FRANK MANN,
Grievant,
v. Docket No. 01-55-613
WYOMING COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Frank Mann, an Assistant Superintendent, filed this grievance against his
employer, the Wyoming County Board of Education ("WCBOE") on December 17, 2001.
The full Statement of Grievance reads "WV Code § 18A-4-1 & 18A-4-2." It is of course
assumed Grievant is asserting these Code Sections were violated. Relief Sought was "[t]o
be granted the increments provided in state law for the past eight years or the maximum
increment granted administrators for the 2001 - 2002 school year."
Since Grievant was an Assistant Superintendent, the grievance was filed directly to
Level II. No hearing was held, and the parties agreed to submit this grievance on a
Stipulation of Facts dated November 28, 2001. The grievance was denied at Level II on
December 4, 2001. Grievant appealed to Level IV on December 17, 2001, and the parties
again agreed to submit this case on the Stipulations of Fact developed below. This case
became mature for decision on January 25, 2002, after receipt of the parties' proposed
findings of fact and conclusions of law.
(See footnote 1)
1. Grievant is currently employed in the position of assistant superintendent.
2. Respondent currently employs two assistant superintendents (Grievant and
James McGrady).
3. Prior to an adjustment in the salary of Mr. McGrady to reflect years of
experience increments for years in excess of 30, both the Grievant and Mr. McGrady were
compensated at the same level.
4. Under W. Va. Code §§ 18A-4-2 and 18A-4-5, based upon degree level
(Masters +45) and experience (18 years), the "state minimum" salary for Grievant, with an
equity adjustment, is $39,519.00 (Schedule I + equity) and $40,519.00 (Schedule II +
equity).
5. If annualized, Grievant's "state minimum" salary (2000-2001), with an equity
adjustment, based upon a 261-day contract, is calculated as follows:
- $34,976 . 200 = 174.88 [daily rate] x 261 = $45,643.68
The equity adjustment for the 2000-2001 school year (MA+45 at the 17 years
of experience level) was $4,009.00.
If annualized, Mr. McGrady's state minimum salary (2000-2001), with equity
adjustment, based upon a 261 day contract, is calculated as follows:
- $35,906 . 200 = 179.53 [daily rate] x 261 = $46,857.33
The equity adjustment for the 2000-2001 school year (MA+45 at the 19 years
of experience level) was $4,147.00.
6. In accordance with W. Va. Code § 18A-4-5a, Respondent supplements the
state minimum salaries established under W. Va. Code § 18A-4-2 for assistant
superintendents. In accordance with such supplement, Grievant and Mr. McGrady
received salaries in the amount of $58,698.90 for the 2000-2001 school year. 7. The language pertinent to compensation that is included in Grievant's and
the other assistant superintendent's contract for the 2000-2001 school year provides:
". . . at an annual salary of $58.698.90 including all increments provided by
the Legislature and the Wyoming County Board of Education, for the
duration of the contract."
8. Both the Grievant's and Mr. McGrady's 2001-2002 contracts contained the
same language that is quoted in the forgoing paragraph.
9. Grievant's 2001-2002 school year contract provides for a salary of
$59,685.48 and includes language that is identical to the above-quoted language included
in the 2000-2001 contract. Mr. McGrady's 2001-2002 contract contains identical language,
except for the salary amount.
10. W. Va. Code § 18A-4-2 was amended during the 1
st Extended Session of the
2001 Legislature. The amendment pertinent to the present grievance provides as follows:
(c) Effective the first day of July, two thousand one, in addition
to any amounts prescribed in the application of the applicable
state minimum salary schedule, each professional educator
shall be paid annually the following incremental experience
increases in accordance with their years of experience. The
payments shall be paid in equal monthly installments and shall
be considered a part of the state minimum salaries for
teachers.
Years of Experience Increment
31 534
32 534
33 534
34 534
35 534
11. Schedules I and II, contained in W. Va. Code § 18A-4-2, contain $465.00
experience differentials beginning at 1 year of experience and continuing through 19 years
of experience. The amount of equity for each such year of experience is calculated to be
$69.00.
12. The experience differentials for 1 through 19 years of experience, identified
in the foregoing paragraph, have never been applied to the calculation of central office
administrator salaries.
13. During a meeting held on September 10, 2001, a determination was made
to grant Mr. McGrady, who had 34 years of experience, additional salary increments based
upon the 2001 amendment to W. Va. Code § 18A-4-2 (described in paragraph 10). Such
increments were in addition to his salary in the amount of $59,685.48. Grievant, whose
experience did not exceed 30 years, received no additional increment. The adjustment in
Mr. McGrady's salary and in the salaries of other administrators whose experience
exceeded 30 years was first reflected in paychecks received on September 14, 2001.
Issues and Arguments
Based on the very limited record which consists of only the Stipulations of Fact, it
appears Grievant is alleging Respondent violated W. Va. Code §§ 18A-4-1 & 18A-4-2 in
terms of his compensation, and he believes he should receive an increase in remuneration.
These violations are not spelled out in the record, but it appears the main focus of
Grievant's argument is his failure to receive the yearly increments mandated by W. Va.
Code § 18A-4-2.
(See footnote 3)
It is noted the other Assistant Superintendent received an increase incompensation based on a change in W.Va. Code § 18A-4-2 which became effective on
July 1, 2001.
Respondent asserts there has been no violation of the above-cited statutes.
Respondent notes WCBOE is authorized to fix special salary schedules for assistant
superintendents pursuant to W. Va. Code § 18-5-33, and Grievant is paid and has been
paid an amount thousands of dollars above the state's required minimum for many years.
Grievant's salary does not conflict with W. Va. Code § 18A-4-2 because he is compensated
at a greater rate. Respondent also notes it was within its discretion to increase the
compensation paid to the other assistant superintendent based on W. Va. Code §§ 18-4-
5a & 18A-4-5a, as he had thirty-four years of experience.
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge renders the following Decision.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden of
proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va.
Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2000); Toney v. Lincoln
County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. Kanawha County
Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd. of Educ.,
Docket No. 96-23-174 (Apr. 30, 1997). See W. Va. Code § 18-29-6. "The preponderance
standard generally requires proof that a reasonable person would accept as sufficient that
a contested fact is more likely true than not." Leichliter v. W. Va. Dep't of Health andHuman Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally
supports both sides, the party bearing the burden has not met its burden. Id.
First, it must be noted from the record submitted, that it is unclear what violations
of W. Va. Code §§ 18A-4-1 & 18A-4-2 Grievant is alleging. It is also unclear why Grievant
believes he should receive "increments provided in state law for the past eight years or the
maximum increment granted administrators for the 2001-2002 school year."
(See footnote 4)
(See
Stipulations of Fact 7 & 9.)
W. Va. Code §18-5-33, entitled "Board may fix special salary schedules" states:
The board may fix special salary schedules for the superintendent, assistant
superintendents, teachers and other employees so long as the salary
schedule does not conflict with the general provisions of this chapter.
W. Va. Code § 18A-4-1 defines the following salary terms:
For the purpose of this article, salaries shall be defined as: (a) "Basic
salaries" which shall mean the salaries paid to teachers with zero years of
experience and in accordance with the classification of certification and of
training of said teachers; and (b) "advanced salaries" which shall mean the
basic salary plus an experience increment based on the allowable years of
experience of the respective teachers in accordance with the schedule
established herein for the applicable classification of certification and of
training of said teachers.
W. Va. Code § 18A-4-2 explains the "State minimum salaries for teachers"
and states:
(a) Each teacher shall receive the amount prescribed in the "state
minimum salary schedule I" as set forth in this section, specific additional
amounts prescribed in this section or article, and any county supplement in
effect in a county pursuant to section five-a [§§ 18A-4-5a] of this article
during the contract year: Provided, That beginning on the first day of the
second quarter of the teacher's employment term in the school year two
thousand one-two thousand two, and thereafter, each teacher shall receivethe amount prescribed in "state minimum salary schedule II" as set forth in
this section, specific additional amounts prescribed in this section or article,
and any county supplement in effect in a county pursuant to section five-a
[§ 18A-4-5a] of this article during the contract year.
. . .
(b) Six hundred dollars shall be paid annually to each classroom teacher
who has at least twenty years of teaching experience. The payments: (i)
Shall be in addition to any amounts prescribed in the applicable state
minimum salary schedule; (ii) shall be paid in equal monthly installments;
and (iii) shall be considered a part of the state minimum salaries for
teachers.
(c) Effective the first day of July, two thousand one, in addition to any
amounts prescribed in the applicable state minimum salary schedule, each
professional educator shall be paid annually the following incremental
increases in accordance with their years of experience. The payments shall
be paid in equal monthly installments and shall be considered a part of the
state minimum salaries for teachers.
Years of Experience Increment
W. Va. Code § 18A-4-5a, "County salary supplements for teachers" states, in
pertinent part:
County boards of education in fixing the salaries of teachers shall use at
least the state minimum salaries established under the provisions of this
article. The board may establish salary schedules which shall be in excess
of the state minimums fixed by this article, such county schedules to be
uniform throughout the county as to the classification of training, experience,
responsibility and other requirements.
Counties may fix higher salaries for teachers placed in special instructional
assignments, for those assigned to or employed for duties other than regular
instructional duties, and for teachers of one-teacher schools, and they may
provide additional compensation for any teacher assigned duties in addition
to the teacher's regular instructional duties wherein such noninstructional
duties are not a part of the scheduled hours of the regular school day.
Uniformity also shall apply to such additional salary increments orcompensation for all persons performing like assignments and duties within
the county: . . .
As stated in
W. Va. Code § 18A-4-2, the minimum salary for a M.A.+45 with
seventeen years of experience is $34,967.00. When computed on a 261-day contract, the
minimum required salary becomes $45,643.68, with the equity added (as calculated by the
parties), this salary would become $49,652.68. WCBOE has chosen, pursuant to
W. Va.
Code §§ 18-5-33 & 18A-4-5a, to pay Grievant a higher salary than would be expected by
a teacher. This increase is in keeping with his increased responsibilities as an Assistant
Superintendent. Grievant's salary during his seventeenth year, 2000-2001, was
$58,698.90, or approximately nine thousand more dollars than is required by statute. The
following year, Grievant's eighteenth year, he received an increase of more than $1,000.00,
not the $456.00 required by
W. Va. Code § 18-4-2.
Grievant appears to want to be paid his current salary, and then require WCBOE
to add on the yearly increments. Although the increments were not used in
calculating
his current salary, they were clearly
considered when his yearly compensation was
reviewed and agreed upon. This fact is revealed by the language of Grievant's contract
which states the amount he is paid "includ[es] all increments provided by the Legislature
and the Wyoming County Board of Education, for the duration of the contract." Grievant's
salary does not violate
W. Va. Code §§ 18A-4-1 & 18A-4-2.
Grievant also alleges if WCBOE did not use the increments in calculating the
salaries of the assistant superintendents prior to the change instituted in 2001, it cannot
now follow that
Code Section to increase the compensation of Mr. McGrady. Since all
other Central Office Administrators who had greater then thirty years also received thisincrease it is assumed Grievant's argument also applies to them. As previously noted in
W. Va. Code § 18A-4-5a, "[a] board may establish salary schedules which shall be in
excess of the state minimums fixed by this article, such county schedules to be uniform
throughout the county as to the classification of training,
experience, responsibility and
other requirements." (Emphasis Added.) WCBOE has the authority and discretion to
increase the salary of long-term administrators based on experience, and WCBOE may
pay Mr. McGrady a greater amount, even though Grievant and Mr. McGrady perform "like
assignments and duties."
Id. See Parks v. McDowell County Bd. of Educ., 186 W. Va.
141, 411 S.E.2d 466 (1991).
The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law
1. As this grievance does not involve a disciplinary matter, Grievant has the
burden of proving his grievance by a preponderance of the evidence. Procedural Rules
of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2000);
Toney
v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999);
Bowen v. Kanawha
County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999);
Holly v. Logan County Bd.
of Educ., Docket No. 96-23-174 (Apr. 30, 1997).
See W. Va. Code § 18-29-6. "The
preponderance standard generally requires proof that a reasonable person would accept
as sufficient that a contested fact is more likely true than not."
Leichliter v. W. Va. Dep't
of Health and Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the
evidence equally supports both sides, the party bearing the burden has not met its burden.
Id.
2. Grievant has not met his burden of proof and established WCBOE violated
W. Va. Code §§ 18A-4-1 & 18A-4-2, as Grievant's salary exceeded the required minimum
salary and the increments were considered when Grievant's salary was agreed upon.
3. WCBOE has the discretion to increase the salary of a long-term administrator
based on his experience.
W. Va. Code § 18A-4-5a.
Accordingly, this grievance is
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of the Wyoming County. Any such appeal must be filed within thirty (30) days
of receipt of this decision.
W. Va. Code § 18-29-7. Neither the West Virginia Education
and State Employees Grievance Board nor any of its Administrative Law Judges is a party
to such appeal, and should not be so named. However, the appealing party is required by
W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance
Board. The appealing party must also provide the Board with the civil action number so
that the record can be prepared and properly transmitted to the appropriate circuit court.
JANIS I. REYNOLDS
ADMINISTRATIVE LAW JUDGE
Dated: January 31, 2002
Footnote: 1