Triggs v. Berkeley Co. Board of Education
Annotate this CaseJanuary 1992 Term
_____________
No. 20220
_____________
JOYCE TRIGGS,
Appellant
v.
BERKELEY COUNTY BOARD OF EDUCATION,
Appellee of Election Below, Appellee
___________________________________________________________
Appeal for the Circuit Court of Berkeley County
Honorable Patrick G. Henry, III, Judge
Civil Action No. 90-C-409
AFFIRMED
___________________________________________________________
Submitted: January 15, 1992
Filed: April 2, 1992
Lawrence M. Schultz, Esq.
Askin, Pill, Scales & Burke, L.C.
Martinsburg, West Virginia
Attorney for the Appellant
Richard L. Douglas, Esq.
Claudia W. Bentley, Esq.
Bowles Rice McDavid Graff & Love
Martinsburg, West Virginia
Attorneys for the Appellee
JUSTICE NEELY delivered the Opinion of the Court.
McHugh, C. J., and Workman, J., concur in part, dissent in part, and reserve the right to file concurring and dissenting opinions.
SYLLABUS BY THE COURT
1. "The legislative intent expressed in W. Va. Code,
18-29-1 (1985), is to provide a simple, expeditious and fair
process for resolving problems." Syllabus Point 3, Spahr v.
Preston County Bd. of Educ. ___ W. Va. ___, 391 S.E.2d 739 (1990).
2. Under W. Va. Code, 18-29-3(t) [1985], a county board
of education or its superintendent may appeal a grievance decision
made by the superintendent's designee at level two or by an
independent hearing examiner at level four.
3. W. Va. Code, 18A-4-8b(a) [1983] does not provide
clear and unambiguous instruction concerning what happens to the
seniority of a person who voluntarily resigns or retires from a
public school system and is subsequently reemployed by the same
board of education. However, based on the other code provisions
dealing with professional employment and the commonly accepted
meaning of the term "seniority," the court concludes that the
legislature did not intend, upon reemployment, to resurrect the
seniority of a person who had voluntarily resigned or retired.
Thus, when a teacher resigns from a school system, that teacher
loses seniority. That teacher, even if reemployed as a substitute
teacher, does not regain even a limited employment preference until
the reemployed substitute teacher has been employed in a
professional capacity for 133 days or more in any one school year.
W. Va. Code, 18A-4-7a [1990].
4. Seniority for professional employees of a county
board of education is based on "regular, full-time" professional
employment and the only seniority that a substitute teacher can
earn is "exclusively for the purpose of applying for employment"
and this limited employment preference accrues "[u]pon completion
of one hundred thirty-three days of employment in any one school
year." W. Va. Code, 18A-4-7a [1990].
5. "Under W. Va. Code, 18A-4-8b(a) (1983), decisions of
a county board of education affecting teacher promotions and the
filling of vacant teaching positions must be based primarily upon
the applicants' qualifications for the job, with seniority having
a bearing on the selection process when the applicants have
otherwise equivalent qualifications or where the differences in
qualification criteria are insufficient to form the basis for an
informed and rational decision." Syllabus Point 1, Dillon v. Bd.
of Educ. of County of Wyoming, 177 W. Va. 145, 351 S.E.2d 58
(1986).
6. "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).
7. Teachers who have voluntarily withdrawn from school
employment to raise families or for other reasons have valuable
experience that must be taken into consideration when such former
teachers reapply for full-time positions in the school system.
Under W. Va. Code, 18A-4-7a [1990] (formerly W. Va. Code, 18A-4-8b
[1983]), hiring must always be done on the basis of qualifications,
and it is therefore inappropriate to hire new and inexperienced
teachers over older, more experienced teachers simply because young
personnel are cheaper for the board to hire. However, this general
proposition should not discourage a board from hiring young
teachers when they are the best qualified applicants.
8. "A board of education making a hiring decision under W. Va. Code, 18A-4-8b(a) [1988], should use its best professional judgment to select the applicant best suited to the needs of the students based on qualifications and evaluations of the applicants' past service. Only when all other factors are equal should a board of education look to seniority." Syllabus Point 4, Bd. of Educ. of the County of Wood v. Enoch, ___ W. Va. ____, ____ S.E.2d ___ (No. 20289, Filed February 6, 1992, Modified March 13, 1992).
Neely, Justice:
Joyce Triggs, alleging that she was improperly denied
employment as a full-time elementary school teacher, appeals the
order of the Circuit Court of Berkeley County that refused to award
her a full-time position. Because Ms. Triggs did not show that she
was the best qualified candidate for a position as a full-time
teacher, we affirm the circuit court.
Ms. Triggs was a full-time teacher with the Berkeley
County Board of Education from 1960 to 1971, when she resigned.
Ms. Triggs, who holds a West Virginia professional certificate with
a specialization in elementary education for grades one through
eight, was recommended for tenure in a 1963 favorable evaluation
and was a tenured teacher from 1963 through 1971. In 1979 and
every year thereafter, Ms. Triggs contracted with the Board to be
a substitute teacher.
In 1987 Ms. Triggs sought to regain a full-time teaching
position and, between 1987 and 1989, Ms. Triggs applied for roughly
twenty-nine posted vacancies. Ms. Triggs maintains that she should
have been hired because her qualifications in at least three cases
were superior to the qualifications of the successful applicant.See footnote 1
Ms. Triggs alleges that even though more than 100 positions became
available between 1987 and 1989, she was never interviewed. The
three vacancies that Ms. Triggs alleges were filled by applicants
with less teaching experience include: a first grade position at
Tuscarora School that was awarded to an applicant with no teaching
experience in Berkeley County; a second grade position at Berkeley
Heights School that was awarded to an applicant with only one year
of experience as a substitute teacher; and, another first grade
position at Tuscarora School that was awarded to an applicant with
no teaching experience.
Alan Canonico, the Board's Assistant Superintendent for
Personnel, testified that his office prepared a list of the
applicants with the appropriate certification for each vacancy.
The list, which was given to the principal of the school where the
vacancy existed, indicated the applicant's status as a regular
employee, a substitute teacher, or a prospective employee. The
selection from the list was made by the principal, after which the
superintendent and the board usually approved the principal's
recommendation. Mr. Canonico did not know why Ms. Triggs was not
interviewed for the three vacancies for which she had more
experience than the successful applicants, nor could he explain how
the principals reached their hiring decisions.See footnote 2 Mr. Canonico did
note that the successful applicants had taught, either as student
or substitute teachers, in the school where they were hired.
Ms. Triggs filed a grievance and a level two hearing was
conducted by Craig Manford, the superintendent's designee. Mr.
Manford found that Ms. Triggs was entitled to a full-time position
and recommended that she be offered employment at the next possible
opportunity. Both the Board and Ms. Triggs appealed the decision;
however, Ms. Triggs' appeal was limited to the issue of back pay.
The Board waived the matter to level four. After the level four
hearing examiner of the West Virginia Education and State Employees
Grievance Board found Ms. Triggs was not entitled to full-time
employment, Ms. Triggs appealed to the Circuit Court, which upheld
the level four decision. Ms. Triggs now appeals here alleging that
the Board cannot appeal an unfavorable decision made by a
superintendent's designee and that she was improperly denied a
full-time position and back pay.
I.
First, Ms. Triggs argues that the Board of Education
cannot appeal the level two decision granting her employment made
by the superintendent's designee under W. Va. Code, 18-29-4 [1985],
the statute establishing the grievance levels and procedures.
The grievance procedures set out in W. Va. Code, 18-29-1
et seq. [1989], "are to be given a flexible interpretation in order
to carry out the legislative intent." Spahr v. Preston County Bd.
of Educ., ___ W. Va. ___, 391 S.E.2d 739, 743 (1990). See Paxton
v. Crabtree, ___ W. Va. ___, 400 S.E.2d 245, 249 (1990) (discussing
procedural issues under the W. Va. Human Rights Act); Duruttya v.
Bd. of Educ. of County of Mingo, ___ W. Va. ___, 382 S.E.2d 40
(1989). In Syllabus Point 3, Spahr supra, we said:
The legislative intent expressed in W. Va.
Code, 18-29-1 (1985), is to provide a simple,
expeditious and fair process for resolving
problems.
The first hearingSee footnote 3 in this matter was conducted by a
designee of the superintendent under W. Va. Code, 18-29-4(b)
[1985], which states:
Within five days of receiving the decision
of the immediate supervisor, the grievant may
appeal the decision to the chief
administrator, and such administrator or his
or her designee shall conduct a hearing in
accordance with section six [§ 18-29-6] of
this article within five days of receiving the
appeal and shall issue a written decision
within five days of such hearing. Such
decision may affirm, modify or reverse the
decision appealed from. [Emphasis added.]
An appeal of the level two decision by the grievant is
allowed under W. Va. Code, 18-29-4(c) [1985], which states in
pertinent part:
Except as to faculty and classified
employees of the board of regents or any state
institution of higher education who shall have
the option to proceed directly to level four,
within five days of receiving the decision of
the chief administrator, the grievant may
appeal the decision to the governing board of
the institution.See footnote 4 [Emphasis added.]
Ms. Triggs argues that because W. Va. Code, 18-29-4(c)
[1985] specifically allows the grievant to appeal, but does not
allow the Board or its superintendent to appeal, no appeal by the
Board or its superintendent is allowed. Although W. Va. Code, 18-29-4 [1985] does not state that the Board may appeal an adverse
decision, the first three decisions on the grievance ladder (except
for decisions made by a superintendent's designee) are made by the
immediate supervisor, the superintendent or the Board, making an
appeal by the Board unnecessary.
In any event, the Board maintains that its appeal is
allowed under W. Va. Code, 18-29-3(t) [1985], which states:
Any chief administrator or governing board
of an institution in which a grievance was
filed may appeal such decision on the grounds
that the decision (1) was contrary to law or
lawfully adopted rule, regulation or written
policy of the chief administrator or governing
board, (2) exceeded the hearing examiner's
statutory authority, (3) was the result of
fraud or deceit, (4) was clearly wrong in view
of the reliable, probative and substantial
evidence on the whole record, or (5) was
arbitrary or capricious or characterized by
abuse of discretion. Such appeal shall follow
the procedure regarding appeal provided the
grievant in section four [§ 18-29-4] of this
article and provided both parties in section
seven [§ 18-29-7] of this article.
Based on W. Va. Code, 18-29-3(t) [1985] we find that a county board
of education or its superintendent may appeal a grievance decision
made by the superintendent's designee at level two or by an
independent hearing examiner at level four.
An appeal by the superintendent of his own designee's
decision would appear to show either that the superintendent
unwisely chose the designee or that the superintendent reached a
decision without benefit of a hearing and is unwilling to change
his mind. Yet, if we deny the superintendent the right to appeal
a level two decision, the level two hearing will become a pro forma
waste of time because the system will encourage the superintendent
to instruct his designee to decide issues for the administration
and against the grievant. Therefore, in an imperfect world where
an optimum mix of incentives is impossible to achieve, we find the
best course is to allow the superintendent to appeal a level two
decision made by a designee.
II.
Ms. Triggs maintains that she has seniority in matters of
employment because her reemployment as a substitute teacher
resurrected her seniority of eleven years based on her previous
teaching in the county. Because of this resurrected seniority, Ms.
Triggs alleges that under W. Va. Code, 18A-4-8(b) [1983], she, as
the applicant with the most seniority, was entitled to a written
statement of the reasons she was not selected.See footnote 5
Professional employees of a board of education are
entitled to seniority under W. Va. Code, 18A-4-8b (a) [1983], which
provides, in pertinent part:
The seniority of professional personnel
shall be determined on the basis of the length
of time the employee has been professionally
employed by the county board of education.
[Emphasis added.]See footnote 6
This brief description of seniority for professional employees
provides neither a comprehensive definition of seniority nor any
ancillary rules that would indicate how the seniority system is to
work in practice. In the present case, W. Va. Code, 18A-4-8b(a)
[1983] does not provide clear and unambiguous instruction on what
happens to the seniority of a person who voluntarily resigns or
retires and is subsequently reemployed by the same board of
education. The statute also does not define when a person "has
been professionally employed." However, based on the other code
provisions dealing with professional employment and the commonly
accepted meaning of the term "seniority," it is clear that the
legislature did not intend, upon reemployment, to resurrect the
seniority of a person who had voluntarily resigned or retired.
A.
Our holding that seniority is not resurrected upon
reemployment with the same board of education is based on the other
code sections dealing with professional employment and on the
customary and usual meaning of the term "seniority."
The two statutory provisions dealing with professional
employment that help clarify what employee rights are affected when
a person voluntarily resigns or retires are W. Va. Code, 18A-2-2a
[1988], providing for leaves of absence and W. Va. Code, 18A-2-2
[1990], providing for teacher contracts.
In addition to the leave policy found in W. Va. Code,
18A-4-10 [1991] (the Code section allowing sick days and "personal
days"), an employee of the board, with the board's approval, may
have a leave of absence without pay for a period of one year or
less. During the leave of absence, the "teacher shall retain all
seniority, rights and privileges which had accrued at the time of
the approved leave of absence, and shall have all rights and
privileges generally accorded teachers at the time of
reemployment." W. Va. Code, 18A-2-2a (a) [1988]. Obviously, this
Code section assumes that a teacher leaving for a year would lose
seniority were it not for the benefit of this section.
W. Va. Code, 18A-2-2 [1990] also provides guidance on
what rights are retained by a teacher who returns to employment
after a resignation. W. Va. Code, 18A-2-2 [1990] specifically
deals with a teacher's right to a continuing contract after a
probationary period and provides that "[t]he continuing contract of
any teacher shall remain in full force and effect except as
modified by mutual consent of the school board and the teacher,
unless and until terminated. . . ."See footnote 7 Except for the situations
outlined in W. Va. Code, 18A-2-2 [1990]See footnote 8, the termination of a
teacher's employment ends the continuing contract and upon
reemployment the teacher must again serve a successful probationary
period before being granted a continuing contract.
The legislature's determination not to grant a reemployed
teacher a continuing contract indicates that the legislature
considers termination of a teacher's contract to end the employer-employee relationship, except in specific limited circumstances
generally dealing with dismissals based on lack of need (i.e., lay-offs). Therefore, based on our reading of all related statutes
together, we find that the legislature did not intend seniority
rights to be retained by a teacher who voluntarily resigns or
retires.
B.
Until 11 August 1987, the state superintendent of schools
interpreted the applicable code provisions to extinguish seniority
for teachers who voluntarily resign or retire and he directed that
reemployed teachers begin with zero seniority. However in 1987,
the state superintendent changed his opinion and held that
"[s]eniority no longer will be deemed extinguished, but only
suspended during the hiatus in employment. . . ." The
superintendent did not change his opinion based on any statutory
modification, but because he wanted to preserve uniformity of
interpretation and application of school law. The challenge to
uniformity occurred when two circuit courts interpreted W. Va.
Code, 18A-4-8b(a) [1983] to afford a reemployed teacher seniority
without regard for any breaks in the employment relationship.See footnote 9
Because the circuit court decisions were binding on the involved
boards of education, the superintendent changed his interpretation
to allow seniority to be resurrected on reemployment by the same
board. Although the superintendent's interpretation of school law
is entitled to great weight unless clearly erroneous (Syllabus
Point 3, Smith v. Bd. of Ed. of Logan County, 176 W. Va. 65, 341 S.E.2d 685 (1985)), given the superintendent's reason for revising
his interpretation, we find that greater weight should be accorded
to his pre-1987 interpretation finding seniority extinguished on
voluntary termination.
C.
Our conclusions concerning the effect of voluntary
termination of employment on the employee's seniority rights are
significantly bolstered by custom and usage. Hechler v. McCuskey,
179 W. Va. 129, ___, 365 S.E.2d 793, 796 (1987) (using custom and
usage to decide if the Budget process altered the duty to pay
postage). Although West Virginia's teacher seniority system was
created by statute, most seniority systems result from collective
bargaining negotiations and are part of labor-management
agreements; therefore, we may look to general labor law to find the
custom and usage that surrounds seniority.
One of the commonly accepted notions about seniority is
that it is "a status attained by length of continuous service . . .
to which are attached by custom or prior collective agreement
various rights or privileges . . . on the basis of ranking relative
to others." Webster's Third New International Dictionary 2066
(unabridged ed. 1970). See California Brewers Ass'n v. Bryant, 444 U.S. 598, 605, n.12 (1979) (quoting the same definition of
seniority); but see Brewers, 444 U.S. at 612-13 n. 3 (Marshall, J.
dissenting). Usually the collective bargaining agreement provides
that a reemployed person is considered a new employee after
returning from a voluntary cessation of employment and the
agreement usually specifies any exceptions to the forfeiture of
accumulated seniority rights. Brewers, 444 U.S. at 607 ns. 17-20
(giving examples of what a collective bargaining agreement can
specify about seniority). According to 13 Warren G. Lamont et al.,
Employment Coordinator, ¶ LR-40,290 (1992), "[s]eniority may be
determined by the length of continuous employment in a plant,
department, or smaller unit, or from placement on a list
established on a specific date." See also, 48A Am. Jur.2d Labor
and Labor Relations, §§ 1802-05 (1979) (discussing various
seniority provisions).
In the present case, because W. Va. Code, 18A-4-8b (a)
[1983] does not specify the meaning of "length of" employment, we
find that given normal custom and usage, the legislature's intent
was to require continuous employment for the calculation of
seniority. Our conclusion that seniority is based on continuous
employment unless the employee falls into one of the statutory
exceptions is consistent with the other code provisions dealing
with professional employment. Therefore, we find that Ms. Triggs'
resignation extinguished the seniority she had acquired during her
previous employment by the Berkeley County Board of Education.
III.
We also find that Ms. Triggs did not acquire any
seniority based on her substitute teaching between 1979 and 1987
because the professional employment described in W. Va. Code, 18A-4-8b(a) [1983] as beginning the accrual of seniority, means full or
substantially full time employment. A substitute teaching contract
is not analogous to a full-time teaching contract. Most substitute
teachers are assigned and employed on a temporary basis. See W. Va.
Code, 18A-2-3 [1969].
The benefits, including salary, that a teacher receives
are partially based on the type of contract, either full time or
substitute. W. Va. Code, 18A-4-7 [1981] prescribes the pay for
substitute teachers and uses the term "experience" rather than the
term "seniority" to describe a substitute teacher's years of
employment. W. Va. Code, 18A-4-2 [1990] prescribes the state
minimum salaries for full-time teachers and W. Va. Code, 18A-4-8b
[1988] enumerates various "employee" rights, including seniority,
termination, promotion and transfer. Because the employee's right
to seniority is based on full-time employment, seniority does not
arise pursuant to casual, substitute or temporary employment.See footnote 10
Seniority rights are predicated on full-time employment
because the preference given by seniority is primarily important
during reductions in force for lack of need and during subsequent
recalls. In Dillon v. Bd. of Educ. of County of Wyoming, 177 W.
Va. 145, 351 S.E.2d 58 (1986), we noted that the legislature by
adopting W. Va. Code, 18A-4-8b (a) [1983], requiring a written
statement be given to the unsuccessful candidate with the most
seniority, "must have intended seniority to play some role in the
selection process. [Footnote omitted]." Dillon id. at ___, 351 S.E.2d at 61.
The 1990 amendments to W. Va. Code, 18A-4-7a made clear
that seniority for professional employees of a county board of
education is based on "regular, full-time" professional employment
and not employment as a substitute. W. Va. Code, 18A-4-7a [1990],
states:
Employment for a full employment term shall
equal one year of seniority, but no employee
may accrue more than one year of seniority
during any given fiscal year. Employment for
less than the full employment term shall be
prorated. A random selection system
established by the employees and approved by
the board shall be used to determine the
priority if two or more employees accumulate
identical seniority.
According to W. Va. Code, 18A-4-7a [1990], the only
seniority that a substitute teacher can earn is "exclusively for
the purpose of applying for employment" and this limited employment
preference accrues "[u]pon completion of one hundred thirty-three
days of employment in any one school year."See footnote 11 When a teacher
resigns from a school system, that teacher loses seniority. That
teacher, even if reemployed as a substitute teacher, does not
regain even a limited employment preference until the reemployed
substitute teacher has been employed in a professional capacity for
133 days or more in any one school year. See Harkins v. Ohio
County Bd. of Educ., 179 W. Va. 373, 369 S.E.2d 224, 226 (1988)
(recognizing that employment of a substitute teacher for at least
133 days in the three previous school years "entitled her to a
continuing contract").
In the present case, during her eight years as a
substitute, Ms. Triggs never began to work as a "regular, full-time" teacher and never was employed for 133 days in any one school
year. Therefore, during her employment as a substitute teacher,
Ms. Triggs never accrued regular seniority based on full-time
employment and never accrued "seniority exclusively for the purpose
of applying for employment" based on serving as a substitute
teacher for 133 days in one school year. We find that when Ms.
Triggs sought a full-time position she had no seniority because her
voluntary resignation extinguished the seniority she had accrued
before 1971 and her employment as a substitute teacher was
insufficient to accrue even a limited employment preference.
Because Ms. Triggs was not the applicant with the most seniority,
she was not entitled to a written statement of the reasons she was
not selected.
IV.
Ms. Triggs contends that because she was the best
qualified applicant for at least three positions, she was
improperly denied a full-time position under W. Va. Code, 18A-4-8b(a) [1988], which provided in pertinent part:
A county board of education shall make
decisions affecting promotion and filling of
any classroom teacher's position occurring on
the basis of qualifications.See footnote 12
In Syllabus Point 1, Dillon v. Bd. of Educ. of County of Wyoming,
supra, we said:
Under W. Va. Code, 18A-4-8b(a) (1983),
decisions of a county board of education
affecting teacher promotions and the filling
of vacant teaching positions must be based
primarily upon the applicants' qualifications
for the job, with seniority having a bearing
on the selection process when the applicants
have otherwise equivalent qualifications or
where the differences in qualification
criteria are insufficient to form the basis
for an informed and rational decision.
In the present case, Ms. Triggs, a teacher with eleven
years experience as a full-time teacher, was passed over in favor
of applicants with little or no full-time experience. The Board of
Education's explanation of why applicants with less experience were
selected, although vague, indicated that the successful applicants
had taught in the schools where the vacancies existed either as
student teachers or substitute teachers. Ms. Triggs did not
produce evidence demonstrating that she was decidedly superior to
any particular successful candidate. Seniority, of course, is only
a tie breaker among equally qualified applicants. Ms. Triggs had
superior apparent credentials only because of experience, which may
or may not translate into her being deemed the best qualified
applicant. See supra sections II and III. Although the selection
process used by the principals where the vacancies existed was
unknown to the assistant superintendent for personnel, the record
indicates that the principals hired those applicants who, either as
student teachers or substitute teachers, had taught in the school
where the vacancies existed and, therefore, the principals were not
buying a pig in a poke.
In Syllabus Point 3 of Dillon, supra, we said:
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.
Recently in Syllabus Point 4, Bd. of Educ. of the County of Wood v.
Enoch, ___ W. Va. ___, ___ S.E.2d ___, (No. 20289, Filed
February 6, 1992, Modified March 13, 1992), we said:
A board of education making a hiring
decision under W. Va. Code, 18A-4-8b(a)
[1988], should use its best professional
judgment to select the applicant best suited
to the needs of the students based on
qualifications and evaluations of the
applicants' past service. Only when all other
factors are equal should a board of education
look to seniority.
In Johnson v. Cassell, 182 W. Va. 317, 387 S.E.2d 553 (1989), this
Court recognized that the various laws and policies relating to the
hiring of teachers require that the best qualified teacher be
hired. In accord Egan v. Bd. of Educ. of Taylor County, ___ W. Va.
___, 406 S.E.2d 733 (1991); State ex rel. Oser v. Haskins, 179
W. Va. 789, 374 S.E.2d 184 (1988).
In Tenney v. Bd. of Educ. of the County of Barbour, 183
W. Va. 633, 398 S.E.2d 114, 116 (1990), we noted that "selection of
candidates for educational positions is not a mechanical or
mathematical process." See also, supra, note 12. In Tenney, we
found insufficient evidence to show that Mr. Tenney was the best
qualified applicant, although the record contained the
qualifications of all applicants and outlined the selection
process.
We find that teachers who have voluntarily withdrawn from
school employment to raise families or for other reasons have
valuable experience that must be taken into consideration when such
former teachers reapply for full-time positions in the school
system. Under W. Va. Code, 18A-4-7a [1990] (formerly W. Va. Code,
18A-4-8b [1983]), hiring must always be done on the basis of
qualifications, and it is therefore inappropriate to hire new and
inexperienced teachers over older, more experienced teachers simply
because young personnel are cheaper for the board to hire.
However, this general proposition should not discourage a board
from hiring young teachers when they are the best qualified
applicants. See supra, note 12.
In the present case, Ms. Triggs did not show that she was
the best qualified applicant for a particular position or that the
Board willfully discriminated against her. Ms. Triggs presented
evidence only of the experience of the candidates. Although
teaching experience is a factor to consider in reviewing an
applicant's qualifications, the amount of experience is but one of
many factors that a board should consider in selecting a candidate
for a full-time teaching position.See footnote 13 We find that because Ms.
Triggs failed to show that she was the best qualified applicant,
she is not entitled to be appointed to any of the positions to
which she applied.
For the above stated reasons, the judgment of the Circuit
Court of Berkeley County is affirmed.
Affirmed.
Footnote: 1About 24 of the positions for which Mrs. Triggs applied were
filled by transferring the full-time teacher with the most
seniority.
Footnote: 2Mr. Canonico noted that preference in filling all vacancies
was given to full-time teachers according to seniority.
Footnote: 3The filing of a level one grievance requires a "conference
with the immediate supervisor to discuss the nature of the
grievance and the action, redress or other remedy sought." W. Va.
Code, 18-29-4 (a)(1) [1985]. Ms. Triggs' level one grievance was
not answered.
Footnote: 4W. Va. Code, 18-29-4(d)(1) [1985] also provides that "[i]f
the grievant is not satisfied with the action taken by the
governing board, within five days of the written decision the
grievant may request, in writing, on a form furnished by the
employer, that the grievance be submitted to a hearing examiner as
provided for in section five [§ 18-29-5] of this article. . . ."
[Emphasis added.]
Footnote: 5W. Va. Code, 18A-4-8(b) [1983], provides in pertinent part:
If the applicant with the most seniority is
not selected for the position a written
statement of reasons shall be given to the
applicant with the most seniority with
suggestions for improving the applicant's
qualifications.
Footnote: 6The current code section dealing with seniority for
professional employees is W. Va. Code, 18A-4-7a [1990], which, in
pertinent part, provides the same method for determining seniority.
W. Va. Code, 18A-4-7a [1990], provides:
The seniority of classroom teachers as
defined in section one, article one of this
chapter with the exception of guidance
counselors shall be determined on the basis of
the length of time the employee has been
employed as a regular full-time certified
and/or licensed professional educator by the
county board of education and shall be granted
in all areas that the employee is certified
and/or licensed. [Emphasis added.]
Footnote: 7W. Va. Code, 18A-2-2 [1990], provides in pertinent part:
A teacher's contract, under this section, shall be for a term of not less than one nor more than three years, one of which shall be for completion of a beginning teacher internship pursuant to the provisions of section two-b [§ 18A-3-2b], article three of this chapter, if applicable; and if, after three years of such employment, the teacher
who holds a professional certificate, based on
at least a bachelor's degree, has met the
qualifications for the same, and the board of
education enter into a new contract of
employment, it shall be a continuing
contract: . . . Provided, however, That a
teacher holding continuing contract status
with one county shall be granted continuing
contract status with any other county upon
completion of one year of acceptable
employment if such employment is during the
next succeeding school year or immediately
following an approved leave of absence
extending no more than one year.
The continuing contract of any teacher shall remain in full force and effect except as modified by mutual consent of the school board and the teacher, unless and until terminated . . . Provided further, That a continuing contract shall not operate to prevent a teacher's dismissal based upon the lack of need for the teacher's services pursuant to the provisions of law relating to the allocation to teachers and pupil-teacher ratios. But in case of such dismissal, the teachers so dismissed shall be placed upon a preferred list in the order of their length of service with that board, and no teacher shall be employed by the board until each qualified teacher upon the preferred list, in order, shall have been offered the opportunity for reemployment in a position for which they are qualified: And provided further, That he has not accepted a teaching position elsewhere. Such reemployment shall be upon a teacher's preexisting continuing contract and shall have the same effect as though the contract had been suspended during the time the teacher was not employed. Footnote: 8 W. Va. Code, 18A-2-2 [1990] provides the following exceptions: (1)if a teacher's dismissal is for lack of need, the teacher's "reemployment shall be upon a teacher's preexisting continuing contract and shall have the same effect as though the contract had been suspended during the time the teacher was not employed;" and (2) a teacher with a continuing contract in one
country is to be granted continuing contract status in another
county "upon completion of one year of acceptable employment if
such employment is during the next succeeding school year or
immediately following an approved leave of absence extending no
more than one year."
Footnote: 9The two circuit court cases allowing reemployment to
resurrect previously acquired seniority are: Gilkerson v. Nolan,
No. 85-P-116 (Wayne County, Jan. 15, 1986), appeal denied (April 1,
1986) and Hark v. Trumble, No. 86-C-Ap-306 (Kanawha County, March
5, 1987). We note that our denial of appeal in Gilkerson, which
cited no ground for rejection, is similar to the denial of
certiorari by the U. S. Supreme Court in that the denial of appeal
is not an adjudication on the merits and does not carry any
implication of approval of the judgment sought to be reviewed.
Rule 7 of the West Virginia Rules of Appellate Procedure; Syllabus,
Smith v. Hedrick, ___ W. Va.___, 382 S.E.2d 588 (1989).
Footnote: 10W. Va. Code, 18A-4-7a [1990], is the current code section
enumerating professional employee rights.
Footnote: 11W. Va. Code, 18A-4-7a [1990], provides in pertinent part:
Upon completion of one hundred thirty-three days of employment in any one school year, substitute teachers shall accrue seniority exclusively for the purpose of applying for employment as a permanent, full-time professional employee. One hundred thirty-three days or more of said employment shall be
prorated and shall vest as a fraction of the
school year worked by the permanent, full-time
teacher.
Footnote: 12In 1990, the relevant provisions of this section were moved
to W. Va. Code, 18A-4-7a [1990]. The new statute requires that the
applicant with the highest qualifications be selected and provides
guidance for judging qualifications. W. Va. Code, 18A-4-7a [1990],
states in pertinent part:
A county board of education shall make decisions affecting the hiring of new classroom teachers or professional personnel other than classroom teachers on the basis of the applicant with the highest qualifications. In judging qualifications, consideration shall be given to each of the following: Appropriate certification and/or licensure; amount of experience relevant to the position or, in the case of a classroom teaching position, the amount of teaching experience in the subject area and/or grade level; the amount of course work and/or degree level in the relevant field and degree level generally; academic achievement; relevant specialized training; past performance evaluations conducted pursuant to section twelve [§ 18A-2-12], article two of this chapter; and other measures or indicators upon which the relative qualifications of the applicant may fairly be judged. If one or more permanently employed instructional personnel apply for a classroom teaching position and meet the standards set
forth in the job posting, the county board of
education shall make decisions affecting the
filling of such positions on the basis of the
following: Appropriate certification and/or
licensure; amount of experience relevant to
the position; the existence of teaching
experience in the subject area; degree level
in the relevant field; specialized training
directly related to the performance of the
job; meeting satisfactory standards in
evaluations over the previous two years; and
seniority. If the applicant with the most
seniority is not selected for the position,
upon the request of the applicant a written
statement of reasons shall be given to the
applicant with suggestions for improving the
applicant's qualifications.
When reading this statute, it is obvious that the legislature intended appointments in our school systems to be based primarily on qualifications, with such things as seniority and paper credentials serving only as tie breakers. Thus, a teacher with an undergraduate mathematics degree and a demonstrated mastery of calculus, probability theory, statistics, and number theory is more "qualified" than a person holding a master's degree in mathematics education if the master's degree holder's highest mathematical achievement is competence in college algebra. Of course, it does the great mathematician with the undergraduate degree no good if he or she can't teach, but these are the factors that must be weighed in an intelligent way and then articulated to successful and unsuccessful applicants alike. "Qualifications" means "qualifications"; "qualifications" does not mean "politics." Footnote: 13One of several indicators of qualifications specifically listed by the legislature in W. Va. Code, 18A-4-7a [1990] was "the amount of teaching experience in the subject area and/or grade level . . . ."
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