Lavender v. McDowell County Bd. of Educ.

• Decision Date: 06 December 1984
• Docket Number: No. 16012,16012
• Court: West Virginia Supreme Court
• Parties: , 23 Ed. Law Rep. 1105 Bonnie LAVENDER, et al., Petitioners Below, Kyle Keaton, Appellant, v. The McDOWELL COUNTY BOARD OF EDUCATION, etc., et al.

Page 691

327 S.E.2d 691

174 W.Va. 513, 23 Ed. Law Rep. 1105

Bonnie LAVENDER, et al., Petitioners Below, Kyle Keaton, Appellant, v. The McDOWELL COUNTY BOARD OF EDUCATION, etc., et al.

No. 16012.

Supreme Court of Appeals of

West Virginia.

Dec. 6, 1984.

Rehearing Denied Jan. 10, 1985.

Syllabus by the Court

1. " W.Va.Code, 18A-2-7 provides for notice and hearing before an employee's placement on a transfer or reassignment list is approved by a board of education. It must be complied with strictly." Syllabus Point 2, Morgan v. Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979).

2. "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." Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).

Jacqueline A. Kinnaman, W.V.E.A., Charleston, for appellant.

Kendrick King, Asst. Pros. Atty., Welch, for appellees.

PER CURIAM:

This is an appeal by Kyle Keaton from an order of the Circuit Court of McDowell County denying his petition for a writ of mandamus to compel the McDowell County Board of Education to reinstate him as a counselor at Iaeger Intermediate School. ¹ On appeal, the appellant contends that the Board of Education failed to follow the proper procedures for transferring him and that the circuit court erred in refusing to issue the writ of mandamus which he sought. We agree, and we reverse the decision of the Circuit Court of McDowell County.

During the 1982-83 school year, the appellant, who had been an employee of the McDowell County Board of Education for approximately thirty years, was assigned as a counselor at the Iaeger Intermediate School. On March 14, 1983, the Superintendent of Schools in McDowell County wrote the appellant and notified him that the Board of Education, meeting in special session on March 11, 1983, had tentatively approved a recommendation that he be transferred from the counselor position to a teacher position at the Iaeger Intermediate School. The reason given for the transfer was that the counselor position was being abolished at the school. The letter also stated: "You have a right to a hearing concerning this recommendation for job status change at the March 28, 1983 Board meeting and to be represented by a person of your choice."

The appellant testified that he first heard of the job change in a radio announcement on the morning of March 14, 1983. He received the Superintendent's letter on March 18 or 19, 1983.

On March 22 or 23, 1983, the appellant asked if he could discuss the transer with the Superintendent at his office. According to the appellant, the Superintenent indicated that he would "get back" with the appellant on the matter, but he actually never did so. The appellant testified that he wanted to discuss the matter informally with the Superintendent before March 28, 1983, and then discuss it with the Board of Education.

Although the Superintendent's letter of March 14, 1983, had indicated that the appellant had a right to a hearing before the Board of Education, the appellant didi not formally seek a hearing. The Board of Education met again on April 12, 1983. At that meeting, the Board officially and finally approved the job status change for the appellant.

On April 25, 1983, the appellant wrote the Superintendent and formally requested a hearing on the abolition of the counselor position at Iaeger Intermediate School.

On the next day, April 26, 1983, the appellant petitioned the Circuit Court of McDowell County for a writ of mandamus to compel the Board of Education and the Superintendent to return him to the counselor position which he had occupied during the 1982-83 school year. In support of his petition, he argued that the Board, in approving the transfer, failed to comply with the procedural requirements of W.Va.Code, 18A-2-7, and that he was, therefore, entitled to the relief which he sought. After conducting a hearing, the circuit court, by its order entered August 9, 1983, denied the petition on the ground that W.Va.Code, 18A-2-7, requires a school superintendent to obtain the tentative approval of a Board of Education before he notifies a teacher that a transfer is proposed.

We spoke of the procedural requirements of W.Va.Code, 18A-2-7, for altering the positions of tenured teachers, ² in Morgan v. Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979), and stated in Syllabus Point 2:

" W.Va.Code, 18A-2-7 provides for notice and hearing before an employee's placement on a transfer or reassignment list is approved by a board of education. It must be complied with strictly." ³

We find this statute to be clear and unambiguous, and consequently, as we have held in Syllabus Point 2 of 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."

See also Jordan v. State Workmen's Compensation Commissioner, W.Va., 271 S.E.2d 604, 606 (1980); Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).

The statute establishes an orderly procedure which must be strictly followed before a nonprobationary school employee may properly be transferred. The first step of this procedure requires that the employee be notified of a contemplated transfer in writing by the superintendent before the first Monday in April. Any employee who is dissatisfied with the contemplated transfer and wishes to object to it may request a written statement of the reasons for the proposed transfer. After receiving such a request, the superintendent is required to give the employee a written statement of reasons within ten days. ⁴

If the employee, after receiving the statement of reasons, remains dissatisfied with the contemplated transfer, he may within ten days of receipt of the statement present a written demand for a hearing before the county board of education on the proposed transfer. If a request is made for such a hearing, the board of education is required to conduct the hearing on or before the first Monday in May.

Also, on or before the first Monday in May, the superintendent is required to furnish to the board of education a list of employees to be considered for transfer. We believe that the statute contemplates that the board of education must complete any protest...