Bd. of Educ. of Cty. of Wyo. v. Dawson

895 S.E.2d 66

The BOARD OF EDUCATION OF the COUNTY OF WYOMING, Petitioner Below, Petitioner,

v.Mary DAWSON, Respondent Below, Respondent.

No. 22-0234

Supreme Court of Appeals of West Virginia.

Submitted: September 27, 2023

Filed: November 8, 2023

Syllabus by the Court

1. "The Board of Education of a school-district is a corporation created by statute with functions of a public nature expressly given and no other; and it can exercise no power not expressly conferred or fairly arising from necessary implication, and in no other mode than that prescribed or authorized by the statute." Syllabus Point 2, Napier v. Lincoln County Board, of Education, 209 W. Va. 719, 551 S.E.2d 362 (2001).

2. "A state or one of its political subdivisions is not bound by the legally unauthorized acts of its officers and all persons must take note of the legal limitations upon their power and authority." Syllabus Point 3, Freeman v. Poling, 175 W. Va. 814, 338 S.E.2d 415 (1985).

Appeal from the Circuit Court of Kanawha County, The Honorable Carrie L. Webster, Judge, Civil Action Number: 18-AA-246

Joshua A. Cottle, Esquire, Francesca C. Rollo, Esquire, Leigh Anne Wilson, Esquire, Bowles Rice LLP, Charleston, West Virginia, Counsel for Petitioner

Rebecca A. Roush, Esquire WV School Service Personnel Association, Charleston, West Virginia, Counsel for Respondent

Armstead, Justice:

The Board of Education of the County of Wyoming ("Petitioner") appeals the order of the Circuit Court of Kanawha County affirming The West Virginia Public Employees Grievance Board’s ("grievance board") decision granting Mary Dawson’s ("Respondent") grievance, reinstating her to a modified bus run, an extracurricular bus run, and awarding her back pay. Though Petitioner raises three assignments of error, those three issues can be condensed into two: First, that the circuit court erred by holding that Petitioner failed to prove it committed a legal mistake in the original modification of Respondent’s regular bus run. Second, Petitioner asserts that the circuit court erred in holding that Petitioner was bound by an ultra vires act and legal mistake made by one of its employees and that Petitioner was not permitted to correct it.

Having considered the record on appeal, the briefs ¹ and arguments of the parties, and the applicable legal authority, we find that the circuit court erred in affirming the grievance board and we reverse both the circuit court and the grievance board and remand for entry of an order denying the grievance.

I. FACTUAL AND PROCEDURAL BACKGROUND

Respondent has been employed as a bus driver for Petitioner since 1980.² At that time, when she bid on the bus driver position, Respondent was hired to transport both elementary and high school students on the same bus run at the same time ("regular run"). In 1983, Respondent entered into a continuing contract with Petitioner for her regular run.³ In 1985, Respondent bid on a vocational bus run ("vocational run") that she began, effective October 15, 1985.⁴ At the time Respondent began the vocational run, it did not conflict with her regular run.

In 1987 or 1988, school start times changed, and high school students were no longer transported at the same time as elementary school students on Respondent’s regular run. As a result of the start time change, Respondent’s regular run required her to pick up high school students and drop them off at their school, then pick up elementary students and drop them off at their school. This caused an overlap between Respondent’s regular run and the vocational run, making it impossible for her to do both. Because of this overlap, an unknown employ- ee of the Petitioner’s administrative office modified Respondent’s regular run, removed the morning elementary portion, and allowed her to continue to transport students on the vocational run. Another driver was assigned to transport the elementary students on their morning run. This modification of Respondent’s regular run was made without approval of Petitioner, as no Board minutes reflect ratification of this personnel action and the modified regular run was never placed out to bid.

For the next thirty years, Respondent continued to make the modified regular run and the vocational run. In March 2017, Petitioner informed Respondent that the vocational run was being eliminated "due to changes in enrollment" and Petitioner eliminated all existing vocational runs, rebidding them with new terms, for the 2017-2018 school year. As the bidding process unfolded, another unnamed employee asked for an arrangement like that of Respondent, pointing out that a portion of Respondent’s route had been driven by another driver for years, allowing Respondent to drive the modified regular run and the vocational run.

This prompted an investigation by Jeffrey Hylton, Petitioner’s Director of Safety and Transportation. He researched Petitioner’s minutes back to 1985 and found Board approval for Respondent to drive the vocational run, effective October 15, 1985; however, he found no record of Petitioner approving the modified run or posting a new position for the modified run. In sum, there was no evidence offered showing Petitioner’s approval of the modifications made to Respondent’s regular run to allow her to drive the vocational run. When the 2017-2018 school year started, the investigation had not been completed and the vocational run had not been filled. Thus, Respondent was assigned the vocational run to begin the school year. She drove the vocational run until September 8, 2017, when Petitioner concluded that the modification of Respondent’s regular run was a mistake which was not authorized by the Board and her employment was changed back to the arrangement originally contracted for, namely, transporting both elementary and high school students to and from their respective schools. Though Respondent bid on the vocational run, it was awarded to a less senior bus operator because Respondent’s regular run conflicted with the vocational run.

Respondent then filed a grievance, pursuant to the provisions of West Virginia Code § 6C-2-8 (2008).⁵ During that proceeding, the burden of proof was on Respondent.⁶ At level one, the grievance was denied and the level two mediation was unsuccessful.⁷ The grievance then proceeded to a full level three hearing on May 14, 2018.⁸ At that hearing, Respondent argued that Petitioner violated numerous statutes in making the bus route change in 2017 and in awarding the vocational run to a less senior employee. Petitioner countered that the administrative assignment of the elementary portion of Respondent’s regular run to another driver was an unauthorized mistake that had to be corrected when the mistake was discovered. In sum, Respondent’s entire case hinges on whether or not Respondent’s regular run was legally modified in 1987 or 1988. The grievance board granted the grievance, finding that Petitioner’s action in restoring Respondent’s regular bus run to its original parameters was unreasonable, arbitrary, and capricious. Additionally, the grievance board found:

The decision to assign another bus operator to drive only the morning elementary portion of [Respondent’s] original bus run was made in or about 1987 or 1988. There is, apparently, no written record of the board approving this decision or the decision not to post that one fraction of [Respondent’s] morning bus run as a separate position. This does not necessarily mean that there was no approval. Given that all of this was done about thirty years ago, and the person or persons who made the decision are not around, there is simply no way to tell what they did or did not do, or how they came to their decision. For all we know, the superintendent got approval from the board and it was not put in writing or included in any meeting minutes. In the end, [Respondent] did as she was told by the administration, as did the other bus operator(s) who drove the elementary portion of [Respondent’s] morning run, and made her regular run and the vocational run as directed for about thirty years, throughout numerous administrations and board configurations. She was not hiding what she was doing. She turned in her time sheets, was assigned the same runs every year, and obviously did a good job. The absence of written documentation alone does not make what occurred thirty years ago a mistake.

….

Again, the general notion that [Petitioner] should be encouraged to correct mistakes does not absolve [Petitioner from] liability for the violation of statute, [Respondent] proved by a preponderance of the evidence her claims that [Petitioner] violated West Virginia Code §§ 18A-4-8a(j), 18A-4-8(m); and 18A-4-16(6). Accordingly, the grievance is granted.

The circuit court affirmed the grievance board. In its findings, the circuit court stated:

The Decision of the [grievance board] was properly made upon the evidence presented. Petitioner simply failed to meet its burden of proof to establish the affirmative defense of "mistake." Petitioner’s appeal rests entirely on its contention that the change made to [Respondent’s] regular bus run was significant enough to require Petitioner’s approval. However, Petitioner failed to demonstrate that the change was, in fact, significant. The uncontroverted facts of the case indicate the contrary (i.e., that the change was insignificant). Indeed, the change was so slight that it garnered no attention for three decades. Then, it only drew attention when another employee sought a "deal" like that given to [Respondent] long ago. No evidence of any "deal" was presented to the [grievance board]. [Petitioner] asserted, but failed to prove, that a change to [Respondent’s] regular bus run in 1987 or 1988 was a mistake.

The uncontroverted facts are that [Respondent] transported students for [Petitioner] as part of both her regular and vocational bus runs for more than thirty-one (31) years and that she was the most senior bus operator in the county. In

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