IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2016 Term
FILED
November 2, 2016
released at 3:00 p.m.
No. 15-0662 RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MONONGALIA COUNTY BOARD OF EDUCATION AND
FRANK D. DEVONO, SUPERINTENDENT,
Respondents Below, Petitioners
V.
AMERICAN FEDERATION OF TEACHERS – WEST VIRGINIA, AFL-CIO;
JUDY HALE, ITS PRESIDENT;
SAM BRUNETT, JEANIE DEVINCENT, SHELLY GARLITZ,
AND MIKE ROGERS,
AS REPRESENTATIVES OF SIMILARLY SITUATED INDIVIDUALS,
Petitioners Below, Respondents
Appeal from the Circuit Court of Monongalia County
Honorable Phillip D. Gaujot, Chief Judge
Civil Action No. 11-C-759
REVERSED
Submitted: September 21, 2016
Filed: November 2, 2016
Howard E. Seufer, Jr. Mark W. Carbone
Bowles Rice LLP Jeffrey G. Blaydes
Charleston, West Virginia Carbone & Blaydes, P.L.L.C.
Kimberly S. Croyle Charleston, West Virginia
Ashley Hardesty Odell Robert M. Bastress, Jr.
Bowles Rice LLP Morgantown, West Virginia
Morgantown, West Virginia Attorneys for the Respondent
Attorneys for the Petitioner
Andrew J. Katz
Patrick Morrisey, Charleston, West Virginia
Attorney General Attorney for Amicus Curiae,
Kelli D. Talbott, West Virginia Education Association
Senior Deputy Attorney General
Charleston, West Virginia John Everett Roush
Attorneys for Amicus Curiae, Charleston, West Virginia
The West Virginia Board of Education Attorney for Amicus Curiae,
The West Virginia School Service
Denise M. Spatafore Personnel Association
Jason S. Long
Dinsmore & Shohl LLP Thomas P. Maroney
Morgantown, West Virginia Maroney Williams Weaver & Pancake
Attorneys for Amicus Curiae, PLLC
The West Virginia Regional Education Charleston, West Virginia
Service Agencies Attorney for Amicus Curiae,
The West Virginia AFL-CIO
Laura Lilly Sutton
Martinsburg, West Virginia
Attorney for Amicus Curiae,
West Virginia Association of School
Administrators
Kathy M. Finsley
Steptoe & Johnson PLLC
Wheeling, West Virginia
Amy M. Smith
Steptoe & Johnson PLLC
Bridgeport, West Virginia
Attorneys for Amicus Curiae,
West Virginia School Board Association
JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. The definition of “classroom teacher,” set out in W. Va. Code § 18A-1-1
(2009) (Repl. Vol. 2016), is not intended to include within its meaning an “interventionist,”
who provides instruction to an individual student or a small group of students for the purpose
of intervening in the education of students who are deficient in one or more particular
subjects.
2. Pursuant to 126 W. Va. C.S.R. §§ 72-2.5.c & d (2015) and 126 W. Va.
C.S.R. § 72-3.13 (2015), a county board of education may contract with its Regional
Education Service Agency (RESA) for the provision of interventionist services to its
students.
i
Davis, Justice:
In this case, the Monongalia County Board of Education challenges a ruling
by the Circuit Court of Monongalia County that found a county board of education could not
contract with a Regional Education Service Agency (“RESA”) to provide educational
interventionists to county elementary and middle school students when those interventionists
are hired by the West Virginia Board of Education (“State Board”) operating through a
RESA. The circuit court rested its conclusion on its determination that an interventionist met
the statutory definition of a teacher and, therefore, must be directly hired by a county board
of education. After reviewing the parties’ briefs1 and hearing their oral arguments, and
having also considered the relevant law, we find the legislative scheme for the RESA
program evidences a legislative intent that county boards be authorized to contract with
RESAs to provide interventionist services to county students; therefore, we reverse the circuit
court.
1
We acknowledge the contribution of the following amici curiae who filed
briefs in this case: The West Virginia Board of Education; The West Virginia Regional
Education Service Agencies; West Virginia Association of School Administrators; West
Virginia School Board Association; West Virginia Education Association; The West Virginia
School Service Personnel Association; and The West Virginia AFL-CIO. We value the
participation of the amici and will consider their briefs in conjunction with the parties’
arguments.
1
I.
FACTUAL AND PROCEDURAL HISTORY
The dispute in this case arises from the use of educational interventionists to
assist school children in Monongalia County who need educational support beyond that
provided by the regular classroom teacher, i.e., tutoring, in the subjects of reading and math.
The Monongalia County Board of Education (“MCBOE”) asserts that by utilizing
interventionists it is able to provide supportive program-based instruction to over three
hundred struggling elementary and middle school students each year. According to the
circuit court,
19. “Interventionists” provide personalized training to
students who are struggling in reading and math. They
are used to supplement the normal lesson plan of the
child’s regular teacher. The children remain in the class
for a portion of the lesson and then are either pulled from
the class or segregated within the classroom to receive
supplemental instruction from the “Interventionist.”
20. . . . . Most [interventionists] are assigned to one school
and work as little as two and a half hours, or as much as
six hours a day. . . .
21. “Interventionists” are paid twenty-five dollars ($25.00)
per hour, regardless of their level of training or
experience. They do not receive benefits such as health
insurance, retirement, paid lunch breaks, or planning
periods. They are at-will employees and have no right or
expectation of being rehired from year to year.
22. The method used to fill “Interventionist” positions begins
when the job is posted on the RESA VII website. The
2
main requirement for this position is that the individual
be a certified teacher.
23. At times, RESA VII employees interview the applicant,
and other times, both MCBOE and RESA VII employees
conduct joint interviews. The hiring decision is
ultimately made by the RESA VII Director.
The MCBOE explains that the support provided to a student by an interventionist is designed
by the student’s teacher, school psychologist, and academic coach, among others, to
intervene in a student’s education before the student has failed a subject. Accordingly,
interventionists do not engage in planning, grading, assessment, parent communication, or
other responsibilities carried out by classroom teachers. Interventionists are, however,
required to be certified teachers.
The interventionists utilized by MCBOE are obtained through a contract it has
with its RESA,2 which is RESA VII. The interventionists hired by RESA VII3 are employees
of the State Board. The MCBOE contracts with RESA VII to provide the services of
2
Regional Education Service Agencies (“RESAs”) are established by statute
and implemented by the State Board pursuant to W. Va. Code § 18-2-26 (2002) (Repl. Vol.
2012). Accord W. Va. Code § 18-2-26 (2015) (Repl. Vol. 2016). There are eight separate
regions in West Virginia, which each have a designated RESA. Monongalia County is one
of several counties in RESA VII.
3
RESA VII’s “Strategic Plan,” which is approved by the State Board,
authorizes RESA VII to employ interventionists.
3
interventionists in schools eligible for Title I services.4 In schools not eligible for Title I
funding, the services of interventionists also are obtained through a contract with RESA VII,
but the interventionists’ services are paid for through the MCBOE’s General Fund.5
Relevant to the instant dispute, during a board meeting on September 27, 2011,
MCBOE approved the expenditure of Title I funds to contract with RESA VII for the
services of four interventionists, each to be assigned to a specific Title I qualifying school.
4
According to the website of the West Virginia Department of Education,
Title I provides financial assistance to LEAs (Local Educational
Agencies) and schools with high numbers or percentages of poor
children to help ensure that all children meet challenging state
academic standards. LEAs target Title I funds to schools with
the highest percentages of children from low-income families.
Unless a participating school is operating a schoolwide program,
the school must focus Title I services on children who are
failing, or most at risk of failing, to meet state academic
standards. Schools in which poor children make up at least 40
percent of enrollment are eligible to use Title I funds for
schoolwide programs to serve all children in the school. LEAs
also must offer to utilize Title I funds to provide academic
enrichment services to eligible children enrolled in private
schools.
https://wvde.state.wv.us/titlei/ (last visited October 24, 2016). The MCBOE explains that
Title I funds are distributed as formula grants by the federal government. Moreover, “[a]
RESA is eligible as a local education agency (LEA) to participate in partnership with or on
behalf of any county school system or school in those programs that will accomplish
implementation of the strategic plan and/or state education initiative.” 126 W. Va. C.S.R.
§ 72-2.5 (2010). Accord 126 W. Va. C.S.R. § 72-2.5.d (2015).
5
The MCBOE avers that the “General Fund” to which it refers does not include
excess levy funds.
4
In addition, MCBOE approved expenditures from its General Fund to contract with RESA
VII for additional interventionists to serve generally at elementary and middle schools in
Monongalia County. According to MCBOE, approximately thirty interventionists provided
services to Monongalia County students during the 2011-2012 school year.6
In or around December 2011, the American Federation of Teachers – West
Virginia, AFL-CIO (“AFT”), respondents herein, filed in the Circuit Court of Monongalia
County a petition for writ of mandamus, naming MCBOE as the respondent, in which they
sought declaratory and injunctive relief. AFT essentially sought a declaration that
interventionists are classroom teachers that must be hired by MCBOE, and an injunction to
prevent MCBOE from obtaining interventionists through a contract with RESA VII. After
a period of discovery, the parties presented cross motions for summary judgment. On
January 14, 2014, the circuit court denied the motions. The circuit court then allowed the
parties additional time to address questions of fact that had been identified in the court’s prior
order. These questions pertained to the role and responsibilities of interventionists.
Thereafter, following additional discovery, the parties again filed cross motions for summary
judgment. By order entered June 9, 2015, the circuit court granted AFT’s motion for
summary judgment and denied MCBOE’s motion. In doing so, the circuit court reluctantly
6
The BOE asserts that interventionists who provided satisfactory service in
prior school years were afforded the opportunity to be re-employed in subsequent years.
5
concluded that an interventionist met the statutory definition of “classroom teacher”;
therefore, the position had to be filled through direct employment by MCBOE in accordance
with the statutory requirements pertaining to hiring and employment of classroom teachers.
This appeal followed.
II.
STANDARD OF REVIEW
Although the circuit court did not render its final order in the context of the
petition for writ of mandamus that was sought by AFT, it implicitly granted the requested
writ by granting summary judgment in favor of AFT. Likewise, the circuit court
connotatively declared that MCBOE is prohibited from contracting with RESA VII to obtain
the services of interventionists and enjoined it from continuing the practice. Thus, our
standard for reviewing the lower court’s rulings in this appeal is multifaceted.
It has been made clear that, “[t]o invoke mandamus the relator must show (1)
a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing
relator seeks; and (3) the absence of another adequate remedy.” Syl. pt. 2, Myers v. Barte,
167 W. Va. 194, 279 S.E.2d 406 (1981). This is so because
“‘[m]andamus lies to require the discharge by a public
officer of a nondiscretionary duty.’ Point 3 Syllabus, State ex
rel. Greenbrier County Airport Authority v. Hanna, 151 W. Va.
479[, 153 S.E.2d 284 (1967)].” Syllabus point 1, State ex rel.
6
West Virginia Housing Development Fund v. Copenhaver, 153
W. Va. 636, 171 S.E.2d 545 (1969).
Syl. pt. 1, State ex rel. Williams v. Department of Military Affairs & Pub. Safety, Div. of
Corr., 212 W. Va. 407, 573 S.E.2d 1 (2002). Our review of the circuit court’s grant of
mandamus relief is de novo: “A de novo standard of review applies to a circuit court’s
decision to grant or deny a writ of mandamus.” Syl. pt. 1, Harrison Cty. Comm’n v. Harrison
Cty. Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008).
Because this appeal comes to this Court from an order granting summary
judgment, we also exercise plenary review of that ruling: “A circuit court’s entry of summary
judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755
(1994). In carrying out our plenary review, we bear in mind that “[a] motion for summary
judgment should be granted only when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to clarify the application of the law.”
Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133
S.E.2d 770 (1963).
We additionally review de novo the circuit court’s declaratory judgment:
The West Virginia Supreme Court “reviews a circuit
court’s entry of a declaratory judgment de novo, since the
principal purpose of a declaratory judgment action is to resolve
legal questions.” Farmers & Mechs. Mut. Ins. Co. v. Cook, 210
7
W. Va. 394, 398, 557 S.E.2d 801, 805 (2001) (citing Syl. Pt. 3,
Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995)).
Flowers v. Max Specialty Ins. Co., 234 W. Va. 1, 5, 761 S.E.2d 787, 791 (2014). See also
Syl. pt. 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995) (“A circuit court’s entry of
a declaratory judgment is reviewed de novo.”).
To the extent that the circuit court granted injunctive relief, our review is for
an abuse of discretion:
Unless an absolute right to injunctive relief is conferred
by statute, the power to grant or refuse to modify, continue, or
dissolve a temporary or a permanent injunction, whether
preventative or mandatory in character, ordinarily rests in the
sound discretion of the trial court, according to the facts and the
circumstances of the particular case; and its action in the
exercise of its discretion will not be disturbed on appeal in the
absence of a clear showing of an abuse of such discretion.”
Syllabus Point 11, Stuart v. Lake Washington Realty, 141
W. Va. 627, 92 S.E.2d 891 (1956).
Syl. pt. 5, Foster v. Orchard Dev. Co., LLC, 227 W. Va. 119, 705 S.E.2d 816 (2010).
Finally, insofar as our decision necessitates an examination of various statutory
provisions and resolution of questions of law, we apply plenary review to those issues as
well: “Where the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1,
Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
8
We now proceed to address the issues herein raised while guided by the
foregoing principles.
III.
DISCUSSION
Resolution of the instant matter depends upon whether the Legislature intends
for educational interventionists to be equivalent to regular classroom teachers and therefore
subject to all of the same statutory entitlements and requirements as classroom teachers.
Ascertaining legislative intent guides our analysis because “[t]he primary object in construing
a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v.
State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). To determine the
legislative intent and thereby decide the question herein presented, we first look to statutory
provisions related to teachers to discern whether an interventionist meets the definition of a
classroom teacher. We then consider the statutory and regulatory scheme for RESA as it
relates to interventionists. Finally, we determine which law applies to the instant dispute.
In our examination of the statutory and regulatory provisions relevant to this
matter, we are mindful of the fundamental principles of statutory construction that must be
applied. Namely, we recognize that, in order to glean legislative intent, “[w]e look first to
the statute’s language. If the text, given its plain meaning, answers the interpretive question,
9
the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v. State
Tax Dep’t of West Virginia, 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995). See also
Foster Found. v. Gainer, 228 W. Va. 99, 110, 717 S.E.2d 883, 894 (2011) (“Statutes whose
language is plain must be applied as written.”); Syl. pt. 2, State v. Epperly, 135 W. Va. 877,
65 S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.”). Conversely, “[a] statute that is ambiguous must be construed before it
can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). See
also Foster Found. v. Gainer, 228 W. Va. at 110, 717 S.E.2d at 894 (“Statutes . . . whose
language is ambiguous must be construed before they can be applied.”).
A. Interventionists as Classroom Teachers
The term “interventionist” is not defined in the West Virginia Code.
Accordingly, in order to determine whether an interventionist is the statutory equivalent of
a teacher, we begin with an examination of the definition of a teacher. The statutory
definition of a classroom teacher is found in W. Va. Code § 18A-1-1(c)(1) (2009) (Repl. Vol.
2016), which defines the term as follows:
(c) “Professional educator” has the same meaning as
“teacher” as defined in section one [§ 18-1-1], article one,
chapter eighteen of this code. Professional educators are
classified as follows:
10
(1) “Classroom teacher” means a professional educator
who has a direct instructional or counseling relationship with
students and who spends the majority of his or her time in this
capacity[.]
(Emphasis added). The foregoing statute plainly demonstrates that “classroom teacher” is
a subclassification of “professional educator.” The term “professional educator,” in turn,
bears the same meaning as the term “teacher,” which is defined in W. Va. Code § 18-1-1(g)
(2012) (Repl. Vol. 2016). Pursuant to W. Va. Code § 18-1-1(g), “‘[t]eacher’ means a
teacher, supervisor, principal, superintendent, public school librarian or any other person
regularly employed for instructional purposes in a public school in this state.” (Emphasis
added). Although the term “instructional,” which is used in the foregoing definitions of both
“teacher” and “classroom teacher,” is not statutorily defined, we are to give the term its
common, ordinary meaning. See Syl. pt. 1, Miners in Gen. Grp. v. Hix, 123 W. Va. 637, 17
S.E.2d 810 (1941) (“In the absence of any definition of the intended meaning of words or
terms used in a legislative enactment, they will, in the interpretation of the act, be given their
common, ordinary and accepted meaning in the connection in which they are used.”),
overruled on other grounds by Lee–Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477
(1982). The common, ordinary, and accepted meaning of “instructional” is “[o]f or
pertaining to instruction or teaching; educational. . . . Conveying instruction or information.”
VII The Oxford English Dictionary 1050 (2d ed. 1989).
11
Thus, as pointed out by AFT, strictly applying7 the foregoing definitions results
in the inevitable conclusion that an interventionist meets the statutory definition of a
classroom teacher, because an interventionist has a “direct instructional . . . relationship with
students,” albeit in a form more akin to tutoring than to classroom instruction, and “spends
the majority of his or her time in this capacity.” W. Va. Code § 18A-1-1(c)(1). See, e.g.,
Harmon v. Fayette Cty. Bd. of Educ., 205 W. Va. 125, 130, 516 S.E.2d 748, 753 (1999)
(observing that “the degree to which a professional educator directly works with students,
regardless of the location of such work–and the suitability of alternative classifications–are
two important factors in determining whether a professional educator should be classified
as a classroom teacher” (footnote omitted)); Putnam Cty. Bd. of Educ. v. Andrews, 198
W. Va. 403, 408, 481 S.E.2d 498, 503 (1996) (concluding that educational diagnostician who
“spent the majority of her time working directly with students (administering tests) and
chairing PAC meetings at which the results of these tests were presented and suggestions
based on their results were implemented” was classroom teacher).
7
We recognize, however, MCBOE’s assertion that the definitions referred to
are not exclusive insofar as the relevant statutes contain a qualification. See W. Va. Code
§ 18A-1-1 (2009) (Repl. Vol. 2016) (“The definitions contained in section one [§ 18-1-1],
article one, chapter eighteen of this code apply to this chapter. In addition, the following
words used in this chapter and in any proceedings pursuant to this chapter have the meanings
ascribed to them unless the context clearly indicates a different meaning.” (emphasis
added)); W. Va. Code § 18-1-1 (2012) (Repl. Vol. 2016) (“The following words used in this
chapter and in any proceedings pursuant thereto have the meanings ascribed to them unless
the context clearly indicates a different meaning.” (emphasis added)).
12
Notably, if interventionists are designated as “classroom teachers,” then
pursuant to W. Va. Code § 18A-2-1(a) (2013) (Repl. Vol. 2016),8 it does appear to be
mandatory that they be hired by a county board of education: “The employment of
professional personnel shall be made by the board only upon nomination and
recommendation of the superintendent . . . .” (Emphasis added). See Syl. pt. 1, E.H. v.
Matin, 201 W. Va. 463, 498 S.E.2d 35 (1997) (“‘It is well established that the word “shall,”
in the absence of language in the statute showing a contrary intent on the part of the
Legislature, should be afforded a mandatory connotation.’ Syllabus Point 1, Nelson v. West
Virginia Public Employees Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (1982).”). See
also W. Va. Code § 18A-1-1(a) (defining “School personnel,” which includes “classroom
teacher[s],” as “all personnel employed by a county board . . . .” (emphasis added)).
Similarly, W. Va. Code § 18A-2-2(a) (2016) (Repl. Vol. 2016)9 provides, in relevant part,
that “[b]efore entering upon their duties, all teachers shall execute a contract with their
county boards . . . .” (Emphasis added). See State ex rel. Boner v. Kanawha Cty. Bd. of
Educ., 197 W. Va. 176, 184, 475 S.E.2d 176, 184 (1996) (“West Virginia Code § 18A-2-2
8
Although the cited version of W. Va. Code § 18A-2-1 was not in effect at the
time this action was filed, the language quoted in the body of this opinion is identical to
language appearing in the earlier version of the statute. See W. Va. Code § 18A-2-1 (2001)
(Repl. Vol. 2012).
9
Although we cite to the current version of W. Va. Code § 18A-2-2(a), the
particular language quoted is identical to that set out in the version of the statute in effect
when this action was filed. See W. Va. Code § 18A-2-2(a) (2009) (Cumm. Ann. Pkt. Pts.
2009).
13
is clear in its directive that ‘all teachers shall execute a contract with their boards of
education.’ Id. (emphasis supplied).”); State ex rel. Hawkins v. Tyler Cty. Bd. of Educ., 166
W. Va. 363, 373, 275 S.E.2d 908, 915 (1980) (“The relation between the county board of
education and school teachers is a contractual one. If the board wishes to hire a teacher it
must do so by means of a written contract.” (citing W. Va. Code § 18A-2-2; additional
citation omitted)).
Nevertheless, we must continue our analysis by considering the provisions
pertaining to the role of RESAs and determining whether that role, as it pertains to
interventionists, is compatible with the statutory definition of a classroom teacher.
B. Interventionists under RESA Provisions
RESAs are established by W. Va. Code § 18-2-26 (2015) (Repl. Vol. 2016).10
The Legislature has expressly stated its intent for establishing RESAs thusly: “The intent of
the Legislature in providing for establishment of [RESAs], hereinafter referred to in this
section as agency or agencies, is to provide for high quality, cost effective education
programs and services to students, schools and school systems.” W. Va. Code § 18-2-26(a)
10
The version of W. Va. Code § 18-2-26 in effect during the time relevant to
this dispute was enacted in 2002. However, the portions of the statute upon which we rely
are substantively the same in both the 2002 and 2015 versions. See W. Va. Code § 18-2-26
(2002) (Repl. Vol. 2012).
14
(emphasis added). Plainly, then, the Legislature expressly intended for RESAs to provide,
among other things, high quality, cost effective education services to students. The evidence
presented in this case demonstrates that interventionists provide high quality and cost
effective educational services to students. As to quality, we note that interventionists
providing contracted services through a RESA must have the same licensure as educators
employed directly by county boards of education. See 126 W. Va. C.S.R. § 136-7.1.b.6
(2016).11 Additionally, with respect to the cost-effective aspect of utilizing RESA
interventionists, the circuit court concluded that
[t]he opportunity to deploy multiple part-time interventionists,
rather than a fewer number of regular full-time employees,
results in the ability to offer services to a significantly greater
number of students during a school day. . . . This circumstance
exists by virtue of greater flexibility in scheduling multiple
interventionists in more than one classroom during the same
time period.
(Quotations and citations omitted).
11
Pursuant to 126 W. Va. C.S.R. § 136-7.1.b.6 (2016), “[c]ontracted or RESA
Services. – The county superintendent shall assure that an educator providing contracted
services or services through a RESA holds the same licensure required for an educator
employed by a board of education.” This identical language also appears in earlier versions
of the Code of State Rules. See 126 W. Va. C.S.R. § 136-7.1.2.f (2012, 2011, & 2010). The
State Board, as amicus curiae, further explained in its brief that “[m]any of the persons hired
as interventionists are retired teachers or those new to the teaching profession that desire a
part-time work schedule.”
15
The Legislature also has expressly stated its purpose for establishing RESAs,
which includes its vision that RESAs would assist the State Board in implementing programs
and services as directed by that body:
In establishing the agencies [RESAs] the Legislature
envisions certain areas of service in which [RESAs] can best
assist the state board in implementing the standards based
accountability model pursuant to subsection (a) of this section
and, thereby, in providing high quality education programs.
These areas of service include the following:
....
(6) Developing and/or implementing any other programs
or services as directed by law, the state board or the regional
council.
W. Va. Code § 18-2-26(b) (emphasis added). Moreover, the Legislature has mandated that
the State Board promulgate rules for the establishment and operation of RESAs: “[t]he state
board shall reexamine the powers and duties of [RESAs] in light of the changes in state level
education policy that have occurred and shall establish multicounty regional education
service agencies by rule, promulgated in accordance with the provisions of article three-b [§§
29A-3B-1 et seq.], chapter twenty-nine-a of this code.”12 W. Va. Code § 18-2-26(c)
(emphasis added). In accordance with its duty to do so, the State Board promulgated
12
W. Va. Code § 29A-3B-1 et seq. is found in the State Administrative
Procedures Act and sets out the procedure for the State Board’s making of rules.
16
legislative rules, which have the force and effect of law,13 governing RESAs. See 126
W. Va. C.S.R. § 72.
Among the various legislative rules governing RESAs is one that expressly
authorizes RESAs to employ staff “to perform services described in the Strategic Plan or to
operate . . . projects that may require staff and support services for effective implementation.”
126 W. Va. C.S.R. § 72-3.13 (2010).14 RESAs also are instructed to develop and/or
13
See Syl. pt. 5, Smith v. West Virginia Human Rights Comm’n, 216 W. Va. 2,
602 S.E.2d 445 (2004) (“A regulation that is proposed by an agency and approved by the
Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures Act,
W. Va. Code, 29A-1-2(d) [1982], and such a legislative rule has the force and effect of
law.”).
14
The full text of 126 W. Va. C.S.R. § 72-3.13 (2010) is set out below:
3.13. A RESA may employ staff, as necessary, to perform
services described in the Strategic Plan or to operate
demonstration, pilot, or other projects that may require staff and
support services for effective implementation. Upon the
recommendation of a RESA executive director and the State
Superintendent, the WVBE will consider the approval of all
regular full-time and regular part-time staff at a RESA after a
majority of the members of a regional council, by vote, verify
that such employment is necessary for effective provision of
services to county school systems in the region as set forth in
this rule. The WVBE delegates to the State Superintendent the
authority to authorize the temporary hiring of regular full-time
and regular part-time staff, pending final approval of the
WVBE.
3.13.1. RESA staff who are hired into a position that
requires a specified certification must maintain the certification
(continued...)
17
implement programs or services as directed by law or by the State Board. See 126 W. Va.
C.S.R. § 72-5.1.6 (2010).15 To the extent that the foregoing provisions authorize RESAs to
14
(...continued)
while employed in that same position at the RESA.
3.13.2. All RESA regular full-time and regular part time
personnel are non-contractual will and pleasure employees of
the WVBE. Recommendations for termination and suspension
of RESA regular full-time and regular part-time personnel will
be made by the State Superintendent to the WVBE.
3.13.3. RESAs shall develop consistent and standardized
personnel policies. The RESAs shall submit a copy of such
personnel policies, including any changes or updates, to the
WVBE.
W. Va. C.S.R. § 126-72-3 (emphasis added). The foregoing regulation, which was in effect
at the time relevant to the instant dispute, has been amended. The current version became
effective in 2015. Our decision in this case would be the same under either version of this
regulation.
15
The relevant portion of 126 W. Va. C.S.R. § 72-5.1 states:
5.1. Educational services to be provided to the member
county boards by RESAs include areas of service in which the
agencies can best assist the WVBE [State Board] in
implementing the standards-based accountability model pursuant
to subsection (a) of W. Va. Code § 18-2-26 in providing high
quality education programs. These areas of service . . . include:
....
5.1.6. Developing and/or implementing any other
programs or services as directed by law or by the WVBE.
The amended version of the above quoted provision is found at 126 W. Va. C.S.R. § 72-5.1.f
(2015). Although the language used in the first paragraph of the 2015 version of this
(continued...)
18
employ staff to perform services described in the Strategic Plan, and require RESAs to
implement programs or services as directed by law or by the State Board, it is noteworthy
that strategic plans developed by RESAs must be approved by the State Board. See 126
W. Va. C.S.R. § 72-5.4.16
Clearly then, under the foregoing provisions, the use of interventionists is in
accordance with the authority granted to a RESA to employ staff to perform certain services
such as those outlined in its Strategic Plan. See 126 W. Va. C.S.R. § 72-3.13; 126 W. Va.
C.S.R. § 72-5.1.6. The RESA VII Strategic Plan for the 2011-2012 school year, which,
necessarily, was approved by the State Board, contains a specific provision for employing
interventionists:
Employ certified regional providers (interventionists, OTs, PTs,
SLPs, academic and job coaches[)] to provide services as set
forth by Individual Education Programs and School
Improvement Grants for students within RESA 7.
15
(...continued)
regulation is somewhat different than that quoted above, the regulation still requires RESAs
to develop and/or implement programs or services as directed by law or by the State Board.
16
126 W. Va. C.S.R. § 72-5.4 (2010) provides that “[e]ach RESA shall submit,
with recommendations from and approval by a majority vote of the regional council, the
Strategic Plan to the WVDE [West Virginia Department of Education] by October 1 of each
year for approval by the WVBE [State Board] . . . .” (Emphasis added). Similarly, 126
W. Va. C.S.R. § 72-5.4 (2015) declares that “[e]ach RESA shall submit, with
recommendations from and approval by a majority vote of the regional council, the Strategic
Plan to the WVBE [State Board] staff by October 1 of each year for approval by the WVBE
[State Board]. . . .” (Emphasis added).
19
RESA VII Strategic Plan § 3.4. (2011-2012) (emphasis added).17 Therefore, insofar as the
State Board approved the RESA VII Strategic Plan, it rationally follows that the provision
of interventionists is a service RESA VII is directed by the State Board to provide. This
conclusion is in accord with the legislative rule requiring liberal construction of the
provisions pertaining to RESAs. See 126 W. Va. C.S.R. § 72.2.8 (2010) (“All functions of
the RESAs shall be liberally construed to effectuate the intent of the WVBE [State Board].”18
Finally, we observe that, in carrying out duties such as the provision of
interventionists, RESAs are expressly empowered to contract with and receive funds from
county boards of education:
RESAs are empowered to contract with county boards of
education, the West Virginia Department of Education
(hereinafter WVDE), persons, companies, or other agencies to
implement their Strategic Plan (see Section 5.3). A RESA is
eligible as a local education agency (LEA)[19] to participate in
partnership with or on behalf of any county school system or
17
Likewise, the RESA VII Strategic Plan for the 2016-2017 school year
provides that RESAs may “[e]mploy certified regional providers (interventionists, OTs, PTs,
SLPs, school psychologists and job coaches) to provide services as set forth by Individual
Education Programs and School Improvement Grants for students within RESA 7.” RESA
VII Strategic Plan § 3.4. (2016-2017) (emphasis added).
18
This provision is now found at 126 W. Va. C.S.R. § 72.2.6 (2015), and states
that “[a]ll functions, powers, and duties of the RESAs shall be liberally construed to
effectuate the intent of the WVBE [State Board].”
19
As explained in footnote 4, supra, and its accompanying text, Title I provides
financial assistance to LEAs. Where possible, Title I funds are used to provide the
interventionists at issue in this case.
20
school in those programs that will accomplish implementation
of the strategic plan and/or state education initiative.
126 W. Va. C.S.R. § 72-2.5 (2010) (emphasis and footnote added).20 With respect to
receiving funds, 126 W. Va. C.S.R. § 72-4.4 (2010) provides that
[a] RESA may receive and disburse funds
from . . . member counties, . . . the funds of which will
contribute to RESA initiatives. Each RESA is encouraged to
partner with member school systems, particularly those
designated as low-performing, and other organizations as
appropriate to attract and leverage resources available from
federal programs to maximize its capacity for meeting the needs
of member schools and school systems . . . .
(Emphasis added).21 See also W. Va. Code § 18-2-26(h) (authorizing RESAs to “receive and
disburse funds from . . . member counties”).22
To summarize, the plain language of the foregoing statutes and legislative rules
pertaining to RESAs demonstrate that the Legislature intended for RESAs to be enabled to
provide, among other things, interventionist services to county boards of education through
contracts with the county boards.
20
This provision is found in the 2015 version of the regulations at 126 W. Va.
C.S.R. §§ 72-2.5.c & d with slight language differences that would not change the outcome
of our decision in this case.
21
The language of the 2015 version of 126 W. Va. C.S.R. § 72-4.4 is
substantially the same as that quoted above.
22
Although the 2002 version of W. Va. Code § 18-2-26 was in effect during the
time relevant to this dispute, the above quoted language is identical in both the 2002 and the
2015 versions of this statute. See supra note 10.
21
C. Governing Law
Based upon the analyses set out above, this Court is now faced with two
legislative schemes applicable to interventionists: one governing classroom teachers and one
governing RESAs. Under the statutory provisions pertaining to classroom teachers, an
interventionist must be employed by a county board of education. On the other hand, the
RESA provisions allow county boards to contract with RESAs to obtain interventionist
services for their students. Thus, while both legislative schemes are applicable, they also are
inconsistent and irreconcilable.
We find that the rules of statutory construction favor application of the RESA
scheme to this matter. This Court has observed that, “‘where two distinct statutes stand in
pari materia, and sections thereof are in irreconcilable conflict, that section must prevail
which can properly be considered as the last expression of the law making power . . . .’ State
ex rel. Pinson v. Varney, 142 W. Va. 105, 109, 96 S.E.2d 72, 74 (1956).” Stanley v.
Department of Tax & Revenue, 217 W. Va. 65, 71, 614 S.E.2d 712, 718 (2005). Under this
doctrine, the RESA scheme prevails because the statute establishing RESAs was last
amended in 2015, and the legislative rules governing RESAs also were last amended in 2015.
Moreover, the RESA strategic plans, such as the RESA VII strategic plan that specifically
provides for the hiring and use of interventionists, are approved by the State Board on an
annual basis. See 126 W. Va. C.S.R. § 72-5.4 (2010) (establishing that “[e]ach RESA shall
22
submit . . . the Strategic Plan to the WVDE [West Virginia Department of Education] by
October 1 of each year for approval by the [State Board]. . . .”). See also 126 W. Va. C.S.R.
§ 72-5.4 (2015) (providing that “[e]ach RESA shall submit . . . the Strategic Plan to the [State
Board] staff by October 1 of each year for approval by the [State Board]. . . .”). Conversely,
the statute setting out the definition of the term “classroom teacher” was last amended in
2009.
In addition, it is well established that
“[t]he general rule of statutory construction requires that a
specific statute be given precedence over a general statute
relating to the same subject matter where the two cannot be
reconciled.” Syl. pt. 6, Carvey v. West Virginia State Bd. of
Educ., 206 W. Va. 720, 527 S.E.2d 831 (1999) (internal
quotations and citations omitted). See also In re Chevie V., 226
W. Va. 363, 371, 700 S.E.2d 815, 823 (2010) (“As a rule, when
both a specific and a general statute apply to a given case, the
specific statute governs.”).
Teets v. Miller, 237 W. Va. 473, ___, 788 S.E.2d 1, 12 (2016). In the case sub judice, the
various RESA provisions provide the more specific law in that they specifically address the
issues herein raised, i.e., granting authority for RESAs to both employ individuals to provide
services to school children and to enter contracts with county boards of education.
Furthermore, the relevant rules require incorporation of the State Board approved RESA
strategic plan, which, in this instance, expressly provides for interventionists. The foundation
for the argument that interventionists must be considered classroom teachers, on the other
23
hand, rests solely upon W. Va. Code § 18A-1-1(c)(1), a statute that simply defines the term
“classroom teacher” and contains no provision expressly pertaining to interventionists.
Accordingly, based upon the analysis set out in this opinion, we now hold that
the definition of “classroom teacher,” set out in W. Va. Code § 18A-1-1 (2009) (Repl. Vol.
2016), is not intended to include within its meaning an “interventionist,” who provides
instruction to an individual student or a small group of students for the purpose of
intervening in the education of students who are deficient in one or more particular subjects.
In addition, we hold that, pursuant to 126 W. Va. C.S.R. §§ 72-2.5.c & d (2015) and 126
W. Va. C.S.R. § 72-3.13 (2015),23 a county board of education may contract with its Regional
Education Service Agency (RESA) for the provision of interventionist services to its
students.
IV.
CONCLUSION
For the reasons set out in the body of this opinion, we conclude that the
legislative scheme for the RESA program evidences a legislative intent that county boards
23
Although we utilize current versions of the Code of State Rules in our holding
for ease of reference, our decision applies equally to the earlier versions of the Rules
discussed in the body of the opinion.
24
be authorized to contract with RESAs to provide interventionist services to county students.
Accordingly, we reverse the June 24, 2015, order of the Circuit Court of Monongalia County.
Reversed.
25