J.W. Barringer, Esquire
Kathryn Reed Bayless, Esquire
Feuchtenberger & Barringer Legal Corp. Bayless & McFadden
Princeton, West Virginia Princeton, West Virginia
William B. McGinley Attorney for Appellee
West Virginia Education Association
Charleston, West Virginia
Attorneys for Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MCGRAW, deeming himself disqualified, did not participate in the decision in this case.
JUSTICE McHUGH, sitting by temporary assignment.
JUSTICE STARCHER dissents and reserves the right to file a dissenting Opinion.
1. Seniority for professional employees of a county board of education is
based on 'regular, full-time' professional employment and the only seniority that a substitute
teacher can earn is 'exclusively for the purpose of applying for employment' and this limited
employment preference accrues '[u]pon completion of one hundred thirty-three days of
employment in any one school year.' W.Va.Code, 18A-4-7a . Syl. Pt. 4, Triggs v.
Berkeley County Bd. of Educ.,188 W.Va. 435, 425 S.E.2d 111 (1992).
2. A final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuant to W.Va. Code, 18-29-1, et seq. (1985), and based upon findings of fact, should not be reversed unless clearly wrong. Syl. Pt. 1, Randolph County Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).
Appellant Kitty Townsend appeals from the September 24, 1998, decision of the Circuit Court of Mercer County, reversing, in part, an administrative decision concerning a non-selection grievance filed by Appellant against the Respondent Board of Education of Mercer County (the Board). Upon a full examination of the record submitted to this Court, we conclude, based on error that is apparent from the lower court's order, that this matter must be reversed and remanded for further proceedings consistent with this opinion.
On August 22, 1996, the Board posted a second grade teaching position for
Wade Elementary School. Included among the thirty-four applicants for the position were
Appellant and Sherri Foy. Following the award of the classroom teaching position to Ms.
Foy, Appellant filed a grievance pursuant to the provisions of West Virginia Code §§ 18-29-1
to -11 (1999). Appellant challenged the Board's decision on the ground that she was more
qualified than Ms. Foy. At the conclusion of level four of the grievance proceedings, ALJ
Jennifer Meeks ruled, in a decision dated November 4, 1997, that Appellant should be
granted one year of seniority based on her 1989-90 year of substitute teachingSee footnote 1
the matter back to the Board for a reassessment of each of the applicants' qualifications.See footnote 2
The Board appealed from the ALJ's decision, but complied with the administrative directive during the pendency of the appeal by reassessing the applicants' qualifications. Following its completion of the reassessment process, the Board again awarded the teaching position to Ms. Foy. Appellant did not file a grievance in connection with the Board's second decision that Ms. Foy was the most qualified individual for the classroom teaching position.See footnote 3 3
When the circuit court ruled in connection with the Board's appeal from the
November 1997 ALJ decision, Judge Knight reversed the ALJ's decision on the limited
ground that the level four ruling was clearly wrong and contrary to law to the extent that
such ruling permitted the retroactive application of W.Va. Code § 18A-4-7a (paragraph 3)
for seniority prior to the date of enactment of said statutory provision on August 31, 1990.See footnote 4
Through her appeal to this Court, Ms. Townsend seeks a reversal of the circuit court's order
and a reinstatement of the ALJ's ruling that she is entitled to one-year of seniority toward
future job applications.See footnote 5
Appellant does not seek the classroom position which was awarded
to Ms. Foy.
At the center of this matter is the enactment of West Virginia Code § 18A-4-7a
(1997), which became effective on August 31, 1990. The pertinent provisions of the statute
Upon completion of one hundred thirty-three days of employment in any one school year, substitute teachers shall accrue seniority exclusively for the purpose of applying for employment as a permanent, full-time professional employee. One hundred thirty-three days or more of said employment shall be prorated and shall vest as a fraction of the school year worked by the permanent, full-time teacher.
W.Va. Code § 18A-4-7a. With the enactment of subsection 7a, a substitute teacher only acquires seniority for the actual number of days spent teaching in the classroom pursuant to a pro rata formula. For example, a substitute teacher who taught 150 days of a 200-day school year would acquire 150/200 or 3/4 of a year's seniority.
Prior to the enactment of subsection 7a, some county boards of education had
a practice of awarding a full year of seniority to those substitute teachers who worked more
than 133 days of a 200-day school year.See footnote 6
The parties are in agreement, however, that Mercer
County did not utilize this method of awarding seniority to its substitute teachers.See footnote 7
the codification of subsection 7a, the Legislature resolved the manner in which seniority was
to be calculated for substitute teachers and clarified the limited use for such seniority. As we
explained in syllabus point four of Triggs v. Berkeley County Board of Education,188 W.Va.
435, 425 S.E.2d 111 (1992),
Seniority for professional employees of a county board of education is based on regular, full-time professional employment and the only seniority that a substitute teacher can earn is exclusively for the purpose of applying for employment and this limited employment preference accrues [u]pon completion of one hundred thirty-three days of employment in any one school year. W.Va.Code, 18A-4-7a .
Much confusion has resulted from the lower court's conclusion that the ALJ's decision to award one year of seniority to Appellant for her 1989-90 year of substitute teaching was based upon a wrongful retroactive application of West Virginia Code § 18A-4- 7a. A careful reading of the lengthy administrative ruling demonstrates that ALJ Meeks fully appreciated the fact that the enactment of subsection 7a did not become effective until August 31, 1990, and even more importantly, that the statutory provision in issue could be applied only in a prospective manner.See footnote 8 8 This is demonstrated by the discussion included in the ALJ's decision devoted to the issue of seniority. As an introduction to the issue, ALJ Meeks differentiates between the current method of calculating seniority for substitute teachers, as set forth in West Virginia Code § 18A-4-7a, and the previous method, which was controlled by West Virginia Code § 18A-4-8b(a). In explanation of the prior method, the ALJ first quoted from subsection 8b(a): The seniority of professional personnel shall be determined on the basis of the length of time the employee has been professionally employed by the county board of education . . . Employment for a full employment term shall equal one year of seniority[.]See footnote 9 9 Continuing the discussion, the ALJ states that:
[u]nder this provision, a substitute teacher was credited with one year of seniority when he or she worked as a substitute for 133 days or more during one school year. Further, if the substitute later became regularly employed, he or she retained any credited seniority due to substitute service as part of his or her permanent seniority. The statutory amendments to W.Va. Code § 18A-4-7a which altered this method of calculating seniority were enacted in the third executive session of the 1990 Legislature, and became effective August 31, 1990.
After contrasting the two mechanisms used for calculating substitute seniority,
the ALJ discusses how the West Virginia Education and State Employees Grievance Board
(Grievance Board) had adopted a practice, beginning with its Hoffman decision,See footnote 10
appl[ying] the statute [W.Va. Code § 18A-4-7a] as it is currently written, without regard for
any seniority accrued pursuant to the earlier provisions through working as a substitute prior
to August 31, 1990. Relying primarily on Landers v. Kanawha County Board of
Education,See footnote 11
a circuit court decision authored by the Honorable Charles E. King, the ALJ
determined that the Grievance Board had been wrong to apply subsection 7a in a manner that
deprived teachers of substitute seniority that had accrued and been awarded to them prior to
the enactment of subsection 7a.See footnote 12
In her decision, ALJ Meeks expressly overruled the
Hoffman line of cases,See footnote 13
The Hoffman line of cases is found to be in error, and we abandon application of the current statutory provisions to substitute service performed prior to their enactment. Hoffman and its progeny are hereby expressly overruled, to the extent that they applied retroactively statutory changes which became effective August 31, 1990. . . . Service as a substitute teacher for 133 days or more in any single school year, which was credited towards one's seniority prior to August 31, 1990, may be retained.
Upon review, it is patently clear that ALJ Meeks only used the term retroactively in specific reference to the Grievance Board's application of subsection 7a in a manner which failed to take into consideration any seniority acquired by teachers through substitute teaching prior to the effective date of subsection 7a. Contrary to the circuit court's suggestion, the ALJ did not apply subsection 7a in a retroactive fashion to conclude that Appellant was entitled to one year of seniority for her substitute teaching during the 1989-90 school year. Instead, the ALJ looked to the practice that some countiesSee footnote 14 14 employed before the enactment of subsection 7a of awarding a full year of seniority to those teachers who had worked as a substitute teacher for at least 133 days of a given school year as the sole basis for her determination that Appellant was entitled to one year of seniority.See footnote 15 15 The record in this case makes clear that no retroactive application of subsection 7a occurred. Thus, the lower court erred in determining that a reversal of the ALJ's decision was required based on the fact that such ruling permitted the retroactive application of W.Va. Code § 18A-4-7a . . . prior to the date of enactment of said statutory provision on August 31, 1990.
Given our conclusion that the circuit court erred in ruling that the ALJ
retroactively applied West Virginia Code § 18A-4-7a, there is no basis for the lower court's
reversal of the grievance decision. See generally W.Va. Code § 18-29-7 (delineating grounds
for reversal of grievance rulings). We explained in syllabus point one of Randolph County
Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989), that [a] final order
of the hearing examiner for the West Virginia Educational Employees Grievance Board,
made pursuant to W.Va. Code, 18-29-1, et seq. (1985), and based upon findings of fact,
should not be reversed unless clearly wrong. Since we have found error with the lower
court's ruling that the administrative decision was clearly wrong, the lower court's reversal
of the administrative ruling cannot be upheld. See W.Va. Code § 18-29-7.
Having determined that the ALJ did not rely upon a retroactive application of subsection 7a to award Appellant one year of seniority, we turn next to the issue of whether the ALJ was correct in granting Appellant this year of seniority. The Board argues that in awarding the one year of seniority, the ALJ wrongfully assumed facts not in evidence. Since Appellant failed to introduce any evidence belowSee footnote 16 16 with regard to the practices of Mercer County, the Board contends that the ALJ erred in assuming that Mercer County followed the practice of awarding a year of seniority upon the completion of 133 days of substitute teaching prior to the enactment of subsection 7a. While the parties represent on appeal that Mercer County did not follow this practice, no evidence was introduced on this issue below. Without evidence to substantiate that Mercer County employed such a practice, the Board argues that even the reasoning of the ALJ's decision fails to support the award of seniority to Appellant. Citing the ALJ's conclusion that [s]ervice as a substitute teacher for 133 days or more in any single school year, which was credited towards one's seniority prior to August 31, 1990, may be retained[,] the Board maintains that the ALJ was without authority to make such an award sua sponte since the Board had never credited Appellant with one year of seniority prior to the enactment of subsection 7a.
Given the absolute dearth of evidence submitted below on the issue of Mercer County's practices concerning substitute seniority, this Court cannot determine whether Appellant should have been awarded a year of seniority for her substitute teaching during 1989-90. Accordingly, we find it necessary to remand this matter for evidentiary proceedings to permit the parties to address the practice employed by Mercer County with regard to awarding seniority for substitute teaching prior to August 31, 1990. If, upon remand, it is determined that Mercer County never awarded seniority to any teachers for substitute teaching during the pertinent time period, then ALJ Meeks was clearly without authority in awarding Appellant one year of seniority. On the other hand, if the evidence introduced clearly demonstrates that there was a uniform statewide policy in effect during the relevant time period, that policy should be heavily weighted in considering the issue of whether the ALJ was correct in awarding the one year of seniority to Appellant for her year of substitue teaching. See Wood County Bd. Of Educ. v. Smith 202 W.Va. 117, 120, 502 S.E.2d 214, 217 (1998) (discussing issue of conflicting state superintendent positions and stating that current interpretation should be accorded great weight unless such interpretation is clearly wrong).
Based on the foregoing, this matter is reversed and remanded for further
proceedings consistent with this opinion.
Reversed and remanded.
One must work 133 days in order to receive credit for a year of
teacher's experience for pay increment purposes. See State
Superintendent's Interpretations 'Teacher--Salary.' March 11, 1966
(SDE) and October 1, 1968 (36). This same measure often is used for
determining tenure when a teacher has earned tenure (i.e., continuing
See Harkins v. Ohio County Bd. of Educ., 179 W.Va. 373, 374, 369 S.E.2d 224, 225 (1988).
Please be advised that I interpret W.Va. Code, § 18A-4-7a to be effective upon passage, August 31, 1990. Seniority rights for substitute personnel prior to that date are to be determined using prior statutory provisions and case law. Accrual of seniority by substitute teachers under W.Va. Code, § 18A-4-7a is not retroactive and only occurs for the current school year and thereafter.