Gwen LUCION, et al., Petitioners Below, Appellees, v. McDOWELL COUNTY BOARD OF EDUCATION, Respondent Below, Appellant.
No. 21897.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 19, 1994. Decided Feb. 17, 1994. Dissenting Opinion of Justice McHugh July 20, 1994.
446 S.E.2d 487
Robert E. Blair, Welch, for appellant.
PER CURIAM:
The McDowell County Board of Education (hereinafter the Board) appeals a decision of the Circuit Court of McDowell County holding that the Board should follow the reduction in force provisions of
In April 1989, the appellees received notice that Superintendent Kenneth Roberts would recommend the termination of their employment contracts. The terminations were designed to reduce employment costs because of an expected decline in 1989-90 school year operating funds caused by decreased student enrollment. The appellees are service personnel whose contract employment terms for the 1988-89 school year exceeded 200 days. At the appellees’ request, the Board held a hearing of April 18, 1989. After the hearing, the Board voted to terminate the appellees’ contracts and to “reinstate” the appellees to identical contracts except with reduced employment terms. Most of the appellees’ employment terms were reduсed from 261 days to 240 days with a proportional decrease in salary.34
Alleging that the Board acted improperly in reducing their employment terms, the appellees filed a grievance. After their grievance was waived at Levels I, II and III, a Level IV hearing was held before the West Virginia Education and State Employees Grievance Board. Based on Bd. of Educ. of the County of Fayette v. Hunley, 169 W.Va. 489, 288 S.E.2d 524 (1982), the Level IV hearing examiner found that the Board had followed statutory requiremеnts to terminate the appellees’ contracts and rejected the appellees’ argument that the Code requires the Board to follow the reduction in force provisions of
I
The central question in this case concerns the options available to a board of education to cut costs arising from the employment of service personnel. The appellees maintain that because of their continuing employment contacts (
This Court consistently has acknowledged that “[c]ounty boards of education have substantial discretion in matters relating to the hiring, assignment, transfer, and promotion of school personnel. Nevertheless, this discretion must be exercised reasonably, in thе best interests of the schools, and in a manner which is not arbitrary and capricious.” Syllabus Point 3, Dillon v. Bd. of Educ. of County of Wyoming, 177 W.Va. 145, 351 S.E.2d 58 (1986); Triggs v. Berkeley County Bd. of Educ., 188 W.Va. 435, 445, 425 S.E.2d 111, 121 (1992); Bd. of Educ. of County of Wood v. Enoch, 186 W.Va. 712, 414 S.E.2d 630 (1992); Syl.Pt. 3, Pockl v. Ohio County Bd. of Educ., 185 W.Va. 256, 406 S.E.2d 687 (1991).
A board of education has the discretion to determine the number of jobs for and the employment terms of a board‘s service personnel, provided that the requirements of
At both the Board‘s hearing and the Level IV hearing, the appellees claimed that the Board acted in an arbitrary and capricious manner in reducing their employment terms because the reduced terms would result in unmet school needs and substantial overtime that would annihilate any net savings. Determinations of the number of service personnel and the length of their employment terms are primarily management decisions. Without a clear statutory requirement, such determinations should remain with a board of education. Although
If a board of education decides to reduce the number of jobs for service personnel, the board must follow the reduction in force procedures of
must “make decisions affecting promotion and filling of any service personnel positions of employment or jobs ... on the basis of seniority, qualifications and evaluation of past service.”
In Bd. of Educ. of the County of Fayette v. Hunley, supra, we stated that the procedures of
When a county sсhool board seeks to reduce the working hours of a service employee by one half, the board must comply with the procedures set out in
W.Va.Code, 18A-2-6 [1973].
The appellees argue that Hunley is no longer applicable because of statutory changes. In support of their argument, the appellees cited their continuing contract (
The non-relegation clause of
No service employee, without his written consent, may be reclassified by class title, nor may a service employee, without his written consent, be relegated to any condition of employment which would result in a reduction of his salary, rate of pay, compensation or benefits earned during the current fiscal year or which would result in a reduction of his salary, rate of pay, compensation or benefits for which he would qualify by continuing in the same job position and classification held during said fiscal year and subsequent years.11
Finally,
In this case, although the Board followed the contract termination procedures of
II
In Syllabus Point 1, Randolph County Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989), we stated:
A final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuаnt to
W.Va.Code, 18-29-1 , et seq. (1985), and based upon findings of fact, should not be reversed unless clearly wrong.
In accord Pockl v. Ohio County Bd. of Ed., supra, 185 W.Va. at 259-60, 406 S.E.2d at 690-91. Based on Hunley, we find that the Level IV hearing examiner correctly dismissed the appellees’ grievance because the Board complied with the termination procedures of
In this case, the Board‘s decision that the schools needed more service employees during the school year and fewer service employees during the summer and other non-school days, is reasonable. Firing some of the service employees would have reduced the service personnel employment costs but at the expense of the ability to meet immediately the needs during the school year. From the humanitarian prospective, the firing of people in economic hard times, rather than reducing everyone‘s hours defeats government‘s implied goal of helping to provide counter cyclical employment.
For the аbove stated reasons, the judgment of the Circuit Court of McDowell County is reversed and the decision of the West Virginia Education and State Employees Grievance Board is reinstated.
Reversed.
McHUGH, Justice, dissenting:
I dissent from the majority opinion because I believe that the non-relegation clause found in
The legislature obviously sought to give service personnel protection from the whims of a board of education when it enacted what is commonly known as the non-relegation
No service employee, without his written consent, may be reclassified by class title, nor may a service employee, without his written consent, be relegated to any condition of employment which would result in a reduction of his salary, rate of pay, compensation or benefits earned during the current fiscal year or which would result in a reduction of his salary, rate of pay, compensation or benefits for which he would qualify by continuing in the same job position and classification held during said fiscal year and subsequent years.
Simply put, the non-relegаtion clause clearly prohibits boards of education from reducing a service employee‘s pay, compensation or benefits without the consent of the service employee.
This Court has previously stated that “[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). The non-relegation clause in
With these basic principles in mind, we turn to the facts before us. The majority previously noted that the board of education terminated the employment contracts of 57 school service personnel. Subsequently, the board of education rehired the 57 school service personnel for the 1989-90 school year with reduced employment terms and proportional decreases in salary. The 57 school service personnel did not consent to the reduced employment terms and decreases in salary. Clearly, the board of education relegated the 57 school service personnel to a condition of employment which resulted in a reduction in salary without the written consent of the school personnel in violation of the non-relegation clause found in
Instead, the majority relied on Board of Education v. Hunley, 169 W.Va. 489, 288 S.E.2d 524 (1982) which states in the syllabus: “When a county school board seeks to reduce the working hours of a service employee by one half, the board must comply with the procedures set out in
The majority attempts to carve out an economic solution for a board of education which is not authorized anywhere in Chapter 18A of the W.Va.Code (Chapter 18A concerns school personnel). Furthermore, there is no need for the majority to carve out a solution because the legislature gives a board of education several options when dealing with economic problems in Chapter 18A of the Code.
For instance,
I find no provision in Chapter 18A of the W.Va.Code which indicates that the non-relegation clause is to be ignored in situations where it is just not convenient. Therefore, it is clear that a board of education, in an effort to cut costs, may not terminate a service employee‘s contract without his consent in order to rehire him with rеduced employment terms if the reduced employment terms result in a reduction of pay or benefits. Accordingly, the majority‘s blatant disregard of the non-relegation clause in
Based on the foregoing, I dissent from the majority‘s opinion. I am authorized to state that Justice MILLER joins me in this dissent.
Notes
Should a county board of education be required to reduсe the number of employees within a particular job classification, the employee with the least amount of seniority within that classification or grades of classification shall be properly released and employed in a different grade of that classification if there is a job vacancy: Provided, That if there is no job vacancy for employment within such classification or grades of classification, he shall be employed in any other job classificаtion which he previously held with the county board if there is a vacancy and shall retain any seniority accrued in such job classification or grade of classification.
The continuing contract of any such employee shall remain in full force and effect except as modified by mutual consent of the school board and the employee, unless and until terminated with written notice, stating cause or causes, to the employee, by a majority vote of the full membership of the board before the first day of April of the then current year ... except that for the school year one thousand nine hundred eighty-eight-eighty-nine only, the board shall have until the fourth Monday of April, one thousand nine hundred eighty-nine, to initiate termination of a continuing contract. (Emphasis added.)
A county board of education shall make decisions affecting promotion and filling of any service personnel positions of employment or jobs occurring throughout the school year that are to be performed by service personnel as provided in section eight [§ 18A-4-8], articlefour of this chapter, on the basis of seniority, qualifications and evaluation of past service. Boards shall be required to post and date notices of all job vacancies of established existing or newly created positions in conspicuous working places for all school service employees to observe for at least five working days.... See Marion County Bd. of Educ. v. Bonfantino, 179 W.Va. 202, 366 S.E.2d 650 (1988) (posting required to fill classroom teacher vacancy).
After three years of acceptable employment, each auxiliary and service personnel employee who enters into a new contract of employment with the board shall be granted continuing contract status: Provided, That a service personnel employee holding continuing contract status with one county shall be granted continuing contract status with any other county upon completion of one year of acceptable employment if such employment is during the next succeeding school year or immediately following an approved leave of absence extending no more than one year. The continuing contract of any such employee shall remain in full force and effect except as modified by mutual consent of the school board and the employee, unless and until terminated with written notice, stating cause or causes, to the еmployee, by a majority vote of the full membership of the board before the first day of April of the then current year, or by written resignation of the employee before that date, except that for the school year one thousand nine hundred eighty-eight-eighty-nine only, the board shall have until the fourth Monday of April, one thousand nine hundred eighty-nine, to initiate termination of a continuing contract. The affected employee shall have the right of a hearing before the board, if requested, before final action is taken by the board upon the termination of such employment....The 1981 amendment deleted “auxiliary” personnel from coverage and made other minor changes.
No service employee, without his written consent, shall be reclassified by class title normay a service employee, without his written consent be relegated to any condition of employment which would result in a reduction of his salary earned during the current fiscal year or which would result in a reduction of his salary for which he would qualify by continuing in the same job position and classification held during said fiscal year and subsequent years.