          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               September 2015 Term                      FILED
                                                                   September 17, 2015
                                                                       released at 3:00 p.m.
                                    No. 15-0131                      RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                                                        OF WEST VIRGINIA




                 STATE OF WEST VIRGINIA ex rel. LISA MILES,

                                     Petitioner

                                         v.

     WEST VIRGINIA BOARD OF REGISTERED PROFESSIONAL NURSES,

                                    Respondent



                   ORIGINAL PROCEEDING IN PROHIBITION


                                 WRIT GRANTED



                            Submitted: September 2, 2015
                             Filed: September 17, 2015



Lisa L. Lilly, Esq.                           Patrick Morrisey, Esq.
Martin & Seibert, L. C.                       Attorney General
Charleston, West Virginia                     Greg S. Foster, Esq.
Attorney for Petitioner                       Assistant Attorney General
                                              Attorneys for Respondent



CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT



              1.     “‘The writ of prohibition will issue only in clear cases where the

inferior tribunal is proceeding without, or in excess of, jurisdiction.’ Syl., State ex rel.

Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925).” Syl. Pt. 1, State ex rel.

Johnson v. Reed, 219 W. Va. 289, 633 S.E.2d 234 (2006).



              2.     “In determining whether to entertain and issue the writ of prohibition

for cases not involving an absence of jurisdiction but only where it is claimed that the

lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1)

whether the party seeking the writ has no other adequate means, such as direct appeal, to

obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a

way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly

erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated

error or manifests persistent disregard for either procedural or substantive law; and (5)

whether the lower tribunal’s order raises new and important problems or issues of law of

first impression. These factors are general guidelines that serve as a useful starting point

for determining whether a discretionary writ of prohibition should issue. Although all

five factors need not be satisfied, it is clear that the third factor, the existence of clear

error as a matter of law, should be given substantial weight.” Syl. Pt. 4, State ex rel.

Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).




                                              i
              3.     “In adjudicating a contested case concerning the revocation or

suspension of a nurse’s license to practice registered professional nursing, the West

Virginia Board of Examiners for Registered Professional Nurses must follow the

procedural requirements set forth in Chapter 30 of the West Virginia Code, as well as the

contested case hearing procedure set forth in Title 19, Series 5, of the West Virginia Code

of State Rules.” Syl. Pt. 2, State ex rel. Fillinger v. Rhodes, 230 W. Va. 560, 741 S.E.2d

118 (2013).




                                            ii
WORKMAN, Chief Justice:

              Petitioner Lisa Miles (hereinafter “petitioner”) seeks a writ of prohibition to

prohibit respondent West Virginia Board of Registered Professional Nurses (hereinafter

“the Board”) from proceeding on a complaint against her license. Petitioner asserts that

the Board’s failure to resolve the complaint against her within one year from the date of

an interim status report, pursuant to West Virginia Code § 30-1-5(c) (2005), divests it of

jurisdiction to proceed on the complaint.



              Based upon our review of the briefs, legal authorities, appendix record, and

upon consideration of arguments of counsel, this Court finds that the Board has failed to

comply with the statutory mandates of West Virginia Code § 30-1-5(c) and therefore

further action on the complaint against petitioner’s license is in excess of its jurisdiction.

Accordingly, petitioner’s request for relief in prohibition is granted.



                     I.      FACTS AND PROCEDURAL HISTORY

              Petitioner received her nursing degree in 2010; she worked as a registered

nurse in the emergency room at St. Joseph’s Hospital (now known as Camden-Clark

Hospital; hereinafter “Camden-Clark”) in Parkersburg from June 2010 until April 2,

2013, when she was terminated for allegedly violating the hospital’s narcotic waste




                                              1

policies.1 An audit of her medical records demonstrated that on eleven occasions she

pulled the narcotic Dilaudid without a physician’s order, on three occasions pulled

Dilaudid for patients who had already been discharged from the emergency room where

she was working, and on nine occasions entered orders for Dilaudid on behalf of a

physician. In these instances, Camden-Clark asserts that petitioner did not properly chart

that the medication had either been “not given” to the patient or “wasted,” as required by

Camden-Clark’s policies. Petitioner contends that she did not divert the medication, but

rather, the errors were occasioned by her lack of sufficient training on the electronic

medication dispensation software she was required to use.2



             Petitioner self-reported her termination to the Board, which then issued a

Notice of Complaint on April 2, 2013. On August 14, 2013, a little over four months

after the complaint, the Board issued a status report to Camden-Clark via regular mail

which stated simply that the matter was “under continued investigation and review by the

Board staff.” The Board provides no explanation for why the status report was not sent

via certified mail, but Camden-Clark indicated in an email contained in the appendix

      1
        Petitioner now works at Jackson General Hospital where she began working in
August 2013, four months after being terminated from Camden-Clark. She has had no
other complaints against her license.
      2
         Petitioner claims that she was poorly trained on the software and that she was
trained on “floor nursing” as opposed to “emergency room nursing.” She claims that
hard copies of the software manuals were unavailable and the online instructions were
insufficient. She claims that one to two weeks before she was terminated she requested
additional training. She allegedly offered to take a drug test upon being discharged,
which was declined by Camden-Clark.

                                            2

record that it did receive the letter nonetheless. The Board sent another status report on

March 25, 2014, indicating the case was “currently being negotiated for settlement”; the

Board sent petitioner a proposed consent decree days earlier. Camden-Clark has no

record of receiving this letter.



              On October 10, 2014—one year and two months after the status report—the

Board sent a letter to Camden-Clark, addressed internally to “complainant” with no

mailing address, quoting West Virginia Code § 30-1-5(c) and stating

              [a]s you know the Board has exceeded its time allotments
              provided in law to resolve the complaint you filed. While the
              Board strives to resolve all complaints within the required
              time limits, there are some that out of necessity need a longer
              period of time. What this law doesn’t consider are the
              available resources to a government agency, the cooperation
              of the licensee and his or her attorney in attempting to resolve
              a complaint and other issues that affect the timeline this law
              requires.

                     Pursuant to this law, you as the complainant, and the
              Board have to agree to extend the time frame. By this letter
              the Board is informing you of the necessity to extend the time
              frame to continue pursuing the complaint against the licensee.
              If you disagree with this extension, please inform the Board in
              writing. This case is being set for hearing.

(emphasis added). Camden-Clark indicates in emails contained in the appendix record

that this letter was received. Inexplicably, the Board sent the same letter again on

December 11, 2014, addressed to Susan Abdella at Camden-Clark, but concluded the

letter by stating that the case “is scheduled for Hearing.” A Notice of Hearing was issued

the next day setting a hearing for January 20, 2015.


                                             3

              On January 7, 2015, the Assistant Attorney General assigned to the case

emailed Camden-Clark asking to interview witnesses and ostensibly requesting additional

documents. On January 15, 2015—five days before the scheduled hearing—the Assistant

Attorney General contacted petitioner’s counsel; as a result of this contact, petitioner’s

counsel requested the Board’s complete file on the matter and witness information. On

that date, the Assistant Attorney General emailed the Board’s file, the electronic

medication dispensation software training manual, and a Board of Pharmacy report to

petitioner’s counsel; he received the training manual, Board of Pharmacy report, and full

audit containing spreadsheets only days earlier from Camden-Clark. The Board concedes

that these materials contained 152 new pages of documents, but argues that it had only

just been received from Camden-Clark. 3 All of these documents were identified as

exhibits upon which the Board intended to rely at the hearing.



              Upon motion of petitioner, the January 20, 2015, hearing was continued

until February 19, 2015; this petition for a writ of prohibition was filed shortly before the

February hearing was scheduled to occur.




       3
        The appendix record reveals that petitioner’s counsel was given an opportunity to
review the Board’s administrative file early on in this matter and provided copies of its
contents. However, as a result of the Assistant Attorney General’s more recent request
for additional documentation from Camden-Clark, the Board was in possession of
additional materials not originally contained in the file.


                                             4

                             II.     STANDARD OF REVIEW


              It is well-established that “‘[t]he writ of prohibition will issue only in clear

cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction.’

Syl., State ex rel. Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925).” Syl. Pt. 1,

State ex rel. Johnson v. Reed, 219 W. Va. 289, 633 S.E.2d 234 (2006). Moreover,

prohibition will also lie where the lower tribunal is alleged to be acting in excess of its

“legitimate powers.” Specifically,

              [i]n determining whether to entertain and issue the writ of
              prohibition for cases not involving an absence of jurisdiction
              but only where it is claimed that the lower tribunal exceeded
              its legitimate powers, this Court will examine five factors: (1)
              whether the party seeking the writ has no other adequate
              means, such as direct appeal, to obtain the desired relief; (2)
              whether the petitioner will be damaged or prejudiced in a way
              that is not correctable on appeal; (3) whether the lower
              tribunal’s order is clearly erroneous as a matter of law; (4)
              whether the lower tribunal’s order is an oft repeated error or
              manifests persistent disregard for either procedural or
              substantive law; and (5) whether the lower tribunal’s order
              raises new and important problems or issues of law of first
              impression. These factors are general guidelines that serve as
              a useful starting point for determining whether a discretionary
              writ of prohibition should issue. Although all five factors
              need not be satisfied, it is clear that the third factor, the
              existence of clear error as a matter of law, should be given
              substantial weight.

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). With

these standards in mind, we proceed to the parties’ arguments.




                                              5

                                   III. DISCUSSION


             West Virginia Code § 30-1-1 et seq. contains general provisions applicable

to State Boards of Examination or Registration regulating designated professions and

occupations. In particular, West Virginia Code § 30-1-5(c) provides that

                     [e]very board referred to in this chapter has a duty to
             investigate and resolve complaints which it receives and
             shall, within six months of the complaint being filed, send a
             status report to the party filing the complaint by certified mail
             with a signed return receipt and within one year of the status
             report’s return receipt date issue a final ruling, unless the
             party filing the complaint and the board agree in writing to
             extend the time for the final ruling.

(emphasis added).    The primary issue presented herein is twofold:         1) whether the

statutory requirements contained in West Virginia Code § 30-1-5(c) are mandatory and

jurisdictional or merely directory; and 2) if mandatory, whether the Board complied with

these mandates.



             We note at the outset that this Court strictly applied the requirements of

West Virginia Code § 30-1-1 et seq. against this professional Board in State ex rel.

Fillinger v. Rhodes, 230 W. Va. 560, 741 S.E.2d 118 (2013) wherein we recently held:

                    In adjudicating a contested case concerning the
             revocation or suspension of a nurse’s license to practice
             registered professional nursing, the West Virginia Board of
             Examiners for Registered Professional Nurses must follow the
             procedural requirements set forth in Chapter 30 of the West
             Virginia Code . . . .

Syl. Pt. 2, in part, id. (emphasis added). Without expressly speaking to the issue of

whether the time limitations were mandatory and jurisdictional, the Court ruled that the

                                            6

Board’s failure to resolve the complaint against Fillinger within the time requirements

contained in the statute necessitated dismissal of the complaint. The Court noted that

with respect to the time requirements contained in the statute, “[t]his Court has no reason

to conclude that the Legislature meant less than what it said in W. Va. Code, 30-1-5(c)

[2005], about those requirements[.]” Id. at 567, 741 S.E.2d at 125. Soon thereafter, the

Court reiterated this sentiment with respect to disciplinary proceedings before the Real

Estate Appraiser Licensing Board which were not resolved in accordance with the time

requirements of West Virginia Code § 30-1-5(c). See State ex rel. York v. W. Va. Real

Estate Appraiser Licensing and Certification Bd., ___ W. Va. ___, 760 S.E.2d 856, 862

(2014) (“The Board’s actions are in excess of its jurisdiction, in that the complaints have

not been handled in a timely fashion, as required [by] W. Va. Code 30-1-5(c)[.]”).



              This Court has stated that “[t]here is no universal rule by which directory

provisions may be distinguished from those which are mandatory” and that it must be

determined “from the intention of the Legislature.” Thomas v. McDermitt, 232 W. Va.

159, 169, 751 S.E.2d 264, 274 (2013) (quoting State ex rel. Board of Education v.

Melton, 157 W.Va. 154, 165, 198 S.E.2d 130, 136 (1973)). In that regard, the legislative

history of West Virginia Code § 30-1-5(c) reveals that the 1996 version of this statute

contained no specific deadlines for resolution. Rather, the statute provided merely that

“[e]very board referred to in this chapter has a duty to investigate and resolve complaints

which it receives and shall do so in a timely manner.” W. Va. Code § 30-1-5(b) (1996).

However, Senate Bill 737 was introduced in 2005 for the express purpose of

                                            7

“establishing a time limit for licensing boards to issue a final ruling on complaints.” See

Senate Bill No. 737, “Introduced Version,” March 23, 2005. Notably the original version

of the introduced Bill required that a final ruling be issued “within one year of the

complaint being filed[.]” Id. The final version, codified as amended at West Virginia

Code § 30-1-5(c), inserted the requirement of an interim status report, sent via certified

mail and return receipt requested, from which the one year to resolve was to be

calculated.



              Turning now to the parties’ arguments, petitioner argues that the

requirements in West Virginia Code § 30-1-5(c)—including the requirements that status

reports be issued certified mail, return receipt requested, that complaints be resolved

within one year of the status report, and that agreements to extend these timelines must be

in writing—are mandatory and jurisdictional, relying heavily on Syllabus Point 2 of

Fillinger. Petitioner argues specifically that the Board admits it did not issue the status

reports certified mail and more importantly, that it is undisputed that the Board neither

resolved the matter within one year of the status report, nor obtained an “agreement in

writing” to extend that deadline.



              The Board, on the other hand, argues that the statute contemplates an

overall eighteen month period in which these complaints may be resolved, i.e. six months

to issue a status report and another twelve months thereafter to resolve. The Board

further argues that, although it did not resolve this matter in eighteen months, it obtained

                                             8

an “agreement in writing” to extend this time period. It contends that the October 10,

2014 and December 11, 2014, letters telling complainant to notify it in writing if it

disagrees with an extension “forms the basis” of an agreement in writing.



              Moreover, the Fillinger and York cases notwithstanding, the Board argues

that the statutory requirements are merely directory and do not go to the “essence” of

what was intended by the Legislature—that the complainant be kept apprised of status

and that the parties be permitted to extend the statutory deadline for resolution.

Specifically, the Board concedes that while this Court has issued cases indicating that use

of the term “shall” makes a statutory requirement mandatory, Syl. Pt. 1, Nelson v. W. Va.

Public Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982), it has also stated that

use of the word “is not conclusive in determining whether they are mandatory or

directory.” Canyon Public Serv. Dist. v. Tasa Coal Co., 156 W. Va. 606, 611, 195 S.E.2d

647, 651 (1973). The Board notes that the Court has endorsed the rule that whether a

statute is mandatory or directory is dependent upon “whether the thing directed to be

done is of the essence of the thing required, or is a mere matter of form.” Thomas, 232

W. Va. at 169, 751 S.E.2d at 274 (quoting State ex rel. Kennedy v. Boles, 150 W.Va. 504,

511-12, 147 S.E.2d 391, 396 (1966)).         In that regard, the Board argues that the

requirements of West Virginia Code § 30-1-5(c) are “matter[s] of convenience rather than

substance” and that “the purpose of the legislature . . . can be accomplished in a manner

other than that prescribed with substantially the same results.” Id. at 512, 147 S.E.2d at

396.

                                            9

               We disagree with the Board’s contention that the time-based requirements

of West Virginia Code § 30-1-5(c) are matters of mere “convenience” or “form.” This

determination is borne out by the fairly explicit legislative history seeking to establish

specific time requirements for resolution of such complaints. These requirements are

unquestionably mandatory and therefore, jurisdictional, as pertains to these types of

proceedings.     Moreover, the Board’s contention that the statute provides an overall

eighteen-month timeframe for resolution is wholly without merit; quite simply, this is not

what the statute provides. The plain language of the statute requires the issuance of an

interim status report within six months, from which date the Board has one year to

resolve the complaint unless an extension is obtained as prescribed. As we previously

stated Fillinger, we have no reason to believe the Legislature “meant less than what it

said” regarding these requirements. Id. at 567, 741 S.E.2d at 125.



               Moreover, this Court did not mean less than what it said in Syllabus Point 2

of Fillinger: this Board must follow the procedural requirements of West Virginia Code

§ 30-1-5(c). Based upon the date of the status report and pursuant to statute, the Board

had until August 14, 2014,4 to issue a final ruling unless an extension was obtained from

Camden-Clark in writing. It unquestionably failed in both regards. Not only did the

Board not resolve the matter by August 14, but it did not even acknowledge the need for

      4
        Given that there was no return receipt—likewise in violation of the statutory
requirements—the only date available for this calculation is the date of the status report
itself.


                                            10

an extension until after that deadline had passed. When it did so, rather than obtaining an

agreement to extend with the complainant in writing, the Board simply told the

complainant an extension was needed and presumed to have its agreement absent an

objection in writing. Under any rational construction, the Board’s letters regarding an

extension merely offered a proposal to extend the deadline in writing and then attempted

to shift the statutory duty solely onto Camden-Clark to provide written disagreement with

an extension.     This presumptuous approach created a complete nullification of the

statutory requirements. Were the statute’s requirements so easily evaded, there would

have been little reason for the Legislature to alter the language of the statute to provide

for specific acts and deadlines.



              We conclude that the Board in this instance has exceeded its jurisdiction by

failing, almost entirely, to comply with the statute governing its procedural handling of

complaints.     Not only did the Board fail to comply with the statute, but it failed,

inexplicably, to take heed of this Court’s holding in Fillinger which was directed

explicitly to this Board.      The Board’s refusal to strictly comply with the very

straightforward requirements in the statute seems to evidence a blatant disregard for both

the Legislature’s and this Court’s explicit instructions on how these matters should be

handled, at worst, or a pattern of lackadaisical pursuit of complaints by this Board, at




                                            11

best.5 Either way, we are dismayed to note that in addition to divesting it of jurisdiction,

the Board’s actions in this case present the seldom-seen “persistent disregard for either

procedural or substantive law” likewise warranting a writ of prohibition. Syl. Pt. 4, in

part, Hoover, 199 W. Va. 12, 483 S.E.2d 12.



              Finally, this Court would be remiss if we did not remind the Board of the

gravity of its responsibilities to the public in light of its ostensible belief that the

requirements of the statute are impracticable6 and therefore it need not comply with them

or the mandate of this Court. West Virginia Code § 30-1-1a plainly states that “the

fundamental purpose of licensure and registration [of professionals] is to protect the

public[.]”   As well-stated by Justice Loughry, who in his concurrence in Fillinger

specifically urged the Board to take measures to ensure its inaction was not repeated:

              [i]t is the responsibility of the Board to act diligently and
              promptly in reviewing, investigating, and conducting

       5
         Petitioner makes two additional arguments regarding the Board’s delay in
providing her with investigative documents until five days before the hearing and the
applicability of Rule 41 of the West Virginia Rules of Civil Procedure. As a result of our
disposition of this matter, we need not address these arguments.
       6
         As noted above, the Board’s apparent “form” letter requesting an extension from
complainants, bemoans the fact that the time requirements of West Virginia Code § 30-1­
5(c) “doesn’t consider” certain practical difficulties which may arise during the course of
a complaint investigation and resolution. We note first that at no time during these
proceedings did the Board offer any explanation as to why the complaint against
petitioner could not be resolved within the statutory time frame. Secondly, the
expediencies identified in this form letter are not unusual and are undoubtedly the reason
the Legislature provided a simple method of extending the resolution period. More
importantly, these matters are better addressed to the Legislature than used to coax a
complainant into extending the resolution period.

                                            12

              disciplinary hearings on complaints brought before it not only
              to guarantee that nurses will be held accountable for proven
              misconduct, but most importantly, to ensure the safety of
              patients and the public. Such expeditious action by the Board
              also assures hardworking, diligent, and caring nurses that they
              are working alongside other nurses who are competent and fit
              to hold a nursing license in this State. This results in
              protecting the public while also preserving the integrity of the
              nursing profession.

Fillinger, 230 W. Va. at 568, 741 S.E.2d at 126 (Loughry, J., concurring). Clearly, the

Legislature has determined that professionals are entitled to resolution of the cloud over

their license within a specific time frame. More critically, the Legislature has determined

that the public should not be interminably exposed to professionals who potentially

present a risk of harm to their patients, clients or the public at large.



                                    IV. CONCLUSION

              Accordingly, we find that the Board lacks jurisdiction to pursue further

action on the complaint against petitioner and that therefore the complaint against

petitioner must be dismissed.



                                                                             Writ Granted.




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