Webster County Board of Education v. Davis

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term
FILED
_____________
March 26, 2021
released at 3:00 p.m.
No. 19-1028 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
WEBSTER COUNTY BOARD OF EDUCATION,
Respondent Below, Petitioner
V.
DONNIS DAVIS, KAREN HOLCOMB, AUDREY FLANAGAN,
AND SAMANTHA MCCOURT,
Petitioners Below, Respondents
________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Louis H. Bloom, Judge
Civil Action No. 19-AA-42
REVERSED AND REMANDED
________________________________________________
Submitted: January 27, 2021
Filed: March 26, 2021
Richard S. Boothby Andrew J. Katz
Bowles Rice LLP The Katz Working Families’ Law
Parkersburg, West Virginia Firm, LC
Joshua A. Cottle Charleston, West Virginia
Bowles Rice LLP Attorney for the Respondents
Charleston, West Virginia
Attorneys for the Petitioner
CHIEF JUSTICE JENKINS delivered the Opinion of the Court.
JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the right to
file dissenting opinions.
SYLLABUS BY THE COURT
1. Under West Virginia Code sections 18A-4-8g(d) (eff. 2007), 18A-4-
8(i) (eff. 2015), and 18A-4-8a(2) (eff. 2019), the school service personnel classifications
of Aide and Early Childhood Classroom Assistant Teacher (ECCAT) accrue seniority
independently from each other for purposes of a reduction in force. As such, only the
seniority for the specific classification subject to a reduction in force shall be considered
in ranking the seniority of the affected personnel.
2. Under West Virginia Code sections 18A-4-8b(h), (i), & (j) (eff. 2016),
the school service personnel classifications of Aide and Early Childhood Classroom
Assistant Teacher (ECCAT) accrue seniority independently from each other for purposes
of a reduction in force. As such, only the seniority for the specific classification subject to
a reduction in force shall be considered in ranking the seniority of the affected personnel.
3. “Pursuant to W. Va. Code § 18A-4-8g[(l) (eff. 2007)], multiclassified
school service personnel do not belong to a separate or unique classification category, but
rather are employees of each classification category contained within their respective
multi-classification titles. Under the statute, a multiclassified employee accrues seniority
in each of the several classification categories composing his or her multiclassification title,
and, correspondingly, is subject to a reduction in force in these individual job categories
on the basis of the respective seniority accumulated in each. In all instances where an
i
employee has seniority in a particular job category—whether that employee is
multiclassified or holds only a single job classification—such employee will be entitled to
preference during a reduction in force in that category. In the event a multiclassified
employee is subject to a reduction in force in one or more, but less than all, of the categories
composing his or her multiclassification title, such employee remains in the employ of the
county board of education with those categories that are subject to the reduction in force
being deleted from the [contract of the multiclassified employee].” Syllabus point 5,
Taylor-Hurley v. Mingo County Board of Education, 209 W. Va. 780, 551 S.E.2d 702(2001).
4. A school service employee who has held or holds an Aide title and
becomes employed as an Early Childhood Classroom Assistant Teacher (ECCAT) shall
hold a multiclassification status. As a multiclassification status employee, the method of
calculating such an employee’s seniority rank for purposes of a reduction in force is
governed by West Virginia Code section 18A-4-8g(l) (eff. 2007) and Syllabus point 3 of
this opinion, which quotes, with corrections, Syllabus point 5 of Taylor-Hurley v. Mingo
County Board of Education, 209 W. Va. 780, 551 S.E.2d 702 (2001). Under these
authorities, seniority for the Aide and Early Childhood Classroom Assistant Teacher
(ECCAT) classification titles accrue independently from each other.
ii
Jenkins, Chief Justice:
This appeal addresses the manner in which seniority is calculated for
purposes of a reduction in force among school service personnel who were originally hired
by a county board of education as an Aide and then subsequently obtained certification as
an Early Childhood Classroom Assistant Teacher (“ECCAT”). Petitioner, the Webster
County Board of Education (“Webster BOE”), argues that the circuit court erred in finding
that seniority for purposes of a reduction in the number of service personnel who are
certified as ECCATs is calculated by the subject employees’ accumulated seniority earned
in the position of Aide. Instead, the Webster BOE contends that seniority for such purposes
should be calculated solely based upon the accumulated amount of ECCAT seniority
possessed by the subject employees. Respondents, four Webster BOE employees who
were initially hired at different times as Aides and then subsequently obtained ECCAT
certification and began accruing seniority as ECCATs as of the same date (collectively
“Grievants”), 1 argue that the circuit court correctly calculated their ECCAT seniority based
upon their accumulated seniority as Aides. Having considered the relevant statutes, we
conclude that the Legislature plainly intended that the school service personnel
classifications of Aide and ECCAT accrue seniority independently from each other for
1
The individual employees who are respondents to this appeal are Donnis
Davis, Karen Holcomb, Audrey Flanagan, and Samantha McCourt. Another Webster BOE
employee, Diane Carpenter, also was before the Kanawha County Circuit Court in a
separate case addressing the same issue. She is the respondent in a separate appeal by the
Webster BOE. See Carpenter v. Webster Cty. Bd. of Ed., No. 20-0231. The appeal
pertaining to Ms. Carpenter’s grievance has been held in abeyance pending our decision in
the case sub judice.
1
purposes of determining seniority in connection with a reduction in force. As such, only
the seniority for the specific classification subject to a reduction in force shall be considered
in ranking the seniority of the affected personnel. In addition, we conclude that school
service personnel who have held or hold an Aide title and then become employed as an
ECCAT hold a multiclassification status. Nevertheless, their Aide and ECCAT seniority
also accrues independently from each other for purposes of a reduction in force. Based
upon these conclusions, we find that the circuit court’s decision that Aide seniority is used
to determine the rank of service personnel subject to a reduction of force in the ECCAT
class title is contrary to the law. Accordingly, we reverse the Circuit Court of Kanawha
County’s order of October 10, 2019, and we remand the case for entry of an order consistent
with this opinion.
I.
FACTUAL AND PROCEDURAL HISTORY
Each of the four Grievants commenced working for the Webster BOE under
the service personnel class title 2 of Aide on a different date: Audrey Flannigan,3 February
2
Pursuant to West Virginia Code section 18A-4-8(i)(3) (eff. 2015), “‘[c]lass
title’ means the name of the position or job held by a service person[.]”
3
According to the Decision of the West Virginia Public Employees
Grievance Board, Donnis Davis and Audrey Flanigan also have Autism Mentor
certification.
2
28, 1985; 4 Donnis Davis, December 15, 1992; Samantha McCourt, January 23, 2006; and
Karen 5 Holcomb, October 19, 2007. Thus, based upon their varying employment dates,
they each acquired different amounts of seniority for the class title Aide. 6 Each of the
Grievants apparently was working in a Webster BOE kindergarten program prior to July
1, 2014.
Before completing our recitation of the factual and procedural course of the
instant case, we pause to set out the history of the relevant statutory provision in order to
place the remaining factual details in their proper context.
In 2013, the West Virginia Legislature created the position of ECCAT as a
new service personnel class title, and, as demonstrated by the use of the term “shall,” made
4
The Decision of the West Virginia Public Employees Grievance Board
states that Audrey Flannigan commenced work under the Aide class title on February 30,
1985. Since no such date exists, we have substituted February 28, which is the last day of
February 1985.
5
In the appendix record in this matter, Ms. Holcomb is sometimes referred
to as “Kerry Holcomb,” and she is identified as “Kerry Y. Holcomb” on her Level One and
Level Two grievance forms. Nevertheless, the circuit court’s order and the parties’ briefs
identify her as “Karen Holcomb,” so we will utilize that name.
6
According to West Virginia Code section 18A-4-8g(a)(1) (eff. 2007),
“[s]eniority accumulation for a regular school service person: (1) Begins on the date the
employee enters upon regular employment duties pursuant to a contract as provided in
section five [§ 18A-2-5], article two of this chapter[.]”
3
that new class title a mandatory requirement to assist in a public-school kindergarten
program:
Beginning July 1, 2014, any person previously employed as an
aide in a kindergarten program and who is employed in the
same capacity on and after that date and any new person
employed in that capacity in a kindergarten program on and
after that date shall hold the position of either Early Childhood
Classroom Assistant Teacher [ECCAT] – Temporary
Authorization, Early Childhood Classroom Assistant Teacher
[ECCAT] – Permanent Authorization or Early Childhood
Classroom Assistant Teacher [ECCAT] – Paraprofessional
Certificate . . . .
W. Va. Code § 18-5-18(b) (eff. 2013) (emphasis added). To qualify for an ECCAT class
title, a school service employee must meet certain requirements that are not necessary to
hold the class title of Aide. However, the Legislature created a temporary ECCAT
authorization for employees who do not meet the minimum requirements for a permanent
ECCAT authorization, but who are pursuing those requirements. 7 In addition, the
Legislature provided that “[a]ny person employed as an aide in a kindergarten program that
is eligible for full retirement benefits before July 1, 2020, may remain employed as an aide
7
See W. Va. Code § 18A-4-8(i)(36) (eff. 2013) (defining “Early Childhood
Classroom Assistant Teacher [ECCAT] – Temporary Authorization” as “a person who
does not possess minimum requirements for the permanent authorization requirements, but
is enrolled in and pursuing requirements”). This class title was later changed to “Early
Childhood Classroom Assistant Teacher I [ECCAT I],” but the definition did not change.
See W. Va. Code § 18A-4-8(i)(36) (eff. 2015). According to a rule promulgated by the
State Board of Education, “[t]he initial Early Childhood Classroom Assistant Teacher-
Temporary Authorization is valid for one school year and may be renewed twice in
accordance with WVBE Policy 5202.” 126 W. Va. C.S.R. § 28.16.2.c.1.
4
in that position and may not be required to acquire licensure pursuant to this section.”
W. Va. Code § 18-5-18(b). 8
In 2015, West Virginia Code section 18-5-18(b) was amended and the
ECCAT class title designations were changed from ECCAT–Temporary Authorization,
ECCAT–Permanent Authorization, and ECCAT–Paraprofessional Certificate, to ECCAT
I, ECCAT II, and ECCAT III. The remaining language of the section was largely
unchanged:
Beginning July 1, 2014, any person previously employed as an
aide in a kindergarten program and who is employed in the
same capacity on and after that date and any new person
employed in that capacity in a kindergarten program on and
after that date shall hold the position of aide and either Early
Childhood Classroom Assistant Teacher I, Early Childhood
Classroom Assistant Teacher II or Early Childhood Classroom
Assistant Teacher III. Any person employed as an aide in a
kindergarten program that is eligible for full retirement
benefits before July 1, 2020, may remain employed as an aide
in that position and shall be granted an Early Childhood
8
Such an individual may be granted an ECCAT II permanent authorization.
See 126 W. Va. C.S.R. § 136-12.3.c (“Any person employed as an aide in a pre-k or
kindergarten program on or before July 1, 2014, and [who] is eligible for full retirement
benefits before July 1, 2020, may remain employed as an aide in that position and upon
application shall be granted an ECCAT II, permanent authorization by the State
Superintendent pursuant to W. Va. Code § 18-2a-3.”). In addition, under West Virginia
Code section 18A-4-8(t) (eff. 2015),
[a]ny person employed as an aide in a kindergarten
program who is eligible for full retirement benefits before the
first day of the instructional term in the 2020-2021 school year,
may not be subject to a reduction in force or transferred to
create a vacancy for the employment of a less senior Early
Childhood Classroom Assistant Teacher[.]
5
Classroom Assistant Teacher permanent authorization by the
state superintendent pursuant to Section two-a [§ 18A-3-2a],
article three, chapter eighteen-a of this code.
W. Va. Code § 18-5-18(b) (eff. 2015). In 2017 this provision was redesignated, and it is
now found at West Virginia Code section 18-5-18(c) (eff. 2017). For ease of reference and
consistency, we will refer to the different levels of ECCAT by their current designations
of I, II, or III.
Turning back to the instant case, because each of the Grievants apparently
was working in a Webster BOE kindergarten program prior to July 1, 2014, each of them
obtained ECCAT authorization under West Virginia Code section 18-5-18(b), and each of
them began their employment duties as an ECCAT on the same day, August 18, 2014.
Neither the parties nor the appendix record submitted in connection with this case specify
which level ECCAT class title each Grievant held upon becoming an ECCAT or what level
ECCAT class title they hold today. 9
In early 2018, the Webster BOE, anticipating that it may have to reduce the
number of ECCATs it employed, decided to calculate the ECCAT employees’ seniority
Grievant Donnis Davis testified at the Level Three hearing before the West
9
Virginia Public Employee’s Grievance Board that, in addition to meeting the requirements
for ECCAT authorization, she also was eligible to retire by 2020. Thus, she presumably
was granted an ECCAT II class title on that basis. See note 8 supra and the accompanying
text. However, the record fails to indicate whether she met the requirements for, or held,
an ECCAT III class title.
6
rankings. In doing so, the Webster BOE realized that the Grievants, who all began their
ECCAT jobs on August 18, 2014, all had the same amount of ECCAT seniority.
Accordingly, the Webster BOE applied West Virginia Code section 18A-4-8g(i) (eff.
2007), 10 and, on February 21, 2018, conducted a random drawing to assign an ECCAT
10
The random selection process is to be carried out as follows:
(i) If two or more service personnel accumulate
identical seniority, the priority shall be determined by a
random selection system established by the service personnel
and approved by the county board.
(1) A board shall conduct the random selection within
thirty days of the time the service personnel establish an
identical seniority date. All service personnel with an identical
seniority date within the same class title or classification
category shall participate in the random selection.
(2) As long as the affected employees hold identical
seniority within the same classification category, the initial
random selection conducted by the board shall be permanent
for the duration of the employment within the same
classification category of the employees by the board. This
random selection priority applies to the filling of vacancies and
to the reduction in force of school service personnel.
(3) If any other service person subsequently acquires
seniority identical to the employees involved in the original
random selection, a second random selection shall be held
within thirty days to determine the seniority ranking of the new
employee within the group.
(A) The priority between the employees who
participated in the original random selection remains the same.
(B) The second random selection is performed by
placing numbered pieces of paper equal to the number of
employees with identical seniority in a container. Any service
7
seniority ranking to each Grievant and to other ECCAT employees who are not parties to
this appeal. 11 As a result of this random drawing, the ECCAT employee with the most
seniority in the class title of Aide is not the employee with the most seniority in the class
title of ECCAT. The Grievants’ respective seniority rankings for both the Aide class title
and the ECCAT class title are reflected in the following table:
Name Aide Rank ECCAT Rank
Audrey Flannigan 1st 4th
Donnis Davis 2nd 6th
Samantha McCourt 7th 8th
Karen Holcomb 8th 5th
person who was not involved in the original random selection
shall draw a number from the container which will determine
his or her seniority within the group as a whole.
(C) This process will be repeated if any additional
service person subsequently acquires identical seniority.
(D) The same process shall be used if any additional
service person is subsequently discovered to have the same
seniority as the original group of employees but who did not
participate in the original random selection due to oversight or
mistake.
W. Va. Code § 18A-4-8g(i) (eff. 2007). Before the West Virginia Public Employee’s
Grievance Board, the Grievants argued that the Webster BOE could not conduct a random
selection because it had failed to comply with the thirty-day time frame set out in West
Virginia Code section 18A-4-8g(i)(1). The Grievance Board rejected this argument, and it
was not addressed by the circuit court. Similarly, that issue is not before us in connection
with this appeal.
11
Other ECCAT employees of the Webster BOE who also began their
ECCAT jobs on August 18, 2014, were included in the random drawing, but they are not
parties to this appeal and we, therefore, omit the facts pertaining to them.
8
To date, no reduction in force has occurred, but the Grievants nevertheless
each filed a Level One grievance on March 7, 2018, challenging the Webster BOE’s use
of West Virginia Code section 18A-4-8g(i) to randomly assign their ECCAT seniority
ranking instead of relying on their Aide seniority ranking. The grievances were
consolidated at Level One and, following a hearing, the grievances were denied. Grievants
then filed Level Two appeals and mediation was conducted but failed. Thereafter,
Grievants appealed to Level Three. Following a Level Three hearing before the West
Virginia Public Employees Grievance Board (“Grievance Board”), the grievance was again
denied. In its Level Three decision, the Grievance Board found that the Grievants failed
to meet their burden of proof 12 to establish that the Webster BOE erred by failing to apply
West Virginia Code section 18A-4-8b(d)(2)(C) (eff. 2016), 13 to rank their ECCAT
seniority based upon their Aide Seniority. The Grievance Board instead relied upon this
Court’s decision in Mayle v. Barbour County Board of Education, No. 17-0204, 2018 WL
317375 (W. Va. Jan. 8, 2018) (memorandum decision), to conclude that ECCAT seniority
accrues independently from Aide seniority. The Grievants next filed a petition for appeal
in the Circuit Court of Kanawha County where, by order entered on October 10, 2019, the
12
See 156 W. Va. C.S.R. § 1-3.1 (“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 . . . .”).
13
As will be discussed in our analysis of this appeal, West Virginia Code
section 18A-4-8b(d)(2)(C) is contained within a section of the Code addressing seniority
rights with respect to promotions and provides that “[p]araprofessional, autism mentor,
early classroom assistant teacher and braille or sign support specialist class titles are
included in the same classification category as aides[.]”
9
circuit court reversed and vacated the Grievance Board’s decision. The circuit court found
the Mayle decision to be distinguishable and, further, determined that the issue was
properly resolved in the Grievants’ favor by application of West Virginia Code
section 18A-4-8b(d)(2)(C). This appeal by the Webster BOE followed.
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 Cty. 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:
(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.
10
W. Va. Code § 6C-2-5(b) (eff. 2007). In general,
[g]rievance rulings involve a combination of both
deferential and plenary review. Since a reviewing court is
obligated to give deference to factual findings rendered by an
administrative law judge, a circuit court is not permitted to
substitute its judgment for that of the hearing examiner with
regard to factual determinations. Credibility determinations
made by an administrative law judge are similarly entitled to
deference. Plenary review is conducted as to the conclusions
of law and application of law to the facts, which are reviewed
de novo.
Syl. pt. 1, Cahill v. Mercer Cty. Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000). In
this appeal, there is no dispute over the facts. Instead, we are asked only to address a
question of law, i.e., how school service employees in the class title ECCAT are ranked for
purposes of a reduction in force when they all began working as an ECCAT on the same
day. Thus, our review of this issue affords no deference to the decision of the lower
tribunal. “Plenary review is conducted as to the conclusions of law and application of law
to the facts, which are reviewed de novo.” Syl. pt. 1, in part, id. See also Syl. pt. 1, Chrystal
R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“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.”). With due regard for this guidance, we
proceed to address, anew, the issue raised.
11
III.
DISCUSSION
Resolving the issue raised in this appeal requires us to delve into diffuse and
complicated Code provisions, and the answer is neither simple nor straightforward. Each
of the parties to this appeal relies on a distinct and conflicting statutory provision to answer
the question of how an ECCAT’s seniority is ranked for purposes of a reduction in force.
The Webster BOE argues that this appeal is properly resolved by West Virginia Code
section 18A-4-8g(d) (eff. 2007). The Grievants, on the other hand, direct this Court’s
attention to West Virginia Code section 18A-4-8b(d)(2)(C). In addition, our research has
revealed a third statute, West Virginia Code section 18A-4-8(u) (eff. 2015), that is
applicable to calculating seniority for a reduction in force involving ECCAT personnel
who hold a multiclassification status. We will address each of these statutes in turn.
Before examining these statutes, though, we revisit some general principles
of statutory construction that will guide our analysis. At the outset, we reiterate the oft
repeated principle that “[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). Accordingly, “[a] statutory provision [that] 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.” Syl. pt. 2, State v. Epperly, 135
W. Va. 877, 65 S.E.2d 488 (1951). Conversely, “[a] statute that is ambiguous must be
12
construed before it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414
S.E.2d 454 (1992). With these canons as a general guide, we address the pertinent statutes.
A. West Virginia Code Section 18A-4-8g(d)
As noted above, the Webster BOE argues that West Virginia Code
section 18A-4-8g(d) should have been applied by the circuit court to resolve the instant
matter, and, because the circuit court failed to do so, its decision was erroneous. We
agree. 14
West Virginia Code section 18A-4-8g was last amended in 2007. It is
conspicuously titled “Determination of seniority for service personnel,” which indicates
that it directly pertains to the issue at hand, i.e., how to determine seniority of ECCAT
service personnel. Under subsection (d),
[f]or all purposes including the filling of vacancies and
reduction in force, seniority shall be accumulated within
particular classification categories of employment as those
classification categories are referred to in section eight-e
[§ 18A-4-8e] of this article.
14
While we agree with the Webster BOE’s position with respect to the proper
interpretation of section 18A-4-8g(d), we disagree with its reliance on this Court’s decision
in Mayle v. Barbour County Board of Education, No. 17-0204, 2018 WL 317375 (Jan. 8,
2018) (memorandum decision). While the Mayle Court did rely on West Virginia Code
sections 18-4-8g(d) and 18A-4-8e to conclude that “ECCAT seniority accrues
independently of aide seniority,” it did so in the context of addressing whether an Aide
who did not possess ECCAT certification was entitled to an ECCAT position based solely
upon her superior Aide seniority. Mayle at *3. Mayle simply has no application in the
context of a reduction in force.
13
W. Va. Code § 18A-4-8g(d). Breaking this section down, it first clearly expresses, in plain
language, that it applies “[f]or all purposes including . . . reduction in force,” id., which
makes its application to the determination of the seniority of ECCATs for the purposes of
a reduction in force unquestionable. It goes on to plainly express that “seniority shall be
accumulated within particular classification categories of employment as those
classification categories are referred to in section eight-e [§ 18A-4-8e] of this article.” Id.
(emphasis added). Use of the term “shall” signals that this provision is mandatory. “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.”
Syl. pt. 1, Nelson v. W. Va. Pub. Emps. Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982).
Furthermore, this section plainly requires that seniority “be accumulated within particular
classification categories of employment” as they are referred to in W. Va. Code § 18A-4-
8e. W. Va. Code § 18A-4-8g(d) (emphasis added). “Generally[,] the words of a statute
are to be given their ordinary and familiar significance and meaning, and regard is to be
had for their general and proper use.” Syl. pt. 4, State v. Gen. Daniel Morgan Post No.
548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959). The ordinary
meaning of the word “particular” in the context here used is “of or belonging to a single,
definite person, part, group, or thing; not general; distinct” and “apart from any other;
regarded separately; specific.” Particular Webster’s New World College Dictionary (5th
ed. 2016). See also Particular XI The Oxford English Dictionary (2d ed. 1989) (defining
“particular,” in part, as “pertaining or relating to a single definite thing or person, or set of
14
things or persons, as distinguished from others; of or belonging to some one thing (etc.)
and not to any other, or to some and not to all”). Clearly then, West Virginia Code
section 18A-4-8g(d) requires seniority to be accumulated within the separate
classifications referred to in West Virginia Code section 18A-4-8e (eff. 2019). 15
Accordingly, we turn to West Virginia Code section 18A-4-8e to identify the particular
classifications within which seniority is to be accumulated.
West Virginia Code section 18A-4-8e is titled “Competency testing for
service personnel; and recertification testing for bus operators,” and it discusses
classification categories in the context of competency tests. Pursuant to West Virginia
Code section 18A-4-8e(a),
[t]he state board shall develop and make available
competency tests for all of the classification titles defined in
section eight [§ 18A-4-8] of this article and listed in
section eight-a [§ 18A-4-8a] of this article for service
personnel . . . . Each classification title defined and listed is
considered a separate classification category of employment
for service personnel and has a separate competency test,
except for those class titles having Roman numeral
designations, which are considered a single classification of
employment and have a single competency test.
15
Although the 2016 version of section 18A-4-8e was in effect when the
Grievants filed their grievances, the relevant portions of the 2019 statute are identical to
the 2016 version. Therefore, we will refer to the most recent version of section 18A-4-8e.
15
W. Va. Code § 18A-4-8e(a) (eff. 2019) (emphasis added). This paragraph then lists three
separate groups that are expressly designated to have the same respective class title, yet
none of these groups include Aides or ECCATs:
(1) The cafeteria manager class title is included in the
same classification category as cooks and has the same
competency test.
(2) The executive secretary class title is included in the
same classification category as secretaries and has the same
competency test.
(3) The classification titles of chief mechanic, mechanic
and assistant mechanic are included in one classification title
and have the same competency test.
Id. The Legislature has further clarified that “[t]he requirements of this section [§ 18A-4-
8e] do not alter the definitions of class titles as provided in section eight [§ 18A-4-8] of
this article or the procedure and requirements of section eight-b [§ 18A-4-8b] of this
article.” W. Va. Code § 18A-4-8e(i). 16
Consequently, under West Virginia Code section 18A-4-8e(a), the class titles
defined in West Virginia Code section 18A-4-8, which also are listed along with their
respective pay grades in West Virginia Code section 18A-4-8a(a)(2) (eff. 2019), 17 are
utilized, and “[e]ach classification title defined and listed is considered a separate
16
This provision also is included in the 2016 version of section 18A-4-8e(i).
17
See note 18 infra for an explanation of why we cite to the 2019 version of
this statute.
16
classification category of employment for service personnel,” except that “class titles
having Roman numeral designations . . . are considered a single classification of
employment.” W. Va. Code § 18A-4-8e(a).
West Virginia Code section 18A-4-8 provides that “[t]he purpose of this
section is to establish an employment term and class titles for service personnel.” W. Va.
Code § 18A-4-8(a) (eff. 2015). The various class titles relevant to this case are defined as
follows:
(i) The column heads of the state minimum pay scale
and class titles, set forth in section eight-a of this article
[§ 18A-4-8a], are defined as follows:
....
(3) “Class title” means the name of the position or job
held by a service person;
....
(8) “Aide I” means a person selected and trained for a
teacher-aide classification such as monitor aide, clerical aide,
classroom aide or general aide;
(9) “Aide II” means a service person referred to in the
“Aide I” classification who has completed a training program
approved by the state board, or who holds a high school
diploma or has received a general educational development
certificate. Only a person classified in an Aide II class title
may be employed as an aide in any special education program;
(10) “Aide III” means a service person referred to in the
“Aide I” classification who holds a high school diploma or a
general educational development certificate; and
17
(A) Has completed six semester hours of college credit
at an institution of higher education; or
(B) Is employed as an aide in a special education
program and has one year’s [sic] experience as an aide in
special education;
(11) “Aide IV” means a service person referred to in the
“Aide I” classification who holds a high school diploma or a
general educational development certificate; and
(A) Has completed eighteen hours of State Board-
approved college credit at a regionally accredited institution of
higher education, or
(B) Has completed fifteen hours of State Board-
approved college credit at a regionally accredited institution of
higher education; and has successfully completed an in-service
training program determined by the State Board to be the
equivalent of three hours of college credit;
....
(36) “Early Childhood Classroom Assistant Teacher I”
means a person who does not possess minimum requirements
for the permanent authorization requirements, but is enrolled
in and pursuing requirements;
(37) “Early Childhood Classroom Assistant Teacher II”
means a person who has completed the minimum requirements
for a state-awarded certificate for early childhood classroom
assistant teachers as determined by the state Board;
(38) “Early Childhood Classroom Assistant Teacher
III” means a person who has completed permanent
authorization requirements, as well as additional requirements
comparable to current paraprofessional certificate[.]
18
W. Va. Code § 18A-4-8(i). West Virginia Code section 18A-4-8a(a)(2) 18 lists these class
titles in the same manner.
According to the foregoing lists then, since the Aide classification and the
ECCAT classification each has roman numeral designations within its class title, the four
Aide classifications are considered a single classification, and, similarly, the three ECCAT
classifications are a single classification; however, Aides and ECCATs clearly are treated
as separate, distinct classifications. Accordingly, we now hold that, under West Virginia
Code sections 18A-4-8g(d) (eff. 2007), 18A-4-8(i) (eff. 2015), and 18A-4-8a(2) (eff.
2019), the school service personnel classifications of Aide and Early Childhood Classroom
Assistant Teacher (ECCAT) accrue seniority independently from each other for purposes
of a reduction in force. As such, only the seniority for the specific classification subject to
a reduction in force shall be considered in ranking the seniority of the affected personnel.
Applying this holding, we find that the circuit court’s decision is contrary to the law insofar
18
The Legislature has expressly made West Virginia Code section 18A-4-8a
(eff. 2019) applicable to the 2018-2019 and 2019-2020 school years. We note, however,
that earlier versions of this statute that include both Aide and ECCAT classifications also
list them separately. The earlier versions do, however, differ in how they refer to the three
ECCAT classifications. Versions of section 18A-4-8a enacted in 2013 and 2014 refer to
the ECCAT classifications as “Early Childhood Classroom Assistant Teacher - Temporary
Authorization,” “Early Childhood Classroom Assistant Teacher - Permanent
Authorization,” and “Early Childhood Classroom Assistant Teacher - Paraprofessional
Certificate,” while versions enacted in 2015 and 2018 refer to ECCAT I, ECCAT II, and
ECCAT III. Because the significance of this statute is the fact that it lists Aides and
ECCATs separately, and each version does so, we cite to the most recent version of this
statute.
19
as it failed to apply the plain provisions of West Virginia Code sections 18A-4-8g(d) in
determining how the Grievants’ seniority should be determined. See W. Va. Code § 6C-
2-5(b) (providing grounds upon which a grievance decision may be reversed).
B. West Virginia Code Section 18A-4-8b(d)(2)(C)
Turning to the Grievants’ argument, they contend that the circuit court
correctly determined that West Virginia Code section 18A-4-8b(d) requires that their Aide
seniority be used to calculate ECCAT seniority. We disagree. Section 18A-4-8b is titled
“Seniority rights for school service personnel,” and it addresses a variety of topics.
Although section 18A-4-8b(d)(2)(C) does, in fact, contain a provision stating ECCAT titles
are included in the same classification category as Aides, this provision does not apply in
the current context because section 18A-4-8b(d) explicitly addresses promotions, not
reductions in force, and it says nothing about calculating seniority:
(d) A promotion means any change in employment that
the service person considers to improve his or her working
circumstance within the classification category of
employment.
(1) A promotion includes a transfer to another
classification category or place of employment if the position
is not filled by an employee who holds a title within that
classification category of employment.
(2) Each class title listed in section eight [§ 18A-4-8] of
this article is considered a separate classification category of
employment for service personnel, except for those class titles
having Roman numeral designations, which are considered a
single classification of employment:
20
....
(C) Paraprofessional, autism mentor, early classroom
assistant teacher and braille or sign support specialist class
titles are included in the same classification category as aides;
W. Va. Code § 18A-4-8b(d). 19 Because section 18A-4-8b(d) mentions only promotions,
we may infer that the Legislature purposefully omitted reductions in force from this
paragraph. See Syl. pt. 3, Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984) (“In
the interpretation of statutory provisions the familiar maxim expressio unius est exclusio
alterius, the express mention of one thing implies the exclusion of another, applies.”).
Moreover, section 18A-4-8b(d)(2)(C) may not be read in isolation. It is
axiomatic that,
“[i]n the construction of a legislative enactment, the
intention of the legislature is to be determined, not from any
single part, provision, section, sentence, phrase or word, but
rather from a general consideration of the act or statute in its
entirety.” Syllabus Point 1, Parkins v. Londeree, 146 W. Va.
1051, 124 S.E.2d 471 (1962).
Syl. pt. 5, Miller v. Wood, 229 W. Va. 545, 729 S.E.2d 867 (2012). Looking at the entirety
of section 18A-4-8b, it becomes evident that the Legislature intended to treat promotions
differently from reductions in force. This is demonstrated by the fact that, while
19
We note that the Grievance Board, in its written decision of the Level
Three grievance, observed that, “West Virginia Code § 18A-4-8b(d)(2)(C) places
Paraprofessionals and Autism Mentors classifications in the Aide classification. The Board
has consistently set a separate seniority date for those classifications apart from the
seniority date for the Aide classifications.”
21
section 18A-4-8b(d) is limited in its scope to promotions, other subparagraphs of
section 18A-4-8b specifically address reductions in force and the determination of
seniority. Those provisions are found in sections 18A-4-8b(h), (i), & (j). Under
section 18A-4-8b(h):
(h) All decisions by county boards concerning reduction
in work force of service personnel shall be made on the basis
of seniority, as provided in this section.
Paragraph (h) incorporates the word “shall” in requiring that “[a]ll decisions by county
boards concerning reduction in work force of service personnel shall be made on the basis
of seniority, as provided in this section” (emphasis added); thus, this requirement is
mandatory. See Syl. pt. 1, Nelson, 171 W. Va. 445, 300 S.E.2d 86 (“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.”). The method of
determining seniority is then set out in paragraph (i) as follows:
(i) The seniority of a service person is determined on the
basis of the length of time the employee has been employed by
the county board within a particular job classification. For the
purpose of establishing seniority for a preferred recall list as
provided in this section, a service person who has been
employed in one or more classifications retains the seniority
accrued in each previous classification.
W. Va. Code § 18A-4-8b(i). This paragraph plainly requires that “[t]he seniority of a
service person is determined on the basis of the length of time the employee has been
employed by the county board within a particular job classification.” Id. (emphasis
added). Because this paragraph is plain, we are constrained to apply, rather than construe,
22
its terms. See Syl. pt. 2, Epperly, 135 W. Va. 877, 65 S.E.2d 488 (“A statutory provision
[that] 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.”). Moreover, as we
observed above in our discussion of the term “particular” in connection with our analysis
of West Virginia Code section 18A-4-8g(d), the common ordinary meaning of that term 20
is to belong to a single, definite part or group.21 It follows, therefore, that the seniority of
an ECCAT service person is determined based upon the length of time that person has been
employed by the county board in the single, definite class title of ECCAT. This conclusion
is further supported by section 18A-4-8b(j), which describes how an employee is to be
selected for release if a reduction in force becomes necessary. West Virginia Code
section 18A-4-8b(j) reiterates that the reduction in a particular job classification is to be
made by releasing the employee with the least amount of seniority “within that
classification”:
(j) If a county board is required to reduce the number of
service personnel within a particular job classification, the
following conditions apply:
20
See Syl. pt. 4, State v. Gen. Daniel Morgan Post No. 548, Veterans of
Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353(1959) (“Generally[,] the words of a statute
are to be given their ordinary and familiar significance and meaning, and regard is to be
had for their general and proper use.”).
21
See Particular Webster’s New World College Dictionary (5th ed. 2016)
(defining “particular” in relevant part as “of or belonging to a single, definite person, part,
group, or thing; not general; distinct” and “apart from any other; regarded separately;
specific.”); Particular XI The Oxford English Dictionary (2d ed. 1989) (defining
“particular,” in part, as “pertaining or relating to a single definite thing or person, or set of
things or persons, as distinguished from others; of or belonging to some one thing (etc.)
and not to any other, or to some and not to all”).
23
(1) The employee with the least amount of seniority
within that classification or grades of classification is properly
released and employed in a different grade of that classification
if there is a job vacancy;
(2) If there is no job vacancy for employment within that
classification or grades of classification, the service person is
employed in any other job classification which he or she
previously held with the county board if there is a vacancy and
retains any seniority accrued in the job classification or grade
of classification.
W. Va. Code § 8A-4-8b(j) (emphasis added). In this respect, section 18A-4-8b is in
harmony with the treatment given a reduction in force under section 18A-4-8g(d), which
we addressed above. 22 Therefore, we now hold that under West Virginia Code
sections 18A-4-8b(h), (i), & (j) (eff. 2016), the school service personnel classifications of
Aide and Early Childhood Classroom Assistant Teacher (ECCAT) accrue seniority
independently from each other for purposes of a reduction in force. As such, only the
seniority for the specific classification subject to a reduction in force shall be considered
in ranking the seniority of the affected personnel.
22
Furthermore, because West Virginia Code sections 18A-4-8b(h), (i), & (j)
expressly address a reduction in force and the determination of seniority, and they do not
combine ECCATs and Aides in the same class title, in the current context they are given
precedence over West Virginia Code section 18A-4-8b(d)(2)(C), which addresses neither
a reduction in force nor the determination of seniority in placing Aides and ECCATs in the
same class title. “The 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. 1, UMWA by Trumka v. Kingdon, 174 W. Va. 330, 325
S.E.2d 120 (1984).
24
Based upon the foregoing analysis, we find the circuit court’s decision is
contrary to the law insofar as it improperly relied upon West Virginia Code section 18A-
4-8b(d)(2)(C). See W. Va. Code § 6C-2-5(b) (providing grounds upon which a grievance
decision may be reversed).
C. Multiclassification Status Under West Virginia Code Section 18A-4-8(u)
Although not acknowledged by the parties to this appeal, there is one
additional provision related to calculating the seniority of a service person holding both
Aide and ECCAT class titles, which applies to calculating the seniority for purposes of a
reduction in force of school service personnel who hold a multiclassification status:
(l) A school service person who holds a
multiclassification title accrues seniority in each classification
category of employment that the employee holds and is
considered an employee of each classification category
contained within his or her multiclassification title. A
multiclassified service person is subject to reduction in force
in any category of employment contained within his or her
multiclassification title, based upon the seniority accumulated
within that category of employment. If a multiclassified
service person is subject to a reduction in force in one
classification category, the service person retains employment
in any of the other classification categories that he or she holds
within his or her multiclassification title. In that case, the
county board shall delete the appropriate classification title or
classification category from the contract of the multiclassified
employee.
W. Va. Code § 18A-4-8g(l) (eff. 2007) (emphasis added). This language plainly directs
that seniority for only the particular classification being reduced shall be considered in
connection with a reduction in force involving a multiclassified service person. See Syl.
25
pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (“A statutory provision [that] 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.”). Furthermore, this Court has previously
considered West Virginia Code section 18A-4-8g(l), though mis-citing it as section 18A-
4-8g(i), and similarly applied the plain language of that section:
Pursuant to W. Va. Code § 18A-4-8g[(l) (eff. 2007)],
multiclassified school service personnel do not belong to a
separate or unique classification category, but rather are
employees of each classification category contained within
their respective multi-classification titles. Under the statute, a
multiclassified employee accrues seniority in each of the
several classification categories composing his or her
multiclassification title, and, correspondingly, is subject to a
reduction in force in these individual job categories on the
basis of the respective seniority accumulated in each. In all
instances where an employee has seniority in a particular job
category—whether that employee is multiclassified or holds
only a single job classification—such employee will be entitled
to preference during a reduction in force in that category. In
the event a multiclassified employee is subject to a reduction
in force in one or more, but less than all, of the categories
composing his or her multiclassification title, such employee
remains in the employ of the county board of education with
those categories that are subject to the reduction in force being
deleted from the [contract of the multiclassified employee].
Syl. pt. 5, Taylor-Hurley v. Mingo Cty. Bd. of Educ., 209 W. Va. 780, 551 S.E.2d 702(2001) (emphasis added). 23
The last sentence of Syllabus point 5 of Taylor-Hurley v. Mingo County
23
Board of Education, 209 W. Va. 780, 551 S.E.2d 702 (2001), actually states that,
[i]n the event a multiclassified employee is subject to a
reduction in force in one or more, but less than all, of the
categories composing his or her multiclassification title, such
26
Having determined that the seniority of a multiclassified school service
person subject to a reduction in force in a particular class title is ranked only on the basis
of the seniority accumulated in the class title to be reduced, the next question we must
answer for purposes of the instant appeal is whether a school service person who holds
both an Aide class title and an ECCAT class title holds a multiclassification title.
This question is answered by West Virginia Code section 18A-4-8(u), which
states that “[a] person who has held or holds an aide title and becomes employed as an
Early Childhood Classroom Assistant Teacher [ECCAT] shall hold a multiclassification
status that includes aide and/or paraprofessional titles in accordance with section eight-b
employee remains in the employ of the county board of
education with those categories that are subject to the reduction
in force being deleted from the employee’s multiclassification
title.
(Emphasis added). This reference to deleting classification categories from an employee’s
multiclassification title is incorrect. West Virginia Code Section 18A-4-8g(l), upon which
Syllabus point 5 of Taylor-Hurley is based, actually instructs that the classification title or
category be deleted from a multiclassified employee’s contract:
If a multiclassified service person is subject to a reduction in
force in one classification category, the service person retains
employment in any of the other classification categories that he
or she holds within his or her multiclassification title. In that
case, the county board shall delete the appropriate
classification title or classification category from the contract
of the multiclassified employee.
W. Va. Code § 18A-4-8g(l) (eff. 2007) (emphasis added). Accordingly, in quoting
Syllabus point 5 of Taylor-Hurley, we have corrected this error.
27
of this article [§ 18A-4-8b].” (Emphasis added). The use of the word “shall” in this
provision plainly demonstrates that its application is mandatory. See Syl. pt. 1, Nelson,
171 W. Va. 445, 300 S.E.2d 86 (“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.”). The language stating that the multiclassification
status includes “aide and/or paraprofessional titles” simply acknowledges that such an
employee may also hold a paraprofessional title. 24 Thus, the plain language of this statute
24
The Paraprofessional class title is defined as follows:
(71) “Paraprofessional” means a person certified
pursuant to section two-a [§ 18A-3-2a], article three of this
chapter to perform duties in a support capacity including, but
not limited to, facilitating in the instruction and direct or
indirect supervision of students under the direction of a
principal, a teacher or another designated professional
educator.
W. Va. Code § 18A-4-8(i)(71). According to West Virginia Code section 18A-3-2a(d)
(eff. 2017),
(d) Paraprofessional certificate. – A paraprofessional
certificate may be issued to a person who meets the following
conditions:
(1) Has completed thirty-six semester hours of post-
secondary education or its equivalent in subjects directly
related to performance of the job, all approved by the state
board; and
(2) Demonstrates the proficiencies to perform duties as
required of a paraprofessional as defined in section eight [§
18A-4-8], article four of this chapter.
28
directs that a person who has held or holds an Aide title and becomes employed as an
ECCAT shall hold a multiclassification status. Because such employees are mandatorily
deemed multiclassification status employees, the method of calculating their seniority rank
for purposes of a reduction in force is governed by West Virginia Code section 18A-4-
8g(l) and Syllabus point 5 of Taylor-Hurley. Accordingly, we now hold that, a school
service employee who has held or holds an Aide title and becomes employed as an Early
Childhood Classroom Assistant Teacher (ECCAT) shall hold a multiclassification status.
As a multiclassification status employee, the method of calculating such an employee’s
seniority rank for purposes of a reduction in force is governed by West Virginia Code
section 18A-4-8g(l) (eff. 2007) and Syllabus point 3 of this opinion, which quotes, with
corrections, Syllabus point 5 of Taylor-Hurley v. Mingo County Board of Education, 209
W. Va. 780, 551 S.E.2d 702 (2001). Under these authorities, seniority for the Aide and
Early Childhood Classroom Assistant Teacher (ECCAT) classification titles accrue
independently from each other.
West Virginia Code section 18A-4-8(u) additionally provides that the
multiclassification status be held “in accordance with section eight-b [§ 18A-4-8b] of this
article.” To the extent that section 18A-4-8b addresses a variety of topics, we find this
reference somewhat ambiguous and, therefore, we will endeavor to construe it and give it
effect. See Syl. pt. 4, Young v. Apogee Coal Co., LLC, 232 W. Va. 554, 753 S.E.2d 52(2013) (“A cardinal rule of statutory construction is that significance and effect must, if
29
possible, be given to every section, clause, word or part of the statute.” (citations omitted));
Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (“A statute that is
ambiguous must be construed before it can be applied.”).
Section 18A-4-8b addresses seniority rights for school service personnel and
has various subsections addressing topics such as qualifications, 25 promotions, 26 extra duty
assignments, 27 and reductions in force 28 to name a few. In referring to section 18A-4-8b,
section 18A-4-8(u) fails to identify any specific subsection; therefore, the plain meaning
of the reference must be to the entirety of section 18A-4-8b. To give meaning to this
general reference then, the proper application of section 18A-4-8b to the multiclassified
service personnel established in section 18A-4-8(u) necessarily depends upon the
particular topic being addressed. In the context of the instant matter, a reduction in force,
the proper reference would be to sections 18A-4-8b(h), (i), and (j), which, as we hold
above, direct that the classifications of Aide and ECCAT accrue seniority independently
from each other for purposes of a reduction in force. This alternate method of determining
seniority for a multiclassification employee is in harmony with West Virginia Code
25
See W. Va. Code § 18A-4-8b(b).
26
See W. Va. Code § 18A-4-8b(d).
27
See W. Va. Code § 18A-4-8b(f).
28
See W. Va. Code §§ 18A-4-8b(h) & (j).
30
section 18A-4-8g(l) and Syllabus point 5 of Taylor-Hurley, under which “a multiclassified
employee accrues seniority in each of the several classification categories composing his
or her multiclassification title, and, correspondingly, is subject to a reduction in force in
these individual job categories on the basis of the respective seniority accumulated in
each[,]” 209 W. Va. 780, 551 S.E.2d 702, as well as our new syllabus point recognizing
the same.
IV.
CONCLUSION
This opinion demonstrates that, no matter which statutory path is analyzed,
the result is the same: the Legislature intended that seniority for Aide and ECCAT class
titles accrue independently from each other for purposes of a reduction in force, regardless
of which level of ECCAT classification is held, and regardless of whether an ECCAT
employee qualifies for a multiclassification status. Thus, because all of the Grievants have
identical ECCAT seniority, the Webster BOE properly conducted a random drawing in
accordance with West Virginia Code section 18A-4-8g(i) to determine their respective rank
for an anticipated reduction in force. For this reason, the Circuit Court of Kanawha
County’s order of October 10, 2019, finding that Aide seniority is used to determine the
ranks of service personnel subject to a reduction of force in the ECCAT class title, is
31
contrary to the law and is reversed. This case is remanded for entry of an order consistent
with this opinion.
Reversed and remanded.
32