Bonnell v. Carr
| Decision Date | 23 June 1982 |
| Docket Number | Nos. 15190,15191,s. 15190 |
| Citation | 294 S.E.2d 910,170 W.Va. 493 |
| Court | West Virginia Supreme Court |
| Parties | , 6 Ed. Law Rep. 405 Linda BONNELL, et al. v. Don H. CARR, Supt., Doddridge County Board of Education, etc., et al. Mary Jane VARNER, et al. v. Charles L. COFFMAN, Supt., Pendleton County Board of Education, etc., et al. |
1. Under W.Va.Code, 18A-2-6 (1973), a continuing contract of employment shall be granted to auxiliary and service personnel "[a]fter three years of acceptable employment." While W.Va.Code, 18A-2-4 (1969), authorizes the employment of auxiliary personnel by "a written contract which may be in letter form," we do not believe that a written contract is essential in all instances once an employee completes three years of acceptable service and is reemployed by a county board of education.
2. Under W.Va.Code, 18A-2-8a (1977), the local board of education is required to receive from the county superintendent a list of all probationary employees who are to be considered for rehiring on or before the first Monday in May. Those probationary personnel who are not rehired must be sent notices. Consequently, the board will have actual notice of who is proposed to be rehired and must take affirmative steps to approve rehiring.
3. The generally accepted rule is that where a tenured employee of a school system has been wrongfully discharged such employee is entitled to reinstatement.
4. The Legislature by enacting W.Va.Code, 18A-2-6 (1973), which gives auxiliary and service personnel continuing contract status after three years of acceptable employment 5. W.Va.Code, 18A-4-8 (1976), alone does not operate to confer on CETA employees the full statutory rights given regularly employed auxiliary personnel.
and providing that their employment could be terminated upon cause intended to extend a tenure status to such employees.
Heidi Weintraub, Charleston, Robert J. Lamont, Huntington, for appellants in both cases.
M. E. Mowery, Jr., Parkersburg, for appellees Don H. Carr et al.
George I. Sponaugle, Franklin, for appellees Charles L. Coffman et al.
In these two cases which were consolidated for appeal, we are asked to decide the rights of auxiliary school personnel whose salaries were federally funded under the Comprehensive Employment and Training Act, 29 U.S.C. § 801 et seq., (CETA), and who were terminated from their employment when the CETA program was altered. 1
The appellants who are the terminated auxiliary personnel argue that notwithstanding the cessation of their CETA eligibility, they had already acquired continuing contract status under W.Va.Code, 18A-2-6 (1973), and that as a result of this continuing contract status they were entitled to the procedural protections afforded thereby. They rely on the provisions of W.Va.Code, 18A-4-8 (1976), which in pertinent part provides:
"In addition to the compensation herein provided for auxiliary and service personnel, each auxiliary or service employee shall, notwithstanding any provision in this code to the contrary, be entitled to all auxiliary and service personnel employee rights, privileges and benefits provided under this or any other chapter of this code without regard to such employee's hours of employment or the methods or sources of compensation." (Emphasis added)
The appellees, the two local Boards of Education, counter with the proposition that since the appellants' salaries were funded by the CETA program, they were not local board employees and therefore not entitled to the statutory protections afforded to service personnel. Before resolving these questions, it is necessary to briefly describe the background of each case.
Three of the four appellants--Helen Harbert, Linda Lou Jones and Glenda McCloy--began working as teacher's aides for the Doddridge County Board of Education in October 1969. In August 1973, these three appellants signed a "Service and Auxiliary Personnel Contract" with the Board. In November 1975, they signed a "Continuing Contract" with the Board. 2 Appellant Appellant Linda Bonnell was hired in July 1975 but did not execute a continuing contract with the Board, however, in all respects Appellant Bonnell was treated like other Board personnel and had become eligible for continuing contract status prior to her termination. Appellant Bonnell's compensation was at all times funded by the CETA program.
McCloy signed three additional contracts with the Board during the period of her employment. During the years 1969-1975, these appellants' source of compensation came from a federally funded Title I program. From 1975 onward, their source of compensation came from the CETA program. 3
On April 2, 1979, each appellant received notice from the Board that her employment would be terminated effective September 30, 1979. Each appellant filed a grievance with the Board on October 1, 1979, based on their continuing contract status. The Board rejected these grievances stating that they did not believe the appellants to be Board "employees."
The appellants then filed a Writ of Mandamus in the Circuit Court of Doddridge County seeking reinstatement to their jobs with back pay and benefits. The circuit court found that the appellants should be treated as Board employees because of their continuing contract status. The court concluded they had been improperly terminated and awarded them back pay and benefits, but did not order their reinstatement. The appellants contend that they are aggrieved by the failure of the circuit court to order their reinstatement.
This case involves two auxiliary personnel, Mary Jane Varner and Mary Kay Alt. Varner began employment as a teacher's aide for the Pendleton County Board of Education in June 1973. Her compensation was through Board funds until October 1974 when her compensation started to come from the federally funded CETA program. Alt began employment as a teacher's aide with the Board in January 1976, and at all times was compensated with CETA funds.
On March 26, 1979, both appellants were informed by the Board that their employment would be terminated effective September 30, 1979. Neither appellant was given notice of a right to a hearing before final action would be taken on their termination. On February 13, 1980, the appellants filed a petition for a Writ of Mandamus in the Circuit Court of Pendleton County against the Board seeking a hearing and reinstatement with back pay. At the March 5, 1980, hearing, the Board stated that a change in CETA regulations limited payment to individuals compensated through CETA for a period of eighteen months and since both appellants had been compensated through CETA for more than eighteen months, they were given termination notices. Eleven individuals employed by the Board were affected by the change in CETA regulations, however, five continued their employment with compensation through Board funds.
The circuit court denied the appellants' request for relief holding that the appellants had none of the rights and benefits of school board employees, notwithstanding the provisions of W.Va.Code, 18A-4-8 (1976), because they were compensated as trainees under the CETA program. Consequently, the circuit court found that the appellants' terminations were proper.
LEGAL CONCLUSIONS
We conclude that the Circuit Court of Doddridge County acted correctly in holding that the four auxiliary personnel had continuing contract status under W.Va.Code, 18A-2-6 (1973). Three of these individuals actually signed continuing contracts after their three years of initial service. The fact that Appellant Bonnell, the fourth employee, at the end of her third year of employment did not sign a continuing contract is not controlling because the circuit court found that the board had treated her the same as its other employees. Under W.Va.Code, 18A-2-6 (1973), a continuing contract of employment shall be granted to auxiliary and service personnel "[a]fter three years of acceptable employment." While W.Va.Code, 18A-2-4 (1969), 4 authorizes the employment of auxiliary personnel by "a written contract which may be in letter form," we do not believe that a written contract is essential in all instances once an employee completes three years of acceptable service and is reemployed by the board.
Substantially, the same language as to continuing contract status is contained in W.Va.Code, 18A-2-2 (1969), 5 relating to teachers. We have stated in Mason County Board of Education v. State Superintendent of Schools, W.Va., 234 S.E.2d 321, 323 (1977) that this statute places on the local boards of education "a mandatory duty to enter into written contracts with its teachers." In the absence of any showing on the part of the Board in this case that Appellant Bonnell did not have three years of acceptable service, the fact that she did not sign a continuing contract is not controlling once she was reemployed at the end of her third year.
In Perry v. Independent School District No. 969, 297 Minn. 197, 210 N.W.2d 283 (1973), the court concluded that once a teacher had obtained continuing contract status, the fact that she signed a limited contract denominated as a "long-term substitute" which expired at the end of a year, would not foreclose her right to have the contract treated as a continuing contract. The court relied on State ex rel. Rose v. Board of Education, 74 Ohio App. 63, 57 S.E.2d 609 (1944) and Becker v. Board of Education, 9 N.Y.2d 111, 211 N.Y.S.2d 193, 172 N.E.2d 568 (1961). The courts in these cases recognized that it might be possible for a teacher to voluntarily agree to something less than a continuing contract once she had met the qualifications for a continuing...
To continue reading
Request your trial
-
Peters v. Rivers Edge Mining, Inc., No. 34272 (W.Va. 3/27/2009)
...discharged employee under Whistle-Blower Law, W. Va. Code § 6C-1-1, et seq., "reinstatement of the employee"); Syl. pt. 3, Bonnell v. Carr, 170 W. Va. 493, 294 S.E.2d 910 (1982) ("The generally accepted rule is that where a tenured employee of a school system has been wrongfully discharged ......
-
Peters v. Rivers Edge Min., Inc.
...discharged employee under Whistle-Blower Law, W. Va.Code § 6C-1-1, et seq., "reinstatement of the employee"); Syl. pt. 3, Bonnell v. Carr, 170 W.Va. 493, 294 S.E.2d 910 (1982) ("The generally accepted rule is that where a tenured employee of a school system has been wrongfully discharged su......
-
Board of Educ. of County of Mercer v. Wirt
...that their employment could be terminated upon cause intended to extend a tenure status to such employees." Syllabus Point 4, Bonnell v. Carr, 170 W.Va. 493, 294 S.E.2d 910 (1982). 2. " 'The extent of due process protection affordable for a property interest requires consideration of three ......
-
Adkins v. Gatson
...conditions, employees can still take advantage of this statutory provision in the absence of a valid contract. See Bonnell v. Carr, 170 W.Va. 493, 294 S.E.2d 910 (1982) (the failure of employees to sign a continuing contract does not destroy the employees' continuing contract status where e......