Monongalia Cnty. Bd. of Educ. v. Am. Fed'n of Teachers—W. Va.

238 W.Va. 146

792 S.E.2d 645

Monongalia County Board of Education and Frank D. Devono, Superintendent, Respondents Below, Petitioners

v.American Federation of Teachers—West Virginia, AFL–CIO; Judy Hale, Its President; Sam Brunett, Jeanie Devincent, Shelly Garlitz, and Mike Rogers, As Representatives of Similarly Situated Individuals, Petitioners Below, Respondents

No. 15–0662

Supreme Court of Appeals of West Virginia.

Submitted: September 21, 2016

Filed: November 2, 2016

Howard E. Seufer, Jr., Bowles Rice LLP, Charleston, West Virginia, Kimberly S. Croyle, Ashley Hardesty Odell, Bowles Rice LLP, Morgantown, West Virginia, Attorneys for the Petitioner.

Patrick Morrisey, Attorney General, Kelli D. Talbott, Senior Deputy Attorney General, Charleston, West Virginia, Attorneys for Amicus Curiae, The West Virginia Board of Education.

Denise M. Spatafore, Jason S. Long, Dinsmore & Shohl LLP, Morgantown, West Virginia, Attorneys for Amicus Curiae, The West Virginia Regional Education Service Agencies.

Laura Lilly Sutton, Martinsburg, West Virginia, Attorney for Amicus Curiae, West Virginia Association of School Administrators.

Kathy M. Finsley, Steptoe & Johnson PLLC, Wheeling, West Virginia, Amy M. Smith, Steptoe & Johnson PLLC, Bridgeport, West Virginia Attorneys for Amicus Curiae, West Virginia School Board Association.

Mark W. Carbone, Jeffrey G. Blaydes, Carbone & Blaydes, P.L.L.C., Charleston, West Virginia, Robert M. Bastress, Jr., Morgantown, West Virginia, Attorneys for the Respondent.

Andrew J. Katz, Charleston, West Virginia, Attorney for Amicus Curiae, West Virginia Education Association.

John Everett Roush, Charleston, West Virginia, Attorney for Amicus Curiae, The West Virginia School Service, Personnel Association.

Thomas P. Maroney, Maroney Williams Weaver & Pancake PLLC, Charleston, West Virginia, Attorney for Amicus Curiae, The West Virginia AFL–CIO.

Davis, Justice:

In this case, the Monongalia County Board of Education challenges a ruling by the Circuit Court of Monongalia County that found a county board of education could not contract with a Regional Education Service Agency ("RESA") to provide educational interventionists to county elementary and middle school students when those interventionists are hired by the West Virginia Board of Education ("State Board") operating through a RESA. The circuit court rested its conclusion on its determination that an interventionist met the statutory definition of a teacher and, therefore, must be directly hired by a county board of education. After reviewing the parties' briefs¹ and hearing their oral arguments, and having also considered the relevant law, we find the legislative scheme for the RESA program evidences a legislative intent that county boards be authorized to contract with RESAs to provide interventionist services to county students; therefore, we reverse the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

The dispute in this case arises from the use of educational interventionists to assist school children in Monongalia County who need educational support beyond that provided by the regular classroom teacher, i.e. , tutoring, in the subjects of reading and math. The Monongalia County Board of Education ("MCBOE") asserts that by utilizing interventionists it is able to provide supportive program-based instruction to over three hundred struggling elementary and middle school students each year. According to the circuit court,

19. "Interventionists" provide personalized training to students who are struggling in reading and math. They are used to supplement the normal lesson plan of the child's regular teacher. The children remain in the class for a portion of the lesson and then are either pulled from the class or segregated within the classroom to receive supplemental instruction from the "Interventionist."

20. .... Most [interventionists] are assigned to one school and work as little as two and a half hours, or as much as six hours a day. ...

21. "Interventionists" are paid twenty-five dollars ($25.00) per hour, regardless of their level of training or experience. They do not receive benefits such as health insurance, retirement, paid lunch breaks, or planning periods. They are at-will employees and have no right or expectation of being rehired from year to year.

22. The method used to fill "Interventionist" positions begins when the job is posted on the RESA VII website. The main requirement for this position is that the individual be a certified teacher.

23. At times, RESA VII employees interview the applicant, and other times, both MCBOE and RESA VII employees conduct joint interviews. The hiring decision is ultimately made by the RESA VII Director.

The MCBOE explains that the support provided to a student by an interventionist is designed by the student's teacher, school psychologist, and academic coach, among others, to intervene in a student's education before the student has failed a subject. Accordingly, interventionists do not engage in planning, grading, assessment, parent communication, or other responsibilities carried out by classroom teachers. Interventionists are, however, required to be certified teachers.

The interventionists utilized by MCBOE are obtained through a contract it has with its RESA,² which is RESA VII. The interventionists hired by RESA VII³ are employees of the State Board. The MCBOE contracts with RESA VII to provide the services of interventionists in schools eligible for Title I services.⁴ In schools not eligible for Title I funding, the services of interventionists also are obtained through a contract with RESA VII, but the interventionists' services are paid for through the MCBOE's General Fund.⁵

Relevant to the instant dispute, during a board meeting on September 27, 2011, MCBOE approved the expenditure of Title I funds to contract with RESA VII for the services of four interventionists, each to be assigned to a specific Title I qualifying school. In addition, MCBOE approved expenditures from its General Fund to contract with RESA VII for additional interventionists to serve generally at elementary and middle schools in Monongalia County. According to MCBOE, approximately thirty interventionists provided services to Monongalia County students during the 2011–2012 school year.⁶

In or around December 2011, the American Federation of Teachers—West Virginia, AFL–CIO ("AFT"), respondents herein, filed in the Circuit Court of Monongalia County a petition for writ of mandamus, naming MCBOE as the respondent, in which they sought declaratory and injunctive relief. AFT essentially sought a declaration that interventionists are classroom teachers that must be hired by MCBOE, and an injunction to prevent MCBOE from obtaining interventionists through a contract with RESA VII. After a period of discovery, the parties presented cross motions for summary judgment. On January 14, 2014, the circuit court denied the motions. The circuit court then allowed the parties additional time to address questions of fact that had been identified in the court's prior order. These questions pertained to the role and responsibilities of interventionists. Thereafter, following additional discovery, the parties again filed cross motions for summary judgment. By order entered June 9, 2015, the circuit court granted AFT's motion for summary judgment and denied MCBOE's motion. In doing so, the circuit court reluctantly concluded that an interventionist met the statutory definition of "classroom teacher"; therefore, the position had to be filled through direct employment by MCBOE in accordance with the statutory requirements pertaining to hiring and employment of classroom teachers. This appeal followed.

II. STANDARD OF REVIEW

Although the circuit court did not render its final order in the context of the petition for writ of mandamus that was sought by AFT, it implicitly granted the requested writ by granting summary judgment in favor of AFT. Likewise, the circuit court connotatively declared that MCBOE is prohibited from contracting with RESA VII to obtain the services of interventionists and enjoined it from continuing the practice. Thus, our standard for reviewing the lower court's rulings in this appeal is multifaceted.

It has been made clear that, "[t]o invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy." Syl. pt. 2, Myers v. Barte , 167 W.Va. 194, 279 S.E.2d 406 (1981). This is so because

" ‘[m]andamus lies to require the discharge by a public officer of a nondiscretionary duty.’ Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna , 151 W.Va. 479[, 153 S.E.2d 284 (1967) ]." Syllabus point 1, State ex rel. West Virginia Housing Development Fund v. Copenhaver , 153 W.Va. 636, 171 S.E.2d 545 (1969).

Syl. pt. 1, State ex rel. Williams v. Department of Military Affairs & Pub. Safety, Div. of Corr. , 212 W.Va. 407, 573 S.E.2d 1 (2002). Our review of the circuit court's grant of mandamus relief is de novo : "A de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus." Syl. pt. 1, Harrison Cty. Comm'n v. Harrison Cty. Assessor , 222 W.Va. 25, 658 S.E.2d 555 (2008).

Because this appeal comes to this Court from an order granting summary judgment, we also exercise plenary review of that ruling: "A circuit court's entry of summary judgment is reviewed de novo ." Syl. pt. 1, Painter v. Peavy , 192 W.Va. 189, 451 S.E.2d 755 (1994). In carrying out our plenary review, we bear in mind that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York , 148 W.Va. 160, 133 S.E.2d 770 (1963).

We additionally review de novo the circuit court...