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Graf v. West Virginia University
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1992 Term ____________ No. 20722 ____________ DAVID F. GRAF, M.D., Plaintiff Below, Appellee, v. WEST VIRGINIA UNIVERSITY, Defendant Below, Appellant, and WEST VIRGINIA UNIVERSITY MEDICAL CORPORATION, Intervenor-Appellant _________________________________________________________ Appeal from the Circuit Court of Monongalia County Honorable Robert B. Stone Civil Action No. 86-AP-80 AFFIRMED, IN PART, REVERSED, IN PART, AND REMANDED _________________________________________________________ Submitted: October 6, 1992 Filed: December 11, 1992 Larry Harless, Esquire Evans, West Virginia Attorney for the Appellee Herbert G. Underwood, Esquire Karen E. Kahle, Esquire Steptoe & Johnson Clarksburg, West Virginia and Mario Palumbo, Esquire Attorney General of West Virginia and Daniel W. Vannoy, Esquire Special Assistant Attorney General Charleston, West Virginia Attorneys for Appellant and Defendant Below and Rebecca A. Betts, Esquire King, Betts & Allen Charleston, West Virginia Attorney for Intervenor, Appellant

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JUSTICE NEELY delivered the Opinion of the Court. SYLLABUS BY THE COURT "A motion to amend or alter judgment, even though it is incorrectly denominated as a motion to 'reconsider', 'vacate', 'set aside', or 'reargue' is a Rule 59(e) motion if filed and served within ten days of entry of judgment." Syl. pt. 1, Lieving v. Hadley, ___ W.Va. ___, ___ S.E.2d ___ (1992) (slip op. No. 20738). 2. A per curiam opinion that appears to deviate from generally accepted rules of law is not binding on the circuit courts, and should be relied upon only with great caution. 3. The Board of Regents had (and the Board of Trustees has) plenary power over the schools under its aegis; schools subject to the Board's authority cannot impose regulations on faculty members that contradict the policy of the Board. 4. With regard to employment, the West Virginia University Medical School may not use an affiliated corporation to do indirectly what it is prohibited from doing directly. 5. "The power to authorize the expenditure of public funds is vested in the Legislature, and, unless delegated by it under its legislative power, either in express terms, or by necessary implication from powers so delegated, it cannot be exercised by any subordinate agency of the state government." Syl. pt. 1, State ex rel. Board of Governors of West Virginia University v. Sims, 133 W.Va. 239, 55 S.E.2d 505 (1949). Neely, J.: This case involves the right of a faculty member of the West Virginia University Medical School to "moonlight." Both a grievance board and the Circuit Court of Monongalia County found that a faculty member does have that right. On that question, we affirm. The circuit court, however, decided that the Educational Employees Grievance Board did not have the power to award damages. We find that grievance hearing officers do, in fact, have the power to award damages in this situation; therefore, we reverse the circuit court on that issue, and remand this case to the Educational Employees Grievance Board for a determination of the amount of lost wage damages. I. The Medical School of West Virginia University, like most medical schools, has an affiliated corporation (West Virginia University Medical Corporation) to which its full-time faculty are required to belong. West Virginia University Medical Corporation (WVUMC), in name a private corporation, was created pursuant to Board of Governors Order No. 3214 (January 26, 1961) that "an office shall be maintained" to perform all billing for the work done by the faculty in university facilities. The fees collected were to be used, in part, to supplement the salaries of the faculty. All full-time medical school faculty are now required to sign employment contracts with both West Virginia University (WVU) and WVUMC. The hearing examiner found several examples of the close ties between WVU and WVUMC: (1) [WVUMC] was incorporated by the Vice-President, deans and department heads of the School of Medicine. (2) [WVUMC] does not solicit, interview or hire its physician employees, nor does it determine their salary or define their job duties. All of these are responsibilities of the Dean of the School of Medicine. (3) A substantial part of the faculty-physicians' salary is contributed by [WVUMC] which collects fees from the patients treated by the faculty member as part of his regularly assigned duties. (4) The medical school underwrites the entire cost of liability and malpractice insurance for Corporation employees. (5) All administrative policies of the Corporation must be approved by the President of West Virginia University.

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(6) The Corporation's Board of Directors is composed of full-time physician-faculty members. The Vice-President for Health Services and the Dean of the School of Medicine are ex-officio, non-voting members. Hearing Examiner's Decision, 27 September 1986, at 7-8. David Graf, the appellee, is a tenured "geographic full-time faculty member" of WVU Medical School and affiliated with WVUMC. Since 1979, the year he began to work as a faculty member at WVU, Dr. Graf has signed contracts with both the school and with WVUMC annually. From 1980 through 1982, Dr. Graf explicitly wrote into his contracts that he accepted his faculty appointment subject to Policy Bulletin No. 36 of the Board of Regents and the employee handbook. Starting in 1983, Dr. Graf's additions were no longer necessary, as the form contract read: This appointment is made by virtue of, and is subject to, the authority vested by law in the West Virginia Board of Regents. Faculty appointments are in accordance with the provisions of the current Board of Regents Policy Bulletin No. 36, and those of the West Virginia University Faculty Handbook (1983). Policy Bulletin No. 36 is the general policy of the Board of Regents regarding academic freedom, personnel actions and grievance procedures. At the time Dr. Graf signed his contracts, Policy Bulletin No. 36 read, in part: Section 3.03. The appointment of a person to a full-time position at an institution is made subject to the following conditions: a. The appointee shall render full-time service to the institution to which appointed. Outside activities shall not be restricted unless such activities or employment interfere with the adequate performance of academic duties. The administration of each institution shall establish a program of periodic review of outside services of appointees to guide faculty members. b. If outside employment or service interferes with the performance of the regular institutional duties of the appointee, the institution has a right to make such adjustments in the compensation paid to such appointee's services lost to the institution, and by the appointee's use of institutional equipment and materials.See footnote 1 Additionally, the Faculty Handbook (1983) provides: One working day per week may normally be used for consulting for organizations other than the University. Such consulting work must be reported to the departmental chairperson, who reports to the dean regarding the extent of consulting by various members of the department. Dr. Graf was told by his department chairman, Dr. Knapp, when he first accepted his position at WVU Medical School that he could continue to practice emergency medicine away from the University during his off-duty hours. Dr. Graf informed the department chairmen that succeeded Dr. Knapp of his outside activities as well. Dr. Graf's performance of his duties, by all accounts, was excellent; he performed well enough to be granted tenure in 1985.See footnote 2 Furthermore, Dr. Graf procured his own malpractice insurance for his outside activities; WVU and WVUMC did not bear any additional cost due to Dr. Graf's moonlighting activities. Part I-D of the by-laws of WVUMC (1983), however, placed a far stricter requirement on Dr. Graf than did the Board of Regents: Strict full-time and geographic full-time faculty members will render patient services only within the West Virginia University Medical Center, its branches, and authorized Corporate facilities, or where functions of the School of Medicine include defined and documented educational extramural activities authorized by the Department or Division Chairperson and the Dean of the School of Medicine. In May of 1984, Dr. Graf was called into a meeting with Richard DeVaul, dean of the medical school, and several other members of the medical school faculty. At that meeting, Dr. DeVaul asked Dr. Graf if he were performing outside emergency room work. Dr. Graf acknowledged that he was. Then Dr. DeVaul ordered Dr. Graf to cease his outside activities, or else his employment at the WVU medical school would be terminated. After several discussions among Dr. Graf, Dr. DeVaul and Dr. Eller (then Dr. Graf's department chairman) about alternatives that would allow

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Dr. Graf to continue his emergency room work, no satisfactory solution was worked out. Dr. Graf was forced to cease his "moonlighting" emergency room work by June of 1984. After examining his options (and after receiving his tenure), Dr. Graf initiated grievance proceedings against Dr. DeVaul and West Virginia University, pursuant to W.Va. Code 18-29-1, et seq. [1985]. After pursuing his grievance through the various levels, Dr. Graf filed his Level IV grievance on 13 December 1985. The hearing examiner ruled on 26 September 1986. Both parties then appealed to the Circuit Court of Monongalia County. The circuit court upheld the hearing examiner's decision with regard to Dr. Graf's right to "moonlight", but reversed the damage award, holding that the hearing examiner was without power to award such damages. II. Once again we are faced with the preliminary matter of determining the effect of the filing of a motion to reconsider on the available time for appeal. As we held in Syl. pt. 1, Lieving v. Hadley, ___ W.Va. ___, ___ S.E.2d ___ (1992) (slip op. No. 20738), "[a] motion to amend or alter judgment, even though it is incorrectly denominated as a motion to 'reconsider', 'vacate', 'set aside', or 'reargue' is a Rule 59(e) motion if filed and served within ten days of entry of judgment." We want to emphasize again the importance of correctly denominating motions. As we held in Lieving: [W]hen making a Rule 59(e) motion it is very important plainly to call that motion a "Rule 59(e) motion to alter or amend judgment." It is very confusing both to a trial court and to opposing counsel to make motions that do not clearly fall within the ambit of a particular rule. Furthermore, it allows opposing counsel to make motions to dismiss appeals in this Court for lack of timeliness, when such motions would not be invited were they properly styled as a "Rule 59(e) motion to alter or amend judgment." Lieving, ___ W.Va. ___, ___, ___ S.E.2d ___, ___ (1992) (slip op. No. 20738, at 5-6). We are also concerned about the reliance of counsel on law beyond the syllabus points in per curiam opinions of this Court. Dr. Graf relied on Rowan v. McKnight, 184 W.Va. 763, 764, n.2, S.E.2d 780, 781, n.2 (1991) (per curiam), in which we noted in obiter dicta that motions to reconsider do not ordinarily toll the period for appeal. That decision was rendered on the basis of a Rule 60(b) motion which does not toll the time for appeal. Lawyers should not rely on seeming new law created by per curiam opinions. In Lieving, we noted: It is important to point out this Court's traditional approach to per curiam opinions. Per curiam opinions, such as Rowan, are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta. A per curiam opinion that appears to deviate from generally accepted rules of law is not binding on the circuit courts, and should be relied upon only with great caution. . . . However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion. Lieving, ___ W.Va., at ___, ___ S.E.2d, at ___, n.4. (slip op. at 6). In this case, the motion for reconsideration was filed within the Rule 59(e) ten-day period. On 15 February 1991, the final judgment Order was entered by the circuit court. On 25 February 1991, WVU filed its "Motion for Reconsideration" with the circuit court. Because the motion was, in fact, a Rule 59(e) motion, the time for appeal was tolled under Rule 72 until the motion to reconsider was denied on 21 May 1991. The four-month period then began, and on 23 September 1991See footnote 3 the petition to this Court was timely filed. Therefore, the appeal is properly before this Court. III. The West Virginia Board of Regents was created by the Legislature to control and supervise higher education in this State. W.Va. Code 18-26-1 [1988].See footnote 4 The schools that were subject to the jurisdiction of the Board of Regents could not impose regulations that conflicted with the validly promulgated regulations of the Board:

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The purpose of the Legislature in the enactment of this article is to establish a state agency to be known as the West Virginia board of regents which will have the general determination, control, supervision and management of the financial, business, and educational policies and affairs of all state institutions of higher education. W.Va. Code 18-26-1 [1988]. It is without question that the Board of Regents had the authority to promulgate Policy Bulletin No. 36, and that the Board of Regents had plenary power over the schools under its aegis. State ex rel. McLendon v. Morton, 162 W.Va. 431, 433, 249 S.E.2d 919, 921 (1978); Board of Regents v. Fairmont, Morgantown and Pittsburgh Railroad Company, 155 W.Va. 863, 866, 189 S.E.2d 40, 43 (1972). Therefore, it is clear that the schools subject to the Board of Regents' authority could not impose regulations on faculty members that contradicted the policy of the Board of Regents.See footnote 5 Policy Bulletin No. 36 guaranteed to all full-time employees that "[o]utside activities shall not be restricted unless such activities or employment interfere with the adequate performance of academic duties." The record is clear that Dr. Graf's off-duty performance of emergency medicine did not affect his ability to teach, nor did it affect his ability to render service at WVU Hospital. Indeed, Dr. Graf's maintenance of his certification in emergency room medicine benefitted his students by allowing him to broaden the students' knowledge of emergency room medicine in addition to their knowledge of anesthesiology. Dr. Eller, one of Dr. Graf's department chairmen, testified that Dr. Graf's board certification in emergency medicine did, in fact, enhance his teaching. Despite the fact that Dr. Graf's "moonlighting" conformed with Policy Bulletin No. 36, the policy of the Board of Regents, it did not comport with the by-laws of the West Virginia University Medical Corporation. The fact that all West Virginia University School of Medicine faculty must also work for WVUMC makes it clear that WVUMC is conducting the University's business. Therefore, the actions of WVUMC with regard to employment must be subject to the rules and regulations of the Board of Trustees n

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