1
THE WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE BOARD
CARENA ROUSE, et al.,
Grievants,
v. Docket No. 2017-0308-CONS
BOONE COUNTY BOARD OF EDUCATION,
Respondent.
DECISION
Grievants
1
are employed by or retired from Respondent, Boone County Board of
Education, and are or were employed in various positions. Between August 2, 2016, and
August 24, 2016, the Grievance Board received numerous grievance forms filed by
representatives or counsel for members of three different unions and some pro se
Grievants. A representative grievance statement, which addresses the allegations made
by Grievants in total stated as follows:
“Pursuant to West Virginia Code § 6C-2-3(e)(2)
2
, Grievant
grieves on behalf of herself and similarly situated employees
(including both professional personnel/teachers and service
personnel) the unlawful elimination and/or reduction of the
county salary supplement and optical and dental insurance for
current and/or retired employees by Respondent Boone
County Board of Education which violates, inter alia,
Grievant’s rights pursuant to the Excess Levy passed on
November 4, 2014 and which is still in effect; the federal and
state constitution due process provisions regarding property
rights; as well as the constitutional provisions of the requiring
Respondent to provide a thorough and efficient education;
and the statutory and regulatory scheme governing education
law in general and teacher and service personnel
constitutional and statutory rights specifically. Moreover,
1
There are four hundred fifteen Grievants whose names are incorporated herein
by reference.
2
“Class actions are not permitted. However, a grievance may be filed by one or
more employees on behalf of a group of similarly situated employees. Any similarly
situated employee shall complete a grievance form stating his or her intent to join the
group of similarly situated employees.”
2
Grievant contends that Respondent’s actions in unlawfully
eliminating the salary supplement and optical and dental
insurance are not authorized by West Virginia Code §§ 18A-
4-5a and 5b.
The representative statement sought the following as relief: “To have the salary
supplement and dental and optical insurance restored; to receive any back pay with
interest or reimbursement with interest due to loss of ensuing coverage; and any other
appropriate relief.”
By email dated August 23, 2016, Respondent, by counsel, announced its intention
to identify and dismiss at level one those grievances filed by retirees, although no such
order was ever received by the Grievance Board. On August 26, 2016 and August 31,
2016, the parties submitted agreed motions to waive the matter to level three of the
greivance process. Throughout the next three months, the Grievance Board had
numerous communications with the parties in an attempt to determine the status of all
Grievants, as some filing information was incomplete, a number of duplicative grievances
had been received, including some in which the same Grievants were purported to be
represented by two different unions, and the retiree dismissal orders were not received.
A scheduling conference was held by telephone on December 21, 2016, in which the
parties agreed to submit stipulations of fact and it was determined that no pro se Grievants
remained. On January 6, 2017, a Consolidation and Scheduling Order was entered,
consolidating all existing grievances, ordering the agreed finalized stipulations be filed by
close of business February 13, 2017, informing parties of the ability to request a second
conference if further procedural issues occurred, and stating that a date would be
selected for level three hearing via conference call following the submission of the
stipulated facts.
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By email dated February 7, 2017, the parties requested, by agreement, to extend
the deadline to submit the finalized stipulations by two weeks. This request was granted
and parties were given until February 27, 2017, to submit the finalized stipulations. The
parties failed to submit the agreed stipulations. Between March 2017 and October 2017,
Grievance Board staff requested numerous status updates from the parties regarding the
failure to submit the agreed stipulations and the undersigned granted the parties’ requests
to extend the deadline to submit agreed stipulations. The unsigned Parties’ Joint
Stipulation of Fact was filed on December 5, 2017, nine months after the initial deadline
for filing set in the Grievance Board’s January 6, 2017 order.
Following review of the Parties’ Joint Stipulation of Fact, the undersigned
determined a second scheduling conference would be necessary. Due to scheduling
conflicts among the parties, the conference could not be held until February 21, 2018.
During the conference, the parties asserted that a level three evidentiary hearing would
still be required in addition to the joint stipulated facts and that they were uncertain how
many Grievants intended to appear in person at the hearing. As the Grievance Board’s
facilities could only accommodate approximately fifty people for a hearing, counsel for
Grievants were directed to confer with Grievants to determine the number of people who
would participate in the hearing. In addition, counsel for Grievants agreed that, except
for the final decision, Grievants agreed to receive communications from the Grievance
Board electronically rather than by mail. After being informed that the number of
Grievants who intended to appear personally at the hearing could not be accommodated
by the Grievance Board facility, by letter dated March 16, 2018, the undersigned
requested the agreement of the parties to conduct the hearing in an auditorium or similar
4
room in one of Respondent’s facilities. The parties were directed to confer and provide
an answer by April 6, 2018. The parties agreed that the hearing could be held at
Respondent’s Operations Complex but could not agree to dates upon which the hearing
could be scheduled despite numerous communications over the course of several
months. The undersigned convened a third scheduling conference on July 2, 2018,
during which the undersigned determined, given the number of Grievants counsel had
previously informed would be in attendance, that the hearing must be held before the
beginning of the school term or it would seriously impair or completely prevent the
operation of the Boone County school system for the two days of hearing. With that
consideration, the undersigned scheduled the level three hearing for two of the original
proposed dates over the objection of certain counsel.
The level three hearing was held on August 2, 2018 and August 3, 2018, before
the undersigned at the Boone County Schools Operations Complex in Foster, West
Virginia. Thirty-five Grievants appeared in person on day one of the hearing and eighteen
Grievants appeared in person on day two of the hearing. Grievants were represented by
Jeffrey G. Blaydes, Carbone & Blaydes, Andrew J. Katz, General Counsel, WV Education
Association, and George B. Morrone III, WV School Service Personnel Association
3
.
Respondent appeared by Superintendent Jeffrey Huffman. Respondent was represented
by counsel, Howard E. Seufer, Jr. and Canon B. Hill, Bowles Rice LLP.
4
Due to the
unusual nature of the grievance and to ensure that all questions of law were addressed
as thoroughly as possible, in addition to the statutorily-allowed submission of written
3
Mr. Morrone substituted as counsel for Joe Spradling, Esq., who substituted as
counsel for John Roush, Esq.
4
Mr. Seufer substituted as counsel for Richard Boothby, Esq.
5
Proposed Findings of Fact and Conclusions of Law (“PFFCL”), the parties were permitted,
by agreement, to file briefs in reply to the PFFCL. Therefore, this matter became mature
for decision on December 20, 2018, upon final receipt of the parties’ PFFCL and reply
briefs.
Synopsis
Grievants are or were employed by Respondent in various positions, both
professional and service. An unspecified number of Grievants are retirees of
Respondent. The Grievance Board lacks jurisdiction to hear the claims of the retirees in
this matter. Grievants proved Respondent failed to spend all excess levy funds for the
purposes they were raised. Grievants failed to prove Respondent was not permitted to
reduce the county salary supplement to below the 1990 level if it did not have enough
excess levy collections to fund the county salary supplement. Grievants failed to prove
Respondent was required to provide them notice and opportunity to be heard before
termination of their vision and dental insurance when Respondent was acting on the order
of the State Superintendent or that they were otherwise entitled to continuation of their
vision and dental insurance. Accordingly, the grievance is granted, in part, and denied,
in part.
Findings of Fact
The following are a combination of agreed findings of fact as submitted by the
parties in the Parties Joint Stipulation of Fact
5
and findings of fact made by the
5
The parties confirmed the unsigned Parties’ Joint Stipulation of Fact represented
the agreement of the parties. The findings have been revised to remove references to
attachments, to correct errors, to provide clarity and brevity, and to remove reference to
evidence the parties stated in the Parties’ Joint Stipulation of Fact would be moved into
evidence at the level three hearing that was not so moved.
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administrative law judge based upon a complete and thorough review of the record
created in this grievance
1. Grievants are or were employed by Respondent in various positions, both
professional and service. An unspecified number of Grievants are retirees of
Respondent.
2. The American Federation of Teachers – West Virginia, AFL-CIO represents
the interests of approximately 200 public school teachers as well as service personnel in
Boone County, and as such, has standing to represent these teachers and service
personnel. Christine J. Campbell is the duly elected president of the American Federation
of Teachers – West Virginia, AFL-CIO.
3. West Virginia Education Association (WVEA) is an employee association.
For the relevant purposes here, the membership of the WVEA is made up of public school
teachers, service personnel and administrators. The WVEA has a very large group of
members in Boone County, virtually all of whom have been affected by the legal issues
set forth below.
4. The West Virginia School Service Personnel Association (WVSSPA) is an
employee association. For the relevant purposes here, membership of the WVSSPA is
made up of public school service personnel. The WVSSPA has a large group of members
in Boone County, virtually all of whom have been affected by the legal issues set forth
below. These members belong to the Boone County School Service Personnel
Association, which is the county affiliate of the WVSSPA.
5. The Boone County Board of Education is a county board of education and
exists by virtue of West Virginia Code § 18-5-1 et seq. and is required to perform its duties
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in compliance therewith and with other statutory provisions.
6. John Hudson served as the Superintendent of Boone County Schools from
July 1, 2009 through June 30, 2016. Superintendent Hudson left the employment of
Respondent when he accepted employment from the Putnam County Board of Education
to serve as its superintendent.
7. Jeffrey Huffman became Superintendent of Boone County Schools effective
July 1, 2016, and continues to serve as its superintendent.
8. Mark E. Sumpter, at all relevant times, was the President of the Boone
County Board of Education.
9. Charles Chapman served as the Treasurer of Boone County Schools from
October 1993 through January 2018.
10. Samuel Pauley became the Treasurer of Boone County Schools in March
2018 and continues to serve as it treasurer. Prior to his employment as Treasurer, Mr.
Pauley was employed by the State Department of Education within the Office of School
Finance where he performed budget reviews of county boards of education, including the
Boone County Board of Education.
11. County boards of education are required to provide students with 180 days
of instruction and to provide employees with 200 days of employment.
12. Respondent is funded, in part, by the regular levy of taxes and an excess
levy of taxes.
13. Consecutive excess levies have been in place in Boone County since at
least 1984.
14. The voters of Boone County were presented with the opportunity to renew
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the excess levy for education on November 4, 2014. The official Ballot stated as follows:
OFFICIAL BALLOT
The Board of Education of the County of Boone
Election to Authorize Renewal
of Additional Levies
Special election to authorize additional levies for
the fiscal years beginning July 1, 2015, July 1, 2016, July
1, 2017, July 1, 2018, and July 1, 2019, in the total amount
of $11,656,290.00 annually for the purpose of the payment
of the general current expenses of the Board of Education
of the County of Boone, (hereinafter “the Board”)
including, but not limited to, payment of salaries of
teachers and other employees who are paid exclusively
from local Board funds, fixed employee costs, and
supplemental salaries and benefits; provision of
optical/dental insurance for retirees of the Board; the
repair, maintenance, and operation of school buildings
and equipment; the purchase of textbooks, library books,
and instructional supplies and equipment; the provision
of capital improvements of existing schools and /or
athletic facilities; the purchase of new technology,
replacement of dated technology, as well as the
expansion of technology infrastructure in the schools;
support of the provision of free meals for all students; the
provision of three (3) School Resource Officers/school
security improvements; and the provision of school
buses and the transportation of pupils including
transport to extra-curricular activities all according to the
order of The Board entered on the 4
th
day of August, 2014.
The approximate annual amount considered necessary for each purpose is as follows:
Employee salaries that are paid
exclusively from local funds, $7,500,000.00
Fixed employee costs and benefits,
including county salary supplements $1,606,290.00
Support the provision of free meals for all students $125,000.00
Instructional supplies and equipment $400,000.00
Textbooks $200,000.00
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Optical/dental insurance for retirees $75,000.00
Support the purchase of school buses and transportation
of students $100,000.00
Transport of teams to athletic contests and other
extra-curricular activities $75,000.00
Provision of three (3) School Resource Officers/school
security improvements $125,000.00
Building operation, repair and maintenance $650,000.00
Capital Improvements to existing schools
and/or athletic facilities $375,000.00
New Technology, replacement of dated technology,
and expansion of technology infrastructure $400,000.00
TOTAL $11,656,290.00
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15. The excess school levy was renewed by the voters of Boone County, West
Virginia on November 4, 2014.
16. The Official Ballot for the excess school levy does not indicate that
Respondent shall have discretion to determine which of the above-listed items on the levy
call will be funded. Instead, the Official Ballot indicates that twelve line items will be
funded in the approximate amounts as listed above.
17. The total amount for the items listed in the levy language is $11,656,290.00.
18. Two line items, line item one and line item two, are at issue in this grievance.
19. The total amount earmarked for line item one, “Employee salaries that are
paid exclusively from local funds,” is $7,500,000.00, or 64.3% of the levy funds.
20. The total amount earmarked for line item two, “Fixed employee costs and
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Stipulated Ex. 1 at 69-73.
10
benefits including salary supplements,” is $1,606,290, or 13.7% of the levy funds.
21. No amount was earmarked for optical and dental insurance for current
employees.
22. Respondent’s total tax collections began to decline in 2014 and 2015,
resulting in a decrease of total tax collections for fiscal year end 2015, although excess
levy collections were still above what would be required to support the excess levy at
issue in this case that began with fiscal year beginning 2015.
23. On February 26, 2015, the Board made numerous cuts to regular and
extracurricular professional and service personnel contracts in order to address its
decreasing financial resources.
24. On April 6, 2015, five coal companies with operations in Boone County
declared bankruptcy.
25. On August 3, 2015, two more coal companies with operations in Boone
County, including Alpha Natural Resources, LLC, which wholly owns eight coal
companies with operations in Boone County, declared bankruptcy.
26. As a result of the bankruptcies, tax collections for the fall of 2015 were $4
million short of projections.
27. On December 1, 2015, the Board voted to close three schools at the end of
the 2015-2016 school year: Wharton Elementary School, Nellis Elementary School, and
Jeffrey-Spencer Elementary School.
28. On February 26, 2016, the Board made numerous cuts to regular and
extracurricular professional and service personnel contracts for the following school year
in order to address its decreasing financial resources.
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29. By the spring of 2016, Respondent could not meet its payroll obligations
and was forced to seek a special legislative appropriation of $2.1 million to continue
operations, which required Respondent to repay the appropriation once the delinquent
tax collections were received.
30. For fiscal year end 2016, of the budgeted excess levy amount of
$11,656,290.00, the Sheriff of Boone County collected net taxes of only $8,029,574.24,
had total revenues and receipts of $8,059,060.99, and disbursed $7,481,920.99.
1
31. Each year county boards of education are required to submit its proposed
budget for the next year for review by the Office of School Finance. The budget of a
county board of education must be approved by the State Board of Finance.
32. After thorough review of Respondent’s proposed budget for fiscal year
ending 2017, Dr. Michael J. Martirano, the State Superintendent of Schools, in a letter
dated June 29, 2016, citing Respondent’s suddenly-reduced financial resources and
apparent inability to fully fund its operations for the 2016-2017 school year ordered
Respondent to enact certain cuts to most of its employees’ salaries, certain employee
benefits, and a few employees’ contract days.
33. On June 30, 2016, Respondent voted unanimously not to comply with the
June 29, 2016 order.
34. In a letter dated July 1, 2016, the State Superintendent of Schools again
1
G. Ex. 2 at 13, line number 374, “School Levy Fund,” Sheriff’s Settlement for fiscal
year 2016. Treasurer Pauley’s later accounting of the excess levy budget showed the
excess levy collection for fiscal year 2016 was $7,700,597.00. No evidence was offered
interpreting the settlement statement and no party appeared to question why
Respondent’s excess levy budget showed a different amount than the Sheriff’s
Settlement.
12
ordered the Respondent to make certain cuts to most of its employees’ salaries, certain
employee benefits, and a few employees’ contract days. and gave the Respondent a
deadline of July 8, 2016, to comply.
35. On July 7, 2016, Respondent again voted unanimously not to comply with
the order of the State Superintendent of Schools dated July 1, 2016.
36. In a letter dated July 7, 2016, the State Superintendent of Schools, for the
third time, ordered the Respondent to enact certain cuts to most of its employees’ salaries,
certain employee benefits, and a few employees’ contract days. These cuts were slightly
different from the cuts previously ordered by the State Superintendent of Schools. Those
cuts eliminated the salary supplement for teachers and school service personnel for the
2016-2017 school year and the provision of dental and optical insurance for all
employees.
37. On July 14, 2016, the State Board of Education voted to intervene in and
take control of the operation of the school system in Boone County unless the Respondent
voted by July 18, 2016, to comply with the written order of the State Superintendent of
Schools dated July 7, 2016.
38. On July 18, 2016, Respondent voted to comply with the July 7, 2016 order
of the State Superintendent of Schools.
39. On or about July 26, 2016, Superintendent Huffman sent notice to all
employees regarding the impact of the budget revisions required by the State
Superintendent of Schools, specifically the cuts being made to employees’ salaries and
benefits. Specifically, on or about July 26, 2016, Respondent mailed to its employees
notice that it was reducing the “county pay supplement” that it has for many years paid to
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its employees by virtue of West Virginia Code Section 18A-4-5a. The cuts eliminated the
salary supplement for teachers and school service personnel for the 2016-2017 school
year and the provision of dental and optical insurance to all employees effective August
31, 2016.
40. Between July 1, 2016 and July 22, 2016, employees with a 240-day or 261-
day contract received the salary supplement collected for the 2016-2017 school year.
Other than these employees, none of the excess levy money collected for the 2016-17
school year was utilized for county salary supplements as set forth in the language of the
excess levy.
41. On or about August 3, 2016, Superintendent Huffman sent notice to all
retirees of the Board that the Board would no longer be able to pay for their optical and
dental insurance after August 31, 2016.
42. Optical and dental insurance for retirees was paid for through August 31,
2016 using excess levy money collected for the 2015-2016
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school year.
43. Employees were not afforded notice and opportunity to be heard regarding
these changes to their pay and benefits.
44. Boone County Schools’ total tax collections for the relevant time period were
as follows:
8
7
The Parties Joint Stipulation of Fact Stated the 2016-2017 school year but that
appears to have been a typographical error.
8
The Parties Joint Stipulation of Fact included the following: “The projected excess
gross tax collections for Boone County has declined as follows: FYE 6/30/14
$13,992.718, FYE 6/30/15 $12,520,182, FYE 6/30/16 $11,090,686.” As it is unclear
from where this information originated and it is unclear why the projected excess gross
tax collections would be relevant when the actual tax collection information was entered
into evidence, this information has not been included in the findings of fact. The tax
collection information appears in Stipulated Ex. 1 at 242.
14
Regular Levy
Excess Levy
Total
FY ‘13
11,327,449.92
13,660,485.22
24,987,935.14
FY ‘14
11,412,657.79
13,772,691.42
25,185,349.21
FY ‘15
10,103,424.95
12,226,069.36
22,329,494.31
FY ‘16
6,606,913.50
8,059,0606.99
14,665,974.49
FY ‘17
3,020,696.64
3,624,940.39
6,645,637.03
45. Between fiscal years 2013 and 2014 the Board’s tax revenue from regular
and excess levies increased $197,414.07 or 0.08%.
46. Between fiscal years 2014 and 2015 the Board’s tax revenue from regular
and excess levies decreased $2,855,854.90 or 11.33%.
47. Between fiscal years 2015 and 2016 the Board’s tax revenue from regular
and excess levies decreased $7,663,519.82 or 34.32%.
48. Between fiscal years 2016 and 2017 the Board’s tax revenue from regular
and excess levies decreased $8,020,337.46 or 45.31%.
49. Respondent’s unrestricted fund balance
9
without OPEB liability
10
or
encumbrances (“fund balance”) peaked on or about fiscal year ending (FYE) June 30,
2010. It began declining the following year, and declined every year at least since 2012.
The fund balance has declined as follows:
FYE 6/30/12: $8,510,759
9
The unrestricted fund balance is the carryover balance after all obligations are
paid from the previous budget year, essentially, a surplus.
10
“Other Post Employment Benefits,” the liability associated with providing health
insurance to retirees.
15
FYE 6/30/13 $5,163.142
FYE 6/30/14 $4,036.028
FYE 6/30/15 $1,631,512
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50. The state Office of Finance recommends a county board of education have
an unrestricted fund balance of between three and five percent of its budget. Some
national organizations recommend maintaining an unrestricted fund balance of sixteen to
twenty percent.
51. If a county falls below the state recommended amount, they are considered
at risk and are put on a watch list. Although Respondent began to spend down its
unrestricted fund balance in 2012, it was not considered at risk until after the crisis in
2015.
52. Throughout the pertinent time period, Respondent maintained a large
number of positions that were not eligible for state funding as follows: FYE 2012, 115;
FYE 2013, 130; FYE 2014, 131; FYE 2015, 138; and FYE 2016, 110.
12
53. Sometime in 2018, Treasurer Pauley prepared a document entitled Excess
Levy Budget which purports to account for the excess levy funds, including projected
amounts for the years remaining in the five-year levy.
13
54. Treasurer Pauley’s Excess Levy Budget is an accounting not of the
expenditure of the excess levy collections, as it should be, but is an accounting of the
total spending on the categories that were included in the excess levy, regardless of their
funding source.
11
G. Ex. 4.
12
G. Ex. 3.
13
R. Ex. 4.
16
55. The Excess Levy Budget reads in pertinent part as follows:
Levy Line
2016
Revenue
$7,700,597.00
Budget to Stay at
Proportions Per Levy Call
Actual Excess Levy
Expenditures
1. Employee salaries paid
exclusively from local funds
$4,954,790.72
$10,510,066.00
2. Fixed employee costs
and benefits, including
county salary supplements
$1,061,177.44
$2,337,7122.90
Levy Line
2017
Revenue
$8,565,997.00
Budget to Stay at
Proportions Per Levy Call
Actual Excess Levy
Expenditures
1. Employee salaries paid
exclusively from local funds
$5,511,614.54
$4,161,812.00
2. Fixed employee costs
and benefits, including
county salary supplements
$1,180,433.51
$888,783.11
Levy Line
2018
Revenue
$8,565,997.00
Budget to Stay at
Proportions Per Levy Call
Actual Excess Levy
Expenditures YTD plus
encumbrances 4/30/18
1. Employee salaries paid
exclusively from local funds
$5,719,026.59
$4,200,000.00
2. Fixed employee costs
and benefits, including
county salary supplements
$1,224,855.36
$850,000.00
56. There are two types of supplements for school employees: the state
supplement and the county supplement. These supplements are not the same; they are
addressed in separate statutes with distinct purposes and are funded differently. County
17
supplements are optional and are funded wholly by the county. The state supplement is
mandatory and is funded by the State unless certain circumstances are present which
require the county to fund all or a portion of the state supplement.
57. Respondent is a county that is required to fund all or part of the state
supplement amount. Respondent paid its share of the state supplement amount under
line one of the excess levy, “Employee salaries paid exclusively from local funds.” Under
line two, “Fixed employee costs and benefits, including county salary supplements,”
Respondent paid fixed costs and benefits such as Social Security, Medicare, retirement,
and workers’ compensation.
58. Respondent paid no county supplement amount from the levy.
59. From fiscal year 2016 through fiscal year 2018, Respondent collected $25.1
million in excess levy funds but only spent an alleged $19.6 million of that money for the
excess levy purposes. Respondent actually spent less than that amount for proper
excess levy purposes.
14
60. Respondent spent the full excess levy amount collected in fiscal year ending
2016.
15
61. The full excess levy collections were not spent on the levy call in fiscal years
ending 2017 and 2018. Respondent failed to spend more than $5.5 million excess levy
funds on excess levy purposes in those years. As some of the funds spent were not for
proper excess levy purposes, the number is greater than the $5.5 million shown in
Respondent’s accounting.
16
14
R. Ex. 4.
15
Id.
16
Id.
18
62. Under West Virginia Code Sections 18A-2-2 and 18A-2-6, virtually all full-
time and half-time regular public school employees who have been employed by
Respondent for more than three consecutive years with a 200-day contract have obtained
“continuing contract” status.
17
63. School employee contracts typically run from July 1
st
through June 30
th
of
the following year.
64. School employees have contracts with county boards of education that
include a certain number of days in an employment term; a certain rate of pay (that may
include a salary supplement); and other benefits that are funded by a special levy or other
sources.
65. Regular service employees experienced a loss of income as a result of the
elimination of the county supplement.
18
66. Teachers and other professional personnel employed by the Board
experienced a loss of income as a result of the elimination of the county salary
supplement. The loss of income for each employee would be the product of their
employment term multiplied by the difference in their pay rate for their particular pay grade
and years of service from the pay scale for the 2015-2016 school year and their pay rate
17
The Parties’ Joint Stipulation of Fact stated: “Evidence regarding those grievants
who did not, at the relevant time, hold a continuing contract will be submitted by the
parties. All grievants other than those referenced in the last sentence will be presumed
by the parties to have held a continuing contract at the relevant time.” No such evidence
was presented at the level three hearing.
18
The Parties’ Joint Stipulation of Fact stated: “Pay scales for the relevant school
years will be appended as Attachments and are hereby incorporated by reference as if
fully and textually setout herein.” No such pay scales were attached or presented as
evidence at the level three hearing.
19
for their particular pay grade and years of service from the pay scale for the 2016-2017
and 2017-2018 school years.
19
67. To the extent that they performed substitute work for the Board after the
elimination of the county salary supplement, substitute teachers and other substitute
professional personnel experienced a reduction in pay. The reduced pay experienced by
each professional substitute would be the product of the days that the professional
worked as a substitute after the elimination of the county salary supplement multiplied by
the difference in his/her pay rate (which rate is based on the relevant pay grade and
his/her years of experience) for the 2015-2016 school year and his/her pay rate for the
2016-2017 and 2017-2018 school years.
68. As a result of the budget revisions ordered by the State Superintendent of
Schools, all Boone County school employees had a reduction for the 2016-2017 school
year.
69. In April 2018, Respondent received delinquent tax proceeds from Alpha
Natural Resources, LLC and repaid the 2016 special legislative appropriation.
70. On July 1, 2018, Respondent reinstated a county supplement for
professional and service personnel of $1,150.
71. At the time of the level three hearing, Respondent had an approximate $7
million unrestricted fund balance.
Discussion
As this grievance does not involve a disciplinary matter, Grievants have the burden
of proving their grievance by a preponderance of the evidence. W. VA. CODE ST. R. §
19
Id.
20
156-1-3 (2018). “The preponderance standard generally requires proof that a reasonable
person would accept as sufficient that a contested fact is more likely true than not.”
Leichliter v. Dep't of Health & Human Res., Docket No. 92-HHR-486 (May 17, 1993), aff’d,
Pleasants Cnty. Cir. Ct. Civil Action No. 93-APC-1 (Dec. 2, 1994). Where the evidence
equally supports both sides, the burden has not been met. Id.
As a preliminary matter, an unspecified number of Grievants are retirees of
Respondent. Although Respondent did not specifically move to dismiss those Grievants,
the Grievance Board cannot render a decision on a matter for which it lacks jurisdiction.
“Administrative agencies and their executive officers are creatures of statute and
delegates of the Legislature. Their power is dependent upon statutes, so that they must
find within the statute warrant for the exercise of any authority which they claim. They
have no general or common-law powers but only such as have been conferred upon them
by law expressly or by implication." Syl. Pt. 4, McDaniel v. W. Va. Div. of Labor, 214 W.
Va. 719, 591 S.E.2d 277 (2003) (citing Syl. Pt. 3, Mountaineer Disposal Service, Inc. v.
Dyer, 156 W. Va. 766, 197 S.E.2d 111 (1973)). “The purpose of [the grievance statute]
is to provide a procedure for the resolution of employment grievances raised by the public
employees of the State of West Virginia, except as otherwise excluded in this article.” W.
VA. CODE § 6C-2-1(a). “‘Employee’ means any person hired for permanent employment
by an employer for a probationary, full- or part-time position.” W. VA. CODE § 6C-2-2(e)(1).
“‘Employer’ means a state agency, department, board, commission, college, university,
institution, State Board of Education, Department of Education, county board of
education, regional educational service agency or multicounty vocational center, or agent
thereof, using the services of an employee as defined in this section.” W. VA. CODE § 6C-
21
2-2(g).
The grievance process is not available to the retirees in this matter. Although it
could be argued that the retirees meet the definition of “employee” in that they were
previously hired by Respondent, Respondent is clearly not now their “employer” under
the statute as Respondent is not “using the services” of the retirees. Therefore,
arguments presented by Grievants regarding Respondent’s elimination of vision and
dental benefits for retirees will not be further addressed.
The West Virginia constitution mandates a “thorough and efficient system of free
schools.” W. VA. CONST. art. XII, § 1. To that end, county boards of education are required
to provide students with 180 days of instruction and to provide employees with 200 days
of employment. W. VA. CODE § 18-5-45(c) (2018). County boards accomplish this
mandate primarily using a combination of state and county, also referred to as local,
funding, although county boards also receive some limited federal funding. “Our State
school aid formula is composed of four basic components: (1) an amount raised from
local levy on real and personal property; (2) the State foundation aid, which is money the
State pays out of general revenue funds to the counties based on a formula composed of
seven components; (3) State supplemental benefits; and (4) amounts raised locally by
special levies by vote of the people in the county.” Pauley v. Kelly, 162 W. Va. 672, 708-
09, 255 S.E.2d 859, 878-79 (1979). Funding for county boards is dynamic as it relies on
factors that vary year to year such as the number of students enrolled, the assessed value
of property, and the actual amount collected of taxes due.
In this case, Respondent receives local funding from both the general and a
special, or excess, levy of taxes. For fiscal year ending 2016, an unprecedented shortfall
22
in tax collections occurred in Boone County due to the closure or bankruptcy of numerous
coal companies. For the 2016 – 17 school year, Respondent’s budget was based on only
70% of the general and excess levy of taxes that had been projected. Respondent did
not have enough money in reserve to make up the shortfall, leaving Respondent with a
four-million-dollar deficit. As a result, Respondent did not formulate a budget that satisfied
its mandate to provide the specified number of instructional and employment days. The
State Board of School Finance determined in its review of the budget submitted by
Respondent that Respondent would run out of money by the spring and not be able to
pay its employees or operate its schools. To correct this failure of the budget, the State
Superintendent ordered Respondent to make certain cuts to the budget on three separate
occasions, which Respondent refused to do. Only when the state board declared it would
take over the county did Respondent make the cuts previously ordered by the State
Superintendent.
At issue in this case are two actions Respondent took in complying with the orders
of the State Superintendent: the elimination or reduction of the county salary supplement
and vision and dental benefits for Respondent’s regular employees. Grievants argue that
Respondent was required to continue to pay the salary supplement under the terms of
the special levy and the requirements of state code. Grievants argue no authority that
the Respondent was required to provide vision and dental insurance for active employees
but argues that Respondent failed to observe the notice and opportunity to be heard
provisions of statute before removing those benefits. Respondent asserts it was required
to comply with the State Superintendent’s orders and that it did not violate the levy terms
or any state code provision.
23
State Superintendent Orders
Respondent first argues that, as the changes to the budget were ordered by the
State Superintendent, the changes were beyond Respondent’s control and, seemingly
argues, therefore, not Respondent’s responsibility. County boards of education are
required to prepare and submit yearly budgets for review and approval by the State Board
of Finance
20
. W.VA. CODE § 18-9B-6.
If the board of finance finds that the proposed budget for a
county will not maintain the proposed educational program as
well as other financial obligations of their county board of
education, it may require that the budget be revised, but in no
case shall permit the reduction of the instructional term
pursuant to the provisions contained in section fifteen [§ 18-
5-15], article five of this chapter nor the employment term
below two hundred days. Any required revision in the budget
for this purpose may be made in the following order:
(1) Postpone expenditures for permanent
improvements and capital outlays except from the
permanent improvement fund;
(2) Reduce the amount budgeted for maintenance
exclusive of service personnel so as to guarantee the
payment of salaries for the employment term; or
(3) Adjust amounts budgeted in any other way so as to
assure the required employment term of two hundred
days and the required instructional term of one
hundred eighty days under the applicable provisions of
law.
W. VA. CODE § 18-9B-8 (2018). In this case, the State Superintendent found
Respondent’s budget did not comply as above and ordered certain cuts be made to the
20
The State Board of School Finance “consist[s] of the State Superintendent of
Free Schools [State Superintendent of Schools], as chairman, the state Tax
Commissioner, and the Director of the Budget as secretary.” W. VA. CODE § 18-9B-3
(2018). However, [n]otwithstanding any and all references to the Board of School Finance
as found in article nine-b [§§ 18-9B-1 et seq.] of this chapter, the West Virginia Board of
Education, through its chief executive officer, shall direct and carry out all provisions of
said article nine-b.” W. VA. CODE § 18-9A-17 (2018). Thus, essentially, the State
Superintendent may act as the Board of Finance, which he did in this instance.
24
budget. “A county board of education and a county superintendent shall comply with the
instructions of the State Board of School Finance and shall perform the duties required of
them in accordance with the provisions of this article.” W. VA. CODE § 18-9B-17 (2018).
“The board may issue orders to county boards of education requiring specific compliance
with its instructions. If a county board fails or refuses to comply, the board may proceed
to enforce its order by any appropriate remedy in any court of competent jurisdiction.” W.
VA. CODE § 18-9B-18 (2018). “The board of finance may withhold payment of state aid
from a county board that fails or refuses to comply with the provisions of this article or the
requirements of the state board made in accordance therewith.” W. VA. CODE § 18-9B-
19 (2018). The state board of education may also intervene in the operation of a county
school system. W. VA. CODE § 18-2E-5n (2018).
In support of its argument that it had no choice but to comply with the State
Superintendent’s orders
21
, Respondent further cites a case in which the State
Superintendent ordered a county school board to cut contract days without complying
with the notice and opportunity for hearing provided for by statute. See Yatauro, et al. v.
Calhoun Cty. Bd. of Educ. and Calhoun Cty. Bd. of Educ. v. Hickman, Nos. 15-0650, 15-
0651, 15-0652, 15-0653, 15-0654, 15-0922, and 15-0903, 6 (W.Va. Supreme Court, Sept.
16, 2016) (memorandum decision). In Yatauro, the West Virginia Supreme Court of
Appeals determined “the Legislature intended to confer broad fiscal powers to the State
Board of Education” and “the Legislature did not intend to limit the State Board of
21
Notwithstanding that Respondent did, in fact, refuse to comply with the State
Superintendent’s order not once but twice and only voted to comply with the State
Superintendent’s order after the state board of education issued its Declaration of
Intervention announcing its intention to take over the operation of Boone County Schools
unless Respondent complied with the State Superintendent’s order.
25
Education’s authority under West Virginia Code §§ 18-9B-1 through -21.” Yatauro, et al.
v. Calhoun Cty. Bd. of Educ. and Calhoun Cty. Bd. of Educ. v. Hickman, Nos. 15-0650,
15-0651, 15-0652, 15-0653, 15-0654, 15-0922, and 15-0903, 6 (W.Va. Supreme Court,
Sept. 16, 2016) (memorandum decision).
Although Yatauro recognized the State Superintendent’s broad fiscal powers,
Yatauro is a memorandum opinion that only specifically discusses the notice and
opportunity to be heard provisions of chapter 18A.
22
Further, chapter 18 also contains
the following provision that was not specifically discussed in Yatauro:
If . . . a county board fails or refuses to provide for the support
of the standard school term, to adhere to the budget and the
expenditure schedule, or to comply with other provisions of
this article, the board of finance may require such action on
the part of the county board, not in violation of law, as the
board of finance may find to be best calculated to restore the
financial affairs of the county board to a proper and lawful
basis. [emphasis added].
W. VA. CODE § 18-9B-4 (2018). Thus, while the State Superintendent has broad authority,
that authority is limited to ordering actions “not in violation of law.” The Code specifically
prohibits a county board of education from reducing the county salary supplement below
the 1990 level unless one of three specific circumstances exist. W. VA. CODE §§ 18-4-5a-
5b (2018). If one of those circumstances does not exist, the State Superintendent cannot
order a county board to reduce the supplement because that would be in violation of law.
Excess levy funds must be used for their stated purpose, under pain of both civil and
criminal penalty for misappropriation of funds. W. VA. CODE §§ 11-8-25, 29, 31 (2018).
22
“While memorandum decisions may be cited as legal authority, and are legal
precedent, their value as precedent is necessarily more limited. . . .” Syl. Pt. 5, State v.
McKinley, 234 W. Va. 143, 146, 764 S.E.2d 303, 306 (2014). Memorandum decisions
are used when the is “no substantial question of law. . . ” W. VA. R. APP. P. 21(c).
26
The State Superintendent cannot order those funds to be used for another purpose
because that would be in violation of law. When the State Board of Education directed a
county board to apply excess levy funds improperly, the county board was not absolved
of liability. See Thomas v. Bd. of Educ., 164 W. Va. 84, 261 S.E.2d 66 (1979); Thomas v.
Bd. of Educ., 167 W. Va. 911, 280 S.E.2d 816 (1981). Therefore, that these actions were
ordered by the State Superintendent does not insulate Respondent from review of its
actions or liability if the State Superintendent’s order was not lawful.
The Excess Levy
Grievants argue Respondent did not comply with the levy call because it did not
pay the county supplement. Respondent asserts it did comply with the levy call because
it will have spent all of the levy money by the end of the five-year levy term ending in 2020
and that it had discretion to apply the levy moneys as it did.
“Except as otherwise provided in this article, boards or officers expending funds
derived from the levying of taxes shall expend the funds only for the purposes for which
they were raised.” W. VA. CODE § 11-8-25 (2018). “Funds derived from a special levy
may be expended only for the purpose for which they are approved. W. Va. Code §§ 11-
8-25-26.” Syl. Pt. 2, Thomas v. Bd. of Educ., 164 W. Va. 84, 261 S.E.2d 66 (1979); Byrd
v. Bd. of Educ., Syl. Pt. 2, 196 W. Va. 1, 467 S.E.2d 142 (1995).
There is no power or authority in the county court or any other
tribunal to apply a fund to a purpose other than that for which
it was ordained and created by a vote of the people. As to the
application of such a fund the will of the electors is supreme.
Without their consent no debt can be imposed upon them, no
liability assumed and no money raised or appropriated by the
county tax levying bodies beyond the limitation prescribed by
law. With the levies when made in a lawful manner, for
ordinary and legitimate purposes, the taxpayer can not
interfere. But when he has consented to be taxed beyond that
27
limit, and empowered his public agent to collect and expend a
fund for the accomplishment of an object not within the power
of such agency without his express authorization, the fund,
when raised, can not be appropriated and expended
otherwise than as ordained by him. . . .
Jarrell v. Bd. of Educ., 131 W. Va. 702, 708, 50 S.E.2d 442, 445 (1948).
In support of its assertion that it will have complied with the excess levy call by the
end of the five-year levy term Respondent offered the Excess Levy Budget
23
prepared by
current Treasurer Pauley. This document, combined with Treasurer Pauley’s testimony,
reveals how Respondent viewed the excess levy funds, at least in hindsight, as the
document was prepared two years after the beginning of the levy and after the tax shortfall
had occurred.
For many years, Respondent was in the enviable position to have enjoyed
generous funding. As a result, Respondent was able to pay its obligations without regard
to the source of the funding. Because of this, the line items in the excess levy, from the
beginning of the levy term, cost more than what the excess levy would fund. Clearly,
Respondent had planned to use other funding to fully fund those items beyond what the
excess levy would pay. Further, Respondent, as multiple witnesses testified, did not
account for the excess levy funds separately from its other revenue.
Then, in 2015, the bottom dropped out. Respondent’s fall tax collection for the
excess levy was $4 million dollars short of expectations. For fiscal year ending 2016,
Respondent had budgeted for $11 million of excess levy money and the collection
received was only $7.7 million
24
. However, even though the budget for the excess levy
23
R. Ex. 4.
24
As stated above, the actual amount of excess levy funds received is unclear
considering the sheriff’s settlement statement.
28
was $11 million and collections were $4 million less than expected, Respondent still spent
$14.9 million on all levy categories combined, twice as much as the actual excess levy
collection. Thus, Respondent spent the entirety of the excess levy funds, plus $7.2 million
of other unspecified funds on the excess levy categories. In terms of Respondent’s total
budget, Respondent had overspent on those categories, but in terms of the excess levy
budget, Respondent had simply spent all the excess levy funds.
For fiscal year ending 2017, the excess levy collection was $8.6 million.
Respondent spent only $5.9 million of the excess levy collection on the levy categories,
$2.6 million less than was collected. Again, for fiscal year ending 2018
25
, Respondent
failed to spend all the excess levy money on the excess levy categories. Respondent
collected $8.8 million from the excess levy and spent only $6 million on the excess levy
categories, $2.8 less than was collected.
Respondent’s Excess Levy Budget was prepared by Treasurer Pauley in 2018,
two years after the crisis, and presents a fundamental misunderstanding of the
requirements of excess levy expenditure. By his testimony, Treasurer Pauley clearly did
not understand the restraints placed on Respondent by law regarding the expenditure of
excess levy funds and the reduction of county salary supplements. Thus, Treasurer
Pauley’s Excess Levy Budget is an accounting not of the expenditure of the excess levy
collections, as it should be, but is an accounting of the total spending on the categories
that were included in the excess levy, regardless of their funding source.
The excess levy budget should have had a zero balance going into fiscal year
ending 2017, because all the excess levy funds were spent in 2016. Instead, Treasurer
25
Based on expenditures through April 30, 2018.
29
Pauley included in the budget the amount of money spent on the excess levy categories
from other funding sources, creating an illusory deficit in the balance of the excess levy
funding. This is, frankly, as Grievants aptly stated, a shell game. Whether intentional or
not, it conceals that the full excess levy collections were not spent on the levy call in 2017
and 2018. When the improper inclusion of the $7.2 million dollars of other funding that
was spent on the excess levy categories is removed, it reveals that over those three
years, Respondent collected $25.1 million in excess levy funds but only spent $19.6
million of that money for alleged excess levy purposes.
26
In 2017 and 2018 Respondent
failed to spend more than $5.5 million excess levy funds on excess levy purposes.
27
As to the specific levy call at issue in this grievance, the county salary supplement,
Respondent asserts it did pay a reduced amount of the county supplement, the 1984
county supplement level, out of line 1 of the excess levy. To analyze whether this action
complied with the levy call, one must first determine what is meant by “the 1984 county
supplement level.”
County boards of education must pay school employees a minimum salary that is
calculated using a formula mandated by statute. W.VA. CODE §§ 18A-4-2, 8a (2018).
School employees also receive a State supplement amount designed to provide equity
among salaries around the state. W.VA. CODE §18A-4-5. If a county chooses to adopt a
26
As will be more fully discussed below, some of the funds Respondent alleges
were spent for excess levy purposes were not spent for excess levy purposes, so the
amount of excess levy funds Respondent spent on excess levy purposes is actually less
than Respondent’s accounting shows. Additionally, the numbers are based on
Respondent’s assertion that the levy collections received for fiscal year ending 2016 were
$7.7 million.
27
Again, because Respondent spent some excess levy funds on improper
purposes, the actual amount Respondent failed to spend on levy purposes cannot be
calculated from the accounting provided.
30
salary schedule higher than the minimum salary schedule, then those employees also
receive a county supplement. W.VA. CODE §18A-4-5a-5b. The funding scheme for these
three types of pay is complicated. The State provides funding for schools, including for
the provision of minimum salaries, using a complex formula that considers the relative
contribution of the county and the state.
28
The State will only pay for a certain number of
employee positions as prescribed by the formula. W.VA. CODE §18-9A-4-5 (2018). If a
county wishes to employ more positions, commonly referred to as “over formula,” the
county must pay for those positions fully through local funds. In addition, although one
may think that the state supplement would be paid for by state funds given its name, the
State’s obligation to pay the state supplement for a county is reduced by the amount of
28
The West Virginia Supreme Court of Appeals explained as follows:
Very broadly, the operation of the formula may be described
as follows. First, a county's estimated level of need, or "basic
foundation program," is determined. The basic foundation
program is the total sum required for each of seven categories
of need. viz., professional educators, service personnel, fixed
costs, transportation costs, administrative costs, other current
expenses and substitute employees, and improvement of
instructional programs. W.Va. Code, 18-9A-12.
Second, the county's "local share" must be computed. W.Va.
Code, 18-9A-11(a). Local share is the amount of tax revenue
which will be produced by levies, at specified rates, on all real
property situate in the county. Local share thus represents the
county's contribution to education costs on the basis of the
value of its real property. State funding is provided to the
county in an amount equal to the difference between the basic
foundation program and the local share. W.Va. Code, 18-9A-
12.
Bd. of Educ. of the Kanawha v. W. Va. Bd. of Educ., 219 W. Va. 801, 804, 639 S.E.2d
893, 896 (2006) (citing State ex rel. Boards of Educ. v. Chafin, 180 W.Va. 219, 221-222,
376 S.E.2d 113, 115-116 (1988) (footnote omitted)).
31
any county salary supplement that was in place on January 1, 1984, in that county. W.VA.
CODE §18A-4-5(d) (2018).
In this case, “the 1984 supplement level” refers to the county offset amount of the
state supplement as Boone County had an excess levy in place in 1984 to pay a county
salary supplement.
29
Therefore, the 1984 supplement level is simply the portion of the
state supplement that Respondent is required to pay. While the requirement to fund the
state supplement through local funds was based on the existence of a county supplement
provided for by an excess levy, Respondent’s payment of its portion of the state
supplement is not payment of the county supplement as those supplements are separate
by statute. See W.VA. CODE §18A-4-5-5b (2018). The legislature’s apportionment of
funding for the state supplement amount does not change the requirement to spend levy
funds for the purposes they are raised. (See Thomas v. Bd. of Educ., 164 W. Va. 84, 261
S.E.2d 66 (1979) (County school board could not use excess levy funds raised for
supplemental payments to pay state minimum salary even when the Board of School
Finance included excess levy funds in computing the county’s local share of financing.)
Respondent argues it has discretion to pay the supplement for all employees under
line one stating:
Where the voters by their approval of a special levy do not
require that each employee of the county board of education
is to receive a designated amount of supplemental salary, the
board of education may annually exercise sound discretion in
allocating the special levy funds as salary supplements
among its employees. A court may not interfere with such
exercise of discretion, unless there is a clear showing of fraud,
collusion or palpable abuse of discretion, or unless there is a
clear showing of a violation of W. Va. Code, 18A-4-8, as
amended, or its current statutory replacement, with respect to
29
Hearing Transcript Vol. 1 at 76, lines 4-1; at 115, lines 22-24; at 116, lines 1-20.
32
its uniformity provisions or its provisions on the nonreduction
of local funds in the aggregate.
Bane v. Bd. of Educ., 178 W. Va. 749, 751, 364 S.E.2d 540, 542 (1987). Respondent
argues that, because the voters approved only approximate annual amounts and not
specific dollar amounts that it had discretion under Bane to allocate the funds however it
chooses.
Respondent’s interpretation is not supported by the language of the levy. “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.” Syl. Pt. 1, Thomas v. Board of Educ., 164
W. Va. 84, 261 S.E.2d 66 (1979); Syl. Pt. 1, Byrd v. Bd. of Educ., 196 W. Va. 1, 467
S.E.2d 142, (1995). Unlike Bane, in which there was only a general statement of levy
purpose, this levy lists specific separate categories and an approximate amount to be
spent on each category. Unlike the statutory language regarding the state supplement
that defines it as part of the minimum salary, which allows Respondent to use levy money
under line one for over-formula employees, no such language was added to the code
sections regarding the county supplement, which still states that the county supplement
supplements the state minimum salary. W.VA. CODE §18A-4-5a-5b. The county
supplement was specifically listed in line item two. Obviously, that is the line from which
a voter would expect the county supplement to be paid, and that is from where it must be
paid.
Having determined that some use of the excess levy funds was improper and that
there were, in fact, excess levy funds that were not spent that must be spent, the
33
determination now turns to how Respondent may spend the excess levy funds in
compliance with this decision.
Regardless of Respondent’s dire financial situation, the excess levy funds must be
spent only on the purposes stated in the excess levy. As the West Virginia Supreme
Court of Appeals has noted, “That the board is faced with a difficult problem, due to a
condition created by causes beyond its control, is of course unfortunate, but that
regrettable situation can not justify the expenditure of the fund in a manner which the law
does not authorize or permit.” Jarrell v. Bd. of Educ., 131 W. Va. 702, 711, 50 S.E.2d
442, 447 (1948). Under line one of the excess levy Respondent was to pay “employee
salaries paid exclusively from local funds” and under line two Respondent was to pay
“employee fixed costs and benefits including the county supplement.” As discussed
above, what Respondent termed to be the county supplement was actually the state
supplement and it was paid out of line one. Ordinarily, salary would mean salary and
supplement would mean supplement, which is what the West Virginia Supreme Court of
Appeals found in Smith v. Bd. of Educ., 192 W. Va. 321, 325, 452 S.E.2d 412, 416 (1994).
However, in 2012, the legislature revised the Code to state that the state supplement
amount is considered part of the state minimum salary. W.VA. CODE §18A-4-2(d), 8a(f)
(2018). Thus, Respondent did properly pay the state supplement amount for over formula
employees under line one as the state supplement is now considered part of the basic
salary by statute and line one of the levy provides for “employee salaries paid exclusively
from local funds.” However, Respondent is not permitted to pay for its portion of the state
supplement for formula-funded employees with the excess levy money out of line one
because line one applies only to over-formula employees. Respondent cannot pay any
34
of the state supplement amount under line two because line two includes only the county
supplement.
Bane does allow Respondent the discretion to allocate funds for the purposes
listed within each line item as it sees fit, in accordance with the limitations stated in Bane.
As line two is for “employee fixed costs and benefits including the county supplement”
Respondent can pay all the other fixed costs and benefits first, before paying the county
supplement but if there is excess levy money available from the payment of the other
fixed costs and benefits, the remainder must be paid as a county supplement.
W.VA. CODE 18A-4-5a-5b
A county board of education operates under two constraints when it has adopted
a county supplement level funded in any part through an excess levy: if it collects enough
money through the excess levy it must pay the county supplement and if it does not collect
enough money through the excess levy to pay the county supplement and if it had a
county supplement in place on January 1, 1990 it cannot reduce that supplement level
unless faced with one of three specific listed circumstances per under West Virginia Code
18A-4-5a-5b.
[N]o county shall reduce local funds allocated for salaries in
effect on January 1, 1990, and used in supplementing the
state minimum salaries as provided for in this article, unless
forced to do so by defeat of a special levy, or a loss in
assessed values or events over which it has no control and
for which the county board has received approval from the
state board prior to making such reduction.
W. VA. CODE §§ 18A-4-5a-5b (2018).
Neither party provided as evidence the amount of the January 1, 1990 county
supplement. Nevertheless, as the parties have continued to pursue this issue, it must be
35
assumed that the reduction of the supplement down to the 1984 level did reduce the
county supplement below the 1990 level.
30
Respondent argues it was justified in reducing
the county supplement due to “events over which it has no control” due to the
unprecedented tax collection shortfall. Grievants argue Respondent knew, or should
have known, years before that time that its budget could not be supported, as evidenced
by the yearly decline of Respondent unrestricted fund balance.
In 2012 and prior, Respondent had a healthy funding surplus. Consequently,
Respondent was able to maintain one of the highest over-formula employee and county
supplement amounts in the state. Beginning in 2012, Respondent’s regular budget began
to run at a deficit and each year it used money from its unrestricted fund balance to pay
its obligations. Each year, Respondent spent down its unrestricted fund balance while
continuing to maintain a large number of over-formula positions, despite a decline in
enrollment and state funding. At fiscal year end 2012, Respondent’s unrestricted fund
balance was $8,510,759. By fiscal year end 2015, Respondent’s unrestricted fund
balance was only $1,631,512. Thus, when the crisis occurred in the fall of 2015,
Respondent was caught flat-footed. It is clear that, after the failure of the tax collection in
2015, Respondent had no choice but to cut everything it could because it did not have
enough money to meet payroll and, in fact, had to seek a special legislative appropriation
to meet payroll. The question is: was this circumstance truly not under Respondent’s
control given Respondent’s choice to spend down its unrestricted fund balance rather
30
If Respondent collected enough excess levy funds to fund the county
supplement above the 1990 level, this issue is moot. However, since Respondent’s
accounting of the excess levy funds was improper, it is not possible to tell from the
evidence presented what amount of county supplement should have been paid.
36
than make cuts to its budget beginning in 2012, which would have preserved its
unrestricted fund balance allowing Respondent to weather the crisis without making such
draconian cuts?
As Justice Neely noted,
“Events over which it has no control” is indeed a nebulous
phrase which has received little attention in the case law.
Appellants contend that it applies only to “acts of God,”
although they point to no authority for this assertion. In
reality, it seems that this clause was included to allow for any
unforeseeable event which may destroy a rational budget.
Newcome v. Bd. of Educ., 164 W. Va. 1, 4, 260 S.E.2d 462, 464 (1979). In that case, the
Court determined,
Where a county has a property tax base which does not
increase in assessed value at a rate commensurate with
inflation so that there is a decline in revenue relative to
expenses and a local school board is forced to choose
between eliminating a local pay supplement for teachers or
curtailing its educational programs for children, the local board
is confronted, in that event, with "events over which it has no
control" within the contemplation of W. Va. Code, 18A-4-5
[1969] and may cancel the teacher supplement.
Syl. Newcome v. Bd. of Educ., 164 W. Va. 1, 2, 260 S.E.2d 462, 462 (1979). In construing
a statute that allows a county superintendent to “act in case of emergency,” the Court
found that an “emergency” is a condition that is “unforeseen or unanticipated.” Syl. Pt. 3,
Randolph Cty. Bd. of Educ. v. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989). The Court
further found:
A fiscal emergency may arise because adequate provision
was not made in a budget, even though the purpose for which
the funds are needed was foreseeable when the budget was
adopted. In such a case, before an emergency can be found,
it must be shown that the amount placed in the budget was
reasonable in light of all of the attendant circumstances,
including prior budgetary experience.
37
Randolph Cty. Bd. of Educ. v. Scalia, 182 W. Va. 289, 290, 387 S.E.2d 524, 526 (1989).
In applying this standard, the Court determined the county board of education’s budget
was not reasonable because it had consistently underestimated expenses and, therefore,
there was no emergency justifying action.
Faced with a similar elimination of the county salary supplement as this grievance,
the Grievance Board, in light of the above cases, determined that a county board of
education that had operated at a deficit for multiple years without any significant effort to
reduce the deficit was not faced with events outside its control that would justify the
elimination of a county salary supplement. Goff, et al. v. Calhoun County Bd. of Educ.,
Docket No. 2015-0049-CONS (Mar. 10, 2015), aff’d, Yatauro, et al. v. Calhoun Cty. Bd.
of Educ. and Calhoun Cty. Bd. of Educ. v. Hickman, Nos. 15-0650, 15-0651, 15-0652,
15-0653, 15-0654, 15-0922, and 15-0903, 6 (W.Va. Supreme Court, Sept. 16, 2016)
(memorandum decision).
This grievance is factually different than Goff in that Respondent was not operating
at an actual deficit but had spent down its unrestricted fund balance such that it was
unable to balance its budget after an unprecedented and sudden shortfall of tax
collections. In layman’s terms, the unrestricted fund balance is a surplus: the money left
over after all expenses are paid. The State Board of Finance recommends a county have
an unrestricted fund balance of between three and five percent of its budget. Some
national organizations recommend maintaining an unrestricted fund balance of sixteen to
twenty percent. If a county falls below the state recommended amount, they are
considered at risk and are put on a watch list. In 2012, Respondent had an unrestricted
fund balance much higher than the recommended three to five percent. Therefore,
38
although it continued to spend down the unrestricted fund balance, it was not considered
at risk until after the crisis in 2015.
The failure to collect $4 million of taxes in the fall of 2015 was certainly unforeseen.
Although Grievants appear to argue that this should have been anticipated based on the
general decline of the coal industry and the economy, that decline was not enough for
anyone to anticipate the sudden $4 million shortfall of taxes at once due to the bankruptcy
of numerous coal companies within a five-month span.
Once the crisis occurred, Respondent cut all non-personnel costs that could be
cut, but, as personnel costs accounted for eighty to eighty-five percent of the budget,
personnel costs had to be cut drastically. Respondent’s only choice was whether to
eliminate positions or reduce the supplement.
31
In hindsight, it is easy to say that
Respondent should have cut its over-formula positions years before it did. However, one
must consider the information Respondent had at the time and the required timing for
reduction in force. Respondent does not know its total tax collections until the end of the
fiscal year, June 30. Respondent must make personnel decisions for the following year
in March. Thus, the positions it had over formula for fiscal year 2013 are based on the
personnel decisions made in 2012, which were based on the financial information from
fiscal year 2011 and projections about the 2012 fiscal year end collections. Therefore,
Respondent’s higher over-formula number in 2015 looks less unreasonable when one
considers that the tax collection numbers were good in fiscal years ending 2013 and 2014
31
As discussed above, Respondent could only cut the county supplement if it
had not collected enough funds from the excess levy, which is unknown given the
nature of Respondent’s accounting.
39
and had actually increased between 2013 and 2014. Tax collections only decreased in
2015 and no drastic problem with tax collections occurred until fiscal year ending 2016.
This situation is further distinguished from Goff in that Respondent did take steps
to correct the situation. In February 2015, considering the lesser projected tax collections,
Respondent did reduce the number of over-formula positions for fiscal year 2016 from
138 to 110. After the crisis in the fall of 2015, Respondent closed three schools in
December 2015 and further reduced over-formula positions in February 2016. However,
this was simply not enough to make up the difference. Between 2015 and 2016,
Respondent lost $7.7 million in total tax revenue between the general and excess levies.
Respondent had also experienced a $269,867,240 or 18.4 percent loss of assessed value
from fiscal year 2015 to fiscal year 2017. That could not have been anticipated. While
Respondent had a large number of over formula positions, counties typically do employ
personnel in excess of the formula. In fact, there are certain positions that are required
that are not funded by the formula, such as the treasurer and physical therapists, so a
school system must employ a certain number of employees over formula. No testimony
was offered to explain how far from the average Respondent was for employing personnel
over formula. Given this lack of evidence regarding the over formula positions and
considering the information available to Respondent at the time the personnel decisions
were made, it is not clear that the decision to retain the positions over formula was fiscally
irresponsible at the time.
While it is true that Respondent continued to spend down its unrestricted fund
balance, it did not go below the recommended three and five percent until after the crisis.
Respondent did take steps to reduce its costs once information about its tax collections
40
become known. The dramatic shortfall in the fall of 2015 was unforeseen. Respondent
did experience a loss of assessed value. Therefore, looking at the situation in total,
Respondent met the circumstances required by West Virginia Code 18A-4-5a-5b and was
permitted to reduce the county salary supplement to below the 1990 level if it did not have
enough excess levy collections to fund the county salary supplement.
Vision and Dental Insurance
Grievants primarily argued that the elimination of vision and dental insurance was
in violation of the excess levy terms, which is not applicable to the remaining active
employee Grievants as the excess levy only provided vision and dental insurance for
retirees, who cannot be addressed in this grievance as discussed above. Grievants cited
no authority that required Respondent to provide vision and dental insurance for active
employees.
Grievants argue only additionally that Respondent failed to provide notice and
opportunity to be heard under West Virginia Code §§ 18A-2-2, 18A-2-2, and 18A-4-8(m).
This issue was specifically addressed by the West Virginia Supreme Court of Appeals in
Yatauro, in which the Court rejected the argument stating, “West Virginia Code §§ 18-9B-
1 through -21 is broad and there is no indication that its application is limited to only those
situations where the appropriate notice and hearing opportunities are provided to
aggrieved employees.” Id. at 5
Conclusion
The Grievance Board lacks jurisdiction to hear the claims of the retirees in this
matter. An order of the State Superintendent does not insulate Respondent from review
of its actions or liability if the actions taken were not lawful. Respondent spent some
41
excess levy funds improperly when it paid its portion of the state supplement amount for
formula employees from the portion of the excess levy for over-formula employees.
Respondent further failed to spend all excess levy funds collected for excess levy
purposes. Respondent was permitted to reduce the county salary supplement to below
the 1990 level if it did not have enough excess levy collections to fund the county salary
supplement. Respondent was not required to continue to provide Grievants vision and
dental insurance or to provide Grievants notice and opportunity to be heard as
Respondent was acting on the order of the State Superintendent.
As a result of Respondent’s accounting practices, it is impossible to tell from the
evidence presented in this case how much Respondent paid in actual county
supplements each year, as opposed to its share of the State supplement amount, or how
much excess levy money would have been available to pay as determined above. The
specifics of how much Grievants are entitled to be paid as a county supplement must be
determined through accounting performed in accordance with the findings in this decision.
The following Conclusions of Law support the decision reached.
Conclusions of Law
1. As this grievance does not involve a disciplinary matter, Grievants have the
burden of proving their grievance by a preponderance of the evidence. W. VA. CODE ST.
R. § 156-1-3 (2018). “The preponderance standard generally requires proof that a
reasonable person would accept as sufficient that a contested fact is more likely true than
not.” Leichliter v. Dep't of Health & Human Res., Docket No. 92-HHR-486 (May 17, 1993),
aff’d, Pleasants Cnty. Cir. Ct. Civil Action No. 93-APC-1 (Dec. 2, 1994). Where the
evidence equally supports both sides, the burden has not been met. Id.
42
2. “Administrative agencies and their executive officers are creatures of
statute and delegates of the Legislature. Their power is dependent upon statutes, so that
they must find within the statute warrant for the exercise of any authority which they claim.
They have no general or common-law powers but only such as have been conferred upon
them by law expressly or by implication.” Syl. Pt. 4, McDaniel v. W. Va. Div. of Labor,
214 W. Va. 719, 591 S.E.2d 277 (2003) (citing Syl. Pt. 3, Mountaineer Disposal Service,
Inc. v. Dyer, 156 W. Va. 766, 197 S.E.2d 111 (1973)).
3. “The purpose of [the grievance statute] is to provide a procedure for the
resolution of employment grievances raised by the public employees of the State of West
Virginia, except as otherwise excluded in this article.” W. VA. CODE § 6C-2-1(a).
4. “‘Employee’ means any person hired for permanent employment by an
employer for a probationary, full- or part-time position.” W. VA. CODE § 6C-2-2(e)(1).
“‘Employer’ means a state agency, department, board, commission, college, university,
institution, State Board of Education, Department of Education, county board of
education, regional educational service agency or multicounty vocational center, or agent
thereof, using the services of an employee as defined in this section.” W. VA. CODE § 6C-
2-2(g).
5. The Grievance Board lacks jurisdiction to hear the claims of the retirees in
this matter.
6. The West Virginia constitution mandates a “thorough and efficient system
of free schools.” W. VA. CONST. art. XII, § 1. To that end, county boards of education are
required to provide students with 180 days of instruction and to provide employees with
200 days of employment. W. Va. Code § 18-5-45(c) (2018).
43
7. “Our State school aid formula is composed of four basic components: (1)
an amount raised from local levy on real and personal property; (2) the State foundation
aid, which is money the State pays out of general revenue funds to the counties based
on a formula composed of seven components; (3) State supplemental benefits; and (4)
amounts raised locally by special levies by vote of the people in the county.” Pauley v.
Kelly, 162 W. Va. 672, 708-09, 255 S.E.2d 859, 878-79 (1979).
8. County boards of education are required to prepare and submit yearly
budgets for review and approval by the State Board of Finance. W.VA. CODE § 18-9B-6.
9. Upon review of the budget,
[i]f the board of finance finds that the proposed budget for a
county will not maintain the proposed educational program as
well as other financial obligations of their county board of
education, it may require that the budget be revised, but in no
case shall permit the reduction of the instructional term
pursuant to the provisions contained in section fifteen [§ 18-
5-15], article five of this chapter nor the employment term
below two hundred days. Any required revision in the budget
for this purpose may be made in the following order:
(1) Postpone expenditures for permanent
improvements and capital outlays except from the
permanent improvement fund;
(2) Reduce the amount budgeted for maintenance
exclusive of service personnel so as to guarantee the
payment of salaries for the employment term; or
(3) Adjust amounts budgeted in any other way so as to
assure the required employment term of two hundred
days and the required instructional term of one
hundred eighty days under the applicable provisions of
law.
W. VA. CODE § 18-9B-8 (2018).
10. “A county board of education and a county superintendent shall comply with
the instructions of the State Board of School Finance and shall perform the duties required
of them in accordance with the provisions of this article.” W. VA. CODE § 18-9B-17 (2018).
44
11. “The board may issue orders to county boards of education requiring
specific compliance with its instructions. If a county board fails or refuses to comply, the
board may proceed to enforce its order by any appropriate remedy in any court of
competent jurisdiction.” W. VA. CODE § 18-9B-18 (2018). “The board of finance may
withhold payment of state aid from a county board that fails or refuses to comply with the
provisions of this article or the requirements of the state board made in accordance
therewith.” W. VA. CODE § 18-9B-19 (2018). The state board of education may also
intervene in the operation of a county school system. W. VA. CODE § 18-2E-5n (2018).
12. The West Virginia Supreme Court of Appeals has determined “the
Legislature intended to confer broad fiscal powers to the State Board of Education” and
“the Legislature did not intend to limit the State Board of Education’s authority under West
Virginia Code §§ 18-9B-1 through -21.” Yatauro, et al. v. Calhoun Cty. Bd. of Educ. and
Calhoun Cty. Bd. of Educ. v. Hickman, Nos. 15-0650, 15-0651, 15-0652, 15-0653, 15-
0654, 15-0922, and 15-0903, 6 (W.Va. Supreme Court, Sept. 16, 2016) (memorandum
decision).
13. Chapter 18 contains the following provision that was not specifically
discussed in Yatauro:
If . . . a county board fails or refuses to provide for the support
of the standard school term, to adhere to the budget and the
expenditure schedule, or to comply with other provisions of
this article, the board of finance may require such action on
the part of the county board, not in violation of law, as the
board of finance may find to be best calculated to restore the
financial affairs of the county board to a proper and lawful
basis. [emphasis added].
W. VA. CODE § 18-9B-4 (2018).
45
14. When the State Board of Education directed a county board to apply excess
levy funds improperly, the county board was not absolved of liability. See Thomas v. Bd.
of Educ., 164 W. Va. 84, 261 S.E.2d 66 (1979); Thomas v. Bd. of Educ., 167 W. Va. 911,
280 S.E.2d 816 (1981).
15. “Except as otherwise provided in this article, boards or officers expending
funds derived from the levying of taxes shall expend the funds only for the purposes for
which they were raised.” W. VA. CODE § 11-8-25 (2018).
16. “Funds derived from a special levy may be expended only for the purpose
for which they are approved. W. Va. Code §§ 11-8-25-26.” Syl. Pt. 2, Thomas v. Bd. of
Educ., 164 W. Va. 84, 261 S.E.2d 66 (1979); Byrd v. Bd. of Educ., Syl. Pt. 2, 196 W. Va.
1, 467 S.E.2d 142 (1995).
There is no power or authority in the county court or any other
tribunal to apply a fund to a purpose other than that for which
it was ordained and created by a vote of the people. As to the
application of such a fund the will of the electors is supreme.
Without their consent no debt can be imposed upon them, no
liability assumed and no money raised or appropriated by the
county tax levying bodies beyond the limitation prescribed by
law. With the levies when made in a lawful manner, for
ordinary and legitimate purposes, the taxpayer can not
interfere. But when he has consented to be taxed beyond that
limit, and empowered his public agent to collect and expend a
fund for the accomplishment of an object not within the power
of such agency without his express authorization, the fund,
when raised, can not be appropriated and expended
otherwise than as ordained by him. . . .
Jarrell v. Bd. of Educ., 131 W. Va. 702, 708, 50 S.E.2d 442, 445 (1948).
17. County boards of education must pay school employees a minimum salary
that is calculated using a formula mandated by statute. W.VA. CODE §§ 18A-4-2, 8a
(2018). School employees also receive a State supplement amount designed to provide
46
equity among salaries around the state. W.VA. CODE §18A-4-5. If a county chooses to
adopt a salary schedule higher than the minimum salary schedule, then those employees
also receive a county supplement. W.VA. CODE §18A-4-5a-5b.
18. The State will only pay for a certain number of employee positions as
prescribed by the formula. W.VA. CODE §18-9A-4-5 (2018).
19. The State obligation to pay the State supplement for a county is reduced by
the amount of any county salary supplement that was in place on January 1, 1984, in that
county. W.VA. CODE §18A-4-5(d) (2018).
20. Respondent’s payment of its portion of the State supplement is not payment
of the county supplement as those supplements are separate by statute. See W.VA.
CODE §18A-4-5-5b (2018).
21. The legislature’s apportionment of funding for the State supplement
amount does not change the requirement to spend levy funds for the purposes they are
raised. (See Thomas v. Bd. of Educ., 164 W. Va. 84, 261 S.E.2d 66 (1979) (County
school board could not use excess levy funds raised for supplemental payments to pay
state minimum salary even when the Board of School Finance included excess levy funds
in computing the county’s local share of financing.)
22. County boards of education are permitted discretion only:
Where the voters by their approval of a special levy do not
require that each employee of the county board of education
is to receive a designated amount of supplemental salary, the
board of education may annually exercise sound discretion in
allocating the special levy funds as salary supplements
among its employees. A court may not interfere with such
exercise of discretion, unless there is a clear showing of fraud,
collusion or palpable abuse of discretion, or unless there is a
clear showing of a violation of W. Va. Code, 18A-4-8, as
amended, or its current statutory replacement, with respect to
47
its uniformity provisions or its provisions on the nonreduction
of local funds in the aggregate.
Bane v. Bd. of Educ., 178 W. Va. 749, 751, 364 S.E.2d 540, 542 (1987).
23. “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.” Syl. Pt. 1, Thomas v.
Board of Educ., 164 W. Va. 84, 261 S.E.2d 66 (1979); Syl. Pt. 1, Byrd v. Bd. of Educ.,
196 W. Va. 1, 467 S.E.2d 142, (1995).
24. As the West Virginia Supreme Court of Appeals has noted, “That the board
is faced with a difficult problem, due to a condition created by causes beyond its control,
is of course unfortunate, but that regrettable situation can not justify the expenditure of
the fund in a manner which the law does not authorize or permit.” Jarrell v. Bd. of Educ.,
131 W. Va. 702, 711, 50 S.E.2d 442, 447 (1948).
25. The state supplement amount is considered part of the state minimum
salary. W.VA. CODE §18A-4-2(d), 8a(f) (2018).
26. Grievants proved Respondent failed to spend all excess levy funds for the
purposes they were raised.
27. County boards of education are restrained from reducing county salary
supplements as follows:
[N]o county shall reduce local funds allocated for salaries in
effect on January 1, 1990, and used in supplementing the
state minimum salaries as provided for in this article, unless
forced to do so by defeat of a special levy, or a loss in
assessed values or events over which it has no control and
for which the county board has received approval from the
state board prior to making such reduction.
W. VA. CODE §§ 18A-4-5a-5b (2018).
48
28. As Justice Neely noted,
“Events over which it has no control” is indeed a nebulous
phrase which has received little attention in the case law.
Appellants contend that it applies only to “acts of God,”
although they point to no authority for this assertion. In
reality, it seems that this clause was included to allow for any
unforeseeable event which may destroy a rational budget.
Newcome v. Bd. of Educ., 164 W. Va. 1, 4, 260 S.E.2d 462, 464 (1979). In that case, the
Court determined,
Where a county has a property tax base which does not
increase in assessed value at a rate commensurate with
inflation so that there is a decline in revenue relative to
expenses and a local school board is forced to choose
between eliminating a local pay supplement for teachers or
curtailing its educational programs for children, the local board
is confronted, in that event, with "events over which it has no
control" within the contemplation of W. Va. Code, 18A-4-5
[1969] and may cancel the teacher supplement.
Syl. Newcome v. Bd. of Educ., 164 W. Va. 1, 2, 260 S.E.2d 462, 462 (1979).
29. In construing a statute that allows a county superintendent to “act in case
of emergency,” the Court found that an “emergency” is a condition that is “unforeseen or
unanticipated.” Syl. Pt. 3, Randolph Cty. Bd. of Educ. v. Scalia, 182 W. Va. 289, 387
S.E.2d 524 (1989). The Court found:
A fiscal emergency may arise because adequate provision
was not made in a budget, even though the purpose for which
the funds are needed was foreseeable when the budget was
adopted. In such a case, before an emergency can be found,
it must be shown that the amount placed in the budget was
reasonable in light of all of the attendant circumstances,
including prior budgetary experience.
Randolph Cty. Bd. of Educ. v. Scalia, 182 W. Va. 289, 290, 387 S.E.2d 524, 526 (1989).
30. A county board of education that had operated at a deficit for multiple years
without any significant effort to reduce the deficit was not faced with events outside its
49
control that would justify the elimination of a county salary supplement. Goff, et al. v.
Calhoun County Bd. of Educ., Docket No. 2015-0049-CONS (Mar. 10, 2015), aff’d,
Yatauro, et al. v. Calhoun Cty. Bd. of Educ. and Calhoun Cty. Bd. of Educ. v. Hickman,
Nos. 15-0650, 15-0651, 15-0652, 15-0653, 15-0654, 15-0922, and 15-0903, 6 (W.Va.
Supreme Court, Sept. 16, 2016) (memorandum decision).
31. Grievants failed to prove Respondent was not permitted to reduce the
county salary supplement to below the 1990 level if it did not have enough excess levy
collections to fund the county salary supplement.
32. “West Virginia Code §§ 18-9B-1 through -21 is broad and there is no
indication that its application is limited to only those situations where the appropriate
notice and hearing opportunities are provided to aggrieved employees.” Yatauro, et al.
v. Calhoun Cty. Bd. of Educ. and Calhoun Cty. Bd. of Educ. v. Hickman, Nos. 15-0650,
15-0651, 15-0652, 15-0653, 15-0654, 15-0922, and 15-0903, 5 (W.Va. Supreme Court,
Sept. 16, 2016) (memorandum decision).
33. Grievants failed to prove Respondent was required to provide them notice
and opportunity to be heard before termination of their vision and dental insurance when
Respondent was acting on the order of the State Superintendent or that they were
otherwise entitled to continuation of their vision and dental insurance.
Accordingly, the grievance is GRANTED, in part, and DENIED, in part.
Respondent is ORDERED to account for the excess levy funds in accordance with this
decision and pay Grievants any county salary supplement amount owed accordingly, plus
interest.
50
Any party may appeal this decision to the Circuit Court of Kanawha County. Any
such appeal must be filed within thirty (30) days of receipt of this decision. See W. VA.
CODE § 6C-2-5. Neither the West Virginia Public Employees Grievance Board nor any of
its administrative law judges is a party to such appeal and should not be so named.
However, the appealing party is required by W. VA. CODE § 29A-5-4(b) to serve a copy of
the appeal petition upon the Grievance Board. The civil action number should be included
so that the certified record can be properly filed with the circuit court. See also W. VA.
CODE ST. R. § 156-1-6.20 (2018).
DATE: February 7, 2019
_____________________________
Billie Thacker Catlett
Chief Administrative Law Judge
