Bane v. Board of Educ. of Monongalia County, 17635

• Court: Supreme Court of West Virginia
• Citation: 364 S.E.2d 540,178 W.Va. 749
• Docket Number: No. 17635,17635
• Parties: , 44 Ed. Law Rep. 823 Junior Joseph BANE, George Chesney, Clarice Christopher, Ida DeBardi, Jack Dumire, Donna Frum, Ralph Frum, Junior Frymyer, Carolyn Hamilton, William Hawkins, Herman Hazelwood, Elwood Kennedy, Judith Kline, Irene Liberatore, Robert Logan, Maxwell Marsh, Richard Mayfield, Judith Mayfield, Charlene McMillen, Shirley Pitcher, George Poole, John Poole, Beverly Sell, Charles C. Sell, Darrell Shay, Joseph Shultz, Daniel Strader, Janis Thorn, Learnie Walls, Darryl White, Freda (Cathy) White, Robert B. White, Charlotte Williams, Betty Lue Wolfe and John Zinn, v. The BOARD OF EDUCATION OF the COUNTY OF MONONGALIA, A Statutory West Virginia Corporation.
• Decision Date: 18 December 1987

Page 540

364 S.E.2d 540 178 W.Va. 749, 44 Ed. Law Rep. 823 Junior Joseph BANE, George Chesney, Clarice Christopher, Ida
DeBardi, Jack Dumire, Donna Frum, Ralph Frum, Junior
Frymyer, Carolyn Hamilton, William Hawkins, Herman
Hazelwood, Elwood Kennedy, Judith Kline, Irene Liberatore,
Robert Logan, Maxwell Marsh, Richard Mayfield, Judith
Mayfield, Charlene McMillen, Shirley Pitcher, George Poole,
John Poole, Beverly Sell, Charles C. Sell, Darrell Shay,
Joseph Shultz, Daniel Strader, Janis Thorn, Learnie Walls,
Darryl White, Freda (Cathy) White, Robert B. White,
Charlotte Williams, Betty Lue Wolfe and John Zinn,
v.
The BOARD OF EDUCATION OF the COUNTY OF MONONGALIA, A
Statutory West Virginia Corporation. No. 17635. Supreme Court of Appeals of
West Virginia. Dec. 18, 1987.

Page 541

[178 W.Va. 750] Syllabus by the Court

1. "When the funds raised by a special levy election are intended to provide supplements to the state minimum salaries and wages of non-teaching school employees, such funds may be expended by the county board of education for that purpose only." Syl. pt. 3, Thomas v. Board of Education, 164 W.Va. 84, 261 S.E.2d 66 (1979).

2. "A court will not ordinarily interfere with the action of a public officer or tribunal clothed with discretion, in the absence of a clear showing of fraud, collusion or palpable abuse of discretion." Syl. pt. 6, Pioneer Co. v. Hutchinson, 159 W.Va. 276, 220 S.E.2d 894 (1975), overruled on another point, syl. pt. 1, State ex rel. E.D.S. Federal Corp. v. Ginsberg, 163 W.Va. 647, 259 S.E.2d 618 (1979).

3. Where the voters by their approval of a special levy do not require that each employee of the county board of education is to receive a designated amount of supplemental salary, the board of education may annually exercise sound discretion in allocating the special levy funds as salary supplements among its employees. A court may not interfere with such exercise

Page 542

[178 W.Va. 751] of discretion, unless there is a clear showing of fraud, collusion or palpable abuse of discretion, or unless there is a clear showing of a violation of W.Va.Code, 18A-4-8, as amended, or its current statutory replacement, with respect to its uniformity provisions or its provisions on the nonreduction of local funds in the aggregate.

David L. Solomon, Morgantown, for appellees.

Herbert G. Underwood, Irene Keeley, etc. Clarksburg, for appellant.

McHUGH, Justice:

This case is before this Court upon appeal from final orders of the Circuit Court of Monongalia County, West Virginia ("the trial court"), awarding back pay and future salary supplements and awarding reasonable attorney's fees. The appellant, respondent below, is the Board of Education of Monongalia County ("the Board"). The appellees, petitioners below, are some of the current or former nonteaching personnel, that is, "service" personnel employed by the Board. ¹ After reviewing the petition for appeal, the briefs of the parties and oral argument of counsel for the appellant, as well as the voluminous record, we reverse for the reasons hereinafter stated.

I

Of the thirty-five appellees, thirty have been employed by the Board as bus operators, one as a mechanic and four as "secretaries II."

Prior to July 1, 1975, W.Va.Code, 18A-4-8 [1973] set a minimum monthly salary for all service personnel at $335 per month, regardless of their occupation or years of employment. The Board had established a county salary schedule for service personnel which took into account job classification and years of experience.

In 1973 and 1978, for the fiscal years commencing July, 1974, and July, 1979, respectively, the voters of Monongalia County approved special levies containing the following language:

1973--"Supplement nonteachers' salaries and extend services, approximately $339,824 annually."

1978--"Maintain nonteachers' salaries and extend services, approximately $368,692 annually."

Other local funds, that is, regular levy funds, and not just special levy funds, together with state funds, were used to meet the requirements of the county salary schedule in 1974-75, the first fiscal year during the first of the two, five-year special levy periods involved in this case (July 1, 1974 through June 30, 1979 and July 1, 1979 through June 30, 1984).

By amendment to W.Va.Code, 18A-4-8, effective July 1, 1975, a state minimum monthly salary schedule was established for all service personnel based upon occupational classification and years of experience.

Page 543

[178 W.Va. 752] Before the passage of this amendment to W.Va.Code, 18A-4-8 in 1975, the Board did not calculate a specific supplement for each nonteaching employee.

The Board, following historical practice, interpreted the approved levy proposal in 1973 to lodge discretion in the Board to spend the appropriated funds in the aggregate to supplement service personnel salaries and extend services. Similarly, the Board, following historical practice, interpreted the approved levy proposal in 1978 to lodge discretion in the Board to spend the appropriated funds in the aggregate to maintain service personnel salaries and extend services.

The Board internally transfers funds to the general operating expense fund to pay all salaries of teaching and service personnel. For no reason apparent on the record, the appellant has never tracked the various sources of funds for the salary disbursements to individual teachers or individual service personnel. It is uncontroverted, however, that, for each year in question, the aggregate amount of money spent by the Board to supplement service personnel salaries and extend services exceeded the sum provided for in the approved special levy proposals.

During the period of the two special levies, the appellees received supplemental compensation from special levy funds for "extended services" or "extended employment," such as summer bus runs, summer mechanic work, extra bus runs during the school year and garage overtime. Payments for these extended services or extended employment were in addition to the basic county salary scale and were in addition to the experience supplement above the state minimum salary received by all of the appellees from special levy funds beginning in the 1977-78 fiscal year, discussed in the next paragraph.

Since the fiscal year 1977-78, the Board has included in the salary scale for service personnel a specific salary supplement based solely upon years of experience. In 1977-78, the salary supplement approved by the Board was an across-the-board supplement of $50 per year or $5 per month (the school year is ten months) for nontenured (0-2 years) employees, and $150 per year or $15 per month for tenured (3 years or more) employees. In 1979-80 and 1980-81, the Board increased the amount of supplement to $25 and $35 per month ($250, $350), respectively, for all school service personnel. In 1981-82, the Board increased the supplement to $35 and $45 per month ($350, $450), respectively, which continues as the present level of salary supplement for experience received by each of the service personnel.

The appellees brought this purported mandamus proceeding in the trial court to recover salary supplements allegedly due to each of them by virtue of the fact that they were not paid after 1974-75 in accordance with the 1974-75 county salary schedule, which was in excess of the state minimum salaries for that year. ²

During the litigation in this matter and at the direction of the Board's attorney, a salary data sheet for each nonteaching employee was compiled. In these salary data sheets each employee's total salary was analyzed by source of funding: (1) the state minimum salary for the employee's classification; (2) wage payments attributable to the performance of "extended services" (overtime work); and (3) wage payments attributable to "extended employment" (work beyond the ten-month, 200-day school term, except that work beyond 240 days was calculated at a per diem rate and labeled a "supplement"). After the deductions from each of the service personnel's total compensation of those portions attributable to the state minimum salary, extended services and extended employment, any excess compensation was put into a separate worksheet column labeled "supplement."

The trial court granted the relief requested. The amount of salary supplement...