The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2023 Term FILED
_______________
November 8, 2023
No. 22-0234 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
THE BOARD OF EDUCATION OF
THE COUNTY OF WYOMING,
Petitioner Below,
Petitioner,
v.
MARY DAWSON,
Respondent Below,
Respondent.
____________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Carrie L. Webster, Judge
Civil Action Number: 18-AA-246
REVERSED AND REMANDED
WITH INSTRUCTIONS
____________________________________________________________
Submitted: September 27, 2023
Filed: November 8, 2023
Joshua A. Cottle, Esquire Rebecca A. Roush, Esquire
Francesca C. Rollo, Esquire WV School Service Personnel Association
Leigh Anne Wilson, Esquire Charleston, West Virginia
Bowles Rice LLP Counsel for Respondent
Charleston, West Virginia
Counsel for Petitioner
JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE WOOTON concurs and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “The Board of Education of a school-district is a corporation created
by statute with functions of a public nature expressly given and no other; and it can exercise
no power not expressly conferred or fairly arising from necessary implication, and in no
other mode than that prescribed or authorized by the statute.” Syllabus Point 2, Napier v.
Lincoln County Board of Education, 209 W. Va. 719, 551 S.E.2d 362 (2001).
2. “A state or one of its political subdivisions is not bound by the legally
unauthorized acts of its officers and all persons must take note of the legal limitations upon
their power and authority.” Syllabus Point 3, Freeman v. Poling, 175 W. Va. 814, 338
S.E.2d 415 (1985).
i
Armstead, Justice:
The Board of Education of the County of Wyoming (“Petitioner”) appeals
the order of the Circuit Court of Kanawha County affirming The West Virginia Public
Employees Grievance Board’s (“grievance board”) decision granting Mary Dawson’s
(“Respondent”) grievance, reinstating her to a modified bus run, an extracurricular bus run,
and awarding her back pay. Though Petitioner raises three assignments of error, those
three issues can be condensed into two: First, that the circuit court erred by holding that
Petitioner failed to prove it committed a legal mistake in the original modification of
Respondent’s regular bus run. Second, Petitioner asserts that the circuit court erred in
holding that Petitioner was bound by an ultra vires act and legal mistake made by one of
its employees and that Petitioner was not permitted to correct it.
Having considered the record on appeal, the briefs 1 and arguments of the
parties, and the applicable legal authority, we find that the circuit court erred in affirming
the grievance board and we reverse both the circuit court and the grievance board and
remand for entry of an order denying the grievance.
1
On April 5, 2023, this Court issued an order stating that “[R]espondent’s
brief does not comply with Rule 10 of the Rules of Appellate Procedure. Counsel is
directed to file a [R]espondent’s brief that fully complies with Rule 10 of the Rules of
Appellate Procedure on or before May 1, 2023.” The initial Respondent’s brief contained
no statement of facts or any citations to the appendix record in support of its contentions.
Although Respondent’s response to this Court’s April 5, 2023, order, contained a
procedural history and statement of facts, it was still devoid of any citations to the record.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
Respondent has been employed as a bus driver for Petitioner since 1980. 2 At
that time, when she bid on the bus driver position, Respondent was hired to transport both
elementary and high school students on the same bus run at the same time (“regular run”).
In 1983, Respondent entered into a continuing contract with Petitioner for her regular run. 3
In 1985, Respondent bid on a vocational bus run (“vocational run”) that she began,
effective October 15, 1985. 4 At the time Respondent began the vocational run, it did not
conflict with her regular run.
2
Throughout this opinion, unless otherwise indicated, we cite to the statutory
version in effect when the matters relevant to this appeal transpired. Petitioner should have
applied the statutes in effect at that time.
3
Continuing contracts are contemplated by West Virginia Code § 18A-2-6:
After three years of acceptable employment, each
service personnel employee who enters into a new contract of
employment with the board shall be granted continuing
contract status. The continuing contract of any such employee
shall remain in full force and effect except as modified by
mutual consent of the school board and the employee, unless
and until terminated with written notice, stating cause or
causes, to the employee, by a majority vote of the full
membership of the board before the first day of April of the
then current year….
W. Va. Code § 18A-2-6 (1981) (emphasis added). As discussed below, the Petitioner
school board never consented to the modification of Respondent’s regular run.
4
The vocational run was an “extracurricular assignment.” “All school
service personnel assignments shall be considered extracurricular assignments, except such
(continued . . .)
2
In 1987 or 1988, school start times changed, and high school students were
no longer transported at the same time as elementary school students on Respondent’s
regular run. As a result of the start time change, Respondent’s regular run required her to
pick up high school students and drop them off at their school, then pick up elementary
students and drop them off at their school. This caused an overlap between Respondent’s
regular run and the vocational run, making it impossible for her to do both. Because of this
overlap, an unknown employee of the Petitioner’s administrative office modified
Respondent’s regular run, removed the morning elementary portion, and allowed her to
continue to transport students on the vocational run. Another driver was assigned to
transport the elementary students on their morning run. This modification of Respondent’s
regular run was made without approval of Petitioner, as no Board minutes reflect
ratification of this personnel action and the modified regular run was never placed out to
bid.
For the next thirty years, Respondent continued to make the modified regular
run and the vocational run. In March 2017, Petitioner informed Respondent that the
vocational run was being eliminated “due to changes in enrollment” and Petitioner
eliminated all existing vocational runs, rebidding them with new terms, for the 2017-2018
assignments as are considered either regular positions . . . or extra-duty positions….” W.
Va. Code § 18A-4-16 (2021) (references to other code sections omitted).
3
school year. As the bidding process unfolded, another unnamed employee asked for an
arrangement like that of Respondent, pointing out that a portion of Respondent’s route had
been driven by another driver for years, allowing Respondent to drive the modified regular
run and the vocational run.
This prompted an investigation by Jeffrey Hylton, Petitioner’s Director of
Safety and Transportation. He researched Petitioner’s minutes back to 1985 and found
Board approval for Respondent to drive the vocational run, effective October 15, 1985;
however, he found no record of Petitioner approving the modified run or posting a new
position for the modified run. In sum, there was no evidence offered showing Petitioner’s
approval of the modifications made to Respondent’s regular run to allow her to drive the
vocational run. When the 2017-2018 school year started, the investigation had not been
completed and the vocational run had not been filled. Thus, Respondent was assigned the
vocational run to begin the school year. She drove the vocational run until September 8,
2017, when Petitioner concluded that the modification of Respondent’s regular run was a
mistake which was not authorized by the Board and her employment was changed back to
the arrangement originally contracted for, namely, transporting both elementary and high
school students to and from their respective schools. Though Respondent bid on the
vocational run, it was awarded to a less senior bus operator because Respondent’s regular
run conflicted with the vocational run.
4
Respondent then filed a grievance, pursuant to the provisions of West
Virginia Code § 6C-2-3 (2008). 5 During that proceeding, the burden of proof was on
Respondent. 6 At level one, the grievance was denied and the level two mediation was
unsuccessful. 7 The grievance then proceeded to a full level three hearing on May 14,
2018. 8 At that hearing, Respondent argued that Petitioner violated numerous statutes in
making the bus route change in 2017 and in awarding the vocational run to a less senior
employee. Petitioner countered that the administrative assignment of the elementary
portion of Respondent’s regular run to another driver was an unauthorized mistake that had
to be corrected when the mistake was discovered. In sum, Respondent’s entire case hinges
on whether or not Respondent’s regular run was legally modified in 1987 or 1988. The
grievance board granted the grievance, finding that Petitioner’s action in restoring
5
This statute was amended in 2023. We cite to the statute in effect when
this grievance was filed.
6
“The grievant bears the burden of proving the grievant’s case by a
preponderance of the evidence, except in disciplinary matters, where the burden is on the
employer to prove that the action taken was justified.” W. Va. C. S. R. § 156-1-3 (2008).
7
The grievance procedure is generally described in West Virginia Code §
6C-2-4 (2008). This statute was also amended in 2023 and we cite to the provision in effect
when this grievance was filed.
8
The circuit court found that no written contracts were presented as evidence
at the Level Three hearing in this matter. Further, Respondent was the only witness who
testified on her behalf at the Level Three hearing. She did not call anyone who allegedly
approved the modification of her regular run and she failed to identify that person. She
offered no job posting or bids reflecting the validity of the modified run. Finally, no Board
minutes were introduced demonstrating Board approval of the modification.
5
Respondent’s regular bus run to its original parameters was unreasonable, arbitrary, and
capricious. Additionally, the grievance board found:
The decision to assign another bus operator to drive
only the morning elementary portion of [Respondent’s]
original bus run was made in or about 1987 or 1988. There is,
apparently, no written record of the board approving this
decision or the decision not to post that one fraction of
[Respondent’s] morning bus run as a separate position. This
does not necessarily mean that there was no approval. Given
that all of this was done about thirty years ago, and the person
or persons who made the decision are not around, there is
simply no way to tell what they did or did not do, or how they
came to their decision. For all we know, the superintendent got
approval from the board and it was not put in writing or
included in any meeting minutes. In the end, [Respondent] did
as she was told by the administration, as did the other bus
operator(s) who drove the elementary portion of
[Respondent’s] morning run, and made her regular run and the
vocational run as directed for about thirty years, throughout
numerous administrations and board configurations. She was
not hiding what she was doing. She turned in her time sheets,
was assigned the same runs every year, and obviously did a
good job. The absence of written documentation alone does not
make what occurred thirty years ago a mistake.
....
Again, the general notion that [Petitioner] should be
encouraged to correct mistakes does not absolve [Petitioner
from] liability for the violation of statute, [Respondent] proved
by a preponderance of the evidence her claims that [Petitioner]
violated West Virginia Code §§ 18A-4-8a(j), 18A-4-8(m); and
18A-4-16(6). Accordingly, the grievance is granted.
The circuit court affirmed the grievance board. In its findings, the circuit
court stated:
The Decision of the [grievance board] was properly
made upon the evidence presented. Petitioner simply failed to
meet its burden of proof to establish the affirmative defense of
6
“mistake.” Petitioner’s appeal rests entirely on its contention
that the change made to [Respondent’s] regular bus run was
significant enough to require Petitioner’s approval. However,
Petitioner failed to demonstrate that the change was, in fact,
significant. The uncontroverted facts of the case indicate the
contrary (i.e., that the change was insignificant). Indeed, the
change was so slight that it garnered no attention for three
decades. Then, it only drew attention when another employee
sought a “deal” like that given to [Respondent] long ago. No
evidence of any “deal” was presented to the [grievance board].
[Petitioner] asserted, but failed to prove, that a change to
[Respondent’s] regular bus run in 1987 or 1988 was a mistake.
The uncontroverted facts are that [Respondent]
transported students for [Petitioner] as part of both her regular
and vocational bus runs for more than thirty-one (31) years and
that she was the most senior bus operator in the county. In
reaching [its] Decision, the [grievance board] properly found
that [Respondent] had been performing both the regular and
vocations bus runs for thirty-one years, and that [Petitioner]
had no legal right to suddenly change [Respondent’s] schedule
in 2017 without her consent and to strip her of the vocational
bus run she had held for thirty-one (31) years. The [grievance
board] properly found that [Petitioner’s] action in doing so was
unreasonable, arbitrary and capricious.
Petitioner now appeals the circuit court’s order affirming the grievance
board.
II. STANDARD OF REVIEW
It is well established that, “[w]hen reviewing the appeal of a public
employees’ grievance, this Court reviews decisions of the circuit court under the same
standard as that by which the circuit court reviews the decision of the administrative law
judge.” Syl. pt. 1, Martin v. Barbour Cnty. Bd. of Educ., 228 W. Va. 238, 719 S.E.2d 406
(2011). The standard to be applied by the circuit court, which, by extension, also is applied
by this Court, is set out in West Virginia Code section 6C-2-5 as follows:
7
(b) A party may appeal the decision of the administrative
law judge on the grounds that the decision:
(1) Is contrary to law or a lawfully adopted rule or written
policy of the employer;
(2) Exceeds the administrative law judge’s statutory
authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
W. Va. Code § 6C-2-5(b) (eff. 2007).
Webster Cnty. Bd. of Educ. v. Davis, 244 W. Va. 702, 709, 856 S.E.2d 661, 668 (2021).
III. ANALYSIS
In its decision, the grievance board found that Petitioner could not correct a
mistake or the ultra vires act of one of its employees if such correction would violate the
terms of West Virginia Code §§ 18A-4-8(m) (2023), 18A-4-8a(j) (2023), and 18A-4-16(6)
(2023). 9 West Virginia Code § 18A-4-8(m) prohibits the reclassification or relegation of
any service personnel, without their consent, providing:
(m) Without his or her written consent, a service person may
not be:
(1) Reclassified by class title; or
(2) Relegated to any condition of employment which would
result in a reduction of his or her salary, rate of pay,
compensation or benefits earned during the current fiscal year;
or for which he or she would qualify by continuing in the same
job position and classification held during that fiscal year and
subsequent years.
These three sections of the West Virginia Code have been amended since
9
the grievance was filed but those amendments did not make any changes to these
subsections.
8
W. Va. Code § 18A-4-8(m)(1 & 2). West Virginia Code 18A-4-8a(j) prohibits changing a
service person’s daily work schedule during the school year without the employee’s
consent:
(j) A service person may not have his or her daily work
schedule changed during the school year without the
employee’s written consent and the person’s required daily
work hours may not be changed to prevent the payment of time
and one-half wages or the employment of another employee.
Finally, West Virginia Code § 18A-4-16(6) gives an option to school service personnel to
retain an extracurricular assignment if such assignment exists in the following school year:
(6) An employee who was employed in any service personnel
extracurricular assignment during the previous school year
shall have the option of retaining the assignment if it continues
to exist in any succeeding school year. A county board of
education may terminate any school service personnel
extracurricular assignment for lack of need pursuant to section
seven, article two of this chapter. If an extracurricular contract
has been terminated and is reestablished in any succeeding
school year, it shall be offered to the employee who held the
assignment at the time of its termination. If the employee
declines the assignment, the extracurricular assignment shall
be posted and filled pursuant to section eight-b of this article.
These three code sections place certain rights and obligations upon school
service personnel and school boards when a valid contract exists. In this case, there was
no record of any action taken by Petitioner to lawfully modify Respondent’s regular run,
as required by other statutes. First, for the modified run to have been lawfully established,
Petitioner would have had to post and received bids:
9
Boards shall be required to post and date notices of all
job vacancies of established existing or newly created positions
in conspicuous working places for all service employees to
observe for at least five working days. The notice of such job
vacancies shall include the job description, the period of
employment, the amount of pay and any benefits and other
information that is helpful to the employees to understand the
particulars of the job.
W. Va. Code Ann. § 18A-4-8b (1983). Thus, absent a proper job posting for a new position
and Petitioner’s approval of the employee contract as “a matter of the Board’s minute
records,” W. Va. Code § 18A-2-5 (1983), there was no valid contract for the modified bus
run. Because the modified route was never approved by Petitioner, it was an illegal change
in Respondent’s job duties and amounted to an ultra vires act by one of Petitioner’s
employees. See W. Va. Code § 18A-2-6 (1981). Such acts have long been found to be
nonbinding. “[U]nlawful or ultra vires promises are nonbinding when made by public
officials, their predecessors or subordinates, when functioning in their governmental
capacity.” Parker v. Summers Cnty. Bd. of Educ., 185 W. Va. 313, 317, 406 S.E.2d 744,
748 (1991). We have further held:
The Board of Education of a school-district is a
corporation created by statute with functions of a public nature
expressly given and no other; and it can exercise no power not
expressly conferred or fairly arising from necessary
implication, and in no other mode than that prescribed or
authorized by the statute.
Syl. Pt. 2, Napier v. Lincoln Cnty. Bd. of Educ., 209 W. Va. 719, 551 S.E.2d 362 (2001).
Thus, the unauthorized act of Petitioner’s employee does not have binding effect. Indeed,
“[a] state or one of its political subdivisions is not bound by the legally unauthorized acts
10
of its officers and all persons must take note of the legal limitations upon their power and
authority.” Syl. Pt. 3, Freeman v. Poling, 175 W. Va. 814, 338 S.E.2d 415 (1985) (citations
omitted).
In Freeman, following an election for Sheriff of Barbour County, the
outgoing Sheriff made representations that certain employees’ jobs would be protected
“under the new civil service system as long as they passed the civil service examination.”
Id., 175 W. Va. at 816, 338 S.E.2d at 417. This Court found that, regardless of what the
outgoing Sheriff told these certain employees, unless “proper procedures [were] followed”
the statutes that established civil service protection did not apply. Id., 175 W. Va. at 818,
338 S.E.2d at 419.
Similarly, in Parker v. Summers Cnty. Bd. of Educ., 185 W. Va. 313, 406
S.E.2d 744 (1991), the issue was whether the Summers County Board of Education had
promised to award sick leave to Parker for work completed prior to her employment by the
Board. Id., 185 W. Va. at 316, 406 S.E.2d at 747. This Court concluded, citing favorably
to Freeman, that the promises of Board employees to grant sick leave to Parker were ultra
vires acts that did not bind the Board. Id., W. Va. at 317, 406 S.E.2d at 748.
Further, West Virginia school service personnel have long been required to
execute written agreements for their employment. At the time Respondent began her
regular run for Petitioner, this requirement provided “[b]efore entering upon their duties
11
such personnel shall execute with the board a written contract which may be in letter form
and shall state the classification and terms of work, the employment period and pay, and
shall certify that said employment has been made a matter of minute record.” W. Va. Code
§ 18A-2-5 (1969). By 1983, when Respondent was granted a continuing contract, this
Code section had been significantly amended to include an entire form contract to be used
by county boards of education for employment of school service personnel. W. Va. Code
§ 18A-2-5 (1983). This form required Petitioner and Respondent to execute a written
contract setting forth numerous terms, including the job classification, place of assignment,
and salary of Respondent. W. Va. Code § 18A-2-5 (1983). Additionally, when
Respondent’s continuing contract began, the statutory form contained language stating:
“[t]he Board hereby certifies that the Employee’s employment has been duly approved by
the Board and will be a matter of the Board’s minute records.” Id. (emphasis added). It
is undisputed that in 1983, Respondent received a continuing contract for her regular run.
In 1985, she began picking up and dropping off pupils on the vocational run, which was
memorialized in Petitioner’s minutes. However, after the change in school start times
caused an overlap between her regular run and the vocational run, there was never an entry
in Petitioner’s minutes, as required by law, showing approval of any modification to
Respondent’s regular run. Therefore, Respondent did not prove that Petitioner authorized
the changes to Respondent’s regular run.
The evidence before the grievance board proved that the modification of
Respondent’s regular run was done without Petitioner’s approval. The evidence adduced
12
at the grievance board proved Respondent was hired to transport elementary and high
school students to and from their respective schools on her regular run. She further
demonstrated that her regular run was properly bid and she was awarded that position.
However, there was never any bid on the modified run and the board never approved the
modified run.
More importantly, Respondent failed to prove that her regular run was legally
modified. See W. Va. Code §§ 18A-4-8b and 18A-2-6. The burden of proof to demonstrate
this modification was on Respondent. See W. Va. C. S. R. § 156-1-3 (2008). See also
Staats v. Jackson Cnty. Bd. of Educ., No. 15-0227, 2015 WL 6181438, at *5 (W. Va. Oct.
20, 2015) (memorandum decision) (“As this grievance does not involve a disciplinary
matter, Grievant has the burden of proving [her] grievance by a preponderance of the
evidence.”). Indeed, the evidence showed that proper procedures were not followed in
modifying Respondent’s regular run. Respondent testified that she did not remember the
name of the person who allegedly consented to the modification. No person who allegedly
consented to the modification testified. No notice of a modified run was properly posted
and no bids were received for that modified run. Respondent offered no Board meeting
minutes, which are required by law to approve personnel decisions. She produced no
contract. Thus, the modified run was unauthorized and illegal from its inception. 10
10
We have previously held that:
(continued . . .)
13
The circuit court compounded the grievance board’s error by acknowledging
that while a change in the routes was made, such change was insignificant and Petitioner
could not correct it:
Petitioner simply failed to meet its burden of proof to
establish the affirmative defense of “mistake.” Petitioner’s
appeal rests entirely on its contention that the change made to
[Respondent’s] regular bus run was significant enough to
require Petitioner’s approval. However, Petitioner failed to
demonstrate that the change was, in fact, significant.
Contrary to the circuit court’s finding, it is clear that Petitioner had to correct its legal
mistake. See Freeman 175 W. Va. at 818, 338 S.E.2d at 419. Plainly, the modified run
was not lawfully created by Petitioner because it was not made a part of its minute record.
See W. Va. Code § 18A-2-5 (1969) and (1983). Because the modified run was not properly
created, Petitioner had to correct the error because to do otherwise would discriminate
against Petitioner’s other employees. See W. Va. Code § 18A-4-5b (1990) (“[U]niformity
shall apply to all salaries, rates of pay, benefits, increments or compensation for all persons
regularly employed and performing like assignments and duties within the county. . . .”).
[T]his Court [has] examined the extent to which jobs duties
must resemble one another in order to necessitate identical
benefits or treatment under the uniformity statute. This Court
A purported teaching contract entered into between a
Board of Education and a teacher, in direct contravention of
the prohibitive provisions of a valid statute, is void ab inito,
and cannot be subsequently validated by ratification, nor can
execution thereof be made the basis of an equitable estoppel.
Syl. Pt. 2, Cochran v. Trussler, 141 W. Va. 130, 89 S.E.2d 306 (1955).
14
reasoned that “once a county board of education pays
additional compensation to certain teachers, it must pay the
same amount of additional compensation to other teachers
performing ‘like assignments and duties[.]’
Bd. of Educ. of Cnty. of Wood v. Airhart, 212 W. Va. 175, 181, 569 S.E.2d 422, 428 (2002)
quoting Weimer-Godwin v. Board of Educ. of Upshur County, 179 W.Va. 423, 427, 369
S.E.2d 726, 730 (1988). Allowing Respondent to continue to receive full pay for her
regular run, when her duties were reduced by 25%, violated the uniformity provisions of
West Virginia Code § 18A-2-5. Indeed, the circuit court’s finding that the modified bus
run was not a “significant mistake” was plainly wrong. Once Petitioner properly restored
Respondent to her regular run, there was now a time conflict between her regular run and
the vocational run. The Grievance Board has held that:
Extracurricular assignments must be made on the basis
of seniority, qualifications and evaluation of past service;
however, in order for an employee to be qualified for such an
assignment it must not interfere with either his regular duties
or any other extracurricular, extra-duty or supplement
assignments which he holds.
Bowman v. Marion Cnty. Bd. of Educ., W. Va. St. Emp. Griev. Bd., Docket No. 91-24-
343 (Feb. 27, 1992).
Both the grievance board and the circuit court were clearly wrong in their
determinations. As such, we find that the circuit court should have reversed the grievance
board, found that Respondent did not meet her burden of proof, and ordered dismissal of
the grievance.
15
IV. CONCLUSION
For the foregoing reasons, we reverse the March 4, 2022, order of the Circuit
Court of Kanawha County and direct the circuit court order the West Virginia Public
Employees Grievance Board to deny the grievance.
Reversed and Remanded with Instructions.
16