John Everett Roush
Charleston, West Virginia
Attorney for the Appellant
Erwin L. Conrad
Conrad & Clay
Fayetteville, West Virginia
Attorney for the Appellee
Raleigh County Board of Education
Robert M. Nunley
Senior Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Board of Review of the West Virginia
Department of Employment Security
JUSTICE CLECKLEY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. W.Va. Code, 21A-6-15(2)(b) (1987), prohibits unemployment benefits during the summer months for service personnel of an educational institution, if such individual performs services in the first academic year or term and is offered a contract or a reasonable assurance that such individual will perform services in any such capacity for any academic institution in the second term of such academic year.
2. Service personnel employed by an educational
institution, who hold a second and separate contract covering the
period between two successive academic terms, and who are not
reemployed for a consecutive period under the second contract, may
escape the prohibitions in W. Va. Code, 21A-6-15(2)(b) (1987), and,
thus, be entitled to unemployment compensation benefits. To come
within this exception, however, the claimant must prove the
existence of an explicit and valid contract or some other definite
behavior of the employer establishing a continuing contractual
3. The findings of fact of the Board of Review of the West Virginia Department of Employment Security are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is one purely of law, no deference is given and the standard of judicial review by the court is de novo.
The appellant, Sharon S. Adkins, appeals from a decision
of the Circuit Court of Kanawha County reversing the granting of
unemployment compensation benefits to the appellant by the Board of
Review of the West Virginia Department of Employment Security
(Board of Review). The appellant filed a writ of certiorari
requesting this Court reverse the decision of the circuit court and
reinstate the decision of the Board of Review. The circuit court
ruled there was insufficient evidence to support the appellant's
claim to unemployment compensation benefits as a result of the
failure of the Raleigh County Board of Education (Board of
Education) to hire her during the summer of 1992. The denial of
benefits was pursuant to W. Va. Code, 21A-6-15(2)(b) (1987), which
prohibits the payment of unemployment compensation benefits between
academic years or terms if the individual applying for the benefits
worked during the initial period and has a reasonable assurance of
reemployment during the successive term. The appellant argues that
this provision is inapplicable to her because she had a second
separate job and contract covering the intervening period. We
disagree, and we hold under the facts of this case that she has one
employment contract. Thus, the circuit court correctly reversed
the finding of the Board of Review. We further find that in the
absence of substantial evidence of a second separate contract,
W. Va. Code, 21A-6-15(2)(b), is controlling, and the plaintiff is
not entitled to unemployment compensation benefits.
The hiring practice of the Board of Education was to employ a paint crew to work during the summer months.See footnote 1 In the summer of 1992, however, the Board elected not to follow past practice and did not hire a paint crew for the entire summer months. As a result, the appellant worked for the Board for only one week during the summer of 1992. Realizing that there would be no paint crew hired for the summer, the appellant applied for a position on the grass-cutting crew, but was not employed because of her lack of seniority. The appellant claims that as a result of her lack of summer employment with the Board of Education, she suffered a loss of employment and a loss of wages during the summer of 1992.
The appellant filed a claim for unemployment compensation
benefits on or about July 13, 1992, but the claim was denied.
Specifically, a deputy commissioner held: "Claimant
eligible . . . . Claimant disqualified . . . ; . . . has
reasonable assurance of reemployment . . . . Disqualified from
June 28, 1992 to August 22, 1992." The denial of benefits was
based on W. Va. Code, 21A-6-15(2)(b), which generally provides that benefits should not be paid to education employees between terms
when there is a reasonable assurance of continued employment.
Following the denial, the appellant appealed the deputy
commissioner's decision. On August 14, 1992, an evidentiary
hearing was held before Carl Harris, an Administrative Law Judge
(ALJ). The ALJ issued an opinion on September 16, 1992, affirming
the deputy commissioner's decision based on W. Va. Code,
21A-6-15(2)(b). The ALJ also found that in the past the appellant
received additional work in the summer which did not affect the
laws that pertain to school employees and their entitlement to
benefits during breaks in the school year or summer vacation.
On September 24, 1992, the appellant appealed the ALJ's
decision to the Board of Review. By decision dated February 16,
1993, the Board of Review modified the decision of the ALJ and
ruled the appellant was not disqualified from receiving
unemployment compensation benefits. The Board of Review found that
ordinarily personnel such as the appellant are not entitled to
receive unemployment compensation benefits between two successive
academic terms or years; "however, the record in this case reflects
that the claimant has historically worked during the summertime
with the . . . employer." The Board of Review found the
aforementioned section of the Code should not be construed to
permit the lack of work and loss of wages experienced by the appellant without being eligible for unemployment compensation
The Board of Education appealed the Board of Review's
decision to the Circuit Court of Kanawha County. By final order
entered February 9, 1994, the circuit court reversed the decision
of the Board of Review and reinstated the decision of the ALJ. The
appellant now appeals to this Court.
W. Va. Code, 21A-6-15(2)(b), prohibits the distribution of unemployment compensation benefits to educational employees between "two successive academic years or terms" if the employee works during the first term and has a reasonable assurance of reemployment during the successive term.See footnote 2 Service personnel employed by an educational institution, who hold a second and separate contract covering the period between two successive academic terms, and who are not reemployed for a consecutive period under the second contract, may escape the prohibitions in W. Va. Code, 21A-6-15(2)(b), and, thus, be entitled to unemployment compensation benefits. To come within this exception, however, the claimant must prove the existence of an explicit and valid contract or some other definite behavior of the employer establishing a continuing contractual relationship. Thus, the central issue in this case is whether the appellant, in light of her other job position, established a summertime employment relationship stemming from previous summer employment that could remove her from the statutory restrictions.
Our decisions have been constant that "unemployment compensation statutes should be liberally construed in favor of the claimant[.]" Davenport v. Gatson, ___ W. Va. ___, ___, ___ S.E.2d ___, ___ (No. 22222 11/2/94) (Slip op. at 5); see also Mercer County Bd. of Educ. v. Gatson, 186 W. Va. 251, 412 S.E.2d 249 (1991); Courtney v. Rutledge, 177 W. Va. 232, 351 S.E.2d 419 (1986); London v. Board of Review of Dept. of Employment, 161 W. Va. 575, 244 S.E.2d 331 (1978). This "liberality" rule is not to be utilized when its application would require us to ignore the plain language of the statute. See Syllabus Point 3, Francis O. Day Co. v. Director, D.E.P., 191 W. Va. 134, 443 S.E.2d 602 (1994) ("'"[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation."'" (citations omitted)).
W. Va. Code, 21A-6-15(2)(b), prohibits the receipt of
unemployment compensation benefits for certain employees of
educational facilities if that employee has a reasonable assurance
of employment in the following academic period. The appellant does
not dispute this interpretation of the statute, but instead
embraces it. The appellant acknowledges that her 200-day or
approximately 10-month contract would normally prevent her from
receiving unemployment compensation benefits; but, she argues that
a second summertime employment contract removes her from the
statutory prohibition. She claims that the denial of her
employment expectations for the summer of 1992 entitled her to
unemployment compensation benefits. On the other hand, the Board
of Education argues that the circuit court was correct in reversing
the Board of Review because the Board of Review's findings were not
supported by the facts and were wrong as a matter of law.
In this case, the ALJ concluded, from hearing all the
evidence of record, that the appellant's proof was insufficient to
sustain her claim of entitlement to unemployment compensation
benefits for the summer of 1992. Under the statutory scheme of
W. Va. Code, 21A-7-1 et. seq., the findings of the ALJ are
recommendations only and are not binding on the Board of Review.
Specifically, W. Va. Code, 21A-7-21 (1943), provides:
"Weight accorded board's findings of fact. In a judicial proceeding to review a decision of the board, the findings of fact of the board shall have like weight to that accorded to the findings of fact of a trial chancellor or judge in equity procedure."
In applying this statute, this Court has observed that
the findings of fact of the Board of Review of the West Virginia
Department of Employment Security are entitled to substantial
deference unless a reviewing court believes the findings are
clearly wrong. Syllabus Point 1, in part, Kisamore v. Rutledge,
166 W. Va. 675, 276 S.E.2d 821 (1981) ("findings of fact by the
Board of Review should not be set aside ... [in a case of this
nature] unless such findings are plainly wrong"). If the question
on review is one purely of law, no deference is given and the
standard of judicial review by the courts is de novo. See
Syllabus, in part, Belt v. Rutledge, 175 W. Va. 28, 330 S.E.2d 837,
(1985) (quoting Syllabus Point 1, Kisamore v. Rutledge, supra
stated "the plainly wrong doctrine does not apply to conclusions of
law by the Board of Review").
The issue we must address is whether the findings made by
the Board of Review were factual, legal, or mixed.See footnote 3 On appeal, the circuit court reversed the Board of Review and stated: "The issue
in this case with respect to disqualification raises essentially a
question of law. Therefore, the scope of judicial review known as
the plainly wrong doctrine does not apply[.]"See footnote 4
We believe the issues in this case are both factual and
legal. The nature and duration of the appellant's summer
employment were factual issues for the Board of Review to resolve,
and we give substantial deference to its determinations. The
question as to whether the statute permitted the appellant to
receive unemployment compensation benefits for her summer
unemployment is one of statutory interpretation, and our review on
this issue is plenary and de novo. Donley v. Bracken, ___ W. Va.
___, ___ S.E.2d ___ (No. 22254 12/8/94) (slip op. at 4)
("[i]nterpreting a statute is a legal issue, and hence our review
of the statute is plenary").
Against this background, we review the appellant's claim
for unemployment compensation benefits. W. Va. Code,
21A-6-15(2)(b), is designed to prevent individuals who are employed
for less than the full twelve-month calendar year from gaining
unemployment compensation benefits during the months that they are
not required to work. As we have suggested, an exception to this
statute occurs when a claimant employed under a contract covering
less than twelve months provides proof of the existence of another
contract during the remaining period giving him or her a reasonable
assurance of reemployment, in this case, during the successive
summer months. Thus, a person holding a secondary contract of this
nature could be entitled to unemployment compensation benefits if
not reemployed during the second contractual period if this second
contract created a continuing relationship.
The employment relationship of State educational
employees is highly regulated, as evidenced by the extensive
provisions in the West Virginia Code governing numerous aspects of
the relationship.See footnote 5 In fact, the standard employment contract for
service personnel, like the appellant, is written into the Code.See footnote 6
Therefore, it is reasonable to assume that the Board of Education would use the statutorily mandated employment contract before
entering into any employment relationship that could be considered
continuing. Here, there is no evidence of a written contract
establishing an employment relationship; instead, the appellant
simply argues that a second contract exists.
Granted, under our common law, the Board of Education
cannot take advantage of the absence of a written contract if its
behavior or conduct caused the appellant reasonably to believe that
a contractual employment arrangement existed. See Reed v. Sears,
Roebuck & Co., Inc., 188 W. Va. 747, 426 S.E.2d 539 (1992)
(employee handbooks could create implied employment contract);
Sayres v. Bauman, 188 W. Va. 550, 425 S.E.2d 226 (1992) (oral
promises of an employer could establish an employment
relationship); Adkins v. Inco Alloys Intern., Inc., 187 W. Va. 219,
417 S.E.2d 910 (1992) (in establishing an implied contract right
based on custom and usage, clear and convincing evidence must show
the practice occurred a sufficient number of times under the same
conditions). The employee's burden of proof is one of "clear
evidence" of the employer's behavior, and that evidence must be
sufficient to justify a reasonable person to believe that a
continuing contractual relationship exists. Syllabus Point 3,
Adkins v. Inco Alloys Intern., Inc., supra ("[w]here an employee
seeks to establish a permanent employment contract or other
substantial employment right, either through an express promise by
the employer or by implication from the employer's personnel manual, policies, or custom and practice, such claim must be
established by clear and convincing evidence").
We find it unnecessary to question or second guess the
Board of Review in reference to its factual findings. Assuming,
arguendo, that the appellant has worked for the defendant for the
past six years that fact alone is insufficient to establish her
entitlement to unemployment compensation benefits. We hold that
the appellant has failed to establish a continuing employment
contract under any theory that would qualify as an exception to the
statute. The appellant does not claim that the Board of Education
made any specific promises or that she acted to her detriment in
relying on any understanding with the Board of Education in
reference to continued employment for summer work. Additionally,
there is no evidence that there was any kind of employee handbook
or other written materials that would reasonably suggest that
employment for one summer guaranteed employment for succeeding
years. The absence of a promise or written materials suggests that
any summertime employment arrangement prior to the summer of 1992
could not be the basis for any reasonable expectation establishing
a continuing relationship. Thus, the Board of Education's failure
to rehire the appellant for her desired summer job in 1992 does not
remove the appellant from the statutory restrictions.
The remaining issue is whether the appellant can
establish her claim under W. Va. Code, 18A-2-6 (1989), which provides for the continuing contract status of service personnel
and termination of employment. W. Va. Code, 18A-2-6, grants
continuing contract status to service employees after "three years
of acceptable employment."See footnote 7 Thus, the appellant would have to show
(1) that the legislature intended this provision of the Code to
apply to summer or short-term employment, and (2) that the
appellant had worked three consecutive summers. The problem here
is that this Code section presumes the existence of a contract and,
as previously stated, the appellant cannot establish the existence
of a contract. However, we have held that, under certain
conditions, employees can still take advantage of this statutory
provision in the absence of a valid contract. See Bonnell v. Carr,
170 W. Va. 493, 294 S.E.2d 910 (1982) (the failure of employees to
sign a continuing contract does not destroy the employees'
continuing contract status where employees who had not signed the
contract were treated the same as those who did sign a continuing
Even if we found the appellant has established that a
summer contract previously existed, language within W. Va. Code,
18-5-39 (1991), supports the circuit court's ruling that summer
employees are not entitled to rely on the existence of a previous
summer job to establish that a succeeding summer's lack of
employment entitles the employee to unemployment compensation
benefits. W. Va. Code, 18-5-39, provides for the establishment of
summer school programs. As part of this program "the county board
of education is authorized to employ school service personnel[,]"
and "[a]n employee who was employed in any service personnel job or
position during the immediate previous summer shall have the option
of retaining such job or position if such exists during any
succeeding summer." (Emphasis added). The clause "if such exists
during any succeeding summer" shows that, barring a specific
contract to the contrary, the legislature intended to give service
employees of educational institutions the right to a continuing
employment contract only if the same job position were still in
existence the following summer. Thus, if a board of education
chose not to create a job position during the following summer, as
the Raleigh County Board of Education did here, the employee cannot
use a previous summer's employment as evidence of a continuing
contractual employment relationship.
Of course, the appellant's case would be stronger for
unemployment compensation benefits if the Board of Education had
refused to rehire her despite the fact that the actual position was still available. In this case, however, the appellant acknowledges
that her lack of employment is due to the fact that the Board of
Education decided not to employ a summer paint crew and not simply
to its failure to rehire the appellant. Therefore, even if the
appellant had a contract of employment, the facts of this case
would still dictate that we affirm the decision of the circuit
We have carefully evaluated the Board of Education's
position and its employment relationship with the appellant. In
consideration of the Board of Education's view point, we fully
recognize the broad discretion of a board of education to hire,
fire, and generally control their personnel. See Board of Educ. v.
Enoch, 186 W. Va. 712, 414 S.E.2d 630 (1992). Finding for the
appellant in this case would add an additional layer of
nonstatutory restrictions on a board of education that would
severely restrict its ability to devise future summer employment
projects and to initiate personnel changes. Any future claimant
with minimal evidence of a continuing contractual relationship
could claim entitlement to unemployment compensation benefits if
job opportunities were not made available in even the shortest
successive term. Technically, of course, the Board of Education
could protect itself from this statutory challenge by using clear
language to disclaim the creation of any continuing contractual
To be clear, we do not believe that the relevant statute
or our common law requires this language be inserted in contracts
because such a requirement of this nature would fly in the face of
established precedent that the proponent of an employment
relationship has the burden to prove the relationship. See Sayres
v. Bauman, supra; Adkins v. Inco Alloys Intern., Inc., supra;
Wilson v. Long John Silver's, Inc., 188 W. Va. 254, 423 S.E.2d 863
In summary, we conclude that W. Va. Code, 21A-6-15(2)(b),
does not preclude an interpretation of the statute that would allow
an employee to escape the restrictions of this provision upon proof
of a second separate contract covering the intervening period.
Furthermore, this interpretation is consistent with the spirit of
liberally construing unemployment compensation regulations. Here,
however, the appellant's failure to establish a continuing
contractual relationship under any theory discussed prevents her
from escaping the statutory prohibitions of W. Va. Code, 21A-6-
15(2)(b). Therefore, we hold that the circuit court was correct in
denying unemployment compensation benefits to the appellant.
For the foregoing reasons, we affirm the decision of the
Circuit Court of Kanawha County and deny the appellant's petition
Footnote: 1 The appellant has worked for the Raleigh County Board of Education as a full time bus driver for eleven years. This position is for ten months annually leaving the appellant free during the summer months to seek other employment.
Footnote: 2 The pertinent section of W.Va. Code, 21A-6-15(2)(b), provides:
"With respect to services in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms[.]"
Footnote: 3 The Board of Review in its Order merely stated, in pertinent part, as follows:
"During the summer the claimant has historically not worked as a school bus driver. Rather the claimant has worked as a maintenance employee ordinarily on a paint crew. The claimant has been so employed for the past six summers. Thus, the claimant has never been unemployed for any length of time since his (sic) employment commenced with the above employer."
"[T]he record in this case reflects that the claimant has historically worked
during the summertime with the above employer. Thus, he (sic) has been employed by the above employer at all times in the past. For that reason, the Board is of the opinion that the above cited Statute does not imply (sic) to the lack of work suffered by the claimant in the summertime."
Footnote: 4 Unfortunately, the circuit court made no specific findings nor did it point out to what specific part of the Board of Review's decision it was referring. The circuit court's order resolved the issue by stating: "After a thorough review of the record and all assignments of error this Court concludes that the question of law in this case was decided incorrectly by the board." Again, the order does not make mention of the specific question of law that was allegedly wrongly decided.
Footnote: 5 See generally W. Va. Code, 18A-1-1 (1981), et seq., covering employment of "school personnel." "Service personnel" is defined as "those who serve the school or school as a whole, in a nonprofessional capacity, including such areas as secretaries, custodial, maintenance, transportation, school lunch, and as aides." W. Va. Code, 18A-1-1(e) (1981).
Footnote: 6 W. Va. Code 18A-2-5 (1988), lists the contract for employment for service personnel.
Footnote: 7 W. Va. Code 18A-2-6 provides, in part:
"After three years of acceptable employment, each 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."