WHEELING - A proposed $400 bonus for 407 city of Wheeling employees may be illegal, according to West Virginia Managing Deputy Attorney General Silas Taylor.
City leaders, however, are now referring to the proposed one-time cash payments as "wage adjustments" rather than bonuses.
Last month, members of the city's finance committee - Eugene Fahey, Vernon Seals and James Tiu - voted unanimously to have taxpayers spend $162,800 to fund the bonuses. The funds will not be distributed unless the full City Council approves a budget revision resolution at its 7 p.m. Tuesday meeting.
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Photo by Casey Junkins
These Wheeling firefighters are just some of the 407 city employees who could receive a $400 bonus if City Council approves a budget resolution on Tuesday.
City Manager Robert Herron said during that meeting that the $162,800 will be drawn from funds that had been budgeted for employee positions that are currently vacant. The city allocated salaries for 423 employee positions in its fiscal 2009 budget.
Because 16 of these positions have not been filled, Herron calculated that Wheeling could give each of its 407 employees $400 bonuses by using the money that had been allotted for the open positions.
But Taylor - stressing that he is unfamiliar with the specifics of Wheeling's proposal- said the finance committee's plan to distribute previously budgeted funds as a bonus to municipal employees seems to be "not lawful."
"You cannot just say, 'Hey, we have a little bit of extra money - let's give it to the employees,'" he said.
Taylor cited Article 6-38 of the West Virginia Constitution that states: "No extra compensation shall be granted or allowed to any public officer, agent, servant or contractor, after the services shall have been rendered or the contract made." Taylor said city employees would be considered servants in this instance.
Though he said the attorney general's office has never crafted an official opinion on public employee bonuses, Taylor did issue a letter advising the Roane County Commission on such a matter in 1999.
In Taylor's letter to Roane County officials he wrote: "Extra compensation may not be given to an employee to compensate him or her for work done during pay-periods for which that employee has already received the compensation to which he or she was entitled pursuant to the contract or understanding existing at the time the work was performed."
The Ohio County Commission also used to give annual $500 bonuses to county employees. That practice was halted over similar constitutional concerns with giving bonuses.
Taylor noted he does not see any reason why the law would be different for a city than it is for a county. He also said the idea of a bonus is that someone gets more money for services that have already been performed.
"That is not lawful unless it is built into the employees' contracts," Taylor said, noting employees could be eligible for bonuses if they were to meet certain production quotas as provided in their contracts.
But Fahey claims the proposed $400 pay increases are not bonuses at all. "It is a one-time wage adjustment. ... It is not based on rank - it is across-the-board," the vice mayor said.
Fahey said that, in his view, a bonus is based upon employee performance, while a "wage adjustment" is not.
"This wage adjustment is based upon having money for personnel expenses left in the budget that has not been spent," he said, referring to the 16 funded but unfilled employee positions.
"The employees are going to receive $400 more in wages than what their original salary was going to be," Fahey continued.
Herron said that he was unsure whether the proposed $400 payments would be for work already completed or work that employees would complete in the future.
Taylor said the ruling in a 1970 West Virginia Supreme Court of Appeals case - Cooke v. Jarrell - is "sometimes cited for the proposition that bonuses in the form of one-time temporary salary increases are legal if within the budget of the officer giving the increase."
"I have read that opinion. ... The facts in that 3-2 opinion are not well explained, and the parties involved in the case did not bring the provisions of Article 6-38 to the attention of the court at that time," Taylor said.
Meanwhile, Fahey said Wheeling employees "do not make very much money."
"These times are tough on everybody, and I think we should do whatever we can to help make things easier for our employees," he said, acknowledging the current downturn in the national economy. "The money was set to be used for personnel purposes, so I think it should be used for personnel purposes."
And though Fahey is now referring to the proposed payments as "wage adjustments," Seals noted during the Dec. 16 council meeting that members of council would not receive the $400 "bonuses."
"Council members do not receive any bonuses," Seals said during the meeting.
Herron and Fahey referred further questions regarding the $400 payments to City Solicitor Rosemary Humway-Warmuth, who could not be reached for comment.