v v.
Grievant, Melissa Jones, employed by the Braxton County Board of Education
("BCBOE" or "Board"), filed the following grievance on or about December 21, 1999:
STATEMENT OF GRIEVANCE: Respondent has created and filled two aide
positions at Sutton Elementary School with two individuals as independent
contractors. Grievant, a substitute aide, contends these positions should
have been posted and filled pursuant to West Virginia Code § 18A-4-8b as
regular aide positions. Grievant alleges a violation of West Virginia Code
§§ 18A-4-8b, 18A-4-8g, 18A-4-8 and 18-5-13(10).
RELIEF SOUGHT: Grievant seeks the posting and filling of the two
positions at Sutton Elementary School as regular aide positions pursuant to
West Virginia Code § 18A-4-8b. Further, if Grievant is the successful
applicant she seeks back pay, seniority, and all other benefits retroactive
to twenty days after placement of these two individuals at Sutton Elementary
School. She also seeks interest on all sums to which she is entitled.
The grievance was denied at Level I by Don Johnson, Principal at Sutton
Elementary School. A Level II hearing was held on February 16, 2000. A Level II decision
denying the grievance was issued on March 3, 2000. Grievant bypassed Level III and
appealed to Level IV on March 8, 2000. A Level IV hearing was held on May 22, 2000.
This case became mature for decision on June 23, 2000, after receipt of the parties'
proposed findings of fact and conclusions of law.
(See footnote 1)
Issues and Arguments
Grievant asserts BCBOE cannot independently contract for regular services that
can be performed by a service personnel employee. Grievant argues the West Virginia
Supreme Court of Appeals cases of State ex rel. Boner v. Kanawha County Board of
Education, 197 W. Va. 176, 475 S.E.2d 176 (1996), and O'Connor v. Margolin, 170 W. Va.
762, 296 S.E.2d 892 (1982) support this argument.
Respondent argues boards of education are allowed by W. Va. Code § 18-5-5 to
enter into contracts without specific limitation, and the two individuals referred to in this
grievance are independent contractors. Further, Respondent notes the cases referred to
by Grievant are not specifically on point, and the West Virginia Supreme Court of Appeals
has not addressed the question raised by this grievance. Respondent also argues the
grievance is not timely filed.
(See footnote 2)
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact.
Findings of Fact
1. Grievant has been employed by BCBOE as a substitute aide since August
of 1995.
2. In the Fall of 1999, Grievant worked as a substitute at Braxton Middle School.
In October of 1999 during the Special Olympics, Grievant had an opportunity to observe
two individuals working with two students from Sutton Elementary School. BecauseGrievant was friends with one of the individuals, she asked her several questions and
found out her friend was working with an autistic, Special Education child in the school
setting, and was not employed by BCBOE, but by another entity.
3. Boards of education were directed by the Legislature to become medicaid
providers, "to seek out medicaid eligible students", to provide medicaid and related
services, and to "maximize federal reimbursement for all services available under the
Omnibus Budget Reconciliation Act." W. Va. Code § 18-2-5b.
4. BCBOE is certified by the West Virginia Department of Health and Human
Resources to provide behavioral health services. Resp. Ex. No. 1, at Level IV.
5. In 1999, BCBOE entered into a contract with Precision Services, Inc. "[t]o
provide behavioral health services." This one page contract, including signatures,
indicated Precision Services, Inc. "shall provide an individual with: a minimum of a high
school diploma [and] training in first aid and CPR." This contract also indicated Precision
Services, Inc. shall provide "supervision of the employee." Braxton County School Health
Services "shall provide clinical direction and training activities as prescribed by Chapter
300.342 - 300.343, Medicaid Regulations."
(See footnote 3)
6. The contract does not clarify what the independent contractors will do, how
and with what frequency the employees will be supervised, who will supervise the
employees, or any other pertinent details. 7. The Director of Special Education and Behavioral Health Services, David
McChesney, testified BCBOE had no control over the independent contractors, and the
teacher was only to offer guidance and suggestions. He stated there was no on-site
supervision, but was unable to shed further light on the supervision issue. He stated, "The
supervisor, I'm assuming, I'm fairly sure is Mrs. Short
(See footnote 4)
, and she's the one that's involved
in hiring and replacing. I'm not certain of this, but I think they're in the process of replacing
an individual." Test. at 43-44, Level II Hearing.
8. The workers at Sutton Elementary School were employed through Precision
Services, Inc., and were hired to assist students in academic subjects and to keep them
on task. The type of services provided by the independent contractors are covered or
cited in the Treatment Plan which follows a medical model, are called enhancement
services, are goal-directed and specific, and are paid for by medicaid. These services are
in the area of basic living skills.
9. Although BCBOE argued these services were different from the type of
activities listed on a student's Individual Educational Plan ("IEP"), BCBOE was unable to
give examples of activities that would be listed in the Treatment Plan that would not be
covered in the IEP. Examples given by Mr. McChesney were survival reading and impulse
control, but he did not indicate these activities could, would, or should not be covered on
an IEP.
(See footnote 5)
10. If the workers have difficulty with the students or need assistance and
guidance, they receive this assistance and direction from the classroom teacher. The
classroom teacher gives these workers directions.
11. The positions held by these workers were not posted, and the individuals
hired in these positions were not required to take and pass the Aide competency
examination, but they were required to have CPR and first aid training.
(See footnote 6)
12. BCBOE did not perform any type of screening or background check on these
individuals, and did not detail any type of training or testing these individuals possessed
other than first aid and CPR training. BCBOE did not know if a background check had
been performed.
13. In January, after filing this grievance, Grievant substituted in the Sutton
Elementary School classroom where the independent contractors work. She observed the
individuals performing regular aide-type duties, and receiving direction from the classroom
teacher. Grievant also worked with a students assigned to one of Precision Services, Inc.
workers while that individual was on break.
(See footnote 7)
14. The type of services performed by these workers are the same type of
services that can be and frequently are, performed by classroom Aides. 15. BCBOE could receive funding to have these services performed by BCBOE
Aides. It is not necessary, nor is it required, to have these services performed by an
employee outside the school system.
16. BCBOE has no plans to hire Aides to perform these type of services.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving her grievance by a preponderance of the evidence. Procedural Rules of the
W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Toney v.
Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. Kanawha
County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd.
of Educ., Docket No. 96-23-174 (Apr. 30, 1997). See W. Va. Code § 18-29-6.
A. Review of the case law.
This grievance raises a legal issue which has not been previously addressed,
although similar issues have been considered which do offer some guidance. A review of
those cases may be helpful. In 1982, the West Virginia Supreme Court of Appeals held
in O'Connor, supra at Syllabus Point 1, that W. Va. Code § 5A-4-1 required the Director
of General Services, from Department of Finance and Administration, to furnish janitorial
services, and he was "without authority to terminate the employment of such employees
as a class for the purpose of obtaining the same type [of] janitorial service through private
contracting." Thus, the Department was not allowed to terminate these employees and
hire independent contractors even though it was less expensive.
(See footnote 8)
Both parties cite the 1996, West Virginia Supreme Court of Appeals decision of
Boner, supra, as support for their position. In Boner, the Kanawha County Board of
Education abolished the full-time teaching, professional positions of homebound teachers
and replaced these instructional services with hourly employees without showing a
"concomitant reduction in [the] need for such instruction. . . ". Id. at Syl. Pt. 1. The Court
held this "plan clearly operates in contravention of the contractual scheme of employment
contemplated by W. Va. Code (sic) § 18A-2-2 (1993) along with the attendant benefits of
such contracts." Id. As noted in Boner, that case did not present the issue of whether
school boards may contract with non-employees for professional services or service
personnel services, even though the petitioners asked the Court to expand the holding in
O'Connor. Id. at 180. The Court recognized at note 14 that, "[t]he petitioners seek to
expand the limited O'Connor holding to prohibit the Board from contracting with private or
other entities for the duties performed by the homebound instructors." As this issue was
not before the Court, it was not addressed.
This Grievance Board has examined the issue of contracting out services in a
variety of situations. In Moss v. Barbour County Board of Education, Docket No. 89-01-
386 (July 7, 1990), this Grievance Board found a county board of education had the
authority to contract out, and the board was able to contract with another board of
education to provide transportation services for an extra-duty run pursuant to W. Va. Code
§ 18-5-13(7). In Barnisky v. Pocahontas County Board of Education, Docket No. 93-38-
027 (November 22, 1993), aff'd Circuit Court of Kanawha County, Civil Action No. 94-AA-
117 (Oct. 7, 1994), this Grievance Board noted a board of education, as a quasi-publiccorporation, had the authority and right to contract for services pursuant to W. Va. Code
§ 18-5-5. See Herald v. Bd. of Educ., 65 W. Va. 765, 65 S.E.2d 102 (1909). Barnisky held
a board of education could contract out for overtime services, as there was no guarantee
for overtime time work in either W. Va. Code §§ 18A-4-8 or 18A-4-8b, and contracting out
in this situation was not an abuse of discretion.
After the ruling in Boner, the Grievance Board decided the grievance of Ganoe v.
Hampshire County Board of Education, Docket No. 97-14-229 (July 30, 1997). In Ganoe
the board contracted directly with the grievant to be a Contract Classroom Aide. Ganoe
filed a grievance because she was denied seniority while working in this position. This
grievance raised the question of whether a board of education's hiring of contract
employees without granting them seniority or other benefits was proper under the statutes
governing employment of school personnel.
The administrative law judge in Ganoe found the fact pattern in that grievance, while
not precisely addressing the issue in question, was the basis for the Supreme Court of
Appeals' decision in Boner, supra. The Boner Court determined the board's plan to
replace full-time teachers with contract, hourly employees was contrary to West Virginia's
statutes governing the employment of school personnel, and allowing the board to
eliminate full-time teaching positions, without a showing a reduced need, circumvented the
Code's contractual scheme of employment for teachers. The Boner Court also recognized
teachers must execute a contract before entering upon their duties, and thereafter become
entitled to various benefits and protections set forth by statute. The Ganoe administrative law judge held the Hampshire County Board of
Education's system directly contravened the contractual scheme governing the
employment of service personnel, and noted, as did the Boner Court, that under this logic,
a county board of education could pick any group of employees and declare them to be
hourly employees in order to avoid paying the benefits and affording the protections
associated with full-time employment. If this were allowed, all of the statutes governing the
hiring, promotion, benefits, seniority, and other issues affecting the employment of school
personnel would be a farce. Ganoe, supra. The administrative law judge found the
board's employment of grievant as a Contract Aide was contrary to statute, and grievant
should have been considered a full-time, regular employee with all attendant rights and
benefits as set forth in West Virginia's school personnel statutes.
In Dempsey v. Fayette County Board of Education, Docket No. 98-10-357
(December 8, 1998), the grievant, a regularly employed custodian, alleged the use of
professional employees and/or volunteers to perform custodial assignments violated
W. Va. Code §§18A-4-8 and18A-4-8b. Grievant alleged these Code Sections mandated
custodians must be offered the opportunity, on a rotating basis, to work extra-duty
assignments.
The administrative law judge found there is nothing in W. Va. Code §§ 18A-4-8 or
18A-4-8b requiring a board of education to guarantee overtime work assignments to
service personnel, nor is there anything which prevented a board of education from
contracting out services. W. Va. Code § 18-5-5; Barnisky, supra; Herald, supra. The
administrative law judge found "Boner held the contractual scheme of employment forschool personnel does not allow for the hiring of contract employees to perform full-time[,]
regular duties of school service personnel." Dempsey, supra. The administrative law
judge also noted this Grievance Board had previously held a county board of education
could accept volunteer help and was not required to pay service personnel to perform
duties a community volunteer was willing to perform. Moody v. Marion County Bd. of
Educ., Docket No. 93-24-401 (Apr. 29, 1994). Further, the administrative law judge found
"service personnel employees may not compel a board of education to assign them any
given project as part of their regular duties or as an extra-duty assignment when the work
can be completed with volunteer labor and the service employees are not deprived of their
regular work time or wages as a result." Id.
In Moore v. Lincoln County Board of Education, Docket No. 97-22-549 (May 8,
1998), the board of education contracted with the mother of a special education student
to perform a "supplemental one hour position" without posting. The administrative law
judge found it was a violation of W. Va. Code § 18A-4-8b for the Board to contract with the
special education student's mother to perform this job for $20.00 per hour, rather than
filling it with an employee of the Board.
The administrative law judge noted W. Va. Code § 18A-4-8b
(See footnote 9)
requires all school
service personnel positions occurring throughout the school year to be posted and filled
on the basis of seniority, evaluations, and qualifications, and applicants must be given
preference in filling the position in the following descending order: Regular employees,
preferred recall list employees, substitute employees, and new applicants. The administrative law judge held the Board erred in contracting the one-hour only
position with the mother of the special education student, who was not an employee of the
Board in any capacity. The Moore administrative law judge relying on Boner, supra, and
Ganoe, supra, held the contractual scheme of employment for school personnel does not
allow for the hiring of contract employees to perform full time, regular duties of school
service personnel positions.
As pointed out by the Respondent, the Conclusions of Law in several of our
contracting out cases read as if the issue presented by this grievance was already settled
by Boner, when in actuality this issue was expressly not addressed in Boner. See
discussion at 7, infra. For example, the Conclusion of Law 2 in Dempsey states, "[t]he
contractual scheme of employment for school personnel does not allow for the hiring of
contract employees to perform full-time regular duties of school service personnel. State
ex rel. Boner v. Kanawha County Bd. of Educ., 197 W. Va. 176, 475 S.E. 2d 176 (W. Va.
(sic)1996)." As previously noted the West Virginia Supreme Court of Appeals did not
address the issue of whether a board of education could contract for services with an
outside entity.
B. Discussion of case law as it applies to this case.
A review of the case law indicates this issue is a close one, and one that has not
been previously addressed by the West Virginia Supreme Court of Appeals or this
Grievance Board. In reaching the Decision here, the undersigned Administrative Law
Judge found two factors to be important. First, the contractual scheme of employment for
service personnel as contemplated in W. Va. Code §§ 18A-2-5 & 6 and 18A-4-8b. Second, that the mode of, or possible lack, of supervision of the "independent contractors",
calls into question whether they are functioning as independent contractors even though
they were hired through a separate entity. It appears they are functioning as
employees/aides because their actions are supervised on a daily basis by the classroom
teacher, and there is no evidence of supervision by anyone else on any type of regular
basis or schedule.
C. Contractual Scheme
Pursuant to W. Va. Code § 18-5-5 boards of education have the right to enter into
contracts. As stated in Herald, supra "[a] board of education is a quasi public corporation,
existing only under statute, having only the powers given by statute and such implied
powers as are absolutely necessary to execute such express powers. It cannot engage
in business or make contracts outside its functions touching education."
(See footnote 10)
There are numerous statutes which speak to the employment of service personnel,
in general, and Aides, in particular. W. Va. Code § 18-5-13 states in pertinent part:
The boards, subject to the provisions of this chapter and the rules of the
state board, have authority:
. . .
(10) To employ teacher aides, to provide in-service training for teacher
aides, the training to be in accordance with rules of the state board and, in
the case of service personnel assuming duties as teacher aides in
exceptional children programs, to provide a four-clock-hour program of
training prior to the assignment which shall, in accordance with rules of thestate board, consist of training in areas specifically related to the education
of exceptional children;
(Emphasis Added.)
W. Va. Code §§ 18A-2-5 discusses service personnel contracts and reads as
follows:
The board is authorized to employ such service personnel, including
substitutes, as is deemed necessary for meeting the needs of the county
school system: . . . .
Before entering upon their duties service personnel shall execute with the
board a written contract . . . .
Under such regulation and policy as may be established by the county
board, service personnel selected and trained for teacher-aide
classifications, such as monitor aide, clerical aide, classroom aide and
general aide, shall work under the direction of the principal and teachers to
whom assigned.
(Emphasis Added.)
W. Va. Code § 18A-2-6 relates to the continuing contract status of service
personnel.
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, or by written resignation of the employee
before that date,. . . .The affected employee shall have the right of a hearing
before the board, if requested, before final action is taken by the board upon
the termination of such employment.
W. Va. Code § 18A-4-8b discusses seniority for service personnel and states the
following in pertinent part:
A county board shall make decisions affecting promotions and the filling of
any service personnel positions of employment or jobs occurring throughout
the school year that are to be performed by service personnel as provided
in section eight [§ 18A-4-8] of this article, on the basis of seniority,
qualifications and evaluation of past service.
. . .
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 school service employees to observe for at least five working
days. The notice of the 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. After the five day minimum posting period all vacancies shall be
filled within twenty working days from the posting date notice of any job
vacancies of established existing or newly created positions.
. . .
No position openings may be filled by the county board, whether temporary
or permanent, until all employees on the preferred recall list have been
properly notified of existing vacancies and have been given an opportunity
to accept reemployment.
W. Va. Code §18A-4-8 discusses the employment term of service personnel and
briefly defines the duties and characteristics of each position.
The purpose of this section is to establish an employment term and class
titles for service personnel. The employment term for service personnel may
be no less than ten months. A month is defined as twenty employment days:
Provided, That the county board may contract with all or part of these service
personnel for a longer term. The beginning and closing dates of the
ten-month employment term may not exceed forty-three weeks.
. . .
"Aide I" means those personnel selected and trained for teacher-aide
classifications such as monitor aide, clerical aide, classroom aide or general
aide.
"Aide II" means those personnel referred to in the "Aide I" classification who
have completed a training program approved by the state board, or who hold
a high school diploma or have received a general educational developmentcertificate. Only personnel classified in an Aide II class title may be
employed as an aide in any special education program.
"Aide III" means those personnel referred to in the "Aide I" classification who
hold a high school diploma or a general educational development certificate,
and have completed six semester hours of college credit at an institution of
higher education or are employed as an aide in a special education program
and have one year's experience as an aide in special education.
"Aide IV" means personnel referred to in the "Aide I" classification who hold
a high school diploma or a general educational development certificate and
who have completed eighteen hours of state board-approved college credit
at a regionally accredited institution of higher education, or who have
completed fifteen hours of state board-approved college credit at a
regionally accredited institution of higher education and successfully
completed an in-service training program determined by the state board to
be the equivalent of three hours of college credit.
(Emphasis Added.)
Perhaps a basic issue to address initially is the type of services provided by the
"independent contractors" in this case. Although an exact answer to this repeated
question was unclear, the undersigned Administrative Law Judge finds the services
provided are those that could and can be covered under the duties identified in the Aide
definitions. See Finding of Fact 14. Thus, the activities performed by these workers are
not so specialized that they could not be carried out by an Aide. This is not to say that if
required by the federal government in order to qualify for funding, that specified, additional
qualifications for an Aide could not be added to the basic requirements and competency
examination, such as CPR and first aid training by a board of education.
As recognized by the
Code Sections above, a board of education has the right to
contract with employees to provide a broad range of Aide services, and this GrievanceBoard has recognized the right of boards of education to contract out overtime and
extracurricular services to non-employees.
In this situation, with these specifics set of facts, the undersigned Administrative
Law Judge finds the positions at issue must be filled by board of education employees,
and the method by which BCBOE has independently contracted with Precision Services,
Inc. operates in contravention of the elaborate contractual scheme of employment
contemplated by
W. Va. Code §§ 18A-2-5 & 6 and 18A-4-8b. The undersigned
Administrative Law Judge is persuaded by the reasoning used in
Boner. If a board of
education is allowed to contract out for Aide services simply by calling them by another
name, what is to prevent the same thing from happening in a variety of service personnel
positions. Watchmen could be called Security Specialists, Custodians could be identified
as Sanitation Assistants or Sanitation Personnel, and Secretaries and Clerks could be
designated Office Assistants. Individuals could be hired in a variety of positions, without
competency examinations, without competition based on qualifications and seniority, and
without direct supervision.
D. Supervision issue
The next issue to address, and indeed the one more worrisome to the undersigned
Administrative Law Judge, is the apparent lack of supervision, direct or otherwise, of the
"independent contractors". Two thoughts come to mind in examining this issue: 1) there
actually is little to no supervision; or 2) as argued by Grievant, the designation of the
teacher's role as one of guidance only is "an exercise in sophistry." It must be
remembered that the contract does not give any information about the type, frequency, ormethod of supervision. The individual who signed the contract with Precision Services,
Inc., Mr. McChesney, was unable to clarify or add additional information about supervision.
In essence, the undersigned Administrative Law Judge finds that what actually happens
is that the classroom teacher is placed in an untenable position. She or he is actually
required to supervise these people, but has little or no method by which to control, correct,
or complain about their actions.
As raised by Grievant, the question is whether these employees are really
functioning as independent contractors.
(See footnote 11)
A review of several cases decided by the West
Virginia Supreme Court of Appeals indicates that if BCBOE, through the teacher is actually
supervising these people, they are not functioning as independent contractors.
In
Myers v. Workmen's Compensation Commissioner, 150 W. Va. 563, 148 S.E.2d
664 (1966) the West Virginia Supreme Court of Appeals held at Syllabus Point 1, "[t]o
ascertain whether a workman is an employee or an independent contractor each case
must be resolved on its own facts and ordinarily no one feature of the relationship is
controlling, but all must be considered together. The Court further held at Syllabus Point
2, "[i]n determining whether a workman is an employee or an independent contractor, the
controlling factor is whether the hiring party retains the right to control and supervise the
work to be done." At Syllabus Point 3 the Court stated "'[i]f the right to control or supervise
the work in question is retained by the person for whom the work is being done, the persondoing the work is an employee and not an independent contractor, and the determining
factor in connection with this matter is not the use of such right of control or supervision[,]
but the existence thereof in the person for whom the work is being done.' Point 2, Syllabus,
Spencer v. The Travelers Insurance Company, 148 W. Va. 111."
Additionally, it was stated in the Syllabus Point of
Greaser v. Appaline Oil Company,
109 W. Va. 396, 155 S. E. 170 (1930), "[t]he test of the relation between one having work
done and the workman consists in the employer's right or lack of right to supervise the
work. If that right exists, the relation is that of master and servant. If that right does not
exist, the relation is that of employer and independent contractor." In
Null v. State
Compensation Commissioner,128 W. Va. 6, 35 S. E. 2d 359 (1945), the Court said: "The
crucial test is the existence of the right of supervision by the coal company. If the company
had the right to supervise the work done by Null, it was an employer and Null an
employee."
See also Myers,
supra;
Crowder v. State Compensation Comm'r, 115 W. Va.
12, 174 S. E. 480 (1934);
Smith v. Donald Coal Co., 92 W. Va. 253, 115 S. E. 477 (1922);
Kirkhart v. United Fuel Gas Co., 86 W. Va. 79, 102 S. E. 806 (1920).
Accordingly, the undersigned Administrative Law Judge finds, based on the facts
as presented, that the individuals working with the students in the Sutton Elementary
School classroom are actually supervised by the teacher, as she is expected to direct and
guide their work, and to intervene when appropriate. Thus, these workers are not
functioning as independent contractors.
The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law
1. As this grievance does not involve a disciplinary matter, Grievant has the
burden of proving her grievance by a preponderance of the evidence. Procedural Rules
of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996);
Toney
v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999);
Bowen v. Kanawha
County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999);
Holly v. Logan County Bd.
of Educ., Docket No. 96-23-174 (Apr. 30, 1997).
See W. Va. Code § 18-29-6.
2. "A board of education is a quasi public corporation, existing only under
statute, having only the powers given by statute and such implied powers as are absolutely
necessary to execute such express powers. It cannot engage in business or make
contracts outside its functions touching education."
Herald v. Bd. of Educ., 65 W. Va. 765,
65 S.E. 102 (1909). Pursuant to
W. Va. Code § 18-5-5 boards of education have the right
to enter into contracts.
3. """School personnel regulations and laws are to be strictly construed in favor
of the employee." Syl. pt.1,
Morgan v. Pizzino, 163 W. Va.454, 256 S.E.2d 592 (1879).'
Syl. Pt.1,
Cruciotti v. McNeel, 183 W. Va. 424, 396 S.E.2d 191' (1990)." Syl. Pt. 1,
State
ex rel. Boner v. Kanawha County Bd. of Educ., 197 W. Va. 176, 475 S.E.2d 176 (1996).
4. The method by which BCBOE has independently contracted with Precision
Services, Inc. operates in contravention of the elaborate contractual scheme of
employment contemplated by
W. Va. Code § § 18A-2-5 & 6 and 18A-4-8b.
See Boner,
supra.
5. The undersigned Administrative Law Judge concludes a board of education's
general powers to enter into contracts under
W. Va. Code § 18-5-5 has been somewhatlimited by the elaborate statutory scheme established for the employment of school service
personnel.
6. The contractual scheme of employment for school personnel does not allow
for the hiring of independent contractors to perform the full-time, regular duties of school
service personnel positions.
See Boner,
supra;
Ganoe v. Hampshire County Bd. of Educ.,
Docket No. 97-14-229 (July 30, 1997);
Dempsey v. Fayette County Bd. of Educ., Docket
No. 98-10-357 (Dec. 8, 1998).
7. "To ascertain whether a workman is an employee or an independent
contractor each case must be resolved on its own facts and ordinarily no one feature of
the relationship is controlling, but all must be considered together." Syl. Pt.1,
Myers v.
Workmen's Compensation Comm'r,150 W. Va. 563, 148 S.E.2d 664 (1966).
8. "In determining whether a workman is an employee or an independent
contractor, the controlling factor is whether the hiring party retains the right to control and
supervise the work to be done."
Id. at Syl. Pt. 2.
9. "'If the right to control or supervise the work in question is retained by the
person for whom the work is being done, the person doing the work is an employee and
not an independent contractor, and the determining factor in connection with this matter
is not the use of such right of control or supervision[,] but the existence thereof in the
person for whom the work is being done.' Point 2, Syllabus, Spencer v. The Travelers
Insurance Company, 148 W. Va. 111."
Id. at Syl. Pt. 3.
10. Since BCBOE, through the classroom teacher, retained the right to supervise
the employees, they were not actually working in the role of independent contractors. Accordingly, this grievance is
GRANTED. However, given the unclear state of the
law concerning the legality of contracting out service personnel positions, the uncertainty
about who would have receive them if they had been posted last year and filled as
required by law, and all the facts and circumstances, the undersigned Administrative Law
Judge does not believe Grievant is entitled to the specific relief requested, or that in this
set of circumstances such relief would be fair and equitable. Accordingly, the specific relief
is denied. If these type of positions are to be utilized in the future, BCBOE is directed to
post and fill them pursuant to statute.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of the Braxton County. Any such appeal must be filed within thirty (30) days
of receipt of this decision. W. Va. Code § 18-29-7. Neither the West Virginia Education
and State 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 appealing party must also provide the Board with the civil action number so
that the record can be prepared and properly transmitted to the appropriate circuit court.
___________________________________
JANIS I. REYNOLDS
Administrative Law Judge
Dated: July 28, 2000
Footnote: 1