Thomas v. Board of Ed., McDowell County, CC920

• Court: Supreme Court of West Virginia
• Writing for the Court: McGRAW
• Citation: 167 W.Va. 911,280 S.E.2d 816
• Parties: Charles E. THOMAS, President, et al. v. The BOARD OF EDUCATION, COUNTY OF McDOWELL, et al. v. WEST VIRGINIA BOARD OF EDUCATION, etc.
• Docket Number: No. CC920,CC920
• Decision Date: 29 July 1981

Page 816

280 S.E.2d 816 167 W.Va. 911 Charles E. THOMAS, President, et al.
v.
The BOARD OF EDUCATION, COUNTY OF McDOWELL, et al.
v.
WEST VIRGINIA BOARD OF EDUCATION, etc. No. CC920. Supreme Court of Appeals of West Virginia. July 29, 1981.

Page 817

Syllabus by the Court

1. When a levy election is held to raise money for a specific public purpose, the money must be applied toward that purpose. W.Va.Code § 11-8-25. If the individual or agency charged with the expenditure of such funds fails to properly apply the money, legal action is in order to insure the proper application of the money.

2. Actions wherein a state agency or official is named, whether as principal party or third-party defendant, may be brought only in the Circuit Court of Kanawha County.

[167 W.Va. 912] Tutwiler, Crockett, LaCaria & Mursenky, Philip A. LaCaria, Welch, for plaintiffs.

Wade T. Watson, Pros. Atty., Welch, for McDowell Bd. of Ed.

Chauncey H. Browning, Atty. Gen., Victor A. Barone, Deputy Atty. Gen., Charleston, for State Bd. of Ed.

McGRAW, Justice:

This case is before the Court on certified questions from the Circuit Court of McDowell County pursuant to W.Va.Code § 58-5-2. In the questions presented we are asked to reexamine the doctrine of sovereign immunity as it relates to both the State Board of Education and county boards of education as they grow out of a dispute involving the misapplication of funds raised by a special county election, which funds were intended to supplement the wages of McDowell County non-teaching school employees. Because of the detailed nature of this case, it is necessary to summarize the key factual events which serve as the basis for this opinion.

At a special election held on December 4, 1973, the voters of McDowell County approved the adoption of a school levy to become effective on July 1, 1974, and continue until July 1, 1979. The purpose of the levy was to provide money to supplement the monthly wages of county school employees. ¹ Each teacher, principal and supervisor in McDowell [167 W.Va. 913] County was to receive an additional $105.00 per month, and each regularly employed full-time, non-teaching employee was to receive an additional $55.00 per month.

On July 1, 1974, in accordance with the requirements of the levy, the McDowell County Board of Education began paying the $55.00 per month plus the required social security payments to each eligible non-teaching employee. These payments continued until July 1, 1975, when the State Legislature passed and the governor signed a bill establishing a minimum pay scale for auxiliary and service employees of the county school system, similar to that already in effect for teachers. ² Following the enactment of this bill, the McDowell County School Board ceased paying non-teaching employees the levy supplement over and above the state minimum salary and began applying the special levy funds to bring non-teaching employees' salaries up to the new state minimum amounts. The non-teaching school employees challenged this use of the levy funds, arguing that they were entitled to be paid the new state minimum salary plus the additional $55.00 per month. After exhausting their administrative remedies, the employees

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brought a declaratory judgment action in the Circuit Court of McDowell County, which denied relief.

On appeal, Thomas v. Board of Education, County of McDowell, W.Va., 261 S.E.2d 66 (1979), this Court noted in our syllabus:

1. The true interpretation of the language of a special levy proposal is the meaning given to it by the voters of the county, who, by their approval of the special levy, consent to be taxed more heavily to provide the necessary funds.

[167 W.Va. 914] 2. Funds derived from a special levy may be expended only for the purpose for which they are approved. W.Va. Code §§ 11-8-25, 11-8-26.

3. When the funds raised by a special levy election are intended to provide supplements to the state minimum salaries and wages of nonteaching school employees, such funds may be expended by the county board of education for that purpose only.

We reversed the judgment of the circuit court and remanded the case "for further proceedings in accordance with and consistent with this opinion." Counsel for the litigants should have then calculated mathematically the money to which the appellants were entitled and an order should have been entered requiring the payment of that sum certain. Thomas will not have been concluded until that has been done.

On March 25, 1980, the plaintiffs brought suit against the county board of education in the circuit court requesting $1,280,795.53, the amount of pay of which they had been deprived. The county board answered in this suit and filed a third-party complaint making the West Virginia Board of Education a third-party defendant. In that complaint, the county board alleged that the State Board of Education had directed them to apply the levy funds to the minimum wages and salaries provided for in Senate Bill No. 121, and therefore, the State Board was or might be liable to the McDowell County Board of Education for the entire amount of the plaintiffs' claim. Following the filing of the third-party complaint, both the county board and the State Board of Education filed motions for summary judgment seeking to have the suit dismissed on the ground of sovereign immunity.

The circuit court granted these motions for summary judgment and certified the following questions to this Court:

1. Does the Circuit Court of McDowell County, West Virginia, lack jurisdiction to hear this action against the State, inasmuch as the State is immune [167 W.Va. 915] from said suit, by virtue of West Virginia Constitution, Article VI, Section 35?

2. Does the Circuit Court of McDowell County, West Virginia, lack jurisdiction to hear the third-party complaint because Chapter 14, Article 2, Section 2 of the 1931 Code of West Virginia, as amended, provides that any suit in which a State agency is a party, shall be brought and prosecuted only in the Circuit Court of Kanawha County?

3. Does the third-party complaint fail to state a claim upon which relief can be granted against the third-party defendant?

4. Does the Circuit Court of McDowell County, West Virginia, lack jurisdiction to hear the plaintiffs' suit against The Board of Education of McDowell, et al., inasmuch as said Board of Education is also immune from said suit by virtue of Article VI, Section 35, of the West Virginia Constitution?

5. Does the plaintiffs' complaint against The Board of Education of the County of McDowell, et al., fail to state a complaint upon which relief can be granted?

In proceeding to...