Dennis V. DiBenedetto
Petersburg, West Virginia
Attorney for the Appellant
Charles R. Garten
Charleston, West Virginia
Daniel C. Staggers
Staggers & Webb
Keyser, West Virginia
Attorney for the Appellee
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. "The word 'shall', in the absence of language in the
statute showing a contrary intent on the part of the legislature,
should be afforded a mandatory connotation." Syllabus point 2,
Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).
2. West Virginia Code § 18-9A-4, as enacted and
effective March 15, 1990, mandated that any reductions in force by
boards of education were to be made in a specific manner, with
central office administrators eliminated first, followed by
assistant principals, and then principals. A subsequent amendment
to § 18-9A-4, effective August 30, 1990, eliminated the mandatory
language and stated that county boards need only consider positions
for elimination in that order.
This case presents a narrow issue involving legislative
enactments during a six-month period in 1990.
The appellee, Patricia Townshend, has been a teacher and
principal employed by the Grant County Board of Education for more
than twenty years. She became principal of Petersburg Elementary
School in 1987. By letter dated March 27, 1990, the Grant County
Superintendent of Schools, Michael M. Eberbaugh, informed the
appellee that a significant loss in funding necessitated that
"reorganization and program changes" be implemented for the next
school year. Consequently, the appellee was told that she would be
recommended for a transfer.See footnote 1
The appellee immediately exercised her right to a hearing
before the Board of Education. In a closed hearing held on
April 24, 1990, she presented the Board with a written statement
containing reasons why she should not be demoted from her position
as principal. However, the Board voted to approve the
superintendent's recommendations regarding reductions in force and
The appellee subsequently initiated grievance procedures.
On July 3, 1990, the appellee filed a Level IV grievance with the
West Virginia Education and State Employees Grievance Board, in
which she explained that:
I have been placed on the transfer list as an administrator with the intent of being placed back in the classroom. I contend that HB 101 [W.Va. Code § 18-9A-4] was not followed, that I am not the least seniored administrator, that I still hold an administrative contract, that I cannot be transferred to change my contract, that to be demoted to a teaching assignment I should have had my administrative contract terminated and a teaching contract issued prior to April 1; and that I have not mutually consented to having my administrative contract terminated.
At a hearing held on August 28, 1990, the Board's senior hearing
examiner granted the appellee's grievance.
In a decision dated December 28, 1990, the hearing
examiner concluded that W.Va. Code § 18-9A-4, as amended effective
March 15, 1990, placed a mandatory duty on boards of education to
eliminate central office administrators before eliminating
assistant principals and principals. That Code section
specifically provided that:
[E]very county shall utilize methods other than reductions in force, such as attrition and early retirement, before implementing their reductions in force policy to comply with the limitations of this section. Any reductions resulting from the provisions of this section shall be made in the following order: (1) central office administrators, (2) assistant principals, and (3) principals. (Emphasis added.)
The hearing examiner found that the appellant improperly reduced
the number of principals and transferred the appellee to a teaching
position in violation of the mandatory statutory language directing
that central office administrative positions be eliminated first.See footnote 2
The Grant County Board of Education was ordered to reinstate
Townshend to the position of Petersburg Elementary School principal
effective at the beginning of the second semester "so as to
minimize the impact upon the students currently taught by the
grievant and any other personnel affected by this decision."
The Board appealed this ruling to the Circuit Court of
Grant County, which expressed its disagreement with the result
reached in this case. However, the circuit court could not
conclude that the hearing examiner was clearly wrong, and on
January 22, 1991, the circuit court affirmed the hearing examiner's
decision to grant the appellee's grievance.
During a special session in August, 1990, the Legislature
amended W.Va. Code § 18-9A-4, effective August 31, 1990. The
amendment eliminated the "mandatory" language in question and
replaced it as follows:
It is the intent of the Legislature that in
planning reductions in force to comply with
reduced ratios of professional educators to
students in adjusted enrollment, county boards
shall consider positions for elimination in
the following order: (1) Central office
administrators, (2) assistant principals, and
(3) principals. (Emphasis added.)
However, this amendment became effective after the appellant was
required to perform a reduction in staff on a mandatory basis as
set out in the March 15, 1990, enactment of W.Va. Code § 18-9A-4.
Nonetheless, relying on this amendment, the appellants now argue
that "[i]t is quite clear that the Legislature never intended the
language in question, as contained in the March 15, 1990, enactment
of West Virginia Code 18-9A-4, to be mandatory."
This may be true, and the subsequent amendment to W.Va. Code § 18-9A-4 in August, 1990, may well be evidence that its legislative intent was misstated in the March 15, 1990, enactment. However, it is also true that it was as a result of the March 15, 1990, enactment that the appellee was transferred from her principalship to a lower paying teaching position. The statutory language in effect at that time was both clear and unambiguous, and mandated that reductions in force be made in a specified manner: "Any reductions resulting from the provisions of this section shall be made in the following order: (1) central office administrators, (2) assistant principals, and (3) principals." "The word 'shall', in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory
connotation." Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171
S.E.2d 480 (1969).
The hearing examiner who heard the appellee's grievance
before the West Virginia Education and State Employees Grievance
Board concluded that the Grant County Board of Education violated
W.Va. Code § 18-9A-4, effective March 15, 1990, because it did not
consider central office administrators first and then assistant
principals before reducing in force the principals in the Grant
County school system. Because it could not find that the hearing
examiner was clearly wrong, the circuit court affirmed its
decision. Likewise, this Court must now conclude that the lower
court's decision was correct both factually and as a matter of law.
To summarize, we find that W.Va. Code § 18-9A-4, as
enacted and effective March 15, 1990, mandated that any reductions
in force by boards of education were to be made in a specific
manner, with central office administrators eliminated first,
followed by assistant principals, and then principals. A
subsequent amendment to § 18-9A-4, effective August 30, 1990,
eliminated the mandatory language and stated that county boards
need only consider positions for elimination in that order.
Thus, for the foregoing reasons, the relief prayed for by the appellant is denied and the January 22, 1991, decision of the
Circuit Court of Grant County upholding the hearing examiner's
decision is hereby affirmed.
Footnote: 1The Board cited W.Va. Code §§ 18A-2-7 and 18A-4-8b as authority for its action.
Footnote: 2The appellee states that after she was reassigned, the Board of Education created a new elementary principalship which was given to a senior elementary principal whose position was eliminated. Another elementary principal with more seniority than the appellee whose position was eliminated by the Board was given the appellee's position as principal at Petersburg Elementary. According to the appellee, no central office administrators or assistant principals were included in the transfers which were caused by the reorganization.