Cimino v. Board of Ed. of Marion County
| Decision Date | 20 December 1974 |
| Docket Number | No. 13421,13421 |
| Citation | 210 S.E.2d 485,158 W.Va. 267 |
| Court | West Virginia Supreme Court |
| Parties | Julia Ann CIMINO v. The BOARD OF EDUCATION OF the COUNTY OF MARION, a Statutory Corporation, andT. J. Pearse, Marion County Superintendent of Schools. |
Syllabus by the Court
1. Code, 1931, 61--10--15, as amended, expresses the public policy of this State which prohibits public officers from contracting with the public agency they represent or from having a private interest in its contracts.
2. A member of a board of education who votes for the employment of the wife of another board member in violation of Code, 1931, 61--10--15, as amended, is guilty
of official misconduct and subject to removal from office under Code, 1931, 6--6--7.
3. Although contractual rights of an employee of a board of education arise from a contract which is valid and binding in its inception, they are rendered void when the husband of the employee becomes a member of the board and further performance of the contract is in violation of Code, 1931, 61--10--15, as amended, as contrary to public policy.
4. The provision of Code, 1931, 61--10--15, as amended, which exempts teachers and principals from the prohibitory terms of the statute is not violative of the Equal Protection Clause of the Fourteenth Amendment, nor the prohibition against special legislation contained in Section 39 of Article VI of the Constitution of West Virginia.
Ross Maruka, Fairmont, for appellant.
Frank C. Mascara, Fairmont, for appellee.
This is an appeal by Julia Ann Cimino from the final judgment of the Circuit Court of Marion County in a declaratory judgment action instituted by her as the plaintiff, against The Board of Education of Marion County and T. J. Pearse, Superintendent of Schools of Marion County, as the defendants. The plaintiff's employment had been terminated by the board and she brought this action to have the termination declared unlawful. The circuit court held that the plaintiff could not be lawfully employed as a cook by the defendant board of education because her husband had been elected a member of that board.
The plaintiff was employed continuously by the defendant board of education as a cook at East Park Elementary School in Fairmont for every school year from 1966 through 1973. Her husband was elected a member of the defendant Marion County Board of Education and began serving in that capacity on January 2, 1973.
The written contract between the plaintiff and the defendant school board, dated July 1, 1972, contained a clause relating to the rights of the employee upon termination or nonrenewal of the contract. That clause, embodying the provisions of Code, 1931, 18A--2--6, as amended, stated that after three years of acceptable employment the employee was entitled to be notified in writing, on or before the first day in May in any year in which the employee's employment was to terminate, in the event the employee was not to be reemployed for the ensuing year.
The plaintiff did not receive the required written notice on or before the first day in May, 1973. She did, however, receive a day-letter, dated July 10, 1973, from the Superintendent of Schools, T. J. Pearse, advising her that she could not legally be employed as a cook.
Pearse advised the plaintiff that a State tax auditor had informed him that her continued employment would be a violation of Code, 1931, 61--10--15, as amended, and that the auditor's opinion had been confirmed by the State Department of Education. Pearse indicated that plaintiff's services as a cook had been completely satisfactory and that she would have been reemployed had the board not been advised it would be illegal to do so. The plaintiff was not employed at the meeting of the Marion County Board of Education held on July 31, 1973, to employ cooks and other nonprofessional personnel for the year 1973--74.
There are two issues presented on this appeal. The first is whether the provisions of Code, 1931, 61--10--15, as amended, prohibiting a member of the board of education from entering into a contract in which he has a pecuniary interest, prohibits the entire board of education from approving the employment contract of a nonprofessional employee who is a wife of one of the members of the board. Necessarily ancillary to that issue is whether such prohibition voids the contract rights of the board member's wife. The second issue is whether Code, 1931, 61--10--15, as amended, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Appellant raises this objection because by that section board members may employ relatives who are professional personnel, but not relatives who are nonprofessional personnel.
Chapter 61, Article 10, Section 15, Code of West Virginia, 1931, as amended, provides:
'It shall be unlawful for * * * any member of any * * * county * * * board, or for any county or district officer to be or become pecuniarily interested, directly or indirectly, in the proceeds of any contract or service, or in furnishing any supplies in the contract for, or the awarding or letting of, which as such member * * * he may have any voice, influence or control: Provided, however, that nothing herein shall be construed to prevent or make unlawful the employment of the spouse of any such member, * * * as principal or teacher in the public schools of any county, * * *.'
Code, 1931, 61--10--15, as amended, is an enactment of the public policy, expressed in the statutes of many states, which prohibits public officers from contracting with a public agency which they represent or from having a private interest in its contracts. 63 Am.Jur.2d, Public Officers and Employees, Section 312, pages 815--16. See also 68 Am.Jur.2d, Schools, Section 139, page 471, wherein it is stated:
'In agreement with the elementary principle that a member of a school board may not enter into a contract with the board in which he has a personal interest, a school board cannot contract with one of its own members to teach the school * * *.
The question whether Code, 61--10--15 prohibits only the member having the specific interest from voting on a contract or whether it prohibits an entire board from voting on a matter in which one member has an interest was previously considered and determined by this Court in Haislip v. White, 124 W.Va. 633, 22 S.E.2d 361, and Hunt v. Allen, 131 W.Va. 627, 53 S.E.2d 509. In Haislip, we held that a member of a county board of education, who voted for the appointment of his wife as an employee of the board, should be removed from office. We held in Haislip, however, that one of the board members who voted for the employment of the wives of two other board members was not subject to removal. Removal of the third member was sought for official misconduct for employing an incompetent or disqualified person. The Court in Haislip, finding no evidence of incompetence or disqualification of the wives of the other board members, held that the third member was not guilty of 'such misconduct in office as (justifies) his removal.'
However, in Hunt v. Allen, Supra, we specifically held that all members of a school board are subject to removal from office who voted on a contract even though it only inured to the pecuniary benefit...
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