Stops on Today s Route Updates on appeals

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 Due to the rapidly changing nature of the law, information contained in this presentation may become outdated.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. Mc. Dowell 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 § 18 A-2 -8 • Discipline may be administered only for: • • 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 -Kan. ED • 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 -Lew. ED • 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 -Bra. ED • 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 -Mar. Ed • 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 -Bro. ED • 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 -Mas. ED • Automated call systems • Grievance granted, appealed & affirmed • Darby v. Kanawha County BOE, 2009 -0763 Kan. ED • “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 § 18 A-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 -Ral. ED • 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 -Put. ED • 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 -Mrn. ED • 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 -Gra. ED • March 10, 2009

Other Assignment/Selection Decisions • • 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 -Han. ED • 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 -Lin. ED • Non-relegation clause requires relegation to reduced compensation after long period of time • BOEs should correct errors

Current Changes in the Law • • 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.