SHEILA HIXENBAUGH and RUTH MULLINS,

      Grievants,

v.                                                      Docket No. 99-30-530

MONONGALIA COUNTY BOARD OF EDUCATION,

      Respondent.

DECISION

      Sheila Hixenbaugh and Ruth Mullins (“Grievants”) initiated this grievance on September 22, 1999, alleging that their extracurricular assignments were improperly terminated by Respondent Monongalia County Board of Education (“MCBOE”). They seek reinstatement to their assignments with back pay and benefits, plus interest. Grievants' immediate supervisors were unable to grant relief. A level two hearing was held on November 18, 1999, followed by a written decision, denying the grievance, dated December 17, 1999. Level three consideration was bypassed, and Grievants appealed to level four on December 21, 1999. A level four hearing was held in the Grievance Board's office in Morgantown, West Virginia, on March 13, 2000. Grievants were represented by John E. Roush, counsel for the West Virginia School Service Personnel Association, and Respondent was represented by counsel, Harry M. Rubenstein. This matter became mature for consideration on April 19, 2000, the deadline for the parties' final written submissions.

Findings of Fact

      1.      Grievant Hixenbaugh is regularly employed by MCBOE as a bus operator.
      2.      Grievant Mullins is regularly employed by MCBOE as a transportation aide.      3.      During the 1997-1998 and 1998-1999 school years, Grievants were assigned a midday bus run transporting preschool children to North Elementary School.
      4.      Grievants received this extracurricular assignment through the competitive bid process.
      5.      Grievants received supplemental pay for their extracurricular bus run, but they did not receive written contracts for either year that they performed this assignment.
      6.      On September 9, 1999, Grievants were advised by Richard Jemas, Director of Transportation, they would again be assigned the midday run to North Elementary. Later the same day, Mr. Jemas discovered that the run would not be needed   (See footnote 1)  , and advised Grievants they would not be performing the assignment for the 1999-2000 school year.
Discussion

      As this grievance does not involve a disciplinary matter, Grievants have the burden of proving their 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); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.       This grievance involves an extracurricular assignment subject to W. Va. Code § 18A-4-16 which provides:





      It is well established that county boards of education must utilize the notice and hearing procedures of W. Va. Code §§ 18A-2-8 or 18A-2-7 to terminate an extracurricular or supplemental assignment under W. Va. Code § 18A-4-16, unless the assignment expires under its own terms. Hosaflook v. Nestor, 176 W. Va. 648, 346 S.E.2d 798 (1986); Smith v. Bd. of Educ., 176 W. Va. 65, 341 S.E.2d 685 (1985); Toney v. Lincoln County Bd. of Educ., Docket No. 97-22-020 (July 7, 1997); Payne v. Mason County Bd. of Educ., Docket No. 96-26-047 (Nov. 27, 1996); Doss v. Mason County Bd. of Educ., Docket No.96-26-108 (Sept. 30, 1996); Ramey v. Lincoln County Bd. of Educ., Docket No. 94-02-002 (June 3, 1994). See Garvin v. Webster County Bd. of Educ., Docket No. 92-51-407 (Jan. 7, 1993); Lambert v. Logan County Bd. of Educ., Docket No. 91-23-199 (June 24, 1991).
      Grievants contend that they were entitled to the notice provided for in W. Va. Code §18A-2-7 prior to the termination of their extracurricular assignment. That statute requires as follows:

      A very similar situation occurred in Doss v. Mason County Bd. of Educ., Docket No. 96-26-108 (Sept. 30, 1996). As in the instant case, the grievant in Doss had been performing his extracurricular assignment without benefit of a written contract. Noting that extracurricular contracts are required to be in writing, per W. Va. Code § 18A-4-16, and that the board of education is responsible for the issuance of written contracts pursuant to the requirements of W. Va. Code § 18A-2-5, the administrative law judge stated:

In Doss, the grievant had held a contract for the same assignment in prior years, and his most recent contract contained no language concerning termination or transfer. Therefore, the board of education was not permitted to terminate the assignment without following thenotice and hearing procedures of W. Va. Code § 18A-2-7.
      In the instant case, Grievants have never been issued a properly worded contract for their extracurricular assignment, which they performed for two consecutive school years, creating the expectation that it would continue from year to year. Moreover, MCBOE failed to fulfill its responsibility of issuing contracts to Grievants for these assignments, and, per the ruling in Doss, supra, was not authorized to terminate them without proper notice.       Consistent with the foregoing findings and discussion, the following conclusions of law are appropriate in this matter.
Conclusions of Law

      1.       In non-disciplinary matters, Grievants have the burden of proving their 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); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.
      2.      Terminations of extracurricular contracts entered into pursuant to W. Va. Code § 18A-4-16 are subject to the procedural requirements mandated under W. Va. Code §§ 18A-2-7 and 18A-2-8. Hosaflook v. Nestor, 176 W. Va. 648, 346 S.E.2d 798 (1986); Smith v. Bd. of Educ., 176 W. Va. 65, 341 S.E.2d 685 (1985).
      3.      A county board of education is responsible for the issuing of properly worded contracts to its employees. W. Va. Code 18A-2-5.
      4.      Grievants have proven by a preponderance of the evidence that MCBOE violated the provisions of W. Va. Code § 18A-2-7 when it terminated their extracurricular bus run.
      Accordingly, this grievance is GRANTED. Respondent is ORDERED to pay Grievants back pay and benefits, plus interest at the statutory rate, for their extracurricular bus run, retroactive to September 9, 1999.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or the Circuit Court of Monongalia County, and 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.

Date:      April 24, 2000                         ________________________________
                                                DENISE M. SPATAFORE
                                                Administrative Law Judge

      


Footnote: 1
      Grievants also contend that the run was, in fact, still needed for the 1999-2000 school year. However, due to the outcome of this grievance, that issue need not be discussed.