State ex rel. Boner v. Kanawha County Bd. of Educ.

• Decision Date: 19 July 1996
• Docket Number: No. 22365,22365
• Citation: 197 W.Va. 176,475 S.E.2d 176
• Court: West Virginia Supreme Court
• Parties: , 112 Ed. Law Rep. 504 STATE of West Virginia ex rel., Patricia BONER, individually and as the Mother and next friend of her Son; Twylla Bays, individually and as the Mother and next friend of her Daughter; Sarah McGuire, Georgette Connelly, Dewey Lester, Judith McHugh and Betty Palmer, Public, Full-Time Homebound Teachers in Kanawha County; and James Hale, a Public School Psychologist for the Kanawha County Board of Education, Petitioners, v. The KANAWHA COUNTY BOARD OF EDUCATION; Jorea Marple, Superintendent, Kanawha County Schools; The West Virginia Board of Education; and Henry R. Marockie, State Superintendent of Schools, Respondents.

Page 176

475 S.E.2d 176

197 W.Va. 176, 112 Ed. Law Rep. 504

STATE of West Virginia ex rel., Patricia BONER, individually and as the Mother and next friend of her Son; Twylla Bays individually and as the Mother and next friend of her Daughter; Sarah McGuire, Georgette Connelly, Dewey Lester Judith McHugh and Betty Palmer, Public, Full-Time Homebound Teachers in Kanawha County; and James Hale, a Public School Psychologist for the Kanawha County Board of Education, Petitioners, v. The KANAWHA COUNTY BOARD OF EDUCATION; Jorea Marple Superintendent, Kanawha County Schools; The West Virginia Board of Education; and Henry R. Marockie, State Superintendent of Schools, Respondents.

No. 22365.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 9, 1996.

Decided July 19, 1996.

Syllabus by the Court

1. " 'School personnel regulations and laws are to be strictly construed in favor of the employee.' Syl. pt. 1, Morgan v. Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979)." Syl. Pt. 1, Cruciotti v. McNeel, 183 W.Va. 424, 396 S.E.2d 191 (1990).

2. A board of education is prohibited from abolishing the positions of full-time homebound teachers and replacing the instructional services performed by those teachers with hourly-paid employees when no concomitant showing of reduction in need for such instruction has been made on the grounds that such a plan clearly operates in contravention of the contractual scheme of employment contemplated by West Virginia Code § 18A-2-2 (1993) along with the attendant benefits of such contracts.

Larry Harless, Cockeysville, Maryland., for Petitioners.

Gregory W. Bailey, General Counsel, Charleston, for Respondents Kanawha County Board of Education and Jorea Marple.

John S. Dalporto, Assistant Attorney General, Charleston, for Respondents West Virginia Board of Education and State Superintendent of Schools.

Howard E. Seufer, Jr., Bowles Rice McDavid Graff & Love, Charleston, for West Virginia Association of School Administrators and Boards of Education of Harrison, Jackson, Marion, Mineral, Raleigh, Roane, Tucker, Wayne and Wetzel Counties as Amici Curiae.

William B. McGinley, General Counsel; George P. Surmaitis, Crandall, Pyles & Haviland, Charleston, for West Virginia Education Association as Amicus Curiae.

Mike Kelly, Kelly & Grubb, Charleston, for West Virginia Advocates and West Virginia Federation of Teachers as Amicus Curiae.

WORKMAN, Justice:

Petitioners ¹ seek a writ of mandamus directing the Respondent State Superintendent of Schools, Henry Marockie, to refrain from abolishing the positions of seven Kanawha County full-time public school teachers who provide home/hospital (also referred to as "homebound") instruction and one public school psychologist. After examining this issue, we determine that the plan to reduce previously full-time positions to hourly positions with no concomitant showing of any reduction in need for such instruction is not consistent with the statutory scheme encompassed within West Virginia Code §§ 18A-1-1 to -4-18 (1993 & Supp.1995), that requires contractual employment of teachers and attendant benefits. Accordingly, we grant the requested writ of mandamus.

I.

On June 23, 1994, Petitioners instituted this original proceeding against the Respondents ² seeking to forestall the implementation of the Kanawha County Board of Education's (the "Board") plan to cease employing teachers on a full-time contractual basis for the provision of homebound instruction. ³ In the place of the seven full-time teachers that the Board had previously employed for such instruction, the Board planned to hire individuals on an hourly-pay basis. ⁴ The Board acknowledges that its sole motivation in enacting this plan was to save money. See infra note 10.

We appointed Kanawha County Circuit Court Judge Irene C. Berger as Special Master ⁵ for the purpose of taking evidence and preparing a report on certain issues ⁶ set forth in this Court's order, dated September 22, 1994. After taking evidence on May 22, and June 5, 1995, Special Master Berger issued a report on August 7, 1995. The fourteen-page report was prepared as "an objective representation of the issues" and "[a]s such, no recommendations, final conclusions or opinions regarding the [Kanawha] County's home/hospital instructional program ... [were] made...."

Included in the findings of the Special Master was a description of the homebound instruction program. ⁷ During the 1993-94 school year, there were 449 homebound students in Kanawha County. Of the seven budgeted positions for full-time homebound teachers for the 1993-94 school year, three of the positions were vacant due to retirements that occurred in the Spring of 1994. In addition to these full-time instructors, Kanawha County schools employed a number of teachers to provide homebound instruction from a list of substitutes who were paid on an hourly basis for their services. ⁸ Whereas the full-time homebound teachers received the same benefits as other full-time teachers, such as health insurance, holidays, and paid instructional days, the hourly-paid instructors did not receive such benefits.

During the 1993-94 school year, $216,435.50 was expended by Kanawha County for both full-time and part-time homebound instruction. Based on declining enrollment and other budgetary factors, a decision was reached in the Spring of 1994 to eliminate all regular full-time teachers who provided homebound instruction. ⁹ Despite a decision to increase the hourly rate of compensation for part-time homebound instructors from $9 per hour to $15 per hour, it was projected that Kanawha County would realize a savings of $72,585 ¹⁰ by instituting this employment change.

Petitioners argued in their petition and initial briefs that the Board should be prohibited from "contracting out" for the services previously provided by seven full-time homebound teachers on the following grounds: (1) "contracting out," by its discontinuity, instability, and other negative features would be seriously detrimental to the well-being, education, and development of numerous homebound children; (2) the state's mandated public educational system bars Respondents from effecting this "contracting out" arrangement; and (3) the "contracting out" scheme violates the equal protection and substantive due process rights of the homebound students, their parents, and their mentors. When this case was argued in January 1996, Petitioners additionally argued that homebound students are being discriminated against by not receiving the same quality of teaching instruction as classroom students. ¹¹

The Respondent Board and Respondent Marple maintain that there is no legal requirement that homebound instruction be provided by regular full-time teachers. Recognizing that the state is required constitutionally to provide " 'a thorough and efficient system of free schools[,]' " Syl. Pt. 3, in part, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859, 861 (1979), Respondents argue that nothing contained in Kelly "may be reasonably construed as a finding that status as a full-time teacher is necessary for the provision of quality instruction." ¹² Moreover, these Respondents emphasize that "[t]he evidence produced before the Special Master in the present case does not establish any measurable or reliable link between status as a regular full-time teacher and quality of instruction." The Respondents maintain additionally that "the evidence [failed to] establish that the level of compensation provided to homebound teachers resulted in a disadvantage to the District's ability to employ licensed, certified teachers." Respondents further argue that there is no statutory requirement that requires homebound instruction be provided exclusively by regular full-time teachers. They suggest that West Virginia Code §§ 18A-1-1(a) and 18A-4-16(1), ¹³ when viewed in pari materia, both authorize and establish the framework for compensation of teachers on an hourly basis.

In an amici curiae brief filed on behalf of the West Virginia Association of School Administrators and the Boards of Education of Harrison, Jackson, Marion, Mineral, Raleigh, Roane, Tucker, Wayne, and Wetzel Counties (hereinafter referred to as the "administrator amici"), an important clarification of the issue under consideration is made. Because, as these amici explain, the record is devoid of any finding or suggestion that any of the homebound services will be provided by teachers who are not already under contract to the Board either as full-time teachers or as substitute teachers, this case does not present the issue of whether school boards may contract with non-employees for professional services. ¹⁴

During the presentation of oral arguments before this Court on October 31, 1995, we requested that additional briefs be submitted to address several related issues. ¹⁵ Subsequent to oral argument in January 1996, we sought additional amicus briefs from the West Virginia Education Association ("WVEA"), the West Virginia Advocates, and the West Virginia Federation of Teachers in the interest of soliciting pertinent statutory and factual information from all interested groups.

II.

We begin our analysis with a brief overview of the applicable state and federal laws that impact upon this case. The parties concur that the federal statutes pertinent to our consideration include the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994); the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1491o (1994); and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213 (1994). Section 504 of the Rehabilitation Act states in pertinent part:

No otherwise qualified individual with a disability in the United States, ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial...