Transcript Slide 1

Stops on Today’s Route
• Updates on appeals of
Grievance Board
decisions
• New decisions from
the Public Employees
Grievance Board
• Discipline
• Selection/Assignment
• Compensation
• New legislation on
transportation issues
Disclaimer
These materials are presented with the understanding that
the information provided is not legal advice. Due to the
rapidly changing nature of the law, information contained
in this presentation may become outdated. Anyone using
information contained in this presentation should always
research original sources of authority and update this
information to ensure accuracy when dealing with a
specific matter. No person should act or rely upon the
information contained in this presentation without seeking
the advice of an attorney.
Grievance Board Decision Appeals
• Alderman v. Pocahontas County BOE (First Amendment)
• Grievance Board denied grievance
• Circuit Court reversed Grievance Board
• Supreme Court of Appeals of West Virginia reversed Circuit Court
• Durst v. Mason County BOE (Physical Incompetency)
• Grievance Board denied grievance
• Circuit Court affirmed Grievance Board
• Appeal to Supreme Court of Appeals of West Virginia rejected
• Freeman v. Barbour County BOE (Comp for Physical)
• Grievance Board denied grievance
• Circuit Court affirmed Grievance Board
• Arbogast v. Randolph County BOE (Willful Neglect)
• Grievance Board denied Grievance
• Circuit Court affirmed Grievance Board
Grievance Board Decision Appeals
• A. Clark v. Putnam County BOE (Uniformity/workload)
• Grievance Board denied grievance
• Circuit Court affirmed
• Henson/Casto v. Putnam County BOE (Nonrelegation/uniformity)
• Grievance Board granted grievance
• Circuit Court affirmed Grievance Board
• Appeal to Supreme Court of Appeals of West Virginia rejected
• Hammer v. Greenbrier County BOE (Uniforms/Acomodation)
• Grievance Board granted grievance
• On appeal to Circuit Court, parties stipulated
• No decision from Circuit Court
Grievance Board Decision Appeals
• Wine v. Preston County BOE (Comp for non-working time)
• Grievance Board denied grievance
• Circuit Court affirmed Grievance Board
• George v. McDowell County BOE (Same as Wine)
• Grievance Board denied grievance
• Circuit Court affirmed Grievance Board
• Webb v. Fayette County BOE (No certification)
• Grievance Board denied grievance
• Circuit Court reversed Grievance Board
• Sargent, et. al. v. Putnam County BOE (Wait time)
• Grievance Board denied grievance
• Circuit Court affirmed Grievance Board
Grievance Board Decision Appeals
• Robinson, et. al. v. Barbour County BOE (Sub on-call time)
• Grievance Board denied Grievance
• Circuit Court affirmed Grievance Board
• Carpenter v. Kanawha County BOE (Termination)
• Grievance Board denied grievance
• Appeal to Circuit Court pending
• Buchanan v. Mongolia County BOE (Comp for training)
• Grievance Board denied grievance
• Appeal to Circuit Court pending
• Williamson v. Lincoln County BOE (Speeding)
• Grievance Board denied grievance
• Circuit Court appeal withdrawn, because Grievant resigned
• DISCIPLINE
The Basics
• West Virginia Code § 18A-2-8
• Discipline may be administered only for:
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Immorality
Incompetency
Cruelty
Insubordination
Intemperance
Willful Neglect of Duty
Unsatisfactory Performance
Felony
Discipline
• “It is not the label a county board of education
attaches to the conduct of the employee in the
termination notice that is determinative. The
critical inquiry is whether the board's evidence is
sufficient to substantiate that the employee
actually engaged in the conduct.”
• Authority to discipline must be exercised
reasonably, and not arbitrarily or capriciously
Arbitrary & Capricious
• “Generally, an agency's action is arbitrary and
capricious if it did not rely on factors that were
intended to be considered, entirely ignored
important aspects of the problem, explained its
decision in a manner contrary to the evidence
before it, or reached a decision that is so
implausible that it cannot be ascribed to a
difference of view.”
Immorality
• “Conduct which is ‘not in conformity with accepted
principles of right and wrong behavior; contrary to
the moral code of the community; wicked;
especially not in conformity with the acceptable
standards of proper sexual behavior.’ ‘Immorality
may include other forms of conduct not in
conformity with accepted principles of right and
wrong behavior, such as theft.’”
Smith v. Kanawha County BOE
• Grievant terminated from her position as a bus
operator because of admitted involvement in
falsifying overtime records to receive money for
time not worked
• Bus supervisor would falsify overtime records to
award extra pay to certain employees who would
then use all or part of that money to purchase
Mary Kay products from the supervisor and her
daughter
• Grievant seeks mitigation claiming discharge is
too severe of a punishment
Smith v. Kanawha County BOE
• The scheme carried on from January 2006 to
January 2007
• Grievant would “buy” Mary Kay products in the
amount of $100 to $400 nearly every month
• Grievance DENIED
• Docket No. 2008-0286-KanED
• July 18, 2008
• Appealed to Circuit Court
• See also Painter v. Kanawha County BOE
Incompetency
• Includes “lack of ability, legal qualification, or
fitness to discharge the required duty.”
• “A charge of incompetency or unsatisfactory
performance may include any aspect of the job
which may be reasonably expected to be
performed, such as appropriate interaction with
students, classroom discipline, and other assigned
duties.”
• Includes “the physical inability to perform one’s job
duties.”
Posey v. Lewis County BOE
• Grievant was terminated from employment as a
bus operator for inappropriate contact with a
female student who rode his bus
• The female claimed the Grievant had touched her
leg, but the Superintendent concluded it was not
sexual in nature and recommended suspension
• Grievant was first suspended by the BOE, then
the State Superintendent of Schools revoked
Grievant's bus operator certification for the 200607 school year. Grievant was then terminated by
the BOE since he was not certified
Posey v. Lewis County BOE
• Grievant claimed temporary incapacity is not a
reason for termination
• The Grievance Board found that temporary
incapacity can fall under incompetency, which can
include a legal inability to perform one’s job
• Grievance DENIED
• Docket No. 2008-0328-LewED
• July 25, 2008
• Appealed to Circuit Court
Cruelty
• “Cruelty is a deliberate act to inflict pain and/or
suffering. Behavior which is directed toward a
student, and which may include harassment,
belittling, threatening, and/or grabbing, slapping,
and restraining, without the need for self-defense.”
Wimmer v. Braxton County BOE
• Grievant is a full-time bus operator and was
suspended without pay for cruelty to a student
• Bus operators are taught not to touch a student
unless the student is endangering him/herself or
others
• A fourth grade student was instructed by Grievant
to look out the window due to past bad behavior
• The student refused and told Grievant he did not
have to look out the window
• Grievant placed his hand on the student’s head
and physically forced the student to look out the
window
Wimmer v. Braxton County BOE
• The BOE must provide “detailed findings of fact
and explicit creditability determinations” when
determinations hinge on witness credibility
• The Grievance Board applies the following factors
to assess a witness’s credibility:
• 1) demeanor; 2) opportunity or capacity to perceive and
communicate; 3) reputation for honesty; 4) attitude
toward the action; and 5) admission of untruthfulness
• The administrative law judge should also consider:
• 1) the presence or absence of bias, interest, or motive;
2) the consistency of prior statements; 3) the existence
or nonexistence of any fact testified to by the witness;
4) the plausibility of the witness’s information
Wimmer v. Braxton County BOE
• Grievant was suspended three weeks without pay
and the BOE rejected the Superintendent’s
recommendation for termination
• Grievance DENIED
• Docket No. 2008-1497-BraED
• August 14, 2008
• Appealed to Circuit Court, GB affirmed
Insubordination
• Insubordination "includes, and perhaps requires, a
wilful disobedience of, or refusal to obey, a
reasonable and valid rule, regulation, or order
issued . . . [by] an administrative superior.“
• "[F]or there to be 'insubordination,' the following
must be present: (a) an employee must refuse to
obey an order (or rule or regulation); (b) the
refusal must be wilful; and (c) the order (or rule or
regulation) must be reasonable and valid."
Geho v. Marshall County BOE
• Grievant was terminated from his job as a bus
operator for urinating from the bus stairwell to the
parking lot where he was parked waiting for
students to return from tennis practice
• Grievant claims he could not locate a restroom
despite having entered an adjacent building
through rear doors on several occasions
• Grievant also blamed the behavior on recent
“prostate problems that have caused urgent
episodes of urination”
Geho v. Marshall County BOE
• The Superintendent recommended to the BOE that
Grievant be terminated for insubordination in that
Grievant knew public urination while on duty as a
bus operator was unacceptable behavior
• As there was no documentation of medical
problems, the behavior was willful and therefore
insubordinate
• Grievance DENIED
• Docket No. 2008-1395-MarEd
• October 30, 2008
• Appealed to Circuit Court
Intemperance
• “Immoderate indulgence in a form of conduct. It is
usually associated with drinking or drug abuse,
but it does not require substance abuse.”
Belcher v. Logan County BOE
• Grievant was terminated from her position as a
bus operator after passing out at the wheel while
stopped in front of a school and then subsequently
testing positive for opiates
• Grievant had been taking Vicodin to ease the pain
from a recent foot injury
• The Superintendent informed Grievant he was
going to recommend her termination to the BOE
• Grievant requested to be heard at the meeting,
but the BOE declined to hear her
Belcher v. Logan County BOE
• Although a second drug test had yielded negative,
the BOE was never informed and Grievant was
terminated for intemperance
• Per BOE policy, bus operators are supposed to
report any prescription drug use to their supervisor
• Grievance DENIED as to reinstatement but
grievance GRANTED in awarding back pay as
she was denied due process
• Docket No. 06-23-156
• January 25, 2007
Willful Neglect of Duty
• “To prove willful neglect of duty, the employer
must establish that the employee's conduct
constituted a knowing and intentional act, rather
than a negligent act.”
• “Willful neglect of duty encompasses something
more serious than incompetence.”
Blackburn v. Brooke County BOE
• Grievant was suspended 60 days without pay and
placed on a 90-day improvement plan for willful
neglect of duty, cruelty, and possibly intemperance
• Grievant was employed by the BOE as a special
education aide on bus for special needs students
• Grievant’s suspension was due to the fact that:
• she was talking on her cell phone; she sprayed Lysol
while students were present; she allowed a student to
kneel in the seat due to a physical disability; she sat
two students in the same seat; she failed to secure a
wheelchair; and she raised her voice at a student,
commenting on his foul odor
Blackburn v. Brooke County BOE
• The Grievance Board found that all the infractions
were minor except for the later, and the BOE had
offered little testimony or evidence to support the
infractions
• Grievant’s phone call was due to a family emergency;
the windows were open when she sprayed Lysol into
the air and empty seats; she allowed the student to
kneel because he had a physical disability that
prevented him from being seated; she did not put a
student in danger by double-seating him with another
student; and she took action to secure the wheelchair
Blackburn v. Brooke County BOE
• Grievant’s only serious charge involved the
“inappropriate, unprofessional behavior” directed
towards a student on the bus
• The Superintendent had recommended a 30-day
suspension for the infraction; the BOE imposed
the 60-day suspension with no explanation as to
the reason for the deviation
• Grievance GRANTED in part as the suspension
was disproportionate to the infraction
Blackburn v. Brooke County BOE
• Grievant is to be suspended five days without pay
and placed on an Improvement Plan. Grievant is
to be paid the 55 days of back pay and to be
credited any benefits she lost during those 55
days
• Docket No. 2009-0618-BroED
• May 27, 2009
Unsatisfactory Performance
• Factors for determining
• Employee apprised of deficiencies?
• Evaluations indicated employee not meeting work
standards?
• Employee failed to meet requirements of
improvement plan?
• Multiple supervisors agreed performance
unsatisfactory?
• Improvement plans only required for correctable
conduct
Felony
• More than a charge required
• Must be a conviction or nolo contendere
• No need to establish a rational nexus between a
felony and an employee's duties in order to
discipline
• Need a rational nexus to discipline before final
disposition of criminal charge
• Misdemeanors = immorality?
Ratcliff v. Mineral County BOE
• Bus operator convicted of battery arising from
inappropriate touching of female student
• Battery was a misdemeanor
• Terminated
• Grievance Board granted grievance, finding BOE
could not terminate for conviction of misdemeanor
• Circuit Court reversed Grievance Board
• Supreme Court of Appeals of West Virginia
rejected grievant’s appeal
Burden of Proof in Disciplinary Actions
• BOE must prove charges
• Preponderance of the evidence
• Affirmative defenses
• Failure to provide due process - Prior to an
unpaid suspension, an employee is entitled to
notice of the charges, an explanation of the
evidence, and an opportunity to respond
• Mitigation
• Retaliation
Rational Nexus
• Boards may not discipline an employee for acts
performed at a time and place separate from his
employment unless a “rational nexus” between the
conduct performed outside the job and the duties the
employee is to perform is demonstrated
• “A rational nexus exists if the conduct directly affects
the performance of the occupational responsibilities of
the employee, or, if without contribution on the part of
the school officials, the conduct has become the
subject of such notoriety as to significantly and
reasonably impair the capability of the employee to
discharge the responsibilities of the position.”
Mitigation
• "Whether to mitigate the punishment imposed by
the employer depends on a finding that the
penalty was clearly excessive in light of the
employee's past work record and the clarity of
existing rules or prohibitions regarding the
situation in question and any mitigating
circumstances, all of which must be determined
on a case by case basis."
• Considerable deference to employer’s decision
Mitigation
• “When considering whether to mitigate the
punishment, factors to be considered include the
employee's work history and personnel evaluation;
whether the penalty is clearly disproportionate to
the offense proven; the penalties imposed by the
employer against other employees guilty of similar
offenses; and the clarity with which the employee
was advised of prohibitions against the conduct
involved.”
Other Discipline Cases
• Long v. Mason County BOE, 2008-1396-MasED
• Automated call systems
• Grievance granted, appealed & affirmed
• Darby v. Kanawha County BOE, 2009-0763KanED
• “Compromising situation”
• Grievance granted
• ASSINGMENT/SELECTION
Non-discipline cases
• Employer has broad discretion
• Burden of Proof
• Affirmative defenses
• Timeliness
• Standing
• Collateral estoppel/res judicata
Morris v. Raleigh County BOE
• Grievant was not the successful applicant for the
position of Assistant Supervisor of Transportation
even though he had 27 years of service
• Grievant claims this is a contrived position,
invented to favor a particular applicant, and does
not comport with positions listed in W. Va. Code §
18A-4-8
• Although Grievant was among top applicants for
the position, the successful applicant held more
overall seniority than Grievant
Morris v. Raleigh County BOE
• As this is not a discipline case, Grievant carried
the burden of proof
• The discretion county BOEs maintain over school
personnel extends to the employment of service
personnel
• The job title of Assistant Supervisor of
Transportation falls under the statutory position of
Supervisor of Transportation and is simply a more
descriptive title
Morris v. Raleigh County BOE
• County boards may expand upon the statutory
definitions of service personnel classifications, but
only in a manner where duties and responsibilities
are consistent regardless of the label on the
position
• Grievance DENIED as Grievant did not meet his
burden in proving the BOE violated a statute or
the selection process was tainted in any way
• Docket No. 2008-1011-RalED
• January 13, 2009
James v. Putnam County BOE
• Grievant, a regular half-day bus operator, was not
permitted to step up into a full-day position of an
absent employee whose absence was prolonged
• Grievant substituted the position for a short
period, but claims he is entitled to lost wages as
the BOE had notice of his step-up interest
• The statutory step-up procedure allowed bus
operators to choose whether or not they wished to
step up to other runs. Regular employees are
called first to step up; If none are interested, the
assignment is given to a substitute
James v. Putnam County BOE
• Several regular half-day bus operators, including
Grievant, were interested in stepping up to fill the
long term vacancy
• The BOE did not allow any regular bus operator to
step up and fill the full day bus run. The substitute
served as the driver during the entire period of the
extended absence.
• As this is not a discipline case, Grievant carried
the burden of proof
James v. Putnam County BOE
• Grievant met this burden and the Grievance Board
found that the BOE erred in not offering the
regularly employed bus operators the opportunity
to step up as required by statute
• Grievant did not meet his burden of proof that he
is entitled to compensation as there is no
indication he was next in line
• Grievance GRANTED in part and DENIED in part.
BOE ordered to follow the statutory provisions for
the step-up procedure
• Docket No. 2008-1028-PutED
• February 6, 2009
Vangilder v. Marion County BOE
• Grievant alleged he should have been selected for
an extracurricular bus assignment due to seniority
• Grievant’s request was granted at the level one
hearing, placing him in the position
• The successful applicant for the assignment
Grievant displaced intervened and appealed the
Grievance Board’s decision
• The BOE had posted two similar postings for midday vo-tech runs; the posting periods overlapped
Vangilder v. Marion County BOE
• Grievant, the most senior applicant for the second
posting, was only considered for the first posting;
Intervenor was placed in the second position as
Grievant’s application was not considered
• Intervenor had the burden of proof as this
grievance does not involve a disciplinary matter
• Grievant’s lack of specificity on his application was
due to the fact that the description on the first
posting was later changed to a similar description
as that of the second posting
Vangilder v. Marion County BOE
• Intervenor’s request for relief DENIED and the
relief granted to Grievant at level one AFFIRMED
• Docket No. 2008-0708-MrnED
• February 20, 2009
Rodriques v. Grant County BOE
• Grievant claims he was forced/coerced to sign
away his seniority rights, and thus is seeking to
retain his seniority date
• Grievant is a substitute bus operator for the BOE
and obtained full-time employment with another
employer; Grievant informed the Transportation
Director he would have to resign because he
could not regularly accept assignments
• Turning down a substitute assignment due to
other employment is a refusal, and a substitute
can be terminated for too many refusals
Rodriques v. Grant County BOE
• The Transportation Director tried to find a way to
keep Grievant on the substitute list, as the list was
short
• The Director allowed Grievant to remain on the list
provided Grievant relinquished his seniority
• Grievant has the burden of proof as this grievance
does not involve a disciplinary matter
• Grievant failed to demonstrate any coercion by the
Transportation Director or that he acted under
duress
Rodriques v. Grant County BOE
• “A party may choose to waive his legal rights, and
take such actions as necessary to effectuate that
decision.”
• Grievant voluntarily waived his seniority rights in
exchange for an exemption from the BOE’s policy
of refusal of substitute assignments
• Grievance DENIED
• Docket No 2008-0960-GraED
• March 10, 2009
Other Assignment/Selection Decisions
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Howell v. Mercer County BOE, 07-27-130
• Unclear posting
• Posting must draw largest pool of applicants
• Grievance granted
Barlow v. Mercer County BOE, 07-27-163
• Extra-duty run granted to less senior bus operator who had same conflict as
grievant
• Discrimination – motive of BOE irrelevant
• Grievance granted
Goodson, et. al. v. Fayette County BOE, 07-10-129
• Extra-duty job constructing bus shacks
• No posting necessary
• Speculative relief
• Grievance denied
Fuccy v. Hancock County BOE, 2008-0264-HanED
• No duty to offer competency testing if other applicants qualified
• Grievance denied
• COMPENSATION
Legg-Hendrickson v. Fayette County BOE
• Grievants are teachers and service personnel
seeking compensation for a day of work when
picket lines were present; Grievants did not cross
the picket line to attend work
• West Virginia State Department of Education
knew of the upcoming pickets and had issued a
memo stating the mere presence of a picket line is
not enough to excuse an employee from reporting
to work. Leave without cause days also could not
be used for the refusal to cross a picket line
Legg-Hendrickson v. Fayette County BOE
• Grievants have the burden of proof as this
grievance does not involve a disciplinary matter
• Grievants could have been excused from work if
they were victims of “actual physical threats,
intimidation and violence,” but Greivants testimony
did not reveal either verbal or physical threats
from picketers
• Grievance DENIED
• Docket No. 08-10-009
• February 2, 2009
Other Compensation Decisions
• Toney v. Lincoln County BOE, 200-0533-LinED
• Non-relegation clause requires relegation to
reduced compensation after long period of time
• BOEs should correct errors
Current Changes in the Law
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Senate Bill 1006 (in effect July 1, 2009)
House Bill 2952 (in effect July 7, 2009)
House Bill 3146 (in effect July 10, 2009)
House Bill 2566 (in effect July 10, 2009)
SB 1006: Hiring, Terminating, Transferring,
and Reassigning School Personnel
• In effect July 1, 2009
• For any employee to exercise the right to
retirement at the year’s end, regardless of the
BOE’s wishes, the new law requires delivery of
written resignation on or before February 1
• The BOE can vote to terminate a continuing
contract employee at year’s end for lack of need;
the BOE must vote on or before February 1
• Prior to the vote, employee must be given written,
advanced notice and the opportunity for a
hearing
SB 1006: Hiring, Terminating, Transferring,
and Reassigning School Personnel
• Superintendent must give notice on or before
February 1 for employees who are being
considered for transfer for the next year
• The BOE must receive and approve the
Superintendent’s list of employees to be
considered for transfer for the ensuing year on or
before March 15
• BOE must accept Superintendent’s list of
probationary employees to be awarded another
contract on or before March 15
HB 2952: Terroristic Threatening
• In effect July 7, 2009
• Any person who:
• Knowingly and willfully threatens to commit a
terrorist act,
• With or without the intent to commit the act,
• Is guilty of a felony punishable by fine and/or
imprisonment
HB 2952: Terroristic Threatening
• A terrorist act is an act that is:
• Likely to result in serious bodily injury or damage
to property or the environment; and
• Intended to:
• Intimidate or coerce the civilian population;
• Influence the policy of a branch or level of government
by intimidation or coercion;
• Affect the conduct of a branch or level of government
by intimidation or coercion; or
• Retaliate against a branch or level of government for a
policy or conduct of a government
HB 3146: Seniority Rights for Service
Personnel
• In effect July 10, 2009
• Consider Qualified Applicants in this order:
• Regular personnel holding a title in the classification
• Personnel whose employment has been RIF-discontinued
who have held a title in the classification
• Regular personnel who do not hold a title in the
classification
• Personnel whose employment has been RIF-discontinued
who have not held a title in the classification
• Substitutes who hold a title in the classification
• Substitutes who do not hold a title in the classification
• New service personnel
HB 2966: Malicious Assault and Battery
• In effect July 10, 2009
• Makes it:
• A felony to maliciously or unlawfully assault
• A misdemeanor or felony (second offense) to
batter, and
• A misdemeanor to assault,
• Certain persons known by the perpetrator to be
acting in an official capacity
HB 2966: Malicious Assault and Battery
•
Current Law Protects:
• police officers
• probation officers
• conservation officers
• humane officers
• EMS personnel
• health care workers
• protective service workers
• firefighters
• State Fire Marshall or
employees
• Division of Forestry employees
• county correctional employees
• urban mass transportation
system employees
• court security personnel, or
• PSC motor carrier inspectors
or enforcement officers
•
New Law Protects:
• any officer or employee of the
state or a political
subdivision
• a person under contract with
a state agency or political
subdivision
• health care workers
employed by or under
contract to a hospital, county
or district health department,
long-term care facility,
physician’s office, clinic, or
outpatient treatment facility
Our Group Members
• Greg Bailey
Morgantown, (304) 285-2521
• Rick Boothby
Parkersburg, (304) 420-5535
• Kim Croyle
Morgantown, (304) 285-2504
• Ashley Hardesty
Morgantown, (304) 285-2522
• Howard Seufer
Charleston, (304) 347-1776
• Rebecca Tinder
Charleston, (304) 347-2132
Thank You!
Ashley Hardesty, (304) 285-2522
These materials are presented with the understanding that the information provided is not legal advice. Due to the rapidly changing
nature of the law, information contained in this presentation may become outdated. Anyone using information contained in this
presentation should always research original sources of authority and update this information to ensure accuracy when dealing with a
specific matter. No person should act or rely upon the information contained in this presentation without seeking the advice of an
attorney.