William HARMON and Thomas Chiles, Sr., Petitioners below, Appellants, v. FAYETTE COUNTY BOARD OF EDUCATION, Respondent below, Appellee.
No. 25323.
Supreme Court of Appeals of West Virginia.
March 12, 1999.
516 S.E.2d 748
Submitted Jan. 13, 1999. Dissenting Opinion of Justice McGraw July 21, 1999.
Erwin L. Conrad, Esq., Conrad Law Offices, Fayetteville, West Virginia, Attorney for Appellee.
STARCHER, Chief Justice:
In the instant case, we uphold a decision by the Circuit Court of Fayette County, ruling that an attendance officer and his assistant, employees of the Fayette County Board of Education, are not entitled to receive a $600.00 annual pay supplement that the Legislature has said must be paid to “classroom teachers” who have at least 20 years of teaching service.
I.
Facts & Background
This case arises from a decision by an administrative law judge (“ALJ“) of the West Virginia Education and State Employees Grievance Board (“EEGB“), ruling on a grievance filed by the appellants, William Harmon (“Mr. Harmon“) and Thomas Chiles (“Mr. Chiles“), under the school personnel grievance procedures established in
The appellants are employees of the appellee, the Fayette County Board of Education (“the Board“). Mr. Harmon is employed as the Board‘s “attendance director.” Mr. Chiles is employed as an assistant to Mr. Harmon, and is called an “attendance officer.” We shall refer to both appellants as “attendance employees.”
The appellants claimed in their grievance that the Board had violated
The ALJ concluded that the appellants were not entitled to the retroactive supplemental pay, because the appellants were not “classroom teachers” who are statutorily entitled to the supplement. The ALJ also rejected the appellants’ claim that they were entitled to prevail in their grievance, and therefore to receive the retroactive supplemental pay, due to a procedural default resulting from the Board‘s untimely issuance of a decision at a lower level in the grievance process.
The appellants appealed the ALJ‘s decision to the Circuit Court of Fayette County. The circuit court upheld the ALJ‘s decision, and the instant appeal by the appellants to this Court followed.
Having set forth the foregoing summary of the facts and background of the instant case, we next state the applicable standard of review. We then discuss the issues; we in-
II.
Standard of Review
We review the decision of the circuit court under the same standard that the circuit court applies to the ALJ‘s decision: in matters of fact, we are deferential to the tribunal that heard the evidence; in matters involving the interpretation and application of law, our review is de novo. Martin v. Randolph County Board of Education, 195 W.Va. 297, 304, 465 S.E.2d 399, 406 [1995].
III.
Discussion
A.
Is an Attendance Employee a “Classroom Teacher?”
The appellants contend that their positions as attendance employees should be properly classified within the category of “classroom teacher,” thus requiring the payment to the appellants of the statutory salary supplement. The ALJ and circuit court ruled that the appellants’ positions were not properly classified within the “classroom teacher” category.2
We begin our discussion of this issue with the principle that all personnel employed by a board of education are “school personnel.” School personnel are further classified as either “professional personnel” or “service personnel.”
(a) “School personnel” means all personnel employed by a county board of education whether employed on a regular full-time basis, an hourly basis or otherwise. School personnel shall be comprised of two categories: Professional personnel and service personnel.
[Emphasis added.]
“Professional personnel,” in turn, are school personnel who are required to have professional certification.
(b) “Professional personnel” means persons who meet the certification and/or licensing requirements of the state, and shall include the professional educator and other professional employees.
One of the two categories of “professional personnel” is “professional educator“—a term that generally means the same thing as a “teacher.”
The category of “professional educator” is divided into four subcategories: “classroom teacher,” “principal,” “supervisor,” and “central office administrator.”
(c) “Professional educator” shall be synonymous with and shall have the same meaning as “teacher” as defined in section one, article one, chapter eighteen of this code. Professional educators shall be classified as:
(1) “Classroom teacher“—The professional educator who has direct instructional or counseling relationship with pupils, spending the majority of his time in this capacity.
(2) “Principal“—The professional educator who as agent of the board has responsibility for the supervision, management and control of a school or schools within the guidelines established by said board. The major area of such responsibility shall be the general supervision of all the schools and all school activities involving pupils, teachers and other school personnel.
(3) “Supervisor“—The professional educator who, whether by this or other appropriate title, is responsible for working primarily in the field with professional and/or other personnel in instructional and other school improvement.
(4) “Central office administrator“—The superintendent, associate superintendent, assistant superintendent and other professional educators, whether by these or other appropriate titles, who are charged with the administering and supervising of the whole or some assigned part of the total program of the county-wide school system.
(d) “Other professional employee” means that person from another profession who is properly licensed and is employed to serve the public schools and shall include a registered professional nurse, licensed by the West Virginia board of examiners for registered professional nurses and employed by a county board of education, who has completed either a two-year (sixty-four semester hours) or a three-year (ninety-six semester hours) nursing program.
This Court has recognized that these four subcategories within the overall category of “professional educator” are not easy to apply in some cases.
In Putnam County Board of Educ. v. Andrews, 198 W.Va. 403, 481 S.E.2d 498 [1996] (per curiam), Ms. Andrews, a school board employee, sought “administrative seniority” credit for her work as an educational diagnostician. She claimed that she had earned this administrative seniority credit either as a “central office administrator” or as a “supervisor.”
However, the board of education contended that Ms. Andrews’ educational diagnostician work was properly classified, for seniority purposes, as “classroom teacher” work—so that she was not entitled to administrative seniority credit.
This Court held on appeal that Ms. Andrews was not entitled to administrative seniority credit. We noted that Ms. Andrews’ work as an educational diagnostician primarily involved testing individual students for learning disabilities, etc.—and then participating in meetings to develop educational plans for the students. We concluded that for seniority purposes the “classroom teacher” classification was the most applicable to Ms. Andrews’ work.
We agreed with the board that while Ms. Andrews’ educational diagnostician duties might not on first glance fit comfortably within the definition of “classroom teacher,” it is clear that the definition focuses on the duties or work performed, rather than the location of the performance. Furthermore, a review of the alternatives [supervisor, principal, or central office administrator] reinforces our conclusion. 198 W.Va. at 408, 481 S.E.2d at 503.
We noted that Ms. Andrews’ work did not fit well in the “supervisor” or “central office administrator” subcategory definitions. Because she primarily worked directly with students; because any administrative duties she had were similar to those engaged in by more traditional classroom teachers; and be-
From the Andrews case, we can take the principle that the degree to which a professional educator directly works with students, regardless of the location of such work—and the suitability of alternative classifications—are two important factors in determining whether a professional educator should be classified as a classroom teacher.3
The appellants, in support of their contention that they are “classroom teachers” who are entitled to receive the $600.00 annual supplement, direct us to their employment contracts, that are written on standard “teacher” employment contract forms. The appellants also point out that during their many years as attendance employees, they have been paid according to “teacher” pay scales. (In 1995-96 Mr. Harmon made $39,280.50 as Attendance Director. In 1995-96, Mr. Chiles made $37,971.58 as an Attendance Officer.)4
The duties of attendance employees are set out in
The second letter shows that while the state superintendent‘s current position is that attendance employees are not entitled to receive the statutory supplemental amount, the state superintendent also takes the position that county boards of education retain the discretion to set their attendance employees’ salaries at a level that does include the six hundred dollar “classroom teacher” supplement. But if a county board does choose to give attendance workers the supplement, the superintendent‘s position is that such monies come from county funds only, and the state will not reimburse counties for the $600.00 supplement under the “school aid formula“—because the supplement is not a legal entitlement of the attendance employees.
The appellants presented brief, cursory and inconclusive testimony in the grievance proceedings, to the effect that their work includes an unspecified amount of one-on-one counseling with pupils regarding attendance issues. But by no stretch of the imagination could this minimal evidence be read to have established that the appellants’ duties require them to “spend[ ] the majority of [their] time in . . . [a] direct instructional or counseling relationship with pupils,” which is the definitional test for the subcategory “classroom teacher.”
Based on the statute and the record, it is clear that the appellants’ duties as attendance employees do not fit well within the “classroom teacher” subcategory. Andrews suggests that when we find such a poor fit, we should examine the alternatives. This examination reveals a subcategory, “central office administrator,” the statutory definition of which reads, in pertinent part:
other professional educators . . . who are charged with the administering and supervising of the whole or some assigned part of the total program of the county-wide school system.
The “central office administrator” definition fits the appellants’ duties much better than the “classroom teacher” definition. The definition also echoes the analysis of the Tennessee court in Pemberton (see note 3 supra) describing an attendance employee position as an administrative position.
Based on the foregoing reasoning, we conclude that an attendance director or assistant employed by a county board of education pursuant to the provisions of
Thus, the ALJ‘s ruling that the appellants were not “classroom teachers” who are entitled to receive the classroom teacher salary supplement was correct, and the circuit court was correct in upholding that ruling.
The Default Issue
The appellants also contend that they should receive the classroom teacher salary supplement due to a default in the grievance proceedings by the Board.
To understand this issue, a more detailed recitation of the procedural history of the appellants’ grievance is necessary.
In 1996, upon their request, the appellants were in fact given the $600.00 classroom teacher supplement by the Board‘s superintendent of schools, for the 1995-96 salary year only.6 This was the first time that the classroom teacher supplement had been given to the appellants.
On September 20, 1996, the appellants filed the grievance that is at issue in the instant case, seeking retroactive payment of the supplement for their past years of employment as attendance employees. On September 24, 1996, the Board‘s associate superintendent asked the appellants if they would agree to a delay in processing their grievance, due to the superintendent‘s illness. The appellants would not waive the grievance timetable. On October 3, 1996, the grievance seeking retroactive pay was denied at Level I.
Before the October 3, 1996 Level I decision, on September 30, 1996, the interim superintendent sought advice from the state superintendent of schools as to whether the grievants were entitled to receive classroom teacher supplements. That advice was rendered in the December 5, 1996 letter from the State Superintendent, see note 4, supra—to the effect that the appellants were not entitled to the supplement.
Meanwhile, the appellants appealed to Level II, and a Level II hearing was held on October 9, 1996. The decision resulting from the Level II grievance hearing was not issued until November 4, 1996—approximately 1 month after the Level II hearing. The Level II grievance evaluator‘s decision, apparently based on the state superintendent‘s 1990 letter, reversed the Level I ruling, and awarded retroactive supplemental pay to the appellants. The state superintendent‘s December 5, 1996 letter had not yet been issued.
The appellants and the Board received a copy of the Level II decision on November 15, 1996. On November 21, 1996, the Board gave notice that it was requesting a Level IV hearing before an ALJ.
The appellants contended before the ALJ, inter alia, that the appellants had prevailed by default at Level II as a result of an unexcused delay in the Board‘s Level II grievance response.
In addressing this contention, the ALJ ruled that the appellants’ failure to raise the default issue prior to the Board‘s request for a Level IV hearing constituted a waiver of their default claim; and also that the fact that the Level II decision was favorable to the appellants made any default claim moot. The ALJ also looked to common-law principles disfavoring defaults—see, e.g., Bego v. Bego, 177 W.Va. 74, 78, 350 S.E.2d 701, 705 (1986) (“It is well accepted that courts look with disfavor on judgments obtained by default“)—to find that the appellants should not prevail on a claim of default.
Having reviewed the facts regarding the appellants’ grievance as they relate to the issue of default, we next turn to a discussion of the applicable law.
The grievance statute for school personnel that is applicable to the proceedings in the instant case is
If a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in this article, unless prevented from doing so directly as a result of sickness or illness, the grievant shall prevail by default. Within five days of such
default, the employer may request a hearing before a level four hearing examiner for the purpose of showing that the remedy received by the prevailing grievant is contrary to law or clearly wrong. In making a determination regarding the remedy, the hearing examiner shall presume the employee prevailed on the merits of the grievance and shall determine whether the remedy is contrary to law or clearly wrong in light of that presumption. If the examiner finds that the remedy is contrary to law, or clearly wrong, the examiner may modify the remedy to be granted so as to comply with the law and to make the grievant whole.
[Emphasis added.] See also, Syllabus Point 4, Hanlon v. Logan County Bd. of Educ., 201 W.Va. 305, 496 S.E.2d 447 (1997) (“In order to benefit from the ‘relief by default’ provisions contained in
We observed in Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 465 S.E.2d 399, (1995) that the employer default provision in
In the instant case, the Board did ask for a Level IV hearing—on November 21, 1996, after they received the (untimely) Level II decision. The appellants assert that this request by the Board for a Level IV hearing was also untimely. The appellants claim that the Board‘s default “occurred” on October 15, 1996—the date when the Level II decision became untimely.
The appellants argue that the Board was therefore required to have requested a Level IV hearing regarding the default within 5 days of October 15, 1996—or by October 20, 1996. Because the Board did not ask for a Level IV hearing in a timely manner, the appellants say that they are entitled to prevail on their claim for retroactive benefits.
In response to the appellants’ arguments, the Board points out that it was unaware of the untimeliness of the grievance evaluator‘s response at Level II, and that no one brought the default claim to the Board‘s attention, so that the Board could exercise the right to ask for a Level IV hearing. The Board argues that in the absence of such a
The differing positions of the appellants and the Board arise from the fact—not discussed by the parties in their briefs—that there is in fact a lacuna, or gap or void, in
The lacuna is the lack of a specified “triggering event” for the running of the 5 days during which an employer may ask for a Level IV hearing regarding a default based on the employer‘s failure to timely respond to a grievance.
Is the 5-day period triggered simply by the expiration of the grievance response time—as the appellants contend?
Or is the 5-day period triggered by some other event, such as the assertion of a default by the grievant—as the Board contends?
While the statute itself offers no clear guidance in answering these questions, they must be answered—both in order to decide this case, and so that parties to grievances arising under
In addressing these questions, we find that the Legislature, in a 1997 revision of another public employee grievance statute,
The “timely grievance response” employer default provisions of
The question then presents itself: should this Court apply the “5-day notice” language of
Before answering this question, we pause to summarize our discussion thus far on the issue of default as it has arisen in the instant case.
First, we are uncertain regarding how to apply and construe
Upon this reasoning, we hold that under
The issue at Level IV was then whether the remedy received by the appellants at Level II was contrary to law or clearly wrong. That remedy—both as a result of the claimed default and as set out in the untimely Level II decision—was the determination that the appellants should be classified as “classroom teachers” for purposes of the salary supplement statute. And as we have already decided in part III.A., that determination was contrary to law.
Therefore, we uphold the ALJ‘s determination that the appellants were not entitled to be classified as “classroom teachers” for salary supplement purposes as a result of an employer default.
IV.
Conclusion
For the foregoing reasons, the judgment of the Circuit Court of Fayette County is affirmed.
Affirmed.
Justices DAVIS, WORKMAN, and MAYNARD join in the Opinion of the Court.
McGRAW, Justice, dissenting.
(Filed July 21, 1999)
Even if I agreed with the majority‘s assessment that appellants failed to demonstrate that their work was primarily devoted to counseling students so as to put them under the rubric of “classroom teacher” as defined in
The majority recognizes that “the degree to which a professional educator directly works with students, regardless of the location of such work,” is one of the primary criteria determining whether a school employee meets the definition of “classroom teacher.” Majority op. at 130, 516 S.E.2d at 753 (citing Putnam County Bd. of Educ. v. Andrews, 198 W.Va. 403, 481 S.E.2d 498 (1996) (per curiam)).1 I cannot see how,
Attendance directors and their assistants are charged by law with the fundamental duty of “ascertain[ing] reasons for inexcusable absences from school,” and “tak[ing] such steps as are, in their discretion, best calculated to correct attitudes of parents and pupils which results in absences from school.”
At the very least, this Court should refrain from concluding that no attendance personnel qualify as classroom teachers for purposes of receiving a salary supplement under
Because I find that appellants sufficiently demonstrated that they are classroom teachers as defined by
William “Benji” BECTON, Appellant, v. Nicholas HUN, Commissioner, West Virginia Department of Corrections, Appellee.
No. 25364.
Supreme Court of Appeals of West Virginia.
Decided May 18, 1999.
516 S.E.2d 762
Submitted Jan. 26, 1999.
Notes
Six hundred dollars shall be paid annually to each classroom teacher who has at least twenty years of teaching experience. The payments: (i) Shall be in addition to any amounts prescribed in the applicable state minimum salary schedule; (ii) shall be paid in equal monthly installments; and (iii) shall be considered a part of the state minimum salaries for teachers.
Andrews was, of course, rendered per curiam. I note this otherwise unremarkable fact only because reliance upon such authority appears to conflict with this Court‘s recent admonitions that per curiam opinions are “not legal precedent,” e.g., Elizabeth A.D. v. Hammack, 201 W.Va. 158, 159 n. 1, 494 S.E.2d 925, 926 n. 1 (1997), and are “not to be cited as authority to this Court,” State ex rel. State v. Reed, 204 W.Va. 520, 522 n. 4, 514 S.E.2d 171, 173 n. 4 (1999). Given the apparent confusion that these statements have caused among the bar and lower courts, see George Castelle, Reversals, Per Curiams, and the Common Law, W.Va. Lawyer, August 1998, at 26, as well as the fact that such a position raises serious constitutional concerns, I am compelled to take this opportunity to clarify my view regarding the significance of these opinions in the common law of our jurisdiction.
Although this Court at times, for whatever reasons, employs per curiam opinions to address issues of first impression, see, e.g., Central West Virginia Reg‘l Airport Auth. v. West Virginia Pub. Port Auth., 204 W.Va. 514, 513 S.E.2d 921 (1999), such opinions are customarily used only for disposition of cases involving issues that, at least upon initial review, turn exclusively upon well-settled principles of law. In light of the more cursory treatment afforded cases disposed of by per curiam opinion, they do not have the same precedential effect vis-à-vis the principle of stare decisis as do full-blown opinions authored by specific members of the Court. In other words, a per curiam opinion does not impose a significant impediment to the Court subsequently taking a different position on a particular issue. But, of course, this fact does not strip such opinions of all precedential value; rather, it simply means that in proceedings before this Court they are entitled to less weight than other fully-articulated opinions. This is the point that should be drawn from the Court‘s statement in Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992), that “[a] per curiam opinion that appears to deviate from generally accepted rules of law . . . should be relied upon only with great caution.”
That said, while per curiam opinions are not necessarily definitive statements regarding the law of this jurisdiction, they are nevertheless part of the common law, and are certainly binding upon all of the lower courts absent a conflict with other controlling authority, or until expressly modified or overruled by this Court.
No decision rendered by the court [of appeals] shall be considered as binding authority upon any court, except in the particular case decided, unless a majority of the justices of the court concur in such decision.
Implicit in this provision is the assumption that, where concurred in by at least three justices, the opinions of this Court are binding upon the lower courts. By mandating the reporting of any decision of this Court that reverses, modifies or affirms a judgment of an inferior court, see
A case decided per curiam is, notwithstanding the limitations discussed above, as much a part of the common law of this jurisdiction as any other opinion rendered by this Court. Consequently, I simply fail to see any mischief in citing per curiam opinions as authority to this or any other court. Even where there is a conflict with other well-ensconced precedent, these cases are at the very least persuasive authority.
In the instant case, the ALJ concluded that the appellants were not “school personnel” subject to Chapter 18A—because attendance employee positions are created in a separate statutory chapter, Chapter 18. See
It is true that the attendance employee position historically known as “truant officer” is statutorily created in a different fashion than are other school board employee positions—and attendance employees have historically had different conditions of employment. Id. For example, until 1997, a county board of education had apparently unlimited discretion in hiring and firing attendance employees.
However, attendance employees who hold a West Virginia teacher‘s certificate are included in the definition of “teacher members” in
In light of the foregoing discussion, and the clear language of
We have recognized that the careful use of the term “classroom teacher” by the Legislature indicates that a statute is not directed at “professional educators/teachers” generally, but at employees who meet the specific criteria of the “classroom teacher” definition. See Pockl v. Ohio County Bd. of Educ., 185 W.Va. 256, 259, 406 S.E.2d 687, 690 (1991).
Andrews is apparently our only case directly addressing how to apply the subcategories contained within the professional educator category, and no case has considered how the “attendance employee” position fits within the statutory framework.
However, our research has identified one case, State ex rel. Pemberton v. Wilson, 481 S.W.2d 760 (Tenn. 1972), in which the Tennessee Supreme Court of Appeals dealt with a transfer of an employee from the job of “attendance teacher” to a classroom teaching position. The Tennessee court stated:
The position of Attendance Teacher is an administrative or supervisory position of county-wide scope and the Attendance Teacher is a member of the staff of the County Superintendent. Some of the duties of the position include taking the school census, investigation of all illegal pupil absences, and the assistance of students lacking sufficient wearing apparel by the cooperation with civic and welfare agencies to obtain these necessities in order to reduce pupil nonattendance, all under the supervision of the County Superintendent. The position does not require the teaching of pupils in a classroom.
The duties of a Classroom Teacher are exactly those which the name implies. It is not an administrative or supervisory position.
The appellants also direct us to changing positions taken by the state superintendent of education on the question of whether attendance employees are or are not classroom teachers who are entitled to receive the classroom teacher supplement.
In a February 1990 letter to a Jefferson County school official the state superintendent wrote:
February 6, 1990
Mr. George R. Frame
Associate Superintendent
Personnel/Public Information
Jefferson County Schools
Post Office Box 987
Charles Town, West Virginia 25414
Re: COUNTY ADMINISTRATOR $600 TEACHING INCREMENT
Dear Mr. Frame:
You have asked whether two instructional specialists who are assigned to the board office, yet spend much of their time in classrooms dealing with instruction, are entitled to the annual $600.00 salary supplement granted by
Probably not, because their job description has them doing very little teaching. Their teaching seems limited to PERFORMANCE STANDARDS: 2(E). If, however, they actually do spend most of their time helping to teach class, notwithstanding the language of their job‘s description, then they appear to be entitled to this supplement.
The reason why school counselors, school psychologists, social service and attendance workers and librarians are due this supplement—as well as classroom teachers—is that they work directly with school children, rather than working through other personnel (as, for example, principals do).
Hoping that I have been of service, I am,
Sincerely,
Henry Marockie
State Superintendent of Schools
cc: Dr. Robert Ingram
Superintendent
Jefferson County Schools
[Emphasis added.]
On December 5, 1996, the state superintendent wrote to the Board in the instant case:
December 5, 1996
Mr. K.R. Carson
Interim Superintendent
Fayette County Schools
111 Fayette Avenue
Fayetteville, West Virginia 25840
Dear Mr. Carson:
This is in response to the letter from Dr. Capehart of September 30, 1996, requesting an
[Continuation of Footnote 4 from page 130]interpretation from our office regarding the six hundred dollar increment granted to classroom teachers who have obtained at least twenty years of teaching experience, pursuant to
Specifically, Dr. Capehart was seeking information as to whether or not school psychologists and social service and attendance workers are entitled to the annual supplement and if they are entitled to such supplement, are they entitled to back pay.
In response to this question, it is important to note that the
Therefore, nothing in the law specifically requires that the supplement be paid to school psychologists or social service and attendance workers. In a letter dated February 6, 1990, our office stated that school counselors, school psychologist, social service and attendance workers and librarians were entitled to the supplement due to the fact that they work directly with the pupils, as required by
The letter of February 6, 1990, should be disregarded. It is now the position of our office that the only other employees who qualify for the supplement are librarians and school counselors. We therefore ask that the February 6, 1990, letter be disregarded. The school aid formula only allows for “classroom teachers” which includes librarians and school counselors. Any county who has been paying the supplement to school psychologists or social service and attendance workers has been doing so with county funds and not with state funds.
Hoping that I have been of service, I am
Sincerely,
Henry Marockie
State Superintendent of Schools
[Emphasis added.]
These letters do not weigh on behalf of the appellants’ position. The first letter is not alleged to have been the basis for any reliance by the appellants. The second letter, generated in reply to a request by the Board for a current interpretation of the law as it should be applied to the appellants’ case, is a reasonable reading of the statute and is consistent with our decision in Andrews, infra.
[Continuation of Footnote 5 from page 131]The county attendance director and the assistants shall diligently promote regular school attendance. They shall ascertain reasons for inexcusable absences from school of pupils of compulsory school age and students who remain enrolled beyond the sixteenth birthday as defined under this article and shall take such steps as are, in their discretion, best calculated to correct attitudes of parents and pupils which results in absences from school even though not clearly in violation of law.
In the case of five consecutive or ten total unexcused absences of a child during a school year, the attendance director or assistant shall serve written notice to the parent, guardian or custodian of such child that the attendance of such child at school is required and that within ten days of receipt of the notice the parent, guardian or custodian, accompanied by the child, shall report in person to the school the child attends for a conference with the principal or other designated representative of the school in order to discuss and correct the circumstances causing the inexcusable absences of the child; and if the parent, guardian or custodian does not comply with the provisions of this article, then the attendance director or assistant shall make complaint against the parent, guardian or custodian before a magistrate of the county.
* * * * * *
When any doubt exists as to the age of a child absent from school, the attendance director shall have authority to require a properly attested birth certificate or an affidavit from the parent, guardian or custodian of such child, stating age of the child. The county attendance director or assistant shall, in the
performance of his or her duties, have authority to take without warrant any child absent from school in violation of the provisions of this article and to place such child in the school in which such child is or should be enrolled.
The county attendance director shall devote such time as is required by section three of this article to the duties of attendance director in accordance with this section during the instructional term and at such other times as the duties of an attendance director are required. All attendance directors hired for more than two hundred days may be assigned other duties determined by the superintendent during the period in excess of two hundred days. The county attendance director shall be responsible under direction of the county superintendent for the efficient administration of school attendance in the county.
In addition to those duties directly relating to the administration of attendance, the county attendance director and assistant directors shall also perform the following duties:
(a) Assist in directing the taking of the school census to see that it is taken at the time and in the manner provided by law;
(b) Confer with principals and teachers on the comparison of school census and enrollment for the detection of possible nonenrollees;
(c) Cooperate with existing state and federal agencies charged with enforcement of child labor laws;
(d) Prepare a report for submission by the county superintendent to the state superintendent of schools on school attendance, at such times and in such detail as may be required; also, file with the county superintendent and county board of education at the close of each month a report showing activities of the school attendance office and the status of attendance in the county at the time;
(e) Promote attendance in the county by the compilation of data for schools and by furnishing suggestions and recommendations for publication through school bulletins and the press, or in such manner as the county superintendent may direct;
(f) Participate in school teachers’ conferences with parents and students;
(g) Assist in such other ways as the county superintendent may direct for improving school attendance;
(h) Make home visits of students who have excessive unexcused absences, as provided above, or if requested by the chief administrator, principal or assistant principal.
(i) The attendance director shall serve as the liaison for homeless children and youth.
(The 1997 amendments to this statute have not changed these duties in a way that affects the outcome of this case).
Syllabus Point 3 of Parsons states:
In determining whether a default judgment should be entered in the face of a Rule 6(b) motion or vacated upon a Rule 60(b) motion, the trial court should consider: (1) The degree of prejudice suffered by the plaintiff from the delay in answering; (2) the presence of material issues of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the degree of intransigence on the part of the defaulting party.
Given the broad scope of Parsons’ multifaceted inquiry, it is not difficult to understand why the Legislature in
If the full array of Parsons factors and related equitable principles disfavoring default were generally applicable to
To judicially engraft the Parsons and related principles onto
In the instant case, the ALJ suggested that, despite this court‘s statement in Martin disavowing the general applicability of equitable factors to employer defaults in public employee grievance proceedings, those principles could nevertheless be applied in such proceedings on the issue of whether to set aside a default, as opposed to the issue of granting one.
This suggestion by the ALJ reflects an apparent misunderstanding of how defaults ordinarily occur. Defaults typically occur automatically or are obtained as ministerial acts, without any balancing of factors by a tribunal. The Parsons and related equitable factors, if they are applicable at all, almost always arise in a motion to set aside or nullify a default judgment.
Importantly, under the provisions of
This standard for a Level IV review of a default resembles the deferential “contrary to law/clearly wrong” standard of review that courts commonly apply to the judgments of administrative bodies (and that this Court often applies to the judgments of circuit courts.) See, e.g., Martin v. Randolph County Board of Education, 195 W.Va. 297, 304, 465 S.E.2d 399, 406 [1995]. Such a standard is more commonly applied to decisions that are based on an administrative or trial court record. In the case of a default in the grievance process, there is less likely to be such a record from the lower level grievance. From the statutory language, it appears that the legislative intent is, when an employee has prevailed by default as the result of an employer‘s unexcused failure to make a timely grievance response: (1) to create a presumption of correctness on the merits in favor of a grievant who has prevailed by default (especially as to matters of disputed fact involved in the grievance); (2) to conversely place a substantial burden upon an employer seeking to overturn or modify the result of a grievant‘s prevailing by default; and (3) to focus the Level IV review narrowly, applying this presumption and this burden, on matters directly relating to the legal correctness of the judgment or “remedy” obtained as a result of the grievant‘s prevailing by default in the grievance, and not to open the proceedings to ancillary issues. See note 7 supra.
The grievant prevails by default if a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in this article, unless prevented from doing so directly as a result of sickness, injury, excusable neglect, unavoidable cause or fraud. Within five days of the receipt of a written notice of the default, the employer may request a hearing before a level four hearing examiner for the purpose of showing that the remedy received by the prevailing grievant is contrary to law or clearly wrong. In making a determination regarding the remedy, the hearing examiner shall presume the employee prevailed on the merits of the grievance and shall determine whether the remedy is contrary to law or clearly wrong in light of that presumption. If the examiner finds that the remedy is contrary to law, or clearly wrong, the examiner may modify the remedy to be granted so as to comply with the law and to make the grievant whole.
[Emphasis added.]
Notably, the list of legitimate reasons to excuse an employer default is somewhat expanded in