Davis, J., dissenting:
In this proceeding, the Nicholas County School Board awarded a school bus driver position for the summer of 1999 to John O'Dell, a substitute bus driver. This decision was challenged by Robert McClung, a regular, full-time school bus driver. Although this decision was upheld at both the administrative and circuit court levels, the majority opinion, through tortured reasoning, has reversed the decision and ruled that the job should have been awarded to Mr. McClung. For the reasons set out below, I dissent.
As a general matter, the use of seniority by a school board to fill a position is
not always necessary nor mandatory. Our cases have recognized that it is [o]nly when all
other factors are equal should a board of education look to seniority. Board of Educ. of
County of Wood v. Enoch, 186 W. Va. 712, 716, 414 S.E.2d 630, 634 (1992). Here, the
School Board did not use seniority in awarding Mr. O'Dell the summer bus operator position.
Instead, the School Board relied exclusively upon the applicable provision in W. Va. Code
§ 18-5-39 (1996) (Repl. Vol. 1999). This statute provides that [a]n employee who was
employed in any service personnel job or position during the immediate previous summer
shall have the option of retaining such job or position if such exists during any succeeding
(See footnote 1)
Id. This provision is without ambiguity. It clearly does not require filling a
summer position based upon seniority, when an applicant has held the same position in the
previous summer. As Justice Cleckley observed in Adkins v. Gatson, 192 W. Va. 561, 453
S.E.2d 395 (1994), under this provision the legislature intended to give service employees
of educational institutions the right to a continuing employment contract . . . if the same job
position were still in existence the following summer. Adkins, 192 W. Va. at 567, 453
S.E.2d at 401.
(See footnote 2)
In addition to addressing the issue of employing service personnel during the
summer, W. Va. Code § 18-5-39 also provides for employing professional personnel during
the summer. The provision for professional personnel requires seniority to be a factor in
filling a summer position. Specifically, the statute states that the board shall fill
professional positions established pursuant to the provisions of this section on the basis of
certification and length of time the professional has been employed in the county's summer
school program. W. Va. Code § 18-5-39 (emphasis added).
The majority opinion contended that because Mr. O'Dell was a full-time
employee when he worked during the summer of 1998, the only way that he could fill the
1999 vacancy as a substitute employee was through the seniority rights he accumulated
before he retired as a regular employee. No language in the service personnel provision of
W. Va. Code § 18-5-39 supports such reasoning. The effect of the majority opinion in this
case is that of engrafting the seniority requirement for summer professional personnel into
the provision addressing employment of summer service personnel. There is no legal
justification for such a decision. The two provisions are mutually exclusive.
Under the service personnel provision of W. Va. Code § 18-5-39, in order for
the School Board to award Mr. O'Dell the summer bus operator position it had to find that
Mr. O'Dell (1) was an employee of the School Board and (2) that he worked in the vacant
position during the previous summer. Mr. O'Dell met both requirements.
There is no dispute that at the time Mr. O'Dell sought the 1999 summer
position he was employed by the School Board. Further, the record is uncontested. Mr.
O'Dell worked as a summer bus operator for the School Board in 1998. The fact that Mr.
O'Dell retired as a full-time employee was not relevant. His full-time employee seniority
rights were simply not a prerequisite for the summer position.
(See footnote 3)
In view of the foregoing, I respectfully dissent.