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

• Decision Date: 29 July 1981
• Docket Number: No. CC920,CC920
• Parties: Charles E. THOMAS, President, et al. v. The BOARD OF EDUCATION, COUNTY OF McDOWELL, et al. v. WEST VIRGINIA BOARD OF EDUCATION, etc.
• Court: West Virginia Supreme Court

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.

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.

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 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 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.

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 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 address these questions, we begin by expressing our dismay that we are again asked to discuss the issue of the county school board's liability in this matter. One would think that we had sufficiently covered this issue in Thomas v. Board of Education, County of McDowell, supra, and indeed we find that our decision in that case is dispositive of certified question number five, and upon proper disposition, that is payment to the employees of their entitlement, would be res judicata.

While the county board of education sought to pose sophisticated arguments in Thomas, supra, the fact is that the board chose to treat two classes of employees differently without public authorization. The special levy which the voters of McDowell County approved, was intended to supplement for five years the monthly wages of all county school employees. In disregard of this public mandate, the county board ceased paying monthly supplements to non-teaching employees following a Legislative increase in their minimum salaries, yet continued to pay teaching employees a monthly supplement over and above the salary fixed by statute even when their salaries were also increased by the Legislature. Therefore, that which was born of the same levy election mandate was applied differently to the two classes of employees involved. Such a difference in treatment was not permissible, and as we noted in Thomas, the county board had no discretion in the expenditure of the levy funds and thus was required to pay the monthly supplements to the non-teaching employees in accordance with the wishes of the people of McDowell County. Because the McDowell County Board of Education failed to meet the mandate of the levy election, the plaintiffs' amended complaint would state in the absence of proper resolution of Thomas, supra, a sufficient cause of action. Proper resolution of the issues in Thomas by the lower court would have provided that the school employees be paid the supplement to which they are entitled. Having answered question five in the negative, we turn to question four which presents us with the issue of sovereign immunity and its application to county school boards.

The concept of sovereign immunity has its roots in the old English monarchial system where the king, as sovereign possessed the personal privilege of immunity "the king can do no wrong." Borchard, Governmental Liability in Tort, 34 Yale L.J. 1, 129, 229 (1924-25). In West Virginia the concept is derived from two sources the constitutional and statutory incorporation of the common law into the law of West Virginia ³ and the constitutional provision granting immunity from suit to the State. ⁴ Note, Torts Governmental Immunity in West Virginia Long Live the King?, 76 W.Va.L.Rev. 543 (1973-74).

The West Virginia Constitutional provision which grants the State immunity from suit is article VI, section 35, which provides in part: "The State of West Virginia shall never be made defendant in any court of law or equity ...." While the language of this provision refers only to the State, this Court has interpreted the provision to include State agencies and subdivisions through which the State acts or which have a direct financial connection with the State. See, e.g., City of Morgantown v. Ducker, 153 W.Va. 121, 168 S.E.2d 298 (1969); Schippa v. W.Va. Liquor Control Commission, 132 W.Va. 51, 53...