STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
September 16, 2016
Dwayne Yatauro, Sheryl Stevens, Richard Parsons, RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Blanche Marie King, Deb Goff, and Randy Harris, OF WEST VIRGINIA
Petitioners Below, Petitioners
vs) Nos. 15-0650, 15-0651, 15-0652, 15-0653, 15-0654 and 15-0922
(Kanawha County 15-AA-49, 15-AA-48, 15-AA-43, 15-AA-41, 15-AA-40 and 15-AA-46)
The Calhoun County Board of Education,
Respondent Below, Respondent
and
The Calhoun County Board of Education,
Respondent Below, Petitioner
vs) No. 15-0903 (Kanawha County 15-AA-44)
Tim Hickman
Petitioner Below, Respondent.
MEMORANDUM DECISION
These seven cases originate from the West Virginia Public Employees Grievance Board’s
(“Grievance Board”) denial of the consolidated grievances brought by employees of the Calhoun
County Board of Education (“BOE”). In their grievances, the employees challenged the BOE’s
reduction of the term of their contracts for employment without proper notification and
opportunity for a hearing, as required by West Virginia Code §§ 18A-2-6, 18A-4-8(m), and 18A-
2-12a(b)(6).
In six of the consolidated appeals before this Court, BOE employees Dwayne Yatauro,
Sheryl Stevens, Richard Parsons, Blanche Marie King, Deb Goff, and Randy Harris, by counsel
John Everett Roush, appeal the final orders of the Circuit Court of Kanawha County affirming
the decision of the Grievance Board that denied their grievances against the BOE. In these six
cases, the BOE, by counsel Richard S. Boothby, responds in support of the circuit court’s orders.
With regard to the seventh case, filed by BOE employee Tim Hickman, the BOE, by
counsel Richard S. Boothby, appeals the final order of the Circuit Court of Kanawha County
reversing the Grievance Board’s decision. In that case, Respondent Hickman, by counsel John
Everett Roush, responds in support of the circuit court’s order. Petitioner BOE filed a reply.
This Court has considered the parties’ briefs and record on appeal. The facts and legal
1
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds, as to the Yatauro, Stevens, Parsons, King, Goff, and Harris cases, no
substantial question of law and no prejudicial error. As to the Hickman case, we find that the
circuit court erred with respect to its reversal of the Grievance Board’s decision. For these
reasons, a memorandum decision affirming in part and reversing in part the circuit court’s orders
is appropriate in these cases under Rule 21 of the Rules of Appellate Procedure.
In April of 2014, the assistant state superintendent for the Division of Student Support
Services at the West Virginia Board of Education (“State Board of Education”) contacted the
BOE’s business office regarding concerns about the BOE’s financial deficit and the need to cut
expenses. In late May of 2014, the State Board of Education rejected the budget submitted by the
BOE.1 During the third week of June of 2014, the assistant superintendent of the State Board of
Education contacted the BOE’s superintendent and advised that the BOE had a serious budget
deficit. On June 30, 2014, the BOE received a letter from the superintendent of the State Board
of Education advising that the BOE’s submitted budget was “insufficient to maintain the
proposed education program as well as other financial obligations.” Citing West Virginia Code §
18-9B-8, the letter directed the BOE to cut $100,000 from its budget and further directed that the
cost reductions be accomplished by reducing the length of employee contracts which exceeded
200 days.
After receiving the June 30, 2014, letter, the BOE called an emergency meeting of its
board. Based upon the directive from the superintendent of the State Board of Education, the
BOE’s superintendent recommended that the board comply with the directed reductions.2 The
BOE voted three to two to accept the superintendent’s recommendation and to reduce employee
contracts exceeding two hundred days.3
1
Each year, county boards of education must submit their proposed school year budgets
to the State Board of Education for approval.
2
From the time he began his job on May 27, 2014, the BOE’s superintendent was aware
of the BOE’s dire financial condition. Prior to agreeing to reduce the terms of the employment of
the grievants, the BOE’s superintendent left “no stone unturned” in looking at ways in which the
BOE could save money, including: eliminating overtime, not filling vacant positions, adjusting
bus routes, and postponing the purchase of new school buses.
3
Petitioner Yatauro’s 240-day employment term (for school year 2013-14) was reduced
to 230 days (for school year 2014-15). Petitioner Stevens’s 240-day employment term was
reduced to 210 days. Petitioner Parsons’s 240-day employment term was reduced to 230 days.
Petitioner King’s 230-day employment term was reduced to 205 days. Petitioner Goff’s 240-day
employment term was reduced to 210 days. Petitioner Harris’s 230-day employment term was
reduced to 205 days. Respondent Hickman’s 230-day employment term was reduced to 205
days.
2
On July 11, 2014, fourteen of the effected employees filed a consolidated grievance
against the BOE seeking restoration of their employment term for the 2014-15, school year and
future school years, and compensation for lost wages with interest.4 The grievants asserted that
they were not properly notified of the reduction of employment terms and asserted a violation of
West Virginia §§ 18A-2-6, 18A-4-8(m), and 18A-2-12a(b)(6). On September 23, 2014, a level
three evidentiary hearing was held before an administrative law judge (“ALJ”).5
By decision dated March 10, 2015, the ALJ denied the portion of the grievance which
challenged the reduction of the days of employment term.6 Separately, seven of the grievants
appealed the Grievance Board’s decision to the Circuit Court of Kanawha County. The cases
were individually assigned to three different judges. The Grievance Board’s decision was
affirmed by the circuit court in six of the seven appeals including grievants Dwayne Yatauro,
Sheryl Stevens, Richard Parsons, Blanche Marie King, Deb Goff, and Randy Harris.7 However,
the Grievance Board’s decision was reversed by the circuit court in the appeal of employee Tim
Hickman.8 It is from the circuit court’s orders of May 29, 2015, August 18, 2015, and August 20,
2015, that the parties now appeal.
“When reviewing the appeal of a public employees’ grievance, this Court reviews
decisions of the circuit court under the same standard as that by which the circuit court reviews
the decision of the administrative law judge.” Syl. Pt. 1, Martin v. Barbour Cnty. Bd. of Educ.,
228 W.Va. 238, 719 S.E.2d 406 (2011). “A final order of the hearing examiner for the West
Virginia [Public] Employees Grievance Board, made pursuant to W.Va. Code, [6C-2-1], et seq. [
], and based upon findings of fact should not be reversed unless clearly wrong.” Syl. Pt. 1,
Randolph Cnty. Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). We have further
held that
[g]rievance rulings involve a combination of both deferential and plenary
4
The consolidated grievance was styled Deb Goff, et al v. Calhoun County Board of
Education, Docket No. 2015-0049-CONS and included fourteen grievants. Only seven of those
grievants are included in the consolidated appeal presently before this Court.
5
The employees waived levels one and two of the grievance proceedings.
6
The BOE also voted to eliminate a $600 annual supplement paid to various school
employees (including the employees herein). The elimination of this supplement was part of the
grievants’ underlying appeal. The supplement was reinstated by the ALJ. The
reduction/elimination of the annual supplement is not an issue in the present appeal.
7
The Grievance Board’s denial of Petitioners Yatauro, Stevens, Parsons, King, and Goff’s
appeals was affirmed by Judge Tod Kaufman on May 29, 2015. The Grievance Board’s denial of
Petitioner Harris’s appeal was affirmed by Judge James Stucky on August 20, 2015.
8
The Grievance Board’s denial of Respondent Hickman’s appeal was reversed by Judge
Louis Bloom on August 18, 2015.
3
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 Cnty. Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).
In their appeal, Petitioners Yatuaro, Stevens, Parsons, King, Goff, and Harris argue that
the circuit court erred in concluding that the BOE could reduce the employment term of a service
employee without compliance with the due process notice and hearing requirements found in
West Virginia Code §§ 18A-2-6, 9 18A-4-8(m),10 and 18A-2-12a(b)(6).11 In its appeal, regarding
grievant Tim Hickman, the BOE asserts five assignments of error which each address the circuit
court’s error in application of the “clear and unambiguous language” of West Virginia Code §
18-9B-8.
9
West Virginia Code § 18A-2-6 provides, in part, that,
[t]he continuing contract of any such employee shall remain in full force and
effect except as modified by mutual consent of the school board and the
employee, unless and until terminated with written notice, stating cause or causes,
to the employee, by a majority vote of the full membership of the board before
March 1 of the then current year, or by written resignation of the employee on or
before that date. The affected employee has the right of a hearing before the
board, if requested, before final action is taken by the board upon the termination
of such employment.
10
West Virginia Code § 18A-4-8(m) provides that,
[w]ithout his or her written consent, a service person may not be:
(1) Reclassified by class title; or
(2) Relegated to any condition of employment which would result in a reduction
of his or her salary, rate of pay, compensation or benefits earned during the
current fiscal year; or for which he or she would qualify by continuing in the
same job position and classification held during that fiscal year and
subsequent years.
11
West Virginia Code § 18A-2-12a(b)(6) provides, in part, that “[a]ll school personnel are
entitled to due process in matters affecting their employment, transfer, demotion or promotion;
4
We begin our analysis with a review of West Virginia Code § 18-9B-8, which provides
that
[i]f the board of finance12 finds that the proposed budget for a county will not
maintain the proposed educational program as well as other financial obligations
of their county board of education, it may require that the budget be revised, but
in no case shall permit the reduction of the instructional term pursuant to the
provisions contained in section fifteen [§ 15-5-15], article five of this chapter nor
the employment term below two hundred days. Any required revision in the
budget for this purpose may be made in the following order:
(1) Postpone expenditures for permanent improvements and capital outlays except
from the permanent improvement fund;
(2) Reduce the amount budgeted for maintenance exclusive of service personnel
so as to guarantee the payment of salaries for the employment term; or
(3) Adjust amounts budgeted in any other way so as to assure the required
employment term of two hundred days and the required instructional term of
one hundred eighty days under the applicable provisions of law.
We have previously held that “[i]nterpreting a statute or an administrative rule or
regulation presents a purely legal question subject to de novo review.” Syl. Pt. 1, Appalachian
Power Co. v. State Tax Dep’t, 195 W.Va. 573, 466 S.E.2d 424 (1995). Circuit Court Judges
Kaufman and Stucky, who adopted the ALJ’s findings, reasoned that the authority granted to the
State Board of Education by the West Virginia Legislature in West Virginia Code §§ 18-9B-1
through -21, is broad and contains no indication that its application is limited to only those
situations where notice and hearing opportunities have been provided to aggrieved employees.13
We agree.
We have previously found that “[t]o ascertain the Legislature’s intent, ‘[w]e look first to
the statute’s language. If the text, given its plain meaning, answers the interpretative question,
the language must prevail and further inquiry is foreclosed.’” Hammons v. W.Va. Office of Ins.
12
We note that while this statue references the West Virginia Board of Finance, West
Virginia Code § 18-9A-17, directs the State Board of Education, through its chief executive
officer, to direct and carry out all provisions of article 9B.
13
This Code provision further directs that a county board of education comply with the
instruction of the State Board of School Finance and perform “all duties required of them.” See
West Virginia Code § 18-9B-17. Further, this Code provision directs that “[t]he board of finance
may withhold payment of state aid from a county board that fails or refuses to comply with the
provisions of this article or the requirements of the state board made in accordance therewith.”
See West Virginia Code § 18-9B-19.
5
Comm’r, 235 W.Va. 577, 584, 775 S.E.2d 458, 465 (2015) (quoting Appalachian Power Co. v.
State Tax Dep’t of W.Va., 195 W.Va. [573,] at 587, 466 S.E.2d [424,] at 438 [1995]). In the case
sub judice, there is little doubt that the Legislature intended to confer broad fiscal powers to the
State Board of Education under West Virginia Code §§ 18-9B-1 through -21, which is
unambiguous. We have long held that “[w]here the language of a statute is clear and without
ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.”
Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). Accordingly, we agree with the
ALJ’s conclusion that the Legislature did not intend to limit the State Board of Education’s
authority under West Virginia Code §§ 18-9B-1 through -21. There is no provision in this
statutory provision which limits the State Board of Education’s authority to act only in situations
where the appropriate notice and hearing requirements for BOE employees are satisfied under
other statutory provisions (such as West Virginia Code § 18A-2-6).
Here, the State Board of Education ordered the BOE to reduce employee contract terms
in order to satisfy its budget insufficiency.14 Under the authority of West Virginia Code §§ 18-
9B-1 through -21, the State Board of Education had the ability to require the BOE to revise its
proposed budget to reduce salary costs by reducing the number of extended employment days
beyond the minimum employment terms of 200 days for the 2014-15 school year.15 As such we
find no error with the ALJ’s decision.
14
We note that our examination of the record reveals that prior to reducing the
employment contracts of the effected employees, the BOE implemented other budget cuts
similar to those described in sections and one of two of West Virginia Code § 18-9B-8.
15
We further reject the employees’ arguments that the circuit court erred by finding that
West Virginia Code § 18-9B-8 must be read in pari materia with West Virginia Code § 18A-2-6.
See Smith v. Siders, 155 W.Va. 193, 183 S.E.2d 433 (1971). The employees argue that when
reading these two code section together, it is clear that West Virginia Code § 18-9B-8 discusses
what may be done to reduce expenditures and West Virginia Code § 18A-2-6, is the method for
making the reduction. Conversely, the BOE argues, and we agree, that under limited facts and
circumstances of these consolidated cases, the doctrine of in pari materia is not applicable as the
statutes do not have a common purpose or relate to the same subject.
We also note that the Summers County Educ. Assoc. v. Summers County Bd. of Educ.,
179 W.Va. 107, 365 S.E.2d 387 (1987), cited by the employees’ in support of their appeal is
distinguishable from the case sub judice. In Summers, this Court reasoned that West Virginia
Code § 18-9B-8 protects school personnel in a situation where a county BOE was considering
reducing the number of work days in order to save money. However, we note, that West Virginia
Code § 18-9B-8 was revised (in 1991– after Summers) and that those revisions (which take the
focus of West Virginia Code § 18-9B-8 to the educational program and instruction term as
opposed to the employment term of the school employee) render Summers inapplicable to the
unique facts and circumstances of the instant case.
6
For the foregoing reasons, we find no error in the circuit court’s May 29, 2015, and
August 20, 2015, orders affirming the decision of the grievance board in the Yatauro, Stevens,
Parsons, King, Goff, and Harris cases and hereby affirm the same.
Based on our reasoning above, we further find that the circuit court, in its August 18,
2015, order reversing the decision of the grievance board in the Hickman case, was clearly
wrong. According, we reverse the circuit court’s August 18, 2015, order.
Affirmed in part, reversed in part.
ISSUED: September 16, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Brent D. Benjamin
Justice Allen H. Loughry II
DISSENTING:
Justice Robin Jean Davis
DISQUALIFIED:
Justice Margaret L. Workman
7