In 1990, amid West Virginia’s first widespread teacher strike, the state Attorney General’s Office wrote in an official opinion that teacher strikes and “concerted work stoppages” are illegal, citing prior court rulings, teacher contract language and students’ state constitutional right to a “thorough and efficient education.”
The opinion said teachers could be punished by being denied pay, suspended, fired, barred from teaching in a public school for a year, hit with criminal misdemeanors, or even fined or jailed for refusing to comply with any potential court injunctions forcing them to return to work.
Such actions, if made today, would have to be taken in an election year when many county school board members and all 100 members of the state House of Delegates have their seats up for grabs, and when Republican Attorney General Patrick Morrisey is running for a U.S. Senate seat.
A 1990 state Supreme Court decision didn’t go into possible consequences for teachers. But it upheld a Jefferson County court’s preliminary injunction to end a union’s teacher work stoppage there, saying that “Public employees have no right to strike in the absence of express legislation or, at the very least, appropriate statutory provisions for collective bargaining, mediation, and arbitration.”
The state Board of Education has scheduled an emergency meeting for 9 a.m. today in Room 353 of Building 6 of the Capitol Complex in Charleston. “Announced Statewide Education Employees’ Work Stoppage, Related Legislation, and Potential Legal Implications,” is the only substantive item on the agenda.
“Work stoppages by public employees are not lawful in West Virginia and will have a negative impact on student instruction and classroom time,” state Schools Superintendent Steve Paine said in a news release Tuesday afternoon. “Families will be forced to seek out alternative safe locations for their children, and our many students who depend on schools for daily nutrition will face an additional burden. I encourage our educators to advocate for the benefits they deserve, but to seek courses of action that have the least possible disruption for our students.
“I, as well as all county superintendents, are hopeful that ongoing negotiations will result in an agreement prior to a work stoppage.”
West Virginia Education Association President Dale Lee said, when asked whether he believes the widespread work stoppages he and other public school employee union leaders have called for Thursday and Friday are illegal, “probably yes” — based on previous attorney general and court interpretations.
Lee said he didn’t want to speculate on what the consequences for school employees might be, but said “We’ve informed educators across the state on all the legal questions and everything else. This is an action that they overwhelmingly voted for us to call and we called it.”
He said union lawyers are prepared to defend employees.
“There’s rumor out there that anybody who takes this action is going to be fired,” he said. “That’s not a major concern of mine, we have 727 vacancies right now.”
A state Department of Education report shows what’s included in that 727 number, which was the count as of Oct. 1, is complex. Only 62 were positions that actually had no one in them, and the report said the 727 also included things like 101 positions with teachers who were fully certified and properly endorsed in the subject they were teaching “but for some reason do not want the position full time and are substitutes.”
“We’ll progress with it because people have reached the end of their rope,” Lee said of the work stoppage. “We’ll progress with it because we’ve tried in good faith to negotiate a solution to this problem and are getting nowhere and people are angry, they want a voice, they want to have their voices heard and this is what they believe, and we believe, is the best way to have their voice heard.”
Brian Abraham, general counsel for Gov. Jim Justice, said he thinks “the law is pretty clear” that the widespread work stoppages planned for Thursday and Friday are illegal.
“To my mind it’s pretty sound legal advice,” Abraham said of the 1990 attorney general’s opinion. “It’s dated but there have not been any events since that time where it’s been tested.”
Howard Seufer Jr., a Charleston attorney who has practiced school law for more than 35 years, said of the opinion that ”I read it and I studied it and I can’t see why it isn’t fully accurate today.”
West Virginia University law professor Bob Bastress, however, said that, instead of calling strikes illegal, “I think the more accurate statement is there is no right to strike and thus you could open yourself up to potential discipline if you’re a striking teacher, and you open yourself up to injunction.”
Bastress, who said he has specialized in labor, employment and education law issues, said attorney general opinions aren’t precedent, and “whether [teachers] can be disciplined or fired is a more complicated question because of the state teacher law protections.”
Abraham said the Governor’s Office has discussed the planned work stoppages, but said he’s “not at liberty to discuss the nature of those discussions,” including whether or not possible legal remedies were mulled.
“There is no right to strike against the state,” the opinion, signed by then-attorney general Roger Tompkins, said. “Thus, any strike or concerted work stoppage by the public teachers of this state is illegal.”
“Public teachers in West Virginia have written employment contracts that expressly prohibit strikes or work stoppages,” the opinion said.
The impending widespread Thursday and Friday work stoppages, and the at least 11 county public school system work stoppages that have taken place so far, have included not just teachers but school service personnel, including cooks, custodians, bus drivers and others.
Relevant to service employees, the 1990 attorney general’s opinion quoted an earlier attorney general opinion that said: “In our educational system we are not making cars or chemicals and we are not manufacturing televisions or trucks. Instead, we are, in fact, determining the very future of our State and our Nation. This is as much the responsibility of the school bus drivers, cooks, janitors, teachers’ aides, maintenance men, clerical and other employees as it is the teachers and administrators.”