the
Weirton Fire Department there is only one captain—the
grade below chief—who satisfies the time-in-service
requirement. That captain, however, declined a promotion to
fire chief. Your letter thus asks what alternate procedures
the Weirton...
