IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
George R. Higinbotham, Esq. Henrietta H. Hartman, Esq.
Fairmont, West Virginia Assistant Prosecuting Attorney
Attorney for the Appellant Kingwood, West Virginia
Attorney for the Appellee
JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE STARCHER concurs.
1. It is always presumed that the legislature will not enact a meaningless or useless statute." Syllabus Point 4, State v. Aracoma-Chief Logan No. 4523, Veterans of Foreign Wars of the United States, 147 W.Va. 645, 129 S.E.2d 921 (1963).
2. "Generally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use." Syllabus Point 3, Byrd v. Board of Education of Mercer County, 196 W.Va. 1, 467 S.E.2d 142 (1995).
3. When a board of education receives information which leads it to know,
or reasonably expect, that a teacher's "absence" will prospectively extend for twenty
consecutive employment days, or more, there is an "opening" within the meaning of W.Va.
Code 18A-4-7a, and the board is then required to notify all qualified personnel on the
recall list referred to in such statute of the existence of the opening.
The appellant in this proceeding, Nicholas P. Serdich, who was dismissed as
a school teacher by the Preston County Board of Education, requested that the Circuit Court
of Preston County issue a writ of mandamus to compel the Preston County Board of
Education to place him in a position which he claimed was "open." He contended that he
was entitled to such placement because of the provisions of W.Va. Code 18-4-7a which
gives school teachers who have been dismissed in a reduction in force certain recall rights.
The circuit court denied the appellant's petition on the ground that the position which he
sought was not "open" and that he was not clearly entitled to the relief which he sought. In
the present appeal the appellant claims that the circuit court erred in reaching this decision.
After reviewing the issues raised and the facts presented, this Court believes that the circuit
court did err in holding that the position was not "open" and that the appellant was not
entitled to recall. Accordingly, we reverse the judgment of the Circuit Court of Preston
The appellant, Nicholas P. Serdich, a classroom teacher certified to teach
English, was employed by the Preston County Board of Education prior to 1992, and in
1992, he was terminated in a reduction in force carried out by the Preston County Board of
Education pursuant to W.Va. Code 18A-4-7a.
West Virginia Code 18A-4-7a contains a recall provision which states that:
All professional personnel whose seniority with the
county board is insufficient to allow their retention by the
county board during a reduction in work force shall be placed
upon a preferred recall list. As to any professional position
opening within the area where they had previously been
employed or to any lateral area for which they have certification
and/or licensure, such employee shall be recalled on the basis of
seniority if no regular, full-time professional personnel, or those
returning from leaves of absence with greater seniority, are
qualified, apply for and accept such position. Before position
openings that are known or expected to extend for twenty
consecutive employment days or longer for professional
personnel may be filled by the board, the board shall be required
to notify all qualified professional personnel on the preferred list
and give them an opportunity to apply, but failure to apply shall
not cause such employee to forfeit any right to recall.
A related statute, W.Va. Code 18A-2-2, provides for the creation of a preferred recall list and establishes the order of filling vacancies when more than one dismissed teacher has recall rights under W.Va. Code 18A-4-7a. W.Va. Code 18A-2-2 provides in relevant part:
[I]n case of ...[dismissals pursuant to a reduction in
force], the teachers so dismissed shall be placed upon a
preferred list in the order of their length of service with that
board, and no teacher shall be employed by the board until each
qualified teacher upon the preferred list, in order, shall have
been offered the opportunity for reemployment in a position for
which they are qualified: And provided further, That he has not
accepted a teaching position elsewhere. Such reemployment
shall be upon a teacher's preexisting continuing contract and
shall have the same effect as though the contract had been
suspended during the time the teacher was not employed.
At the beginning of the 1993-94 school year, a Ms. Milne, an English teacher
at Preston High School, who was ill, was absent from duty because of that illness, and the
appellant, Mr. Serdich, was called to serve as a substitute teacher for her. After Mr. Serdich
had served as a substitute for a short time, Ms. Milne returned to work, but thereafter she
again became unable to perform her duties because of her illness. On October 11, 1993, Ms.
Milne's physician wrote the director of personnel for the Preston County Board of Education
indicating that Ms. Milnes would need additional time off from her work responsibilities.
The physician also wrote that she was unable to predict with certainty when she would be
able to return. In a second letter dated October 20, 1993, the doctor again indicated that she
was unable to predict with certainty when Ms. Milne would be able to return to her
Mr. Serdich was not recalled to replace Ms. Milne after her abortive attempt
to return to work.
Thereafter, on January 31, 1994, Ms Milne, at one time, signed and filed nine
separate ten-day leave request forms. Eight of these were prospective and provided for her
to be absent on sick leave through June 14, 1994. In effect, Ms. Milne notified the School
Board that she anticipated being absent from work for an additional eighty school days, a
period equal to the remainder of the school year.
After receiving the January 31, 1994, leave requests, the School Board which
considered Ms. Milne to be absent on temporary personal leave, and which did not consider
her position to be open, did not notify the appellant of Ms. Milne's absence and did not
afford him an opportunity to apply for Ms. Milne's position.
When the appellant learned that Ms. Milne had notified the school board that
she would probably be absent for an additional eighty days, a situation which he believed
created an opening within the meaning of W.Va. Code 18A-4-7a, he filed the present
action for a writ of mandamus in the Circuit Court of Preston County. In his petition he
prayed that the circuit court issue a write of mandamus to compel the respondent, Board of
Education, to place him in the opening.
After the development of the facts of the case, the circuit court, in an opinion dated June 23, 1995, concluded that Mr. Serdich was not entitled to the relief which he sought. Essentially, the circuit court reasoned that Ms. Milne was off work because of her illness and was absent because of personal leave. The court concluded that such an absence did not constitute an "opening" of her position within the meaning of the recall statute, W.Va. Code 18A-4-7a, and that, since there was no "opening," the Preston County Board of Education had no statutory duty to notify the appellant of her absence. The court also reasoned that the law authorized the Preston County Board of Education to hire substitute teachers, as it did in this case, under the circumstances presented. The court stated:
Even if the Board anticipated that Milne (the ill teacher)
might be absent for more than twenty consecutive days, the
Board was not required by law to open her position, but was
within its discretion in employment substitute teachers to fill her
temporary absence. The law grants the Board flexibility in its
hiring of substitute teachers and does not require that substitutes
be taken from the preferred recall list.
Serdich has not established that Milne's position was ever 'open' so that the statutory requirements of W.Va. Code 18A-4-7a,
would then be applicable. Nor has he established that the Board
abused its discretion when it chose to hire substitute teachers to
fill in for Milne as a teacher on personal leave.
On July 13, 1995, the circuit court entered an order formally denying Mr.
Serdich the mandamus relief which he sought.
In the present appeal Mr. Serdich claims that he is entitled to the mandamus
relief and that the circuit court erred in denying him that relief, and as previously indicated,
the real question presented is whether Ms. Milne's absence in the present case constitutes
an "opening" within the meaning of the recall statutes.
So far as this Court can determine, the Legislature has not specifically defined
the term "opening" in this context, and this Court is unaware of any case in which it has
interpreted that term in the context presented in the present case.
It is fundamental that in interpreting statutes that this Court should attempt to
give all legislative statements meaning, for, as stated in Syllabus Point 4 of State v. Aracoma-Chief Logan No. 4523, Veterans of Foreign Wars of the United States, 147 W.Va. 645, 129
S.E.2d 921 (1963): "It is always presumed that the legislature will not enact a meaningless
or useless statute." Further, the Court has indicated that: "Generally the words of a statute
are to be given their ordinary and familiar significance and meaning, and regard is to be had
for their general and proper use." Syllabus Point 3, Byrd v. Board of Education of Mercer
County, 196 W.Va. 1, 467 S.E.2d 142 (1995).
Although the Board of Education in the present case, and the circuit court
below, in effect found that the brief periods of Ms. Milne's absence were such that they
called for the hiring of a substitute teacher, rather than notification of the appellant for recall,
the positions of the board of education and the circuit court are apparently premised on the
fact that Ms. Milne's absence was clearly anticipated to be temporary.
This Court believes that this reasoning ignores the plain statements contained
in W.Va. Code 18A-4-7a that "[b]efore position openings that are known or expected to
extend for twenty consecutive employment days or longer for professional personnel may
be filled by the board, the board shall be required to notify all qualified professional
personnel on the preferred list..." The statute makes no reference to "temporary" or
In examining this statute, the Court notes that what triggers the existence of an opening, and the requirement of notice to those on the recall list, is not what has retrospectively happened, not, for instance, that a teacher has actually been absent for twenty days or more; rather, the triggering event is the fact that a board of education, receives information that makes known, or reasonably creates the expectation that, a teacher will prospectively be absent for twenty consecutive employment days or more. Further, in this Court's view the plain meaning of the statutory language is that when a board of education receives information which leads it to know, or reasonably expect, that a teacher's "absence" will prospectively extend for twenty consecutive employment days, or more, there is an "opening" within the meaning of W.Va. Code 18A-4-7a, and the board is then required to notify all qualified personnel on the recall list referred to in such statute of the existence of the opening.
In stressing the distinction between an actual retrospective absence and an
expected prospective absence, the Court is anxious to avoid a misreading of what it believes
the Legislature intended to do in adopting the recall provisions. The Court does not believe
that the Legislature intended to require boards of education to give recall notices when a
teacher has actually been absent for twenty days or more, but such absence was
unanticipated. Such a reading of the statute would, in this Court's view, require the boards
of education to react with unreasonable dexterity to avoid the substantial monetary
obligations potentially arising out of violations of the recall provisions. To the contrary, the
Court believes and the language of W.Va. Code 18A-4-7a supports the conclusion that the
recall provisions come into effect only when it is known, or reasonably expected, that the
absence will, prospectively, extend for twenty consecutive employment days or longer.
In the present case, as previously indicated, Ms. Milne filed nine separate ten-day leave request forms on January 31, 1994. Eight of these request forms were for
prospective ten-day leaves of absence and provided for her to be absent on sick leave through
June 14, 1994. Unlike the circuit court, this Court believes that the filing of the eight
prospective leave requests at the same time clearly should have informed the Board of
Education that Ms. Milne anticipated being absent for more than twenty consecutive
Because of this, this Court believes that the decision of the circuit court must
be reversed, and this Court must conclude that the appellant is entitled to recall.
The Court notes that W.Va. Code 18A-2-2a (a) provides:
Any teacher who is returning from an approved leave of
absence that extended for a period of one year or less shall be
reemployed by the county board with the right to be restored to
the same assignment of position or duties held prior to the
approved leave of absence. Such teachers shall retain all
seniority, rights and privileges which had accrued at the time of
the approved leave of absence, and shall have all rights and
privileges generally accorded teachers at the time of the
Under this provision, Ms. Milne, if she returned prior to being absent on leave of absence
for one year or less, would be entitled to reinstatement and, consequently, the appellant's
entitlement to recall would be moot. On this point the record in the present case is unclear,
however, given what is before the Court, the Court believes that the appellant is entitled to
The Court notes that what constitutes an "opening" within the statutory
language was unclear at the time the circuit court rendered its ruling in this case, as well as
at the time the board of education failed to send the appropriate notice to the appellant.
Under such circumstances the Court believes that it would be inappropriate to award the
appellant back pay, other benefits, and other legal expenses connected with the bringing of
In reaching the conclusion that Ms. Milne's position in the present case was
an "opening" within the meaning of W.Va. Code 18A-4-7a, this Court has examined the
question within the context of the very narrow facts presented in this case. The controlling
fact is that Ms. Milne filed applications for eight separate consecutive ten day leaves of
absence at one time. This very limited fact tells the Court that at the time of the filing of
those applications Ms. Milne knew, and the board of education reasonably should have
known, that her absence would extend more than twenty consecutive employment days.
For the reasons stated, the judgment of the Circuit Court of Preston County
is reversed in this case and remanded with directions that the circuit court award the
appellant mandamus relief directing the Preston County Board of Education to place the
appellant in a professional position as a consequence of Ms. Milne's absence, provided Ms.
Milne has not returned from her absence within one year.
Justice Starcher, while concurring in the decision relating to the appellant's entitlement to notice and recall, would award the appellant reasonable court costs and attorney fees, as well as retroactive pay and benefits, because of the language of W.Va. Code 18A-4-7a which states:
Any board failing to comply with the provisions of this
article may be compelled to do so by mandamus and shall be
liable to any party prevailing against the board for court costs
and reasonable attorney fees that are determined and established
by the court. Further, employees denied promotion or
employment in violation of this section shall be awarded the job,
pay and any applicable benefits retroactive to the date of the
violation and payable entirely from local funds. Further, the
board shall be liable to any party prevailing against the board
for any court reporter cost, including copies of transcripts.
Reversed and remanded with directions.