R. Legg, Jr.
Cohen, Abate & Cohen, L.C. Clarksburg, West Virginia
Morgantown, West Virginia Attorney for the Appellee
Attorney for the Appellants
The Opinion of the Court was delivered PER CURIAM.
1. 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. Syl. Pt. 1, Randolph
County Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).
2. Grievance rulings involve a combination
of both deferential and plenary review. Since a reviewing court is obligated
to give deference to factual findings rendered by an administrative law judge,
a circuit court is not permitted to substitute its judgment for that of the
hearing examiner with regard to factual determinations. Credibility determinations
made by an administrative law judge are similarly entitled to deference. Plenary
review is conducted as to the conclusions of law and application of law to
the facts, which are reviewed de novo. Syl. Pt. 1, Cahill v.
Mercer County Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).
Appellants Grace Washington and Shirley Crock challenge
the October 17, 2000, ruling of the Circuit Court of Harrison County affirming
the decision of an administrative law judge (ALJ) concerning the
propriety of certain actions taken by the Harrison County Board of Education
(the Board) that resulted in the removal of experience credits,
which affected their rate of pay, but not their seniority. The circuit court
affirmed the ALJ's decision that the Board acted lawfully when it terminated
the Appellants' employment contracts and issued new contracts, which contained
identical terms of employment but at a reduced rate of salary. Upon careful
scrutiny of the record, applicable statutes, and precedent, we conclude that
the lower court was in error and, accordingly, we reverse.
After determining that the Board does not have
a policy addressing whether service personnel are entitled to experience credit
for outside employment, the ALJ found that [g]rievant's prior experience
is directly related to her ability to provide services as an aide to a student
with cerebral palsy. The ALJ concluded that the Board's failure
to grant Grievant [Mrs. Crock] the credit for salary purposes constitutes discrimination
in view of the grant of an experience credit to Mrs. Washington. Accordingly,
the ALJ ruled that the uniformity provisions of West Virginia Code § 18A-4-5b
required the granting of the experience credit to Mrs. Crock.
(See footnote 4) As a result of the decision
reached in this matter (hereinafter referred to as the Crock decision),
Mrs. Crock was awarded an experience credit of ten years based on her pre-Board
employment with the nursing home. This decision was affirmed by both the West
Virginia Education and State Employees Grievance Board and the Circuit Court
of Harrison County.
(See footnote 5)
Appellants initiated a joint grievance on April
12, 1999, contesting the termination of their contracts and the issuance of
new contracts for the purpose of eliminating the experience credit previously
granted to them. Following the level two hearing, which took place on August
31, 1999, a written decision denying the grievance was entered on October
13, 1999. See W.Va. Code § 18-29-4 (1995) (Repl. Vol. 1999) (discussing
procedural levels of grievance process). Appellants opted to bypass level
three and proceeded to level four of the grievance process. On the scheduled
date for the level four hearing, December 10, 1999, the parties agreed to submit the matter based
upon the record developed at the level two proceedings. By ruling dated February
10, 2000, ALJ Denise Spatafore issued a decision denying the grievance and
concluding that [t]he termination of Grievants' contracts, and their
replacement with modified contracts without prior experience credit, did not
violate any law, policy, rule, regulation, or written agreement. Upon
review, the circuit court agreed with the ALJ and concluded, by order entered
October 17, 2000, that the Board acted lawfully in terminating Appellants'
respective contracts based on prospective budgetary concerns regarding the
financial effects of granting experience credits to all aides employed by
the county. Through this appeal, Mrs. Washington and Mrs. Crock seek a reversal
of the lower court's order.
Maintaining that the non-relegation clause is inapplicable,
the Board relies on the decision reached by this Court in Lucion v. McDowell
County Board of Education, 191 W.Va. 399, 446 S.E.2d 487 (1994). At issue
in Lucion was the local board's decision to terminate the contracts
of fifty-seven service personnel and then reissue contracts to those same employees with different terms
(See footnote 8) at reduced salaries for cost-saving
purposes. In addition to holding that the procedures of West Virginia Code
§ 18A-2-6 governing contract termination must be followed when a board
of education decides to reduce the employment terms for particular jobs, we
found that the non-relegation clause was not an impediment to the board's
actions in Lucion. Our conclusion that the non-relegation clause was
inapplicable, however, was expressly based on the fact that the new contracts
issued had reduced employment terms. 191 W.Va. at 404, 446 S.E.2d
at 492. Due to the change in employment terms, we determined that the new
positions were not the same as the positions previously held by the affected
service personnel. Consequently, the non-relegation clause, which prohibits
reduction of the salary or benefits of service personnel continuing
in the same job position and classification, without an employee's consent,
was not applicable. W.Va. Code § 18A-4-8(m); Lucion, 191 W.Va.
at 404, 446 S.E.2d at 492.
There are two fundamental distinctions that prevent
the holding of Lucion from controlling this case. First, and foremost,
is the fact that the new contracts issued to Mrs. Washington and Mrs. Crock
were identical in terms to the old contracts. There were no changes
in the length of the work-year nor any changes in the positions they were
to hold. The only change was the removal of the experience credit with the
consequent reduction in salary. This reduction in salary comes squarely within the prohibited acts
specified in the non-relegation clause. See W.Va. Code § 18A-4-8(m).
The second distinguishing factor that prevents Lucion from controlling
the instant case is the lack of any evidence that the Crock decision would
produce the drastic financial ramifications suggested by the Board. While
the need to implement cost-cutting measures was immediate when the contracts
were terminated and reissued in Lucion, in this case the Board appears
to have acted solely out of an unsubstantiated fear that numerous aides, under
authority of the Crock decision, would be seeking experience credits. In making
its decision, the circuit court similarly relied on the projected harm that
might result were all 150 county aides to seek simultaneously to come within
the purview of the Crock decision. Based on this unsupported factual premise,
the circuit court concluded that Lucion permitted the Board's actions.
Because no evidence was adduced on this issue, we have no way of knowing whether
any of the other aides would have sought enhanced pay through means
of the experience credit.
(See footnote 9)
The Board's reliance on Lucion was clearly
misplaced under the facts of this case. In marked contrast to the determinative
facts in Lucion, there were no changes in the terms of Appellants'
contracts. Additionally, the Board's actions were not taken in response to any actual budgetary crisis.
(See footnote 10) By altering the contracts
of Appellants in the manner undertaken in this case, the Board clearly violated
the provisions of the non-relegation clause. See W.Va. Code §
In addition to violating the non-relegation clause,
Appellants argue that the Board violated the provisions of West Virginia Code
§ 18A-4-5b, which addresses county salary supplements for service personnel.
This statute, which contains the uniformity provision relied upon to grant
Mrs. Crock an experience credit, also contains language providing that:
in establishing such local salary schedules, no county shall reduce local funds allocated for salaries in effect on the first day of January, one thousand nine hundred ninety, and used in supplementing the state minimum salaries as provided for in this article, unless forced to do so by defeat of a special levy, or a loss in assessed values or events over which it has no control and for which the county board has received approval from the state board prior to making such reduction.
W.Va. Code § 18A-4-5b.
While there is some confusion over whether the experience
credit given to Appellants qualifies as a salary supplement
(See footnote 11) within the meaning of West
Virginia Code § 18A-4-5b since the experience credit, while it elevated Appellants' pay
on the salary scale, was not given pursuant to an across-the-board type of
supplemental salary scale,
(See footnote 12) this issue is not determinative
of the matter before us.
(See footnote 13) The language of West Virginia
Code § 18A-4- 5b critical to resolving the issue at hand is located in
the last sentence and reads: Nothing herein shall prohibit the maintenance
nor result in the reduction of any benefits in effect on the first day of
January, one thousand nine hundred eighty-four, by any county board of education.
Clearly, this provision resolves the issue of whether Mrs. Washington's experience
credit could have been eliminated in the manner undertaken by the Board. Since Mrs. Washington was granted the benefit of the experience credit in 1979,
six years before the enactment of West Virginia Code § 18A-4-5b, there
is no question that she is subject to the grandfather clause of that provision.
The intent of the Legislature to implement the uniformity provisions in a
prospective fashion is clear. Accordingly, the uniformity provisions enacted
in 1984, that apply to the paying of salary and benefits to personnel who
are employed in similar position within the county, do not affect Mrs. Washington.
Thus, the Board was without authority to remove the experience credit from
Mrs. Washington's contract under the guise of the uniformity provision of
West Virginia Code § 18A-4-5b.
Having been hired initially by the Board in 1998,
Mrs. Crock is not subject to the grandfather clause of West Virginia Code
§ 18A-4-5b. As the result of successful litigation, however, the Circuit
Court of Harrison County determined that she was entitled to the experience
credit, and that unappealed decision remains the law of the case.
In addition, Mrs. Crock is entitled to the protections of the non-relegation
clause. Given our determination that the exception carved out to the non-relegation
clause in Lucion is inapplicable, the Board was prohibited by statutory
mandate from terminating her contract and reissuing essentially the same contract
just without the experience credit. See W.Va. Code § 18A-4-8(m).
Because the new contract was indeed for the same position with no altered
terms, and because the new contract was for a reduced salary, the Board's
actions with regard to Mrs. Crock were in violation of the non-relegation provisions
of West Virginia Code § 18A-4-8(m).
During oral argument of this case, we were advised that the Board has recently adopted a policy which expressly disallows experience credits to aides employed by the county. This policy adoption clearly postdates the underlying decisions in this case and, accordingly, has no controlling effect on the matters before us. To be clear, however, we view the cases of the two aides before us as exceptions to the current policy adopted by the Board that prohibits extension of experience credits based on pre-Board employment. We further observe that, barring the unique circumstances of Mrs. Washington and Mrs. Crock's cases, the uniformity clause contained in West Virginia Code § 18A-4-5b might stand as an impediment to allowing these aides to receive the benefit of the experience credits granted to them. We cannot conclude, however, that the Legislature intended to permit the non- relegation clause to be thwarted through the adoption of a county board of education policy that generally prohibits salary supplements to aides based on pre-Board employment experience. See W.Va. Code § 18A-4-8(m). We feel certain that the Legislature would not sanction the deprivation, to either aide at issue here, of the benefit of their respective experience credits, and in Mrs. Crock's case, the results of her successful grievance proceeding.
Based on the foregoing, the decision of the Circuit
Court of Harrison County is hereby reversed and remanded with directions to
enter an order restoring the experience credits formerly granted to Appellants
and directing the Board to remit to Appellants the resulting difference in increased
salary that their respective experience credits required from July, 1, 1999,
(1) was contrary to law or lawfully adopted rule,
regulation or written policy of the chief administrator or governing board,
(2) exceeded the hearing examiner's statutory authority, (3) was the result
of fraud or deceit, (4) was clearly wrong in view of the reliable, probative
and substantial evidence on the whole record, or (5) was arbitrary or capricious
or characterized by abuse of discretion or clearly unwarranted exercise of
W. Va. Code § 18-29-7.
county salary supplements, given that the effect of the credit is to elevate the personnel's salary above the legislated amounts of minimum monthly salaries provided for in West Virginia Code § 18A-4-8a, which are based on years of employment. W.Va. Code § 18A- 4-8(i)(2) (2001).