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:
(1) The assignment of teachers and service personnel to extracurricular
assignments shall be made only by mutual agreement of the employee and
the superintendent, or designated representative, subject to board approval.
Extracurricular duties shall mean, but not be limited to, any activities thatoccur at times other than regularly scheduled working hours, which include
the instructing, coaching, chaperoning, escorting, providing support services
or caring for the needs of students, and which occur on a regularly scheduled
basis: Provided, That all school service personnel assignments shall be
considered extracurricular assignments, except such assignments as are
considered either regular positions, as provided by section eight [§ 18A-4-8]
of this article, or extra-duty assignments, as provided by section eight-b [§
18A-4-8b] of this article.
(2) The employee and the superintendent, or a designated representative,
subject to board approval, shall mutually agree upon the maximum number
of hours of extracurricular assignment in each school year for each
extracurricular assignment.
(3) The terms and conditions of the agreement between the employee and
the board shall be in writing and signed by both parties.
(4) An employee's contract of employment shall be separate from the
extracurricular assignment agreement provided for in this section and shall
not be conditioned upon the employee's acceptance or continuance of any
extracurricular assignment proposed by the superintendent, a designated
representative, or the board.
(5) The board shall fill extracurricular school service personnel assignments
and vacancies in accordance with section eight-b of this article: Provided,
That an alternative procedure for making extracurricular school service
personnel assignments within a particular classification category of
employment may be utilized if the alternative procedure is approved both by
the county board and by an affirmative vote of two thirds of the employees
within that classification category of employment.
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]n employee shall be notified in writing by the superintendent on or before
the first Monday in April if he is being considered for transfer . . . . Any
teacher or employee who desires to protest such a proposed transfer may
request in writing a statement of the reason for the proposed transfer [and]
. . . [w]ithin ten days of the receipt of the statement of the reasons, the
teacher or employee may make a written demand upon the superintendent
for a hearing
on the proposed transfer before the board of education. The
hearing on the proposed transfer shall be held on or before the first Monday
in May[.]
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:
The fact that Respondent had not issued a written contract for Grievant [for
the current year's extracurricular assignment] does not alter Grievant's rights
to have such a contract, and the rights he would have had under this contract
if it had been issued properly.
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