No. 26600    -    The Board of Education of the County of Mercer v. Kitty Townsend

Starcher, J., dissenting:

        This per curiam opinion is most decidedly not authority for anyone to conclude that the previous practice (pre-1990) of awarding up to a year's seniority for “substitutes” who worked 133 days or more in a year's teaching employment is in conflict with the then- applicable law.

        A settled line of cases before the State Employee Grievance Board, a state superintendent's interpretation, and this Court's decision in Harkins v. Ohio County Board of Education, 179 W.Va. 373, 369 S.E.2d 224 (1988) (per curiam) dictates this conclusion, as does a review of the applicable statutory language.

        On remand, the Administrative Law Judge should follow the law, not dicta in a per curiam footnote. Then the Administrative Law Judge's analysis may be tested in an appeal of the issue, if a party challenges it. Meanwhile, no one should presume to interfere with the hard-earned seniority of our state's full-time teachers -- whether they are called “substitutes” or otherwise.