Filed: July 17, 1995
Jeffrey G. Blaydes
James M. Haviland
Crandall, Pyles & Haviland
Charleston, West Virginia
Attorney for the Appellee
Lynn A. Nelson
Keyser, West Virginia
Attorney for the Appellant
JUDGE FOX delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX, sitting by temporary assignment.
1. A bonus established by a county board of education under the provisions
of West Virginia Code § 18A-4-10a (Bonus for unused days of personal leave) can become
a part of the teachers' continuing contracts of employment in only two ways: (1) by
operation of statutory law manifesting a specific legislative intent that the bonus become an
element of the teachers' contracts; or (2) by negotiation and subsequent mutual agreement
of the board and the teachers.
2. There was no legislative intent that a bonus created in conformance with
West Virginia Code § 18A-4-10a become, by operation of statutory law, an element of the
teachers' continuing contracts of employment.
Fox, Judge:See footnote 1
This appeal from the Circuit Court of Kanawha County, West Virginia, brings
before this Court a dispute between the appellant, the Mineral County Board of Education
(Board), and the appellee, Harry Hartman, a teacher employed by the Board. The dispute
concerns the question of whether an Attendance Incentive Policy adopted by the Board
became an element of Mr. Hartman's continuing contract of employment. The Board appeals
from the circuit court's decision which answered this question in the affirmative.
On 20 June 1989, pursuant to the authority of W.Va. Code § 18A-4-10a
(1993)See footnote 2 (Bonus for unused days of personal leave), the Board adopted for the 1989-90 school
year an Attendance Incentive Policy (AIP) to reduce teacher absenteeism, thereby decreasing
the cost of employing substitute teachers. The AIP provided that, at the end of the school
year, any teacher with an attendance rate of 97.5 percent or better would receive a bonus
based on the teacher's unused days of personal leave. As the appellant's brief states, the
Board adopted the AIP "on the condition that it would be funded one year at a time from budget reserve funds only." For the 1989-90 school year, the Board funded the AIP by
setting aside $75,000 from the 1989 fiscal year budget reserve. On 19 June 1990, the Board
adopted the AIP for the 1990-91 school year, and on 10 October 1991, the Board adopted
the AIP for the 1991-92 school year. On 15 September 1992, based on the superintendent's
recommendation and the projected absence of a sufficient budget reserve, the Board
eliminated the AIP for the 1992-93 school year.
On 5 November 1992, Mr. Hartman filed a grievance challenging the Board's
elimination of the AIP. The grievance progressed through the various stages of the grievance
procedure, and on 5 April 1993, a final grievance hearing was held by a hearing examiner
for the West Virginia Education and State Employees Grievance Board. The hearing
examiner ruled against Mr. Hartman, and Mr. Hartman appealed to the Kanawha County
Circuit Court. By decision dated 21 January 1994, the circuit court reversed the decision of
the hearing examiner, concluding the "decision is contrary to applicable law."
Initially, this case presents a single question: Was the Mineral County Board
of Education's Attendance Incentive Policy a policy of the Board subject to unilateral
elimination by the Board or, once implemented by the Board, did the AIP become an element
of the employment contract between the Board and the teachers of Mineral County and therefore subject to statutory provisions regarding the modification of such contracts?See footnote 3 On
this question, the Grievance Board hearing examiner concluded the AIP was a policy of the
Board and not a contract element. The circuit court rejected the hearing examiner's
conclusion, ruling instead that the AIP had become an element of the teachers' contracts.
It is the opinion of this Court that a bonus established by a county board of
education under the provisions of W.Va. Code § 18A-4-10a (Bonus for unused days of
personal leave) can become a part of the teachers' continuing contracts of employment in
only two ways: (1) by operation of statutory law manifesting a specific legislative intent that
the bonus become an element of the teachers' contracts; or (2) by negotiation and subsequent
mutual agreement of the board and the teachers. In the search for the necessary legislative
intent, we first examine the statute authorizing the bonus.
As previously indicated, the Board adopted the AIP pursuant to authority
provided by W.Va. Code § 18A-4-10a (1993): "County boards of education are authorized to pay to their employees or to defined groups thereof, for the purpose of reducing
absenteeism, a bonus at the end of an employment term for each unused day of personal
leave accumulated by the employee during that employment term."
In support of the characterization of the AIP as a contract element, the appellee
contends this statutory provision grants "teachers and school boards the option of negotiating
away" personal leave days. We disagree. The statute does not contain the words "grant,"
"option," or "negotiation." The statute does not even refer, explicitly or by inference, to the
teachers' employment contracts, and certainly gives the teachers no option for negotiating
any matter related to the AIP. By its plain language the statute simply authorizes school
boards to reduce absenteeism by paying a bonus for unused personal leave. We conclude
W.Va. Code § 18A-4-10a evidences no legislative intent for the AIP becoming a part of the
teachers' contracts. Accordingly, we next look to other statutes for such intent.
The appellee contends the AIP became a part of the teachers' contracts because
the AIP is a benefit, and benefits become a part of the teachers' contracts by virtue of the
operation of the statutory scheme which the appellee characterizes as "the pervasive structure
governing the economic relationships between teachers and school boards." The appellee
contends the AIP is a benefit just as a teacher's pension is a benefit. In considering this
contention, we first return to the statute authorizing school boards to implement the AIP, and
we note that W.Va. Code § 18A-4-10a contains no express or implied designation of the AIP as a benefit. Consequently, we conclude the authorizing statute provides no indication the
legislature intended the AIP as a benefit. As support for the characterization of the AIP as
a benefit, the appellee cites the West Virginia Wage Payment and Collection Act, W.Va.
Code § 21-5-1 et al. (1989), which defines "fringe benefits" as inter alia, "production
incentive bonuses." Thus, the appellee argues, in a view adopted by the circuit court,
because the AIP is a bonus, by virtue of the Wage Payment and Collection Act's definitions,
it is a benefit. We disagree with the appellee's application of this Act. The general definition
of "fringe benefits" for the purpose of the Wage Payment and Collection Act of Chapter 21
does not supply sufficient support for the proposition the legislature intended to designate
the AIP authorized in Chapter 18A as a benefit. Consequently, absent pertinent statutory
designation of the AIP as a benefit, we cannot agree with the appellee's contention the
education statutes in general work some unspecified statutory alchemy which supplies the
otherwise unstated legislative intention of designating the AIP as a benefit.
We also believe the appellee's contention that the AIP is a benefit fails to
distinguish between teacher benefits mandated by the legislature in this and other articles of
the West Virginia Code, such as the pension benefit cited by the appellee, and matters such
as the AIP which are not mandated, but merely authorized. The statute authorizing the AIP
does not mandate these policies. Instead, it grants school boards the authority to implement
such arrangement. We believe the difference is significant, as evidenced by the Mineral
County Board of Education's manner of funding its AIP. The Board funded the AIP with budget reserves and made the continuation of the AIP contingent on the continuing existence
of such reserves. When the funds evaporated, the Board eliminated the AIP. We find it
unlikely the legislature would authorize an optional policy and, by implication only, intend
the optional policy as a continuing contract element requiring funding ad infinitum. Such
a path would surely lead to grave fiscal difficulties for the State's school systems. No less
than any employer, school boards must implement policies which meet their continually
changing fiscal circumstances.
And finally, we are not unmindful of the obvious: if we hold that a bonus
enacted under W.Va. Code § 18A-4-10a becomes, by operation of law, a part or element of
the teachers' continuing contracts of employment, county boards of education will be
excessively hesitant about enacting such bonuses. This is particularly true in situations
where, as here, the funding for such bonuses is contingent upon financial resources which
may be available some years and not others.
For the reasons stated above, we conclude that there was no legislative intent
that a bonus created in conformance with W.Va. Code § 18A-4-10a become, by operation
of statutory law, an element of the teachers' continuing contracts of employment.
We next turn to the question of whether the AIP became an element of the
teachers' contracts by agreement of the parties. We find no evidence in the record of this case that the Mineral County Board of Education and teachers negotiated the AIP, reached
a meeting of the minds, and, by agreement, made the AIP an element of the contract. The
Board implemented the AIP for three successive years. Yet, the record contains no evidence
that in any of these years the parties negotiated the terms and conditions of the AIP, reached
a meeting of the minds, and agreed the AIP would become an element of the teachers'
contracts. Quite to the contrary, the hearing examiner's findings of fact, adopted in their
entirety by the parties and the circuit court, indicated that each year the Board "approved"
and "adopted" the AIP. Each year the Board implemented the AIP by unilateral action, not
by mutual agreement with the teachers.
Furthermore, the record contains no evidence that, at any time prior to the
institution of the appellee's grievance, either party to the contract considered the AIP an
element of the contract or in any way treated the AIP as a contract element. In this regard,
we note that although the appellee challenges the Board's elimination of the AIP as an
improper contract modification made after 1 April, the appellee does not address the fact that
each year the AIP was in force, the Board implemented the policy after 1 April. Simply
stated, if the AIP was improperly eliminated after 1 April 1992, it was improperly
implemented in each of the three previous years. For obvious reasons, the appellee does not
challenge the AIP implementation in any of those three years. We conclude the AIP did not
become a part of the teachers' contracts by agreement of the parties.
Thus, for the reasons stated above, we conclude the Attendance Incentive
Policy adopted by the Mineral County Board of Education was a unilaterally implemented
policy which did not become an element of the continuing contract between the Board and
the teachers of Mineral County. Therefore, the Board's elimination of the AIP was not an
action subject to the 1 April contract conclusion deadline established by W.Va. Code § 18A-
Accordingly, we reverse the 21 January 1994 decision of the Kanawha County
Circuit Court and reinstate the decision of the West Virginia Education and State Employees
Footnote: 1 Pursuant to an administrative order entered by this Court on 18 November 1994, the Honorable Fred L. Fox, II, Judge of the Sixteenth Judicial Circuit, was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing 1 January 1995 and continuing through 31 March 1995, because of the physical incapacity of Justice W. T. Brotherton, Jr. On 14 February 1995 a subsequent administrative order extended this assignment until further order of said Court.
Footnote: 2 This statute was enacted by the West Virginia Legislature in 1981.
Footnote: 3 West Virginia Code § 18A-2-2 (1993) states, in pertinent part:
The continuing contract of any teacher shall remain in full force and effect except as modified by mutual consent of the school board and the teacher, unless and until terminated (1) by a majority vote of the full membership of the board before the first day of April of the then current year, after written notice, served upon the teacher, return receipt requested, stating cause or causes, and an opportunity to be heard at a meeting of the board prior to the board's action thereon[.]