Lucion v. McDowell County Bd. of Educ.

• Decision Date: 20 July 1994
• Docket Number: No. 21897,21897
• Citation: 191 W.Va. 399,446 S.E.2d 487
• Court: West Virginia Supreme Court
• Parties: , 93 Ed. Law Rep. 372 Gwen LUCION, et al., Petitioners Below, Appellees, v. McDOWELL COUNTY BOARD OF EDUCATION, Respondent Below, Appellant.

Page 487

446 S.E.2d 487

191 W.Va. 399, 93 Ed. Law Rep. 372

Gwen LUCION, et al., Petitioners Below, Appellees, v. McDOWELL COUNTY BOARD OF EDUCATION, Respondent Below, Appellant.

No. 21897.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1994.

Decided Feb. 17, 1994.

Dissenting Opinion of Justice McHugh July 20, 1994.

Syllabus by the Court

1. "County boards of education have substantial discretion in matters relating to the hiring, assignment, transfer, and promotion of school personnel. Nevertheless, this discretion must be exercised reasonably, in the best interests of the schools, and in a manner which is not arbitrary and capricious." Syllabus Point 3, Dillon v. Bd. of Educ. of County of Wyoming, 177 W.Va. 145, 351 S.E.2d 58 (1986).

2. "When a county school board seeks to reduce the working hours of a service employee by one half, the board must comply with the procedures set out in W.Va.Code, 18A-2-6 [1973]." Syllabus, Bd. of Educ. of County of Fayette v. Hunley, 169 W.Va. 489, 288 S.E.2d 524 (1982).

3. "A final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuant to W.Va.Code, 18-29-1, et seq. (1985), and based upon findings of fact, should not be reversed unless clearly wrong." Syllabus Point 1, Randolph County Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).

John Everett Roush, Charleston, for appellees.

Robert E. Blair, Welch, for appellant.

PER CURIAM:

The McDowell County Board of Education (hereinafter the Board) appeals a decision of the Circuit Court of McDowell County holding that the Board should follow the reduction in force provisions of W.Va.Code 18A-4-8b [1990] in order to decrease service personnel employment costs. ¹ In April 1989, in an effort to reduce employment costs because of declining student enrollment, the Board terminated the employment contracts of 57 school service personnel, the appellees in this action, and issued the appellees new contracts for the 1989-90 school year with reduced employment terms and proportional decreases in salary. ² After their grievance was rejected by the West Virginia Education and School Employees Grievance Board, the circuit court, on appeal, found for the appellees. Given the circumstances of this case, we find that the Board complied with the termination procedures set out in W.Va.Code 18A-2-6 [1989], and reverse the decision of the circuit court.

In April 1989, the appellees received notice that Superintendent Kenneth Roberts would recommend the termination of their employment contracts. The terminations were designed to reduce employment costs because of an expected decline in 1989-90 school year operating funds caused by decreased student enrollment. The appellees are service personnel whose contract employment terms for the 1988-89 school year exceeded 200 days. ³ At the appellees' request, the Board held a hearing of April 18, 1989. After the hearing, the Board voted to terminate the appellees' contracts and to "reinstate" the appellees to identical contracts except with reduced employment terms. Most of the appellees' employment terms were reduced from 261 days to 240 days with a proportional decrease in salary. ⁴

Alleging that the Board acted improperly in reducing their employment terms, the appellees filed a grievance. After their grievance was waived at Levels I, II and III, a Level IV hearing was held before the West Virginia Education and State Employees Grievance Board. Based on Bd. of Educ. of the County of Fayette v. Hunley, 169 W.Va. 489, 288 S.E.2d 524 (1982), the Level IV hearing examiner found that the Board had followed statutory requirements to terminate the appellees' contracts and rejected the appellees' argument that the Code requires the Board to follow the reduction in force provisions of W.Va.Code 18A-4-8b [1990]. ⁵ On appeal, the circuit court distinguished Hunley as a "procedural rights" decision that statutory changes had rendered inapplicable, and found that the Board's only option to reduce employment costs of service personnel was to eliminate positions. The circuit court reinstated the appellees' 1988-89 contracts with full compensation and other benefits. ⁶ The Board then appealed to this Court.

I

The central question in this case concerns the options available to a board of education to cut costs arising from the employment of service personnel. The appellees maintain that because of their continuing employment contacts ( W.Va.Code 18A-2-6 [1989] ) and the non-relegation clause ( W.Va.Code 18A-4-8 [1990] ), the Board's only option when seeking to decrease service personnel employment costs is to follow the reduction in force provisions of W.Va.Code 18A-4-8b [1990]. Although we acknowledge that the legislature has given substantial protection to service personnel, this protection does not require the Board to eliminate jobs rather than modifying the employment terms of the existing jobs.

This Court consistently has acknowledged that "[c]ounty boards of education have substantial discretion in matters relating to the hiring, assignment, transfer, and promotion of school personnel. Nevertheless, this discretion must be exercised reasonably, in the best interests of the schools, and in a manner which is not arbitrary and capricious." Syllabus Point 3, Dillon v. Bd. of Educ. of County of Wyoming, 177 W.Va. 145, 351 S.E.2d 58 (1986); Triggs v. Berkeley County Bd. of Educ., 188 W.Va. 435, 445, 425 S.E.2d 111, 121 (1992); Bd. of Educ. of County of Wood v. Enoch, 186 W.Va. 712, 414 S.E.2d 630 (1992); Syl.Pt. 3, Pockl v. Ohio County Bd. of Educ., 185 W.Va. 256, 406 S.E.2d 687 (1991).

A board of education has the discretion to determine the number of jobs for and the employment terms of a board's service personnel, provided that the requirements of W.Va.Code 18A-4-8 [1993] are met. When a board of education seeks to reduce employment costs, the board may decide that the schools' best interests require either the elimination of some service personnel jobs or the retention of all service personnel jobs but with reduced employment terms.

At both the Board's hearing and the Level IV hearing, the appellees claimed that the Board acted in an arbitrary and capricious manner in reducing their employment terms because the reduced terms would result in unmet school needs and substantial overtime that would annihilate any net savings. Determinations of the number of service personnel and the length of their employment terms are primarily management decisions. Without a clear statutory requirement, such determinations should remain with a board of education. Although W.Va.Code 18A-4-8 [1993] requires a minimum employment term of "ten months" for service personnel, this Code section also states that a "board of education may contract with all or part of these personnel for a longer term. (Emphasis added.)"

If a board of education decides to reduce the number of jobs for service personnel, the board must follow the reduction in force procedures of W.Va.Code 18A-4-8b [1990]. ⁷ If a board of education decides to reduce the employment terms for particular jobs, the board must first terminate the existing contracts by following the procedures of W.Va.Code 18A-2-6 [1989], ⁸ and second fill the job vacancies by following the procedures and requirements of W.Va.Code 18A-4-8b [1990]. ⁹ In either case, a board of education must "make decisions affecting promotion and filling of any service personnel positions of employment or jobs ... on the basis of seniority, qualifications and evaluation of past service." W.Va.Code 18A-4-8b [1990].

In Bd. of Educ. of County of Fayette v. Hunley, supra, we stated that the procedures of W.Va.Code 18A-2-6 [1973] should have been followed when the working hours of three service employees were cut in half. Although the board of education in Hunley characterized their action as a transfer, we found that they "terminate[d] the contracts with the secretaries and supplant[ed] the old contracts with new half-time contracts." Hunley, 169 W.Va. at 492, 288 S.E.2d at 525. In the Syllabus of Hunley, we stated:

When a county school board seeks to reduce the working hours of a service employee by one half, the board must comply with the procedures set out in W.Va.Code, 18A-2-6 [1973].

The appellees argue that Hunley is no longer applicable because of statutory changes. In support of their argument, the appellees cited their continuing contract ( W.Va.Code 18A-2-6 [1989] ), their non-relegation clause ( W.Va.Code 18A-4-8 [1988] ) and the reduction in force provisions ( W.Va.Code 18A-4-8b [1990] ). However, none of these Code sections invalidates Hunley. Hunley cites the continuing contract provisions of W.Va.Code 18A-2-6 [1973]. Hunley, 169 W.Va. at 491 n. 1, 288 S.E.2d at 525 n. 1. Although the Code section containing the continuing contract was amended in 1981, 1984 and 1989, the amendments did not modify the basic substantive rights of a continuing contract. ¹⁰

The non-relegation clause of W.Va.Code 18A-4-8 [1988] states:

No service employee, without his written consent, may be reclassified by class title, nor may a service employee, without his written consent, be relegated to any condition of employment which would result in a reduction of his salary, rate of pay, compensation or benefits earned during the current fiscal year or which would result in a reduction of his salary, rate of pay, compensation or benefits for which he would qualify by continuing in the same job position and classification held during said fiscal year and subsequent years. ¹¹

Although the non-relegation clause states that a service employee may not be adversely affected economically either during a current fiscal year or in subsequent years, provided that the service employee remains "in the same job position and classification," the appellees did not continue "in the same job position." Rather, the appellees' former jobs with extended...