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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2010 Term
Plaintiff Below, Appellant
THE BOARD OF EDUCATION OF THE COUNTY OF MONONGALIA,
Defendant Below, Appellee
Appeal from the Circuit Court of Kanawha County
Honorable Irene C. Berger, Judge
Civil Action No. 08-AA-119
REVERSED and REMANDED
Submitted: September 21, 2010
Filed: October 14, 2010
John Everett Roush
Jason S. Long
WV School Service Personnel Association Jennifer S. Caradine
Charleston, West Virginia
Dinsmore & Shohl
Counsel for the Appellant
Morgantown, West Virginia
Counsel for the Appellee
The Opinion of the Court was delivered PER CURIAM.
Justice Workman disqualified.
Judge Keadle sitting by temporary assignment.
1. A final order of the hearing examiner for the West Virginia Educational
Employees Grievance Board, . . . and based upon findings of fact, should
not be reversed unless clearly wrong. Syl. Pt. 1, in part, Randolph County
Board of Education v. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989).
2. School personnel regulations and laws are to be strictly construed in favor
of the employee. Syl. Pt. 1, Morgan v. Pizzino, 163 W.Va. 454, 256
S.E.2d 592 (1979).
3. An administrative body must abide by the remedies and procedures it properly
establishes to conduct its affairs. Syl. Pt. 1, Powell v. Brown, 160 W.Va.
723, 238 S.E.2d 220 (1977).
This is an appeal by Nancy Jamison (hereinafter Appellant) from an order of
the Circuit Court of Kanawha County denying her employee grievance seeking reimbursement for
travel expenses for the 2006-07 and 2007-08 school years. Upon thorough review of
the arguments, briefs, statutes, policies, and applicable precedent, this Court reverses the decision
of the Circuit Court of Kanawha County and remands for further proceedings consistent
with this opinion.
I. Factual and Procedural History
The Appellant is employed as a secretary, job classification Secretary III, with the
Monongalia County Board of Education (hereinafter Board). Prior to her most recent employment
assignments, the Appellant had bid upon and received two independent half-time positions, one
as a secretary with a federal program at the Central Annex Building and
a second one as a secretary at Cheat Lake Middle School. Thus, the
Appellant worked one half day at the Central Annex Building and one half
day at Cheat Lake Middle School.
When the federal program at Central Annex was terminated, the Appellant was re-assigned
to Brookhaven Elementary, as a replacement for the Central Annex position. She did
not request that assignment or bid upon that placement at Brookhaven. Thereafter, she
remained employed in two separate half-time positions, one at Brookhaven Elementary working from
7:45 a.m. until 11:15 a.m., and a second at Cheat Lake Middle School
working from 11:30 a.m. until 3:00 p.m.
The Appellant was reimbursed for her daily travel expenses between the two schools
for six years. When the Board eventually refused to continue to pay for
mileage reimbursement, the Appellant filed a grievance, alleging entitlement to a mileage reimbursement
for travel between her two half-time positions. The grievance was denied at Level
I by a decision dated November 20, 2007, subsequent to an October 31,
2007, hearing. The parties, by agreement, waived Level II mediation, and a Level
III hearing was conducted on March 13, 2008, before Administrative Law Judge Denise
M. Spatafore. The grievance was denied by decision dated August 27, 2008. The
Circuit Court of Kanawha County ultimately affirmed the denial of the grievance, holding
that the Monongalia County Board of Education policy on reimbursement of travel expenses
is inapplicable to the Appellants travel between her two half-time positions. The circuit
court found that neither of the two positions requires the Appellant to perform
duties at the other location. Thus, the circuit court reasoned that she is
not considered to be utilizing her personal vehicle in the course of employment.
The Appellant now appeals to this Court, contending that the circuit court erred
in finding that she was not a full-time employee and had voluntarily bid
on two separate, independent half-time positions; erred in holding that she was not
entitled to mileage compensation, pursuant to Board policy; and erred in holding that
she was not entitled to mileage compensation, pursuant to West Virginia Code §18A-2-14
II. Standard of Review
In pertinent part of syllabus point one of Randolph County Board of Education
v. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989), this Court explained
as follows: A final order of the hearing examiner for the West Virginia
Educational Employees Grievance Board, . . . and based upon findings of fact,
should not be reversed unless clearly wrong. In Martin v. Randolph County Board
of Education, 195 W. Va. 297, 465 S.E.2d 399 (1995), this Court elaborated
upon the standards to be utilized by this Court in review of an
ALJs decision that was affirmed by the circuit court. . . . 195
W. Va. at 304, 465 S.E.2d at 406.
[T]his Court accords deference to
the findings of fact made below. This Court reviews decisions of the circuit
under the same standard as that by which the circuit reviews the decision
of the ALJ. We must uphold any of the ALJs factual findings that
are supported by substantial evidence, and we owe substantial deference to inferences drawn
from these facts. Further, the ALJs credibility determinations are binding unless patently without
basis in the record. Nonetheless, this Court must determine whether the ALJs findings
were reasoned, i.e., whether he or she considered the relevant factors and explained
the facts and policy concerns on which he or she relied, and whether
those facts have some basis in the record. We review de novo the
conclusions of law and application of law to the facts.
Id. This Courts de novo review of the conclusions of law and application
of the law to the facts was reiterated in Holmes v. Board of
Education of Berkeley County, 206 W. Va. 534, 526 S.E.2d 310 (1999).
In the case sub judice, this Court is asked to address the law
applicable to the facts of this case, and the standard of review for
such issues is de novo. As this Court approaches the issue of application
of the policy and statute to the facts of this case, we must
be mindful of a long-standing rule regarding statutory construction of laws and regulations
dealing with school personnel. As we stated in syllabus point one of Morgan
v. Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979), [s]chool personnel regulations and
laws are to be strictly construed in favor of the employee.
The Monongalia County Board of Education policy at issue in this case is
identified as File 7-26. It allows reimbursement for an employee traveling from workstation
to workstation on official duty (See footnote 1)
and was in existence during both school years
questioned by the Appellant. Similarly, West Virginia Code § 18A-2-14 (2007) allows reimbursement for
travel if the employee is required to use a personal vehicle to travel
in the course of employment. This section was in effect for the 2007-2008
school year but not the preceding school year. In pertinent part, West Virginia
Code § 18A-2-14 provides, A county board shall reimburse any school personnel for each
mile traveled when the employee is required to use a personal motor vehicle
in the course of employment.
The Board contends that reimbursement is not required because the Appellants two positions
are independent and neither requires travel to another location as part of the
official duties. The Board explains that the original positions were posted as halftime
positions, that the Appellant initially chose to seek employment in two half-time positions,
and that any travel to the separate work stations is not in the
course of the Appellants employment. In explanation of its eventual denial of further
mileage reimbursement, after having reimbursed the Appellant for such travel for six years,
the Board asserts that the Monongalia County Board policy requires reimbursement only
travel from workstation to workstation on official business. Further, the Board asserts that
West Virginia Code § 18A-2-14 allows reimbursement only
where the use of a personal
vehicle is required by the employment.
The Appellant argues, however, that the Monongalia County Board policy and state statute
at issue do not make any distinction between an employee holding two half-time
positions and an employee holding one full-time position with two work sites. Further,
the Appellant contends that such a distinction is not well-developed generally throughout school
personnel policy, statute, or case law. The Appellant presents several examples of statutes
which obscure any distinction between the two types of employment, with regard to
compensation and entitlement to benefits. For example, West Virginia Code § 18A-4-8a(a) (1978) (Supp.
2010) provides in pertinent part as follows:
The minimum monthly pay for each service employee whose employment is for a
period of more than three and one-half hours a day shall be at
least the amounts indicated in the state minimum pay scale pay grade and
the minimum monthly pay for each service employee whose employment is for a
period of three and one-half hours or less a day shall be at
least one-half the amount indicated in the state minimum pay scale pay grade
set forth in this section.
That particular statutory language is not presented in terms of reference to half-time
or full-time employees. Rather, it simply states that an employee working fewer than
3 1/2 hours per day receives one-half of the state minimum salary and
an employee working more than 3 1/2 hours per day is entitled to
the full state minimum salary. (See footnote 2)
The issue of half-time employment was addressed in a somewhat similar factual scenario
by the West Virginia Education and State Employees Grievance Board in Sexton v.
Boone County Board of Education
, W.Va. Educ. & State Employees Grievance Bd., Docket
No. 94-03-044 (June 22, 1994). In that case, an employee sought reimbursement for
mileage expenses where the employee had been assigned to two different locations by
the Board of Education through the transfer process and did not personally request
that employment arrangement. The employee in Sexton
prevailed and was awarded reimbursement because
he had been originally hired as a full-time employee with a single workstation.
Due to a reduction in force, one half of the employees position was
eliminated, and he was subsequently assigned to another work station for half of
his workday. In the case sub judice, the Board emphasizes that this Appellants
case is readily distinguishable from Sexto
n, to the extent that the Appellant in
this case initially sought
two separate positions and chose
to be employed in
two independent half-time jobs and was later transferred.
The Board points to another West Virginia Education and State Employees Grievance Board
case, Wheeler v. Lincoln County Board of Education
, W.Va. Educ. & State Employees
Grievance Bd., Docket No. 96-22-535 (July 15, 1997), as a more analogous example.
, the grievant held two half-time positions in Lincoln County, as the
Appellant does in this case in Monongalia County, and the Grievance Board held
that an employee is not entitled to compensation for travel between two separate
half-time positions. In the present case, however, the Monongalia County policy sets forth
the specific posture of the Board toward reimbursement for mileage expenses. In asserting
the arguments in this case, the Board premises its contentions upon certain assumptions
concerning the meaning, intent, and application of the language utilized in the policy
and the statute. Neither the policy nor the statute, however, makes any specific
exception for an employee who holds two half-time positions as opposed to one
full-time position. If employment as a full-time secretary required travel from workstation to
workstation on official duty in the course of employment, it appears that the
policy would require reimbursement for travel. However, any distinction between that hypothetical full-time
worker and a half-time worker, performing essentially the same duties and traveling the
same route in a personal vehicle, is not directly addressed by the policy
Furthermore, while the Appellant did initially bid upon two separate, independent positions, the
Board ultimately assigned her to another position. She was placed at Brookhaven Elementary
School when her prior assignment at the Central Annex concluded. The Board maintains
that because the Appellant initially chose
her two independent half-day positions and those
positions do not require travel to another location, she should not be compensated
for travel between the two positions. That is a somewhat compelling argument, and
if there were any basis for it in the policy or statute, it
would likely be the prevailing argument. However, as explained above, this Court is
constrained to examine this school personnel regulation matter in terms of strict construction
in favor of the employee. Morgan
, 163 W.Va. at 454, 256 S.E.2d at
593, syl. pt. 1. Furthermore, [a]n administrative body must abide by the remedies
and procedures it properly establishes to conduct its affairs. Syl. Pt. 1, Powell
, 160 W.Va. 723, 238 S.E.2d 220 (1977); see also State ex
rel. Hawkins v. Tyler County Bd. of Educ.
, 166 W.Va. 363, 367, 275
S.E.2d 908, 912 (1980).
Based upon this Courts de novo
evaluation, we find the Boards contention untenable
based upon its own policy language and specifically upon the absence of any
language addressing a distinction between half-time and full-time employees. If the Board sought
to prohibit reimbursement to personnel traveling between two half-time positions based upon the
employees exercise of discretion in selecting those two positions, the policy should have
been concisely written to reflect that intent. Under the narrow facts of this
case, the Boards position cannot prevail.
Accordingly, the judgment of the Circuit Court of Kanawha County is reversed, and
this case is remanded with directions that the Appellant be provided with reimbursement
for mileage expenses for the 2006-2007 school year, the 2007-2008 school year, and
any subsequent time periods for which the Appellant can present proper documentation.
Reversed and remanded with directions.
The policy, entitled Travel within the County, provides as follows in its entirety:
Certain Board of Education employees are authorized an allowance for travel in their
own private vehicles, when traveling from workstation to workstation on official duty. It
is the employees responsibility to report to work on his/her own and he/she
goes home on his/her own, but official travel during the between workstations is
made on a reimbursable basis. From time to time, there may be a
special instructional program requiring home visits and/or other special travel. The approval of
the program will also authorize the approval of reimbursable travel. Generally, reimbursement for
meals and/or lodging within the county will not be allowable. The Superintendent may
As another example of the absence of any personnel policy distinguishing between the
full-time and half-time workers in terms of benefits available, the Appellant emphasizes that
West Virginia Code § 18A-4-8(j) (1969) (Supp. 2010) provides that each service person is
entitled to all service personnel employee rights. Specifically, that statute provides as follows:
Notwithstanding any provision in this code to the contrary, and in addition to
the compensation provided for service personnel in section eight-a of this article, each
service person is entitled to all service personnel employee rights, privileges and benefits
provided under this or any other chapter of this code without regard to
the employees hours of employment or the methods or sources of compensation.