Monongalia County Board of Education v. American Federation of Teachers—West Virginia

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2016 Term

FILED

November 2, 2016

released at 3:00 p.m.

No. 15-0662 RORY L. PERRY, II CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

MONONGALIA COUNTY BOARD OF EDUCATION AND

FRANK D. DEVONO, SUPERINTENDENT,

Respondents Below, Petitioners

V.

AMERICAN FEDERATION OF TEACHERS – WEST VIRGINIA, AFL-CIO;

JUDY HALE, ITS PRESIDENT;

SAM BRUNETT, JEANIE DEVINCENT, SHELLY GARLITZ,

AND MIKE ROGERS,

AS REPRESENTATIVES OF SIMILARLY SITUATED INDIVIDUALS,

Petitioners Below, Respondents

Appeal from the Circuit Court of Monongalia County

Honorable Phillip D. Gaujot, Chief Judge

Civil Action No. 11-C-759

REVERSED

Submitted: September 21, 2016

Filed: November 2, 2016

Howard E. Seufer, Jr. Mark W. Carbone

Bowles Rice LLP Jeffrey G. Blaydes

Charleston, West Virginia Carbone & Blaydes, P.L.L.C.

Kimberly S. Croyle Charleston, West Virginia

Ashley Hardesty Odell Robert M. Bastress, Jr.

Bowles Rice LLP Morgantown, West Virginia

Morgantown, West Virginia Attorneys for the Respondent

Attorneys for the Petitioner

Andrew J. Katz

Patrick Morrisey, Charleston, West Virginia

Attorney General Attorney for Amicus Curiae,

Kelli D. Talbott, West Virginia Education Association

Senior Deputy Attorney General

Charleston, West Virginia John Everett Roush

Attorneys for Amicus Curiae, Charleston, West Virginia

The West Virginia Board of Education Attorney for Amicus Curiae,

The West Virginia School Service

Denise M. Spatafore Personnel Association

Jason S. Long

Dinsmore & Shohl LLP Thomas P. Maroney

Morgantown, West Virginia Maroney Williams Weaver & Pancake

Attorneys for Amicus Curiae, PLLC

The West Virginia Regional Education Charleston, West Virginia

Service Agencies Attorney for Amicus Curiae,

The West Virginia AFL-CIO

Laura Lilly Sutton

Martinsburg, West Virginia

Attorney for Amicus Curiae,

West Virginia Association of School

Administrators

Kathy M. Finsley

Steptoe & Johnson PLLC

Wheeling, West Virginia

Amy M. Smith

Steptoe & Johnson PLLC

Bridgeport, West Virginia

Attorneys for Amicus Curiae,

West Virginia School Board Association

JUSTICE DAVIS delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. The definition of “classroom teacher,” set out in W. Va. Code § 18A-1-1

(2009) (Repl. Vol. 2016), is not intended to include within its meaning an “interventionist,”

who provides instruction to an individual student or a small group of students for the purpose

of intervening in the education of students who are deficient in one or more particular

subjects.

2. Pursuant to 126 W. Va. C.S.R. §§ 72-2.5.c & d (2015) and 126 W. Va.

C.S.R. § 72-3.13 (2015), a county board of education may contract with its Regional

Education Service Agency (RESA) for the provision of interventionist services to its

students.

i

Davis, Justice:

In this case, the Monongalia County Board of Education challenges a ruling

by the Circuit Court of Monongalia County that found a county board of education could not

contract with a Regional Education Service Agency (“RESA”) to provide educational

interventionists to county elementary and middle school students when those interventionists

are hired by the West Virginia Board of Education (“State Board”) operating through a

RESA. The circuit court rested its conclusion on its determination that an interventionist met

the statutory definition of a teacher and, therefore, must be directly hired by a county board

of education. After reviewing the parties’ briefs1 and hearing their oral arguments, and

having also considered the relevant law, we find the legislative scheme for the RESA

program evidences a legislative intent that county boards be authorized to contract with

RESAs to provide interventionist services to county students; therefore, we reverse the circuit

court.

1

We acknowledge the contribution of the following amici curiae who filed

briefs in this case: The West Virginia Board of Education; The West Virginia Regional

Education Service Agencies; West Virginia Association of School Administrators; West

Virginia School Board Association; West Virginia Education Association; The West Virginia

School Service Personnel Association; and The West Virginia AFL-CIO. We value the

participation of the amici and will consider their briefs in conjunction with the parties’

arguments.

1

I.

FACTUAL AND PROCEDURAL HISTORY

The dispute in this case arises from the use of educational interventionists to

assist school children in Monongalia County who need educational support beyond that

provided by the regular classroom teacher, i.e., tutoring, in the subjects of reading and math.

The Monongalia County Board of Education (“MCBOE”) asserts that by utilizing

interventionists it is able to provide supportive program-based instruction to over three

hundred struggling elementary and middle school students each year. According to the

circuit court,

19. “Interventionists” provide personalized training to

students who are struggling in reading and math. They

are used to supplement the normal lesson plan of the

child’s regular teacher. The children remain in the class

for a portion of the lesson and then are either pulled from

the class or segregated within the classroom to receive

supplemental instruction from the “Interventionist.”

20. . . . . Most [interventionists] are assigned to one school

and work as little as two and a half hours, or as much as

six hours a day. . . .

21. “Interventionists” are paid twenty-five dollars ($25.00)

per hour, regardless of their level of training or

experience. They do not receive benefits such as health

insurance, retirement, paid lunch breaks, or planning

periods. They are at-will employees and have no right or

expectation of being rehired from year to year.

22. The method used to fill “Interventionist” positions begins

when the job is posted on the RESA VII website. The

2

main requirement for this position is that the individual

be a certified teacher.

23. At times, RESA VII employees interview the applicant,

and other times, both MCBOE and RESA VII employees

conduct joint interviews. The hiring decision is

ultimately made by the RESA VII Director.

The MCBOE explains that the support provided to a student by an interventionist is designed

by the student’s teacher, school psychologist, and academic coach, among others, to

intervene in a student’s education before the student has failed a subject. Accordingly,

interventionists do not engage in planning, grading, assessment, parent communication, or

other responsibilities carried out by classroom teachers. Interventionists are, however,

required to be certified teachers.

The interventionists utilized by MCBOE are obtained through a contract it has

with its RESA,2 which is RESA VII. The interventionists hired by RESA VII3 are employees

of the State Board. The MCBOE contracts with RESA VII to provide the services of

2

Regional Education Service Agencies (“RESAs”) are established by statute

and implemented by the State Board pursuant to W. Va. Code § 18-2-26 (2002) (Repl. Vol.

2012). Accord W. Va. Code § 18-2-26 (2015) (Repl. Vol. 2016). There are eight separate

regions in West Virginia, which each have a designated RESA. Monongalia County is one

of several counties in RESA VII.

3

RESA VII’s “Strategic Plan,” which is approved by the State Board,

authorizes RESA VII to employ interventionists.

3

interventionists in schools eligible for Title I services.4 In schools not eligible for Title I

funding, the services of interventionists also are obtained through a contract with RESA VII,

but the interventionists’ services are paid for through the MCBOE’s General Fund.5

Relevant to the instant dispute, during a board meeting on September 27, 2011,

MCBOE approved the expenditure of Title I funds to contract with RESA VII for the

services of four interventionists, each to be assigned to a specific Title I qualifying school.

4

According to the website of the West Virginia Department of Education,

Title I provides financial assistance to LEAs (Local Educational

Agencies) and schools with high numbers or percentages of poor

children to help ensure that all children meet challenging state

academic standards. LEAs target Title I funds to schools with

the highest percentages of children from low-income families.

Unless a participating school is operating a schoolwide program,

the school must focus Title I services on children who are

failing, or most at risk of failing, to meet state academic

standards. Schools in which poor children make up at least 40

percent of enrollment are eligible to use Title I funds for

schoolwide programs to serve all children in the school. LEAs

also must offer to utilize Title I funds to provide academic

enrichment services to eligible children enrolled in private

schools.

https://wvde.state.wv.us/titlei/ (last visited October 24, 2016). The MCBOE explains that

Title I funds are distributed as formula grants by the federal government. Moreover, “[a]

RESA is eligible as a local education agency (LEA) to participate in partnership with or on

behalf of any county school system or school in those programs that will accomplish

implementation of the strategic plan and/or state education initiative.” 126 W. Va. C.S.R.

§ 72-2.5 (2010). Accord 126 W. Va. C.S.R. § 72-2.5.d (2015).

5

The MCBOE avers that the “General Fund” to which it refers does not include

excess levy funds.

4

In addition, MCBOE approved expenditures from its General Fund to contract with RESA

VII for additional interventionists to serve generally at elementary and middle schools in

Monongalia County. According to MCBOE, approximately thirty interventionists provided

services to Monongalia County students during the 2011-2012 school year.6

In or around December 2011, the American Federation of Teachers – West

Virginia, AFL-CIO (“AFT”), respondents herein, filed in the Circuit Court of Monongalia

County a petition for writ of mandamus, naming MCBOE as the respondent, in which they

sought declaratory and injunctive relief. AFT essentially sought a declaration that

interventionists are classroom teachers that must be hired by MCBOE, and an injunction to

prevent MCBOE from obtaining interventionists through a contract with RESA VII. After

a period of discovery, the parties presented cross motions for summary judgment. On

January 14, 2014, the circuit court denied the motions. The circuit court then allowed the

parties additional time to address questions of fact that had been identified in the court’s prior

order. These questions pertained to the role and responsibilities of interventionists.

Thereafter, following additional discovery, the parties again filed cross motions for summary

judgment. By order entered June 9, 2015, the circuit court granted AFT’s motion for

summary judgment and denied MCBOE’s motion. In doing so, the circuit court reluctantly

6

The BOE asserts that interventionists who provided satisfactory service in

prior school years were afforded the opportunity to be re-employed in subsequent years.

5

concluded that an interventionist met the statutory definition of “classroom teacher”;

therefore, the position had to be filled through direct employment by MCBOE in accordance

with the statutory requirements pertaining to hiring and employment of classroom teachers.

This appeal followed.

II.

STANDARD OF REVIEW

Although the circuit court did not render its final order in the context of the

petition for writ of mandamus that was sought by AFT, it implicitly granted the requested

writ by granting summary judgment in favor of AFT. Likewise, the circuit court

connotatively declared that MCBOE is prohibited from contracting with RESA VII to obtain

the services of interventionists and enjoined it from continuing the practice. Thus, our

standard for reviewing the lower court’s rulings in this appeal is multifaceted.

It has been made clear that, “[t]o invoke mandamus the relator must show (1)

a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing

relator seeks; and (3) the absence of another adequate remedy.” Syl. pt. 2, Myers v. Barte,

167 W. Va. 194, 279 S.E.2d 406 (1981). This is so because

“‘[m]andamus lies to require the discharge by a public

officer of a nondiscretionary duty.’ Point 3 Syllabus, State ex

rel. Greenbrier County Airport Authority v. Hanna, 151 W. Va.

479[, 153 S.E.2d 284 (1967)].” Syllabus point 1, State ex rel.

6

West Virginia Housing Development Fund v. Copenhaver, 153

W. Va. 636, 171 S.E.2d 545 (1969).

Syl. pt. 1, State ex rel. Williams v. Department of Military Affairs & Pub. Safety, Div. of

Corr., 212 W. Va. 407, 573 S.E.2d 1 (2002). Our review of the circuit court’s grant of

mandamus relief is de novo: “A de novo standard of review applies to a circuit court’s

decision to grant or deny a writ of mandamus.” Syl. pt. 1, Harrison Cty. Comm’n v. Harrison

Cty. Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008).

Because this appeal comes to this Court from an order granting summary

judgment, we also exercise plenary review of that ruling: “A circuit court’s entry of summary

judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755

(1994). In carrying out our plenary review, we bear in mind that “[a] motion for summary

judgment should be granted only when it is clear that there is no genuine issue of fact to be

tried and inquiry concerning the facts is not desirable to clarify the application of the law.”

Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133

S.E.2d 770 (1963).

We additionally review de novo the circuit court’s declaratory judgment:

The West Virginia Supreme Court “reviews a circuit

court’s entry of a declaratory judgment de novo, since the

principal purpose of a declaratory judgment action is to resolve

legal questions.” Farmers & Mechs. Mut. Ins. Co. v. Cook, 210

7

W. Va. 394, 398, 557 S.E.2d 801, 805 (2001) (citing Syl. Pt. 3,

Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995)).

Flowers v. Max Specialty Ins. Co., 234 W. Va. 1, 5, 761 S.E.2d 787, 791 (2014). See also

Syl. pt. 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995) (“A circuit court’s entry of

a declaratory judgment is reviewed de novo.”).

To the extent that the circuit court granted injunctive relief, our review is for

an abuse of discretion:

Unless an absolute right to injunctive relief is conferred

by statute, the power to grant or refuse to modify, continue, or

dissolve a temporary or a permanent injunction, whether

preventative or mandatory in character, ordinarily rests in the

sound discretion of the trial court, according to the facts and the

circumstances of the particular case; and its action in the

exercise of its discretion will not be disturbed on appeal in the

absence of a clear showing of an abuse of such discretion.”

Syllabus Point 11, Stuart v. Lake Washington Realty, 141

W. Va. 627, 92 S.E.2d 891 (1956).

Syl. pt. 5, Foster v. Orchard Dev. Co., LLC, 227 W. Va. 119, 705 S.E.2d 816 (2010).

Finally, insofar as our decision necessitates an examination of various statutory

provisions and resolution of questions of law, we apply plenary review to those issues as

well: “Where the issue on an appeal from the circuit court is clearly a question of law or

involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1,

Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

8

We now proceed to address the issues herein raised while guided by the

foregoing principles.

III.

DISCUSSION

Resolution of the instant matter depends upon whether the Legislature intends

for educational interventionists to be equivalent to regular classroom teachers and therefore

subject to all of the same statutory entitlements and requirements as classroom teachers.

Ascertaining legislative intent guides our analysis because “[t]he primary object in construing

a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v.

State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). To determine the

legislative intent and thereby decide the question herein presented, we first look to statutory

provisions related to teachers to discern whether an interventionist meets the definition of a

classroom teacher. We then consider the statutory and regulatory scheme for RESA as it

relates to interventionists. Finally, we determine which law applies to the instant dispute.

In our examination of the statutory and regulatory provisions relevant to this

matter, we are mindful of the fundamental principles of statutory construction that must be

applied. Namely, we recognize that, in order to glean legislative intent, “[w]e look first to

the statute’s language. If the text, given its plain meaning, answers the interpretive question,

9

the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v. State

Tax Dep’t of West Virginia, 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995). See also

Foster Found. v. Gainer, 228 W. Va. 99, 110, 717 S.E.2d 883, 894 (2011) (“Statutes whose

language is plain must be applied as written.”); Syl. pt. 2, State v. Epperly, 135 W. Va. 877,

65 S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous and plainly

expresses the legislative intent will not be interpreted by the courts but will be given full

force and effect.”). Conversely, “[a] statute that is ambiguous must be construed before it

can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). See

also Foster Found. v. Gainer, 228 W. Va. at 110, 717 S.E.2d at 894 (“Statutes . . . whose

language is ambiguous must be construed before they can be applied.”).

A. Interventionists as Classroom Teachers

The term “interventionist” is not defined in the West Virginia Code.

Accordingly, in order to determine whether an interventionist is the statutory equivalent of

a teacher, we begin with an examination of the definition of a teacher. The statutory

definition of a classroom teacher is found in W. Va. Code § 18A-1-1(c)(1) (2009) (Repl. Vol.

2016), which defines the term as follows:

(c) “Professional educator” has the same meaning as

“teacher” as defined in section one [§ 18-1-1], article one,

chapter eighteen of this code. Professional educators are

classified as follows:

10

(1) “Classroom teacher” means a professional educator

who has a direct instructional or counseling relationship with

students and who spends the majority of his or her time in this

capacity[.]

(Emphasis added). The foregoing statute plainly demonstrates that “classroom teacher” is

a subclassification of “professional educator.” The term “professional educator,” in turn,

bears the same meaning as the term “teacher,” which is defined in W. Va. Code § 18-1-1(g)

(2012) (Repl. Vol. 2016). Pursuant to W. Va. Code § 18-1-1(g), “‘[t]eacher’ means a

teacher, supervisor, principal, superintendent, public school librarian or any other person

regularly employed for instructional purposes in a public school in this state.” (Emphasis

added). Although the term “instructional,” which is used in the foregoing definitions of both

“teacher” and “classroom teacher,” is not statutorily defined, we are to give the term its

common, ordinary meaning. See Syl. pt. 1, Miners in Gen. Grp. v. Hix, 123 W. Va. 637, 17

S.E.2d 810 (1941) (“In the absence of any definition of the intended meaning of words or

terms used in a legislative enactment, they will, in the interpretation of the act, be given their

common, ordinary and accepted meaning in the connection in which they are used.”),

overruled on other grounds by Lee–Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477

(1982). The common, ordinary, and accepted meaning of “instructional” is “[o]f or

pertaining to instruction or teaching; educational. . . . Conveying instruction or information.”

VII The Oxford English Dictionary 1050 (2d ed. 1989).

11

Thus, as pointed out by AFT, strictly applying7 the foregoing definitions results

in the inevitable conclusion that an interventionist meets the statutory definition of a

classroom teacher, because an interventionist has a “direct instructional . . . relationship with

students,” albeit in a form more akin to tutoring than to classroom instruction, and “spends

the majority of his or her time in this capacity.” W. Va. Code § 18A-1-1(c)(1). See, e.g.,

Harmon v. Fayette Cty. Bd. of Educ., 205 W. Va. 125, 130, 516 S.E.2d 748, 753 (1999)

(observing that “the degree to which a professional educator directly works with students,

regardless of the location of such work–and the suitability of alternative classifications–are

two important factors in determining whether a professional educator should be classified

as a classroom teacher” (footnote omitted)); Putnam Cty. Bd. of Educ. v. Andrews, 198

W. Va. 403, 408, 481 S.E.2d 498, 503 (1996) (concluding that educational diagnostician who

“spent the majority of her time working directly with students (administering tests) and

chairing PAC meetings at which the results of these tests were presented and suggestions

based on their results were implemented” was classroom teacher).

7

We recognize, however, MCBOE’s assertion that the definitions referred to

are not exclusive insofar as the relevant statutes contain a qualification. See W. Va. Code

§ 18A-1-1 (2009) (Repl. Vol. 2016) (“The definitions contained in section one [§ 18-1-1],

article one, chapter eighteen of this code apply to this chapter. In addition, the following

words used in this chapter and in any proceedings pursuant to this chapter have the meanings

ascribed to them unless the context clearly indicates a different meaning.” (emphasis

added)); W. Va. Code § 18-1-1 (2012) (Repl. Vol. 2016) (“The following words used in this

chapter and in any proceedings pursuant thereto have the meanings ascribed to them unless

the context clearly indicates a different meaning.” (emphasis added)).

12

Notably, if interventionists are designated as “classroom teachers,” then

pursuant to W. Va. Code § 18A-2-1(a) (2013) (Repl. Vol. 2016),8 it does appear to be

mandatory that they be hired by a county board of education: “The employment of

professional personnel shall be made by the board only upon nomination and

recommendation of the superintendent . . . .” (Emphasis added). See Syl. pt. 1, E.H. v.

Matin, 201 W. Va. 463, 498 S.E.2d 35 (1997) (“‘It is well established that the word “shall,”

in the absence of language in the statute showing a contrary intent on the part of the

Legislature, should be afforded a mandatory connotation.’ Syllabus Point 1, Nelson v. West

Virginia Public Employees Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (1982).”). See

also W. Va. Code § 18A-1-1(a) (defining “School personnel,” which includes “classroom

teacher[s],” as “all personnel employed by a county board . . . .” (emphasis added)).

Similarly, W. Va. Code § 18A-2-2(a) (2016) (Repl. Vol. 2016)9 provides, in relevant part,

that “[b]efore entering upon their duties, all teachers shall execute a contract with their

county boards . . . .” (Emphasis added). See State ex rel. Boner v. Kanawha Cty. Bd. of

Educ., 197 W. Va. 176, 184, 475 S.E.2d 176, 184 (1996) (“West Virginia Code § 18A-2-2

8

Although the cited version of W. Va. Code § 18A-2-1 was not in effect at the

time this action was filed, the language quoted in the body of this opinion is identical to

language appearing in the earlier version of the statute. See W. Va. Code § 18A-2-1 (2001)

(Repl. Vol. 2012).

9

Although we cite to the current version of W. Va. Code § 18A-2-2(a), the

particular language quoted is identical to that set out in the version of the statute in effect

when this action was filed. See W. Va. Code § 18A-2-2(a) (2009) (Cumm. Ann. Pkt. Pts.

2009).

13

is clear in its directive that ‘all teachers shall execute a contract with their boards of

education.’ Id. (emphasis supplied).”); State ex rel. Hawkins v. Tyler Cty. Bd. of Educ., 166

W. Va. 363, 373, 275 S.E.2d 908, 915 (1980) (“The relation between the county board of

education and school teachers is a contractual one. If the board wishes to hire a teacher it

must do so by means of a written contract.” (citing W. Va. Code § 18A-2-2; additional

citation omitted)).

Nevertheless, we must continue our analysis by considering the provisions

pertaining to the role of RESAs and determining whether that role, as it pertains to

interventionists, is compatible with the statutory definition of a classroom teacher.

B. Interventionists under RESA Provisions

RESAs are established by W. Va. Code § 18-2-26 (2015) (Repl. Vol. 2016).10

The Legislature has expressly stated its intent for establishing RESAs thusly: “The intent of

the Legislature in providing for establishment of [RESAs], hereinafter referred to in this

section as agency or agencies, is to provide for high quality, cost effective education

programs and services to students, schools and school systems.” W. Va. Code § 18-2-26(a)

10

The version of W. Va. Code § 18-2-26 in effect during the time relevant to

this dispute was enacted in 2002. However, the portions of the statute upon which we rely

are substantively the same in both the 2002 and 2015 versions. See W. Va. Code § 18-2-26

(2002) (Repl. Vol. 2012).

14

(emphasis added). Plainly, then, the Legislature expressly intended for RESAs to provide,

among other things, high quality, cost effective education services to students. The evidence

presented in this case demonstrates that interventionists provide high quality and cost

effective educational services to students. As to quality, we note that interventionists

providing contracted services through a RESA must have the same licensure as educators

employed directly by county boards of education. See 126 W. Va. C.S.R. § 136-7.1.b.6

(2016).11 Additionally, with respect to the cost-effective aspect of utilizing RESA

interventionists, the circuit court concluded that

[t]he opportunity to deploy multiple part-time interventionists,

rather than a fewer number of regular full-time employees,

results in the ability to offer services to a significantly greater

number of students during a school day. . . . This circumstance

exists by virtue of greater flexibility in scheduling multiple

interventionists in more than one classroom during the same

time period.

(Quotations and citations omitted).

11

Pursuant to 126 W. Va. C.S.R. § 136-7.1.b.6 (2016), “[c]ontracted or RESA

Services. – The county superintendent shall assure that an educator providing contracted

services or services through a RESA holds the same licensure required for an educator

employed by a board of education.” This identical language also appears in earlier versions

of the Code of State Rules. See 126 W. Va. C.S.R. § 136-7.1.2.f (2012, 2011, & 2010). The

State Board, as amicus curiae, further explained in its brief that “[m]any of the persons hired

as interventionists are retired teachers or those new to the teaching profession that desire a

part-time work schedule.”

15

The Legislature also has expressly stated its purpose for establishing RESAs,

which includes its vision that RESAs would assist the State Board in implementing programs

and services as directed by that body:

In establishing the agencies [RESAs] the Legislature

envisions certain areas of service in which [RESAs] can best

assist the state board in implementing the standards based

accountability model pursuant to subsection (a) of this section

and, thereby, in providing high quality education programs.

These areas of service include the following:

....

(6) Developing and/or implementing any other programs

or services as directed by law, the state board or the regional

council.

W. Va. Code § 18-2-26(b) (emphasis added). Moreover, the Legislature has mandated that

the State Board promulgate rules for the establishment and operation of RESAs: “[t]he state

board shall reexamine the powers and duties of [RESAs] in light of the changes in state level

education policy that have occurred and shall establish multicounty regional education

service agencies by rule, promulgated in accordance with the provisions of article three-b [§§

29A-3B-1 et seq.], chapter twenty-nine-a of this code.”12 W. Va. Code § 18-2-26(c)

(emphasis added). In accordance with its duty to do so, the State Board promulgated

12

W. Va. Code § 29A-3B-1 et seq. is found in the State Administrative

Procedures Act and sets out the procedure for the State Board’s making of rules.

16

legislative rules, which have the force and effect of law,13 governing RESAs. See 126

W. Va. C.S.R. § 72.

Among the various legislative rules governing RESAs is one that expressly

authorizes RESAs to employ staff “to perform services described in the Strategic Plan or to

operate . . . projects that may require staff and support services for effective implementation.”

126 W. Va. C.S.R. § 72-3.13 (2010).14 RESAs also are instructed to develop and/or

13

See Syl. pt. 5, Smith v. West Virginia Human Rights Comm’n, 216 W. Va. 2,

602 S.E.2d 445 (2004) (“A regulation that is proposed by an agency and approved by the

Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures Act,

W. Va. Code, 29A-1-2(d) [1982], and such a legislative rule has the force and effect of

law.”).

14

The full text of 126 W. Va. C.S.R. § 72-3.13 (2010) is set out below:

3.13. A RESA may employ staff, as necessary, to perform

services described in the Strategic Plan or to operate

demonstration, pilot, or other projects that may require staff and

support services for effective implementation. Upon the

recommendation of a RESA executive director and the State

Superintendent, the WVBE will consider the approval of all

regular full-time and regular part-time staff at a RESA after a

majority of the members of a regional council, by vote, verify

that such employment is necessary for effective provision of

services to county school systems in the region as set forth in

this rule. The WVBE delegates to the State Superintendent the

authority to authorize the temporary hiring of regular full-time

and regular part-time staff, pending final approval of the

WVBE.

3.13.1. RESA staff who are hired into a position that

requires a specified certification must maintain the certification

(continued...)

17

implement programs or services as directed by law or by the State Board. See 126 W. Va.

C.S.R. § 72-5.1.6 (2010).15 To the extent that the foregoing provisions authorize RESAs to

14

(...continued)

while employed in that same position at the RESA.

3.13.2. All RESA regular full-time and regular part time

personnel are non-contractual will and pleasure employees of

the WVBE. Recommendations for termination and suspension

of RESA regular full-time and regular part-time personnel will

be made by the State Superintendent to the WVBE.

3.13.3. RESAs shall develop consistent and standardized

personnel policies. The RESAs shall submit a copy of such

personnel policies, including any changes or updates, to the

WVBE.

W. Va. C.S.R. § 126-72-3 (emphasis added). The foregoing regulation, which was in effect

at the time relevant to the instant dispute, has been amended. The current version became

effective in 2015. Our decision in this case would be the same under either version of this

regulation.

15

The relevant portion of 126 W. Va. C.S.R. § 72-5.1 states:

5.1. Educational services to be provided to the member

county boards by RESAs include areas of service in which the

agencies can best assist the WVBE [State Board] in

implementing the standards-based accountability model pursuant

to subsection (a) of W. Va. Code § 18-2-26 in providing high

quality education programs. These areas of service . . . include:

....

5.1.6. Developing and/or implementing any other

programs or services as directed by law or by the WVBE.

The amended version of the above quoted provision is found at 126 W. Va. C.S.R. § 72-5.1.f

(2015). Although the language used in the first paragraph of the 2015 version of this

(continued...)

18

employ staff to perform services described in the Strategic Plan, and require RESAs to

implement programs or services as directed by law or by the State Board, it is noteworthy

that strategic plans developed by RESAs must be approved by the State Board. See 126

W. Va. C.S.R. § 72-5.4.16

Clearly then, under the foregoing provisions, the use of interventionists is in

accordance with the authority granted to a RESA to employ staff to perform certain services

such as those outlined in its Strategic Plan. See 126 W. Va. C.S.R. § 72-3.13; 126 W. Va.

C.S.R. § 72-5.1.6. The RESA VII Strategic Plan for the 2011-2012 school year, which,

necessarily, was approved by the State Board, contains a specific provision for employing

interventionists:

Employ certified regional providers (interventionists, OTs, PTs,

SLPs, academic and job coaches[)] to provide services as set

forth by Individual Education Programs and School

Improvement Grants for students within RESA 7.

15

(...continued)

regulation is somewhat different than that quoted above, the regulation still requires RESAs

to develop and/or implement programs or services as directed by law or by the State Board.

16

126 W. Va. C.S.R. § 72-5.4 (2010) provides that “[e]ach RESA shall submit,

with recommendations from and approval by a majority vote of the regional council, the

Strategic Plan to the WVDE [West Virginia Department of Education] by October 1 of each

year for approval by the WVBE [State Board] . . . .” (Emphasis added). Similarly, 126

W. Va. C.S.R. § 72-5.4 (2015) declares that “[e]ach RESA shall submit, with

recommendations from and approval by a majority vote of the regional council, the Strategic

Plan to the WVBE [State Board] staff by October 1 of each year for approval by the WVBE

[State Board]. . . .” (Emphasis added).

19

RESA VII Strategic Plan § 3.4. (2011-2012) (emphasis added).17 Therefore, insofar as the

State Board approved the RESA VII Strategic Plan, it rationally follows that the provision

of interventionists is a service RESA VII is directed by the State Board to provide. This

conclusion is in accord with the legislative rule requiring liberal construction of the

provisions pertaining to RESAs. See 126 W. Va. C.S.R. § 72.2.8 (2010) (“All functions of

the RESAs shall be liberally construed to effectuate the intent of the WVBE [State Board].”18

Finally, we observe that, in carrying out duties such as the provision of

interventionists, RESAs are expressly empowered to contract with and receive funds from

county boards of education:

RESAs are empowered to contract with county boards of

education, the West Virginia Department of Education

(hereinafter WVDE), persons, companies, or other agencies to

implement their Strategic Plan (see Section 5.3). A RESA is

eligible as a local education agency (LEA)[19] to participate in

partnership with or on behalf of any county school system or

17

Likewise, the RESA VII Strategic Plan for the 2016-2017 school year

provides that RESAs may “[e]mploy certified regional providers (interventionists, OTs, PTs,

SLPs, school psychologists and job coaches) to provide services as set forth by Individual

Education Programs and School Improvement Grants for students within RESA 7.” RESA

VII Strategic Plan § 3.4. (2016-2017) (emphasis added).

18

This provision is now found at 126 W. Va. C.S.R. § 72.2.6 (2015), and states

that “[a]ll functions, powers, and duties of the RESAs shall be liberally construed to

effectuate the intent of the WVBE [State Board].”

19

As explained in footnote 4, supra, and its accompanying text, Title I provides

financial assistance to LEAs. Where possible, Title I funds are used to provide the

interventionists at issue in this case.

20

school in those programs that will accomplish implementation

of the strategic plan and/or state education initiative.

126 W. Va. C.S.R. § 72-2.5 (2010) (emphasis and footnote added).20 With respect to

receiving funds, 126 W. Va. C.S.R. § 72-4.4 (2010) provides that

[a] RESA may receive and disburse funds

from . . . member counties, . . . the funds of which will

contribute to RESA initiatives. Each RESA is encouraged to

partner with member school systems, particularly those

designated as low-performing, and other organizations as

appropriate to attract and leverage resources available from

federal programs to maximize its capacity for meeting the needs

of member schools and school systems . . . .

(Emphasis added).21 See also W. Va. Code § 18-2-26(h) (authorizing RESAs to “receive and

disburse funds from . . . member counties”).22

To summarize, the plain language of the foregoing statutes and legislative rules

pertaining to RESAs demonstrate that the Legislature intended for RESAs to be enabled to

provide, among other things, interventionist services to county boards of education through

contracts with the county boards.

20

This provision is found in the 2015 version of the regulations at 126 W. Va.

C.S.R. §§ 72-2.5.c & d with slight language differences that would not change the outcome

of our decision in this case.

21

The language of the 2015 version of 126 W. Va. C.S.R. § 72-4.4 is

substantially the same as that quoted above.

22

Although the 2002 version of W. Va. Code § 18-2-26 was in effect during the

time relevant to this dispute, the above quoted language is identical in both the 2002 and the

2015 versions of this statute. See supra note 10.

21

C. Governing Law

Based upon the analyses set out above, this Court is now faced with two

legislative schemes applicable to interventionists: one governing classroom teachers and one

governing RESAs. Under the statutory provisions pertaining to classroom teachers, an

interventionist must be employed by a county board of education. On the other hand, the

RESA provisions allow county boards to contract with RESAs to obtain interventionist

services for their students. Thus, while both legislative schemes are applicable, they also are

inconsistent and irreconcilable.

We find that the rules of statutory construction favor application of the RESA

scheme to this matter. This Court has observed that, “‘where two distinct statutes stand in

pari materia, and sections thereof are in irreconcilable conflict, that section must prevail

which can properly be considered as the last expression of the law making power . . . .’ State

ex rel. Pinson v. Varney, 142 W. Va. 105, 109, 96 S.E.2d 72, 74 (1956).” Stanley v.

Department of Tax & Revenue, 217 W. Va. 65, 71, 614 S.E.2d 712, 718 (2005). Under this

doctrine, the RESA scheme prevails because the statute establishing RESAs was last

amended in 2015, and the legislative rules governing RESAs also were last amended in 2015.

Moreover, the RESA strategic plans, such as the RESA VII strategic plan that specifically

provides for the hiring and use of interventionists, are approved by the State Board on an

annual basis. See 126 W. Va. C.S.R. § 72-5.4 (2010) (establishing that “[e]ach RESA shall

22

submit . . . the Strategic Plan to the WVDE [West Virginia Department of Education] by

October 1 of each year for approval by the [State Board]. . . .”). See also 126 W. Va. C.S.R.

§ 72-5.4 (2015) (providing that “[e]ach RESA shall submit . . . the Strategic Plan to the [State

Board] staff by October 1 of each year for approval by the [State Board]. . . .”). Conversely,

the statute setting out the definition of the term “classroom teacher” was last amended in

2009.

In addition, it is well established that

“[t]he general rule of statutory construction requires that a

specific statute be given precedence over a general statute

relating to the same subject matter where the two cannot be

reconciled.” Syl. pt. 6, Carvey v. West Virginia State Bd. of

Educ., 206 W. Va. 720, 527 S.E.2d 831 (1999) (internal

quotations and citations omitted). See also In re Chevie V., 226

W. Va. 363, 371, 700 S.E.2d 815, 823 (2010) (“As a rule, when

both a specific and a general statute apply to a given case, the

specific statute governs.”).

Teets v. Miller, 237 W. Va. 473, ___, 788 S.E.2d 1, 12 (2016). In the case sub judice, the

various RESA provisions provide the more specific law in that they specifically address the

issues herein raised, i.e., granting authority for RESAs to both employ individuals to provide

services to school children and to enter contracts with county boards of education.

Furthermore, the relevant rules require incorporation of the State Board approved RESA

strategic plan, which, in this instance, expressly provides for interventionists. The foundation

for the argument that interventionists must be considered classroom teachers, on the other

23

hand, rests solely upon W. Va. Code § 18A-1-1(c)(1), a statute that simply defines the term

“classroom teacher” and contains no provision expressly pertaining to interventionists.

Accordingly, based upon the analysis set out in this opinion, we now hold that

the definition of “classroom teacher,” set out in W. Va. Code § 18A-1-1 (2009) (Repl. Vol.

2016), is not intended to include within its meaning an “interventionist,” who provides

instruction to an individual student or a small group of students for the purpose of

intervening in the education of students who are deficient in one or more particular subjects.

In addition, we hold that, pursuant to 126 W. Va. C.S.R. §§ 72-2.5.c & d (2015) and 126

W. Va. C.S.R. § 72-3.13 (2015),23 a county board of education may contract with its Regional

Education Service Agency (RESA) for the provision of interventionist services to its

students.

IV.

CONCLUSION

For the reasons set out in the body of this opinion, we conclude that the

legislative scheme for the RESA program evidences a legislative intent that county boards

23

Although we utilize current versions of the Code of State Rules in our holding

for ease of reference, our decision applies equally to the earlier versions of the Rules

discussed in the body of the opinion.

24

be authorized to contract with RESAs to provide interventionist services to county students.

Accordingly, we reverse the June 24, 2015, order of the Circuit Court of Monongalia County.

Reversed.

25