668 S.E.2d 217
6. “The general rule of statutory construction requires that a specific
statute be given precedence over a general statute relating to the same subject matter where
the two cannot be reconciled.” Syllabus point 1, UMWA by Trumka v. Kingdon, 174 W. Va.
330, 325 S.E.2d 120 (1984).
7. “It is always presumed that the legislature will not enact a meaningless
or useless statute.” Syllabus point 4, State ex rel. Hardesty v. Aracoma-Chief Logan No.
4523, Veterans of Foreign Wars of the United States, Inc., 147 W. Va. 645, 129 S.E.2d 921
(1963).
8. Pursuant to W. Va. Code § 21-5A-1(7) (1961) (Repl. Vol. 2002), the
terms “employee” and “workman,” as used in the West Virginia Prevailing Wage Act,
W. Va. Code § 21-5A-1, et seq., do not include workers who are (1) employed or hired by
a public authority on a regular basis, (2) employed or hired by a public authority on a
temporary basis, (3) employed or hired by a public authority to perform temporary repairs,
or (4) employed or hired by a public authority to perform emergency repairs.
9. W. Va. Code § 21-5A-2 (1961) (Repl. Vol. 2002) requires the
prevailing wage to be paid to all workmen who are employed “on behalf of any public
authority” and who are “engaged in the construction of public improvements.” To the
extent that our prior holding in Syllabus point 3 of Affiliated Construction Trades
Foundation v. University of West Virginia Board of Trustees, 210 W. Va. 456, 557 S.E.2d
863 (2001), is inconsistent with this holding, it is expressly modified.
Davis, Justice:
The petitioner herein, the Tucker County Solid Waste Authority (hereinafter
“TCSWA”), requests this Court to issue a writ of prohibition against the respondent herein,
the West Virginia Division of Labor (hereinafter “DOL”), to prevent the DOL from
continuing administrative proceedings against it. Specifically, the TCSWA wishes to
prohibit the enforcement of a DOL administrative order, entered June 29, 2007, which
found the TCSWA did not pay certain temporary workers the prevailing wage and thus
owes said workers additional wages and damages in the approximate amount of
$199,760.30. In its petition to this Court, the TCSWA requests that we prohibit the
enforcement of the hearing examiner's order because, as alleged by the TCSWA, (1) the
prevailing wage was improperly applied to employees of a public authority; (2) the
prevailing wage was improperly applied to work that was never let to contract; and (3) the
legislative history of the West Virginia Prevailing Wage Act (hereinafter “the Act”), W. Va.
Code § 21-5A-1, et seq., was not given deference. Upon a review of the parties' arguments,
the record presented for consideration, and the pertinent authorities, we find that the
TCSWA was not required to pay the prevailing wage to the workers involved in this case
and, accordingly, grant the requested writ of prohibition.
Thereafter, the TCSWA requested and was granted an informal conference
with the DOL to explain why it believed the West Virginia Prevailing Wage Act (“Act”)
did not apply to its hiring of temporary workers to complete the excavation portion of the
landfill expansion project. This meeting occurred on June 15, 2004, but no resolution was
reached. Approximately nine months later, on March 8, 2005, the DOL determined that an
additional TCSWA employee should have been paid the prevailing wage for his work on
the landfill expansion project. Therefore, the DOL increased the total wages due and owing
from the TCSWA to $99,880.15, or $199,760.30 with the addition of the like amount of
damages for this sum.
Ultimately, the DOL referred the matter to a hearing examiner, who issued
“Preliminary Findings of Fact and Conclusions of Law and Order as to Further
Proceedings,” on June 29, 2007. In an attempt to reconcile the various provisions of the
Act, the hearing examiner concluded that “the Act was intended to apply to contracts of
employment entered into by public authorities with persons for the specific purpose of such
persons being engaged in the construction of public improvements, unless such work is for
the specific purpose of making temporary or emergency repairs.” Insofar as the landfill
expansion project was neither a temporary nor an emergency repair, the hearing examiner
reasoned that the Act applied and that the temporary workers the TCSWA had hired to
complete the excavation work thereon should have been paid the prevailing wage.
Additionally, the hearing examiner determined that further evidentiary proceedings would
be necessary to finally resolve the dispute. Among the areas identified by the hearing
examiner as requiring further factual development were the precise nature and type of the
employment of the workers involved herein; whether the penalty provisions of W. Va. Code
§ 21-5A-9(b) applied to a direct employer scenario; and whether, if the penalty provisions
did apply, the “honest mistake” exception of W. Va. Code § 21-5A-9(b) would relieve the
TCSWA of liability for the prevailing wages not paid.
Following these rulings, the TCSWA filed a petition for writ of prohibition
with this Court seeking to prohibit the further evidentiary proceedings recommended by the
hearing examiner. By order entered January 10, 2008, this Court issued a rule to show
cause. Thereafter, the West Virginia State Building and Construction Trades Council,
AFL-CIO (hereinafter “Trades Council”), moved to intervene as a party respondent in this
proceeding and was granted intervenor status by order entered February 13, 2008. In
addition, the Kanawha Valley Builders Association (hereinafter “Association”) moved for
leave to appear in the case as Amicus Curiae; this Court granted the Association's motion
by order entered February 13, 2008. (See footnote 5)
In determining whether to entertain and issue the writ of
prohibition for cases not involving the 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). Moreover,
we have stated that “prohibition . . . against judges [is a] drastic and extraordinary
remed[y]. . . . As [an] extraordinary remed[y], [it] [is] reserved for really extraordinary
causes.” State ex rel. United States Fid. & Guar. Co. v. Canady, 194 W. Va. 431, 436, 460
S.E.2d 677, 682 (1995) (citations omitted). Thus,
[i]n determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.
Syl. pt. 1, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979). Guided by these
principles, we proceed to consider the parties' arguments.
The crux of the parties' arguments on this point is a dispute as to the proper
interpretation of the applicable statutory law, specifically the statute explaining the purpose
of the Act, W. Va. Code § 21-5A-2, and the statute providing definitions for the terms used
in the Act, W. Va. Code § 21-5A-1. As with any matter involving the interpretation and
application of statutes, we first must determine the Legislature's intent in promulgating the
statutory law at issue. “The primary object in construing a statute is to ascertain and give
effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r,
159 W. Va. 108, 219 S.E.2d 361 (1975). We then examine the precise words chosen by the
Legislature in adopting the statute. “A statutory provision which is clear and unambiguous
and plainly expresses the legislative intent will not be interpreted by the courts but will be
given full force and effect.” Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488
(1951). Accord DeVane v. Kennedy, 205 W. Va. 519, 529, 519 S.E.2d 622, 632 (1999)
(“Where the language of a statutory provision is plain, its terms should be applied as written
and not construed.” (citations omitted)); Syl. pt. 5, State v. General Daniel Morgan Post No.
548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959) (“When a statute is clear and
unambiguous and the legislative intent is plain, the statute should not be interpreted by the
courts, and in such case it is the duty of the courts not to construe but to apply the statute.”).
Where, however, the statutory language is not plain, its language must be construed before
it can be applied: “[a] statute that is ambiguous must be construed before it can be applied.”
Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). Accord Syl. pt. 1, Ohio County Comm'n v. Manchin, 171 W. Va. 552, 301 S.E.2d 183 (1983) (“Judicial
interpretation of a statute is warranted only if the statute is ambiguous and the initial step
in such interpretative inquiry is to ascertain the legislative intent.”).
In W. Va. Code § 21-5A-2, the Legislature has definitively stated the public
policy underlying the Prevailing Wage Act:
It is hereby declared to be the policy of the State of West
Virginia that a wage of no less than the prevailing hourly rate
of wages for work of a similar character in the locality in this
State in which the construction is performed, shall be paid to all
workmen employed by or on behalf of any public authority
engaged in the construction of public improvements.
We previously considered this legislative purpose in Affiliated Construction Trades
Foundation v. University of West Virginia Board of Trustees, 210 W. Va. 456, 557 S.E.2d
863 (2001) (hereinafter “ACT Foundation”). In ACT Foundation, a private entity performed
construction work on behalf of the West Virginia University Foundation (hereinafter “the
Foundation”). As with the instant proceeding, the prevailing wage was not paid to the
workers performing said construction because the private entity believed that it was exempt
from the Act. (See footnote 13) And also like the case sub judice, a dispute arose as to whether the
prevailing wage should have been paid to said workers. In finding that the Act did not
apply because the Foundation was a private entity that was exempt from the prevailing
wage statutes, this Court held that, “[u]nder West Virginia Code § 21-5A-2 (1961) (Repl.
Vol. 1996), the provisions concerning prevailing wages can only be invoked when a
construction project that constitutes a public improvement and which involves workers
employed by or on behalf of a public authority is involved.” Syl. pt. 3, 210 W. Va. 456, 557
S.E.2d 863. The Court then went on to analyze those definitional sections of the Act
pertaining to the terms “public improvement” and “public authority” in concluding that the
Foundation was exempt from the requirements of the Act. See Syl. pts. 4-6, id.
Although instructive as to the meaning of the general legislative purpose
expressed in W. Va. Code § 21-5A-2 and the terms “public improvement” and “public
authority,” our holding in ACT Foundation does not resolve the specific quandary presented
by the facts of the instant proceeding: reconciling the definition of “employee,” which
specifically exempts public authority employees from the prevailing wage requirement,
with the purpose of the Act, which specifically applies the prevailing wage requirement to
public authority employees. The parties to this proceeding do not dispute that the TCSWA
is a “public authority” for purposes of the Act. See W. Va. Code § 21-5A-1(1). (See footnote 14) See also W. Va. Code § 22C-4-3 (2000) (Repl. Vol. 2005). (See footnote 15) They also concede that the landfill
expansion project was neither a temporary nor an emergency repair. The parties disagree,
however, as to whether the Act required the TCSWA to pay the workers involved in this
case the prevailing wage for the work they performed on the landfill expansion project.
The DOL contends that the Act specifically includes a public authority's
workers in its requirement that public authorities pay their workers the prevailing wage:
It is hereby declared to be the policy of the State of West Virginia that a wage of no less than the prevailing hourly rate of wages for work of a similar character in the locality in this State in which the construction is performed, shall be paid to all workmen employed by or on behalf of any public authority engaged in the construction of public improvements. W. Va. Code § 21-5A-2 (1961) (Repl. Vol. 2002) (emphasis added). (See footnote 16) Despite this directory language requiring a public authority's workers to be paid the prevailing wage, the TCSWA asserts that it was not required to pay its workers the prevailing wage because the Act's definitional section specifically excludes the workers of a public authority from the definition of “employee”:
The term “employee” for the purposes of this article, shall not be construed to include[ (See footnote 17) ] such persons as are employed or hired by the public authority on a regular or temporary basis or engaged in making temporary or emergency repairs.
W. Va. Code § 21-5A-1(7) (1961) (Repl. Vol. 2002) (emphasis and footnote added). From
these quoted statutory passages, it is apparent that these two statutes are in direct conflict
and must be construed to resolve this ambiguity. See Sizemore v. State Farm Gen. Ins. Co.,
202 W. Va. 591, 596, 505 S.E.2d 654, 659 (1998) (“A statute is open to construction only
where the language used requires interpretation because of ambiguity which renders it
susceptible of two or more constructions or of such doubtful or obscure meaning that
reasonable minds might be uncertain or disagree as to its meaning.” (internal quotations and
citation omitted)).
When two statutes address the same subject matter, we first attempt to
construe the statutes in pari materia to give effect to the full intent and meaning of both
legislative enactments. “Statutes which relate to the same subject matter should be read and
applied together so that the Legislature's intention can be gathered from the whole of the
enactments.” Syl. pt. 3, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219
S.E.2d 361. Even “where two statutes are in apparent conflict, the Court must, if
reasonably possible, construe such statutes so as to give effect to each.” Syl. pt. 4, in part, State ex rel. Graney v. Sims, 144 W. Va. 72, 105 S.E.2d 886 (1958). If, however, the two
statutes simply cannot be reconciled, the language of the more specific promulgation
prevails. “The general rule of statutory construction requires that a specific statute be given
precedence over a general statute relating to the same subject matter where the two cannot
be reconciled.” Syl. pt. 1, UMWA by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120
(1984). Accord Tillis v. Wright, 217 W. Va. 722, 728, 619 S.E.2d 235, 241 (2005)
(“[S]pecific statutory language generally takes precedence over more general statutory
provisions.”); Bowers v. Wurzburg, 205 W. Va. 450, 462, 519 S.E.2d 148, 160 (1999)
(“Typically, when two statutes govern a particular scenario, one being specific and one
being general, the specific provision prevails.” (citations omitted)); Daily Gazette Co., Inc.
v. Caryl, 181 W. Va. 42, 45, 380 S.E.2d 209, 212 (1989) (“The rules of statutory
construction require that a specific statute will control over a general statute when an
unreconcilable conflict arises between the terms of the statutes.” (citations omitted)).
Viewing the two statutes at issue herein, W. Va. Code § 21-5A-2 is plainly a more general
statute explaining the Legislature's overall purpose in enacting the Prevailing Wage Act,
while W. Va. Code § 21-5A-1(7) is clearly a more specific statute defining the term
“employee” as it is used throughout the Prevailing Wage Act. As the more specific statute,
W. Va. Code § 21-5A-1(7) necessarily prevails as the controlling statute in the case sub
judice.
As we noted above, we have previously interpreted the language of W. Va.
Code § 21-5A-2. We have not yet, however, had occasion to examine the meaning of
W. Va. Code § 21-5A-1(7). This section, which defines the term “employee,” provides
that, “[t]he term 'employee' for the purposes of this article, shall not be construed to
include[ (See footnote 18) ] such persons as are employed or hired by the public authority on a regular or
temporary basis or engaged in making temporary or emergency repairs.” W. Va. Code
§ 21-5A-1(7) (footnote added). We find this language to be plain and in need of no further
construction. This section plainly states that, for purposes of the West Virginia Prevailing
Wage Act, workers who a public authority employs or hires on a regular or temporary basis
are not considered to be “employees.” Id. Further, this section also excludes from the
definition of “employee” those public authority workers who are “engaged in making
temporary or emergency repairs.” W. Va. Code § 21-5A-1(7).
While the language of this statute is plain, its application is a bit more
problematic. This definitional section, W. Va. Code § 21-5A-1(7), refers to “employees”
of a public authority, while the general purpose section, W. Va. Code § 21-5A-2, references
“workmen” employed by a public authority. The Act does not, however, separately define
the term “workman.” (See footnote 19) Having carefully reviewed the entire Act, it is apparent that the
Legislature intended the definition of “employee” to also give meaning to the term
“workman.” Aside from an isolated reference to the word “employees” in the context of
defining “construction industry” (See footnote 20) and use of the word “employee” in the definition of that
term, (See footnote 21) the words “employee” and “employees” are not used elsewhere in the Act. The
terms “workman” (See footnote 22) and “workmen” (See footnote 23) are repeatedly referenced throughout the Act, but they
are not defined therein. Thus, it is clear that the Legislature intended the definition of
“employee” to apply throughout the entire article setting forth the Prevailing Wage Act and
to ascribe meaning to the word “workman.” See W. Va. Code § 21-5A-1(7) (providing
definition of “[t]he term 'employee' for the purposes of this article” (emphasis added)). To
construe the word “employee” otherwise would render it meaningless, and, in matters of
statutory construction, every effort is made to give effect to each word and phrase adopted
by the Legislature, (See footnote 24) the presumption being that the Legislature would not have committed
a futile act. In other words, “[i]t is always presumed that the legislature will not enact a
meaningless or useless statute.” Syl. pt. 4, State ex rel. Hardesty v. Aracoma-Chief Logan
No. 4523, Veterans of Foreign Wars of the United States, Inc., 147 W. Va. 645, 129 S.E.2d
921 (1963). Accordingly, we hold that, pursuant to W. Va. Code § 21-5A-1(7) (1961)
(Repl. Vol. 2002), the terms “employee” and “workman,” as used in the West Virginia
Prevailing Wage Act, W. Va. Code § 21-5A-1, et seq., do not include workers who are (1)
employed or hired by a public authority on a regular basis, (2) employed or hired by a
public authority on a temporary basis, (3) employed or hired by a public authority to
perform temporary repairs, or (4) employed or hired by a public authority to perform
emergency repairs. (See footnote 25)
Applying W. Va. Code § 21-5A-1(7)'s definition of “employee”/“workman”
to the policy declared in W. Va. Code § 21-5A-2 requires further statutory construction in
order to give meaning to the legislative intent evidenced therein. As it is currently written,
and as it was interpreted in ACT Foundation, W. Va. Code § 21-5A-2 requires the
prevailing wage to be paid to “all workmen employed by or on behalf of any public
authority” when such workers are “engaged in the construction of public improvements.”
W. Va. Code § 21-5A-2 (emphasis added). However, the definition of
“employee”/“workman” specifically excludes from its scope those workers employed or
hired by a public authority. W. Va. Code § 21-5A-1(7). It is not possible, then, to require
that the prevailing wage be paid to persons employed by a public authority because the
more specific definitional section has specifically excluded such workers from the
definition of “employee.” Thus, the only construction that will give meaning and effect to
both the definitional section and the policy declaration section necessarily requires us to
limit the scope and application of the purpose of the prevailing wage requirement. Any
other construction would create an absurd result, which we are bound to avoid. See Syl. pt.
2, Richards v. Harman, 217 W. Va. 206, 617 S.E.2d 556 (2005) (“'Where a particular
construction of a statute will result in an absurdity, some other reasonable construction,
which will not produce such absurdity, will be made.' Syllabus Point 2, Newhart v.
Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938).”); Syl. pt. 2, Conseco Fin. Serv'g Corp.
v. Myers, 211 W. Va. 631, 567 S.E.2d 641 (2002) (“'It is the duty of a court to construe a
statute according to its true intent, and give to it such construction as will uphold the law
and further justice. It is as well the duty of a court to disregard a construction, though
apparently warranted by the literal sense of the words in a statute, when such construction
would lead to injustice and absurdity.' Syllabus Point 2, Click v. Click, 98 W. Va. 419, 127
S.E. 194 (1925).” (emphasis added)). Therefore, we hold that W. Va. Code § 21-5A-2
(1961) (Repl. Vol. 2002) requires the prevailing wage to be paid to all workmen who are
employed “on behalf of any public authority” and who are “engaged in the construction of
public improvements.” To the extent that our prior holding in Syllabus point 3 of Affiliated
Construction Trades Foundation v. University of West Virginia Board of Trustees, 210
W. Va. 456, 557 S.E.2d 863 (2001), is inconsistent with this holding, it is expressly
modified.
Having ascertained the proper meaning and application of the governing
statutory law, we must now apply these statutes to the facts of the case sub judice. During
the proceedings below, the hearing examiner determined that the TCSWA was required to
pay the temporary workers at issue herein the prevailing wage for the work they had
performed on the TCSWA's landfill expansion project. Because we disagree with the
construction ascribed to the Act by the hearing examiner, we reach a contrary conclusion.
As we noted above, W. Va. Code § 21-5A-1(7) does not include within the definition of
“employees” or “workmen” to whom the Act applies those persons “employed or hired by
the public authority on a . . . temporary basis.” Neither does W. Va. Code § 21-5A-2
require that the prevailing wage be paid to persons employed by a public authority.
Therefore, it is apparent that the TCSWA was not required to pay the prevailing wage to
the temporary workers it hired to perform excavation work on its landfill expansion project.
Accordingly, we grant the writ of prohibition requested by the TCSWA.
Responding to the TCSWA's arguments on this point, both the DOL and the
Trades Council (See footnote 32) suggest, and raise for the first time in the course of this case, that although
the TCSWA did not let to contract the work involved herein, it was required to do so by the
West Virginia Fairness In Competitive Bidding Act (hereinafter “Competitive Bidding
Act”), W. Va. Code § 5-22-1, et seq., which details the criteria for determining whether
projects are required to be let to contract. (See footnote 33) Therefore, they argue, that because the TCSWA
violated the Competitive Bidding Act by not letting to contract the excavation work
performed by the temporary workers, it should not be allowed to escape its responsibilities
under the Prevailing Wage Act, which would have applied but for the TCSWA's violation
of the Competitive Bidding Act.
We note at the outset that we have definitively determined, in the preceding
section of this opinion, that the Prevailing Wage Act does not apply to the facts of this case
and that the TCSWA is not required to pay the prevailing wage to temporary workers it
hired to perform excavation work on its landfill expansion project. Thus, further
consideration of the “let to contract” issue is not necessary for our decision of this case. We
agree, however, that in order to determine the “let to contract” issue, it is also necessary to
consider the requirements of the Competitive Bidding Act and whether the TCSWA
complied with its provisions in hiring the aforementioned workers. Nevertheless, several
factors preclude us from conducting such an inquiry in this case's present procedural
posture.
First, the intimation that the TCSWA has violated the Competitive Bidding
Act by not letting to contract the excavation work done on its landfill expansion project was
not raised before or addressed by the hearing examiner. While we recognize that the instant
matter is an original jurisdiction proceeding before this Court, we nevertheless must have
a record upon which to base our decision of issues raised in this case. Insofar as the record
in this case essentially consists of the record made before the DOL's hearing examiner, it
is silent as to the parties' arguments on the Competitive Bidding issue and lacks the factual
evidence necessary for us to determine this issue.
Moreover, because the question of the TCSWA's alleged violation of the
Competitive Bidding Act is being raised for the first time before this tribunal, no
administrative proceedings have been had on this matter. In this regard, the DOL represents
that it is not responsible for enforcing the Competitive Bidding Act and that the entity that
is charged with such enforcement is the Department of Administration; (See footnote 34) thus, the DOL's
hearing examiner did not have jurisdiction to consider this issue. However, there is no
indication that the Department of Administration has been notified of the allegations made
regarding the TCSWA's actions regarding its landfill expansion project or that the
Department of Administration has investigated the DOL's allegations, attempted to enforce
the provisions of the Competitive Bidding Act against the TCSWA, or otherwise pursued
this matter. Without having first litigated this matter through the appropriate administrative
channels, consideration thereof by this Court is premature.
Finally, while the hearing examiner alluded to the Competitive Bidding Act
in his decision in this case, such references were made with respect to the Attorney
General's advisory opinion upon which he relied in interpreting the scope of the Prevailing
Wage Act and comparisons between the wording and operation of the two acts. No
mention was made of the possibility that the TCSWA might have violated the Competitive
Bidding Act and, in fact, such allegations were first raised in DOL's Response Brief and
the subsequent Intervenor and Amicus Briefs filed with this Court in the instant proceeding.
All of these pleadings were filed after the TCSWA had filed its initial Petition for Writ of
Prohibition and, in light of the nature of this proceeding, the TCSWA was precluded from
filing a Reply Brief to respond to these allegations and arguments. (See footnote 35) Therefore, the only
opportunity that the TCSWA had to address the competitive bidding issues raised by its
opponents was during its oral argument before this Court. It was not permitted to reply in
writing, and it did not have an opportunity to provide additional evidentiary documentation
in support of its position. Thus, because the TCSWA has not had a full and fair opportunity
to thoroughly address this issue, further consideration of it at this time is premature and
raises concerns regarding the process that is due the TCSWA. See, e.g., Syl. pt. 2, Jordan
v. Roberts, 161 W. Va. 750, 246 S.E.2d 259 (1978) (“Under procedural due process
concepts a hearing must be appropriate to the nature of the case and from this flows the
principle that the State cannot preclude the right to litigate an issue central to a statutory
violation or deprivation of a property interest.”); Syl. pt. 1, Sisler v. Hawkins, 158 W. Va.
1034, 217 S.E.2d 60 (1975) (“'The due process of law guaranteed by the State and Federal
Constitutions, when applied to procedure in the courts of the land, requires both notice and
the right to be heard.' Point 2, Syllabus, Simpson v. Stanton, 119 W. Va. 235[, 193 S.E. 64
(1937)].”).
In closing, we wish to make it abundantly clear that we do not condone the
evasion of the requirements of one statute by the violation of a coordinating statute.
Whether such shenanigans happened in this case remains to be seen and cannot be
determined upon the record presently before us. Be that as it may, we decline further
consideration of the “let to contract” issue having already determined that the TCSWA was
not required to pay its temporary employees the prevailing wage for the work they
performed on the TCSWA's landfill expansion project.