| Jason A. Poling, Esq.
Tyson & Tyson
Huntington, West Virginia
Attorneys for Appellant
| James W. Gabehart, Esq.
Hamlin, West Virginia
Attorneys for Appellee
final order of the hearing examiner for the West Virginia Educational Employees
Grievance Board, made pursuant to W. Va. Code, 18-29-1, et seq. (1985),
and based upon findings of fact, should not be reversed unless clearly wrong.
Syl. pt. 1, Randolph County Bd. of Educ. v. Scalia, 182 W. Va.
289, 387 S.E.2d 524 (1989).
Board of Education of a school-district is a corporation created by statute
with functions of a public nature expressly given and no other; and it can exercise
no power not expressly conferred or fairly arising from necessary implication,
and in no other mode than that prescribed or authorized by the statute.' Syl.
pt. 4, Shinn v. Board of Educ., 39 W. Va. 497, 20 S.E. 604 (1894).
Syl. pt. 7, City of Huntington v. Bacon, 196 W. Va. 457, 473
S.E.2d 743 (1996).
3. In the absence of express statutory authority to the contrary, county boards of education have no power to create separate and legally distinct organizations immune from the grievance procedures set forth in W. Va. Code §§ 18-29-1 to -11.
McGraw, Chief Justice:
The appellant, Christina Napier,
challenges the final order of the Circuit Court of Lincoln County, which upheld
a determination by an Administrative Law Judge (ALJ) of the Education
and State Employees Grievance Board (Grievance Board) that it was
without jurisdiction to hear Ms. Napier's grievance because the federally-funded
position which she had sought, but failed to obtain, was not that of an employee
of the appellee Lincoln County Board of Education (Board of Education).
We reverse, finding that the ALJ erred as a matter of law in concluding that
the post for which Ms. Napier applied did not fall under the authority of the
Board of Education.
In 1998, the Board of Education
applied for and obtained a $334,197 grant from the United States Department
of Education pursuant to the 21st Century Community Learning Centers Act, 20
U.S.C. §§ 8241-8247 (1994) (the Learning Centers Act).
Under the Learning Centers Act, grants are made to elementary and secondary
schools, or consortia of such schools, for purposes of establishing and maintaining
so-called community learning centers, 20 U.S.C. § 8245,
which are defined as
entit[ies] within a public elementary or secondary school building that_
educational, recreational, health, and social service programs for residents of
all ages within a local community; and
(2) [are] operated by a local educational agency in conjunction with local governmental agencies, businesses, vocational education programs, institutions of higher education, community colleges, and cultural, recreational, and other community and human service entities.
20 U.S.C. § 8246. The Learning Centers Act further requires that such community learning centers offer at least four out of thirteen designated activities. 20 U.S.C. § 8245.See footnote 1 1
Pursuant to these basic requirements, the Board of Education has used its grant to fund a program known as West Virginia Dreams, which aims primarily to provide after- school and summer programs involving tutoring, counseling, and recreational activities. The West Virginia Dreams program involves a collaborative effort between the Board of Education and Step By Step, Inc., a non-profit community organization based in Lincoln County. Community learning centers have been established under the grant at five locations: Atenville Elementary School; Ferrellsburg Elementary School; Harts High School; the Big Ugly Community Center, which is located in a former elementary school; and the Midkiff Community Center, also a former elementary school. According to the ALJ, the management of the program is directly overseen by a three-person Management Team, comprised of the principals of the Atenville Elementary and Harts High Schools, and Michael Tierney, the director of Step By Step.See footnote 2 2
Shortly after the Board of Education
was notified of the grant award, no less than 16 positions connected with the
program were posted in the Board's vacancy bulletin. The bulletin specifically
noted that these positions were 21st Century Community Learning positions,
and instructed applicants to forward their applications directly to Step By Step.
The job descriptions of each of the positions described the following selection
1. Letter of application/resume to Step By Step @ Big Ugly Community Center.
2. Recommendation by the Management Team.
3. Recommendation by the Superintendent.
4. Approval by Board of Education as provided by 21st Century Grant.
These positions were apparently also advertised in the Charleston Gazette, as well as the Logan Banner and other, more local, newspapers.
Ms. Napier timely applied
for a position as a site coordinator at any one of the community
learning center locations, which would have entailed working approximately ten
hours each week at such tasks as scheduling events and personnel, ordering supplies,
and conducting after-school programs. The Management Team failed to recommend
Ms. Napier for any of the available site coordinator positions, and the Board
of Education approved the Management Team's recommended candidates at its meeting
on February 1, 1999.
Shortly thereafter, on February
5, 1999, Ms. Napier filed a grievance alleging that the site coordinator positions
had been filled in violation of W. Va. Code § 18A-4-7a (1993), which governs the hiring of professional employees.See
footnote 3 3 The grievance was denied at Level I, and was thereafter
subject to a Level II hearing on March 9, 1999. At that hearing, the Board of
Education moved to dismiss the grievance for want of jurisdiction under W. Va.
Code §§ 18-29-1 to -11, arguing that the site coordinator
position was not that of an employee of the Board. The motion to dismiss on
jurisdictional grounds was granted, and, after the parties waived a hearing
at Level III, Ms. Napier filed her Level IV appeal with the Grievance Board
on March 18, 1999.
At Level IV, the Board of Education again moved to dismiss the grievance, with both parties agreeing to resolve this jurisdictional issue prior to an evidentiary hearing. On July 15, 1999, the ALJ for the Grievance Board granted the motion to dismiss. The ALJ premised her ruling on well-established legal principles governing the existence of a employer-employee relationship,See footnote 4 4 and reasoned that since it was undisputed that those working in the federally-funded community learning centers fell under the direct, day-to-day control of the Management Team, the site coordinator position in question did not involve employment by the Board of Education.See footnote 5 5
Following the dismissal of her grievance at Level IV, Ms. Napier sought judicial review in the Circuit Court of Lincoln County pursuant to W. Va. Code § 18-29-7 (1985). By an order entered on April 13, 2000, the circuit court denied relief, and this appeal followed.
This Court undertakes de
novo review of action taken by a circuit court under the judicial review
provisions of W. Va. Code § 18-29-7, in that we are bound to
employ the same standard as that which the statute imposes upon the lower courts.
See Martin v. Randolph County Bd. of Educ., 195 W. Va. 297,
304, 465 S.E.2d 399, 406 (1995) (This Court reviews decisions of the circuit
[court] under the same standard as that by which the circuit [court] reviews
the decision of the ALJ.). In other words, we give no deference to the
circuit court, but instead undertake to apply the criteria of § 18-29-7See
footnote 6 6 directly to the findings and conclusions of the
ALJ. Cf. Wheeling-Pittsburgh Steel Corp. v. Rowing, 205 W. Va.
286, 293, 517 S.E.2d 763, 770 (1999) (noting in context of Administrative Procedures
Act, that we give no deference to the lower court [but] review de novo
whether the agency action satisfies the standards of the APA.) (internal quotation
marks and citations omitted). Thus,
[w]e must uphold any of the ALJ's factual findings that are supported by substantial evidence, and we owe substantial deference to inferences drawn from these facts. . . . Nonetheless, this Court must determine whether the ALJ's 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.
Martin, 195 W. Va. at 304, 465 S.E.2d at 406; see also syl. pt. 1, Randolph County Bd. of Educ. v. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989) (A final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuant to W. Va. Code, 18-29-1, et seq. (1985), and based upon findings of fact, should not be reversed unless clearly wrong.).
The jurisdiction of the Grievance
Board extends to, among other things,See
footnote 7 7 adjudication of Level IV grievances filed by state
and local educational employees, W. Va. Code § 18-29-4(d) (1995),
with a grievance being defined, in part, as any claim by one
or more affected employees of the governing boards of higher education, state
board of education, county boards of education, regional educational service agencies
and multi-county vocational centers alleging a violation, a misapplication or
a misinterpretation of the statutes, policies, rules, regulations or written
agreements under which such employees work . . . . W. Va.
Code § 18-29-2(a) (1992). Thus, as both the ALJ and circuit court
correctly surmised, Ms. Napier's claim is cognizable under the grievance procedures
set forth in W. Va. Code §§ 18-29-1 to -11 only to
the extent that the Board of Education is the employer with respect to the sought-after
position. See Vest v. Board of Educ. of County of Nicholas, 193
W. Va. 222, 225, 455 S.E.2d 781, 784 (1995) ([T]he Grievance Board's
authority extends only to resolving grievances made cognizable by its authorizing
legislation, that is, those grievances recognized in W. Va. Code, 18-29-2.);
accord Skaff v. Pridemore, 200 W. Va. 700, 709, 490 S.E.2d
787, 796 (1997) (per curiam).
In this case, the ALJ found as a matter of fact that the power of control resided in the Management Team of the West Virginia Dreams program, and accordingly concluded that West Virginia Dreams, rather than the Board of Education, was the employer. We do not discern any fundamental infirmity in the ALJ's finding that the program is controlled by the Management Team. As we explain below, however, the Court concludes that the ALJ erred as a matter of law in failing to properly extend her analysis to ascertain whether West Virginia Dreams, as the entity nominally controlling the employment position at issue, could properly be deemed to stand independent of the Board of Education.
In support of the conclusions below, the Board of Education posits that the West Virginia Dreams program is an entity with independent legal status, and that it was the lone employer of persons hired pursuant to the federal grant. The Board points to language in the Learning Centers Act indicating Congress' intent that recipient schools should
collaborate with other public and nonprofit agencies and organizations, local businesses, educational entities . . ., recreational, cultural, and other community and human service entities, for the purpose of meeting the needs of, and expanding the opportunities available to, the residents of the communities served by such schools.
20 U.S.C. § 8242(2). The Board also cites to 20 U.S.C. § 8246(2), which, in part, defines a community learning center as an entity that is operated by a local educational agency in conjunction with local governmental agencies, businesses, vocational education programs, institutions of higher education, community colleges, and cultural, recreational, and other community and human service entities. (Emphasis added.) Relying on this authority, as well as the fact that the original grant application submitted to the U.S. Department of Education referenced Step By Step's anticipated participation in the program, the Board of Education asserts that both it and Step By Step have formed a legally-distinct entity in conformity with the dictates of the Learning Centers Act.
We do not read the Learning
Centers Act as either mandating or necessarily encouraging the formation of
a separate legal entity for purposes of administering related grants. Indeed,
the only entities that are permitted to apply for grants under the Act are rural and inner-city public elementary or secondary schools, or consortia of such
schools. . . . 20 U.S.C. § 8243(a). The sole
grant applicant and recipient in this case was, in accordance with this mandate,
the Board of Education. Rather than requiring the formation of a legally distinct
organization, we read the Learning Centers Act as merely encouraging local educational
agencies to leverage their own resources, as well as funds provided pursuant
to the Act, by cooperating with other public, non-profit, and business organizations.
Thus, we reject the Board of Education's argument that the Learning Centers
Act must somehow be read as giving the West Virginia Dreams program independent
Nor have we been pointed to
any authority supporting the proposition that a county board of education has
the power under West Virginia law to form such an entity in affiliation with
another organization. While we are not directly called upon to decide the question,
there seems little doubt that the Board of Education has authority in this case
to directly implement most, if not all, of the activities contemplated by the
federal grant. See, e.g., W. Va. Code § 18-2-25 (1967)
(granting county school boards power to control and supervise extracurricular
activities); W. Va. Code § 18-5-19 (1996) (authorizing school
boards to establish and maintain evening classes or night schools, and to permit
use of school property for public meetings); W. Va. Code § 18-5-19b
(1986) (empowering school boards to provide adult education classes); W. Va.
Code § 18-5-26 (1988) (permitting establishment of day care facilities,
either directly or through engagement of independent contractors). Yet, nowhere have we found direct or implied authority permitting a county board
of education to form, either by itself or in conjunction with others, a separate
organization having the power to independently employ and manage persons without
regard to the statutory protections generally afforded school board employees.
Indeed, the Legislature has made clear that the grievance process should apply
broadly not only to the enumerated educational entities, but also their agents:
The purpose of [the grievance process] is to provide a procedure for employees
of the . . . county boards of education . . . and their
employer or agents of the employer to reach solutions to problems which
arise between them within the scope of their respective employment relationships
to the end that good morale may be maintained, effective job performance may
be enhanced and the citizens of the community may be better served. W.
Va. Code § 18-29-1 (1992) (emphasis added).
As we have frequently stated,
'[t]he Board of Education of a school-district is a corporation created
by statute with functions of a public nature expressly given and no other; and
it can exercise no power not expressly conferred or fairly arising from necessary
implication, and in no other mode than that prescribed or authorized by the
statute.' Syl. pt. 7, City of Huntington v. Bacon, 196 W. Va.
457, 473 S.E.2d 743 (1996) (quoting syl. pt. 4, Shinn v. Board of Educ.,
39 W. Va. 497, 20 S.E. 604 (1894)); see also Bailey v. Truby,
174 W. Va. 8, 15, 321 S.E.2d 302, 309 (1984); syl. pt. 1, Evans v. Hutchinson,
158 W. Va. 359, 214 S.E.2d 453 (1975); Board of Educ. of Raleigh County
v. Commercial Cas. Ins. Co., 116 W. Va. 503, 506, 182 S.E. 87, 89 (1935); Herald v. Board of Educ.,
65 W. Va. 765, 65 S.E. 102 (1909); syl. pt. 1, Honaker v. Board
of Educ. of Pocatalico Dist., 42 W. Va. 170, 24 S.E. 544 (1896) . We
therefore hold that in the absence of express statutory authority to the contrary,
county boards of education have no power to create separate and legally distinct
organizations that are otherwise immune from the grievance procedures set forth
in W. Va. Code §§ 18-29-1 to -11. Consequently, given
the lack of such enabling legislation bearing upon the present case, there is
no legal basis upon which to conclude that the West Virginia Dreams program,
or its Management Team, has independent legal status so as to be insulated from
the statutory grievance process.
Moreover, it is clear that
West Virginia Dreams is, for all intents and purposes, controlled by the Board
of Education. As the sole grant recipient, the Board of Education has full command
over the use of the federal grant funds, subject only to the requirements of
the Learning Centers Act and the terms of its grant. The ALJ effectively recognized
this fact by noting that employees of the program are paid directly by the Board
of Education. While we have recognized that a board of education does not necessarily
become an employer by merely serving as a fiscal agent for another entity, see
e.g., Parker v. Summers County Bd. of Educ., 185 W. Va. 313,
406 S.E.2d 744 (1991) (per curiam), the Board of Education's involvement in
the present case plainly went beyond serving as a fiscal agent. The Board retained
the final say in all matters related to the project, a power which it displayed by making the final employment decision with regard to the position
at issue in this case. Also, contrary to the finding of the ALJ, at least three
of the five community learning centers established under the program are obviously
located on school property.See footnote
8 8 And most importantly, the record is equally clear that at
least a majority of the Management Team is composed of employees of the Board
of Education.See footnote 9 9
While the grant application indicated that the Board of Education would
collaborate with Step By Step, the Board has not cited any credible authority
suggesting that it is in any way obligated to give that organization any measure
of control over the overall program. Thus, there is no basis upon which to treat
West Virginia Dreams, or its Management Team, as standing apart to any material
degree from the Board of Education.
Consequently, the Court finds
that the circuit court erred in upholding the ALJ's conclusion that the Board
of Education was not the employer in this case, as the ALJ's decision was incorrect
as a matter of law. Ms. Napier should therefore be permitted to have her claim
addressed through the grievance process set forth in W. Va. Code §§ 18-29-1
The result we reach here should
not be taken, however, as precluding the Board of Education from collaborating
with, accepting resources from, or otherwise relying upon the expertise of Step
By Step in support of the West Virginia Dreams program, as the grant provided
under the Learning Centers Act clearly contemplates. Yet, while Step By Step
may contribute its own employees to the program without subjecting itself to
the statutory grievance process, it is equally true that the Board of Education
may not shield itself from such a requirement by forming a nominally separate,
but nonetheless subordinate, organization.
For the reasons stated, the
judgment of the Circuit Court of Lincoln County is reversed, and this case is
remanded for further proceedings consistent with this opinion.
Reversed and remanded.
awarded under this part may be used to plan, implement, or expand community
learning centers which include not less than four of the following activities:
(1) Literacy education programs.
(2) Senior citizen programs.
(3) Children's day care services.
(4) Integrated education, health, social service, recreational, or cultural programs.
(5) Summer and weekend school programs in conjunction with recreational programs.
(6) Nutrition and health programs.
(7) Expanded library service hours to serve community needs.
(8) Telecommunications and technology education programs for individuals of all ages.
(9) Parenting skills education programs.
(10) Support and training for child day care providers.
(11) Employment counseling, training and placement.
(12) Services for individuals who leave school
before graduating from secondary school, regardless of the age of such individual.
(13) Services for individuals with disabilities.
20 U.S.C. § 8245.
a similar circumstance involving a board of education and a position that was
funded by an outside source, this Grievance Board found that, where the evidence
of record established that the county board was responsible for posting the
vacancy, interviewing the applicants, approving the Superintendent's recommended
appointment, managing the employee's payroll and other employment-related paperwork,
and supervising the incumbent employee during the period of appointment, the
individual holding the position was a regular, part-time, temporary employee
of the board, and thus, entitled to utilize the grievance process afforded all
state education employees. Phillips v. Webster County Bd. of Educ., Docket No.
93-51-073 (May 27, 1993), aff'd, Circuit Court of Kanawha County, Civil Action
No. 93-AA-155 (Mar. 17, 1994). In making that determination, the Administrative
Law Judge stated:
Neither is the source of funding controlling herein. This situation is comparable to positions which are federally-funded but are within the daily control of the Board. Even though funding emanates from a source outside the state and the positions exist on a contingent basis pending continued funding, the employees are for all intents and purposes employees of the Board.
The evidence presented in the instant case with regard to the motion to dismiss indicates that, while the employees of the project are paid through the Board treasurer's office, the Board
is not involved with any of the paperwork required by the project. The positions
are 12-month, 10 hours per week, and take place after regular school hours.
The individuals employed are under the control of the Management Team, which
is in bi- weekly contact with the Federal representative of the grant. The locations
of the project, the community centers, are not owned or operated by the Board.
No data was presented regarding who had evaluation or firing authority over
the employees, but it is clear that the employees' work will be directed by
the Management Team and the Federal representative of the project.
In contrast with the Phillips decision, where no evidence was presented that the funding partner, the Benedum Foundation, retained any day-to-day control over the position at issue or the program, the evidence in this case demonstrates just the opposite: that the Management Team is responsible for the day-to-day operations of the West Virginia Dreams project, and the Board has little input other than the posting and hiring function.
Therefore, based upon the evidence presented, the undersigned finds that the position of Site Coordinator is not a regular position with the Board; and thus, any challenges regarding the hiring for the position are outside the jurisdiction of this Grievance Board, and not applicable to the provisions of W. Va. Code [chs.] 18 and 18A.