Weimer-Godwin v. Board of Educ. of Upshur County

• Decision Date: 22 April 1988
• Docket Number: WEIMER-GODWIN,No. 17664,17664
• Citation: 369 S.E.2d 726,179 W.Va. 423
• Court: West Virginia Supreme Court
• Parties: , 47 Ed. Law Rep. 755 Janev. The BOARD OF EDUCATION OF the COUNTY OF UPSHUR, A Statutory Corporation.

Page 726

369 S.E.2d 726

179 W.Va. 423, 47 Ed. Law Rep. 755

Jane WEIMER-GODWIN v. The BOARD OF EDUCATION OF the COUNTY OF UPSHUR, A Statutory Corporation.

No. 17664.

Supreme Court of Appeals of West Virginia.

April 22, 1988.

Syllabus by the Court

1. Under W.Va.Code, 18A-4-5 [1969] and its successor, W. Va.Code, 18A-4-5a [1984], once a county board of education pays additional compensation to certain teachers, it must pay the same amount of additional compensation to other teachers performing "like assignments and duties[.]"

2. Prejudgment interest on back pay is recoverable against a county board of education on appeal to the courts of an education employee's grievance claim that there has been a misinterpretation of a statute regarding compensation.

3. An attorney's gratuitous representation of a client does not prevent an award of reasonable attorney's fees.

David E. Godwin, Buckhannon, Ross Maruka, Fairmont, for Jane Weimer-godwin.

Norman T. Farley, Buckhannon, for Bd. of Educ. of Upshur County.

McHUGH, Chief Justice:

This case is before this Court upon the appeal of Jane Weimer-Godwin ("the appellant") from a final order of the Circuit Court of Upshur County, West Virginia ("the circuit court") awarding her less than all of the relief requested in her education employee grievance claim against the Board of Education of the County of Upshur ("the Board"). Having reviewed the petition for appeal, the record and the briefs and oral argument of counsel, we affirm in part, reverse in part and remand with directions.

I

The material facts are uncontroverted. Since the 1979-80 school year, the appellant has been employed by the Board as an itinerant general music teacher and choral director, serving one elementary school and one intermediate school in Upshur County. The State Board of Education's policy requires both general music and choral music to be available as integral parts of the music curriculum for fifth through eighth grade students. ¹ The job description for a music teacher in an elementary or intermediate school in Upshur County prior to the 1985-86 school year expressly stated that the duties of such teacher were to instruct general music and to direct the choral music. ² At all relevant times there were three full-time and one part-time general music teachers/choral directors in elementary and intermediate schools in Upshur County.

The appellant's duties relating to general music instruction are performed during regular school hours and, like nearly all teachers, involve preparation outside regular school hours to facilitate instruction during regular school hours. The appellant's duties as choral director are also performed both during and outside regular school hours. During regular school hours the appellant as choral director (1) selects and sometimes arranges the choral program music, (2) auditions and selects students for chorus, (3) conducts rehearsals, (4) grades the students and (5) directs a total of two performances each year during the school day. Outside regular school hours the appellant as choral director (1) at times, travels to larger towns outside the county to select choral program music and (2) prepares for and directs a total of two performances each year in the evening, one in the fall and one in the spring.

Upshur County also has itinerant string instrument and band instrument teachers who serve at various elementary and intermediate schools. Their duties are very similar to those listed above for general music teachers/choral directors in elementary and intermediate schools, except that the string instrument and band instrument teachers, unlike the choral directors, do not teach a separate academic subject like general music. The string instrument and band instrument teachers do perform minor repairs on instruments, often outside regular school hours. Also, compared with the general music teachers/choral directors, they serve more schools (five or six, instead of two) and therefore direct more day and evening performances (three or four evening performances, instead of two, each year). On the other hand, compared with the string instrument and band instrument teachers, the general music teachers/choral directors in their capacity as choral directors work with many more students (about 570 compared with about 80 to 140) and with more grade levels (five compared with two to four).

From the school year 1979-80 through the school year 1984-85, the string instrument and band instrument teachers were paid additional compensation in the form of a supplement of $75 per month above the state-minimum salary. For the school year 1985-86, they were paid a supplement of $100 per month. The Board believed these supplements were authorized by W.Va.Code, 18A-4-5 [1969] and its successor, W.Va.Code, 18A-4-5a [1984]. ³

Pursuant to W.Va.Code, 18-29-1 to 18-29-9, as amended, the appellant filed and pursued an education employee grievance on the ground that she was qualified, under W.Va.Code, 18A-4-5 [1969] and W.Va.Code, 18A-4-5a [1984], to receive the same amount of salary supplement for the years 1979-80 through 1985-86 as the string instrument and band instrument teachers received during that same period. She claimed she had performed "like assignments and duties" as they.

The appellant's grievance was processed through the various statutory procedural "levels." ⁴ Eventually her grievance reached the circuit court. It concluded that the overriding issue was whether the appellant performed noninstructional duties outside the scheduled hours of the regular school day, rather than whether she and the string instrument and band instrument teachers performed "like assignments and duties." Finding from the testimony of the county superintendent of schools that the appellant did perform noninstructional duties outside the scheduled hours of the regular school day (preparation, outside regularly scheduled hours, for, and presentation of, evening choral performances), the circuit court held that the appellant was qualified to receive additional compensation, for the school year 1985-86, in an amount that the Board upon remand would determine is fair and reasonable under the circumstances. The circuit court also awarded the appellant "reasonable attorney fees as required by law."

II

The appellant assigns as error the circuit court's remand to the Board for it to determine the amount of salary supplement to be paid to the appellant. The appellant argues that she should receive the same amount of salary supplement as received by the string instrument and band instrument teachers. We agree that under the circumstances of this case the circuit court committed reversible error by remanding for a determination of the amount of salary supplement. ⁵

The circuit court correctly ruled that the appellant was qualified to receive additional compensation because, on the evidence adduced and under W.Va.Code, 18A-4-5 [1969] and W.Va.Code, 18A-4-5a [1984], see supra note 3, she performs certain noninstructional duties outside the scheduled hours of the regular school day. In contrast, under such statutes, additional compensation is not authorized for either (1) regular instructional duties, occurring anytime, or (2) noninstructional duties occurring during regular school hours.

We note that W.Va.Code, 18A-4-5 [1969] and its successor, W.Va.Code, 18A-4-5a [1984], provide that county boards of education "may," not "shall," provide additional compensation for teachers under certain circumstances. Thus, contrary to the appellant's assertion, a county board of education is ordinarily not required to provide additional compensation for teachers in the specified circumstances. The word "may" generally should be read as conferring both permission and power, while the word "shall" generally should be read as requiring action. Manchin v. Browning, --- W.Va. ----, ----, 296 S.E.2d 909, 915 (1982). Under W.Va.Code, 18A-4-5 [1969] and its successor, W.Va.Code, 18A-4-5a [1984], a county board of education is given discretion to pay additional compensation to teachers in certain circumstances. This discretion is subject to a test of reasonableness, and the statute does not allow discrimination among employees in the same class. See McGrath v. Burkhard, 131 Cal.App.2d 367, 374, 376, 280 P.2d 864, 869-70 (1955). In a related context this Court, in syllabus point 3 of State ex rel. Hawkins v. Tyler County Board of Education, 166 W.Va. 363, 275 S.E.2d 908 (1980), held: "The board of education's power to assign extracurricular duties to teachers is not unlimited and must be exercised in a reasonable manner. Assignments must be nondiscriminatory, related to a teacher's interest and expertise, and must not require excessive hours beyond the contractual workday."

Under W.Va.Code, 18A-4-5 [1969] and its successor, W.Va.Code, 18A-4-5a [1984], once a county board of education pays additional compensation to certain teachers, it must pay the same amount of additional compensation to other teachers performing "like assignments and duties[.]" We disagree with the part of the circuit court's final order that the amount of salary supplement must, in this case, be determined by the Board upon remand to it. The circuit court was of the opinion that such a remand was necessary because the appellant and the string instrument and band instrument teachers do not perform "like assignments and duties[.]" The circuit court reached that result by noting, in essence, that the duties of these respective personnel are not identical. ⁶ This is not the test.

"Like" refers to having a distinctive character, no matter how widely different in nonessentials. State v. Gaughan, 55 W.Va. 692, 700, 48 S.E. 210, 213 (1904). "Like" has also been defined as having the same or nearly the same qualities or characteristics; resembling another; or substantially similar. Black's Law Dictionary 834 (5th ed. 1979). On this record the appellant and...