Respondent's counsel subsequently filed a Motion to
Reconsider the Remand, asserting that it would be necessary
to resolve a jurisdictional issue prior to any consideration
on the merits of the grievance. The Motion was granted and
the grievance reinstated at level four for the limited
purpose of reviewing the preliminary matter. Both parties
submitted Memoranda in support of their positions and
replies thereto by March 15, 1994. Following a brief
conference call which was convened at the request of the
undersigned for the purpose of confirming certain
information, the matter became mature for decision.
The issue to be addressed herein is whether Grievant
has standing to file a complaint against James Rumsey
pursuant to
W.Va. Code §§18-29-1,
et seq. A review of the
record establishes the following facts:
1. The James Rumsey Technical Institute is a multi-
county vocational center created pursuant to
W.Va. Code §18-
2B-2.
2. The Berkeley County Board of Education serves as
fiscal agent for James Rumsey pursuant to Title 126 C.S.R.
71-2.1. 3. Grievant has been at all relevant times herein an
employee of the Berkeley County Board of Education.
4. Although Grievant's assigned work area has been
within the James Rumsey facility for a period of time he
concurs that he is not now, and has never been, an employee
of James Rumsey.
5. In October 1993 James Rumsey posted a position
vacancy for Vocational Education Special Populations
Resource Instructor.
6. The position was subsequently filled by the James
Rumsey Administrative Council.
Respondent asserts that the grievance procedure may be
used only when (1) there is an employee/employer
relationship between the parties to the grievance, and (2)
the grievance pertains to a problem which arose between the
parties within the scope or context of their employment
relationship. Respondent argues that Grievant does not meet
the definition of "employee" and it does not meet the
definition of "employer" as set forth in
W.Va. Code §§18-29-
1,
et seq.; therefore, neither of the requirements have been
met and the grievance must be dismissed.
Respondent further argues that the fact that Berkeley
County Board of Education serves as the fiscal agent for
James Rumsey is of no significance in this matter inasmuch
as Title 126 C.S.R. 71-2.1, clearly provides that the fiscal
agent cannot initiate action on behalf of, control, or
otherwise direct the vocational center. These actions
remain within the sole discretion of the Institute's
Administrative Council. Respondent additionally asserts
that the decision to use the Berkeley County Board of
Education's policies with respect to its operations is
noncontrolling in this matter. Utilizing policies which
mirror those of Berkeley County is permissible pursuant to
regulations and does not affect, in any way, the
independence of a multi-county vocational center as an
educational entity.
Grievant contends that an employment relationship
between himself and James Rumsey has been established
through any one or a combination of the following:
1. James Rumsey is a tri-county vocational school
whose Administrative Council is composed of the school
superintendents of Berkeley, Jefferson and Morgan counties.
2. James Rumsey has no independent policy making body
and operates under the policies of the Berkeley County Board
of Education.
3. The position of Vocational Education Special
Population Resource Instructor had been filled by Grievant
as a Berkeley County teacher.
(See footnote 1)
While he occupied thatposition, he was exclusively under the administrative
control of James Rumsey. During his assignment there, he
provided substitute coverage for absent teachers at the
direction of the James Rumsey administration.
4. James Rumsey has Berkeley County teachers on its
staff as of this date.
(See footnote 2)
5. The position of Vocational Education Special
Population Resource Instructor was never abolished by James
Rumsey or the Berkeley County Board of Education when
Grievant was transferred out of it by the Berkeley County
Board of Education.
6. The position of Vocational Education Special
Population Resource Instructor was and is now either
completely or partially funded by tax from the Berkeley
County Public Schools' budget.
7. The successful candidate for the position of
Vocational Education Special Population Resource Instructor
was employed by the Berkeley County Board at the time of his
selection.
Grievant's argument, that he has attained standing
through various connections between his employer, the Board,
and James Rumsey, is not persuasive. Area, or multi-county
vocational centers are independent educational institutions
separate and apart from the county boards of education which
exist in the geographic area served by the vocational
center.
W.Va. Code §18-2B-2 specifies in pertinent part:
...the state board of education is designated
as the state board of vocational education serving
and meeting as the sole agency responsible for the
administration of vocational education and for
supervision of the administration thereof by local
educational agencies and is hereby authorized and
empowered to establish, operate and maintain area
vocational educational programs....The state board
of vocational education may delegate for such
period of time as it may determine its operational
authority for multi-county vocational centers to
an administrative council composed of equal
representation from each of the participating
county boards of education, the superintendent of
schools from each participating county, and the
state director of vocational education or his
representative.
By necessity, an area vocational center will have
numerous ties to the county boards of education which it
serves. These connections; however, are the result of the
cooperating functions performed by a dual educational program
and do not affect the independent status of either entity, as
applied to the current grievance. Neither the composition of
the Administrative Council, the source of the vocational
center's financial support, nor any of the other factors
cited by Grievant alter the fact that he is, by his own
admission, an employee of the Berkeley County Board of
Education. Because he has been assigned to work at the
vocational center for several years it is understandable that
Grievant may perceive himself to have rights and interests in
obtaining the position in question; however, the controlling
factor herein is that Grievant is not an employee of James
Rumsey and therefore, he has no standing to file a grievance
against that institution.
In addition to the foregoing facts and narration it is
appropriate to make the following conclusions of law.
CONCLUSIONS OF LAW
1. The James Rumsey Technical Institute is a multi-
county vocational center created by, and functioning under,
the provisions of W.Va. Code §§18-2B-1, et seq. 2. A multi-county vocational center has, by statutory
provision and as a function of necessity, certain ties with
the boards of education of the counties which it serves.
3. Individuals employed by multi-county vocational
centers may utilize the grievance procedure set forth in
W.Va. Code §§18-29-1, et seq. Employees of said area
vocational centers must process a complaint through the
center and not through the county in which it is located or
in any of the counties which it serves.
4. Employees of county boards of education who are
assigned to work at multi-county vocational centers remain
employees of the county. Their employment status is not
altered by either their worksite or any other administrative
or financial ties which exist between the board and the
vocational center.
5. At all times relevant to the pending matter Grievant
has been an employee of the Berkeley County Board of
Education.
6. As an employee of the Berkeley County Board of
Education, Grievant has no standing, under W.Va. Code §§18-
29-1, et seq., to file a grievance against the James Rumsey
Technical Institute.
Accordingly, the Motion to Dismiss is Granted and this
matter is Ordered stricken from the docket of the West
Virginia Education and State Employees Grievance Board.
April 24, 1994 SUE KELLER SR ALJ
Footnote: 1Respondent's counsel confirmed during the telephone conference
that James Rumsey is staffed with its own employees and with
employees of the the participating county boards of education.