West Virginia Republicans are advancing a bill that would end school employees’ chance of winning grievances if the state superintendent disagrees with the workers’ position.
Grievances are an opportunity, provided under current law, for public employees to win disputes against their employers without having to sue in court. The process can be faster and cheaper for workers than suing.
Grievances have three levels. The first can be an informal meeting between the employee and employer or an initial hearing; the second is mediation or arbitration to try to resolve the issue; and the third is a hearing before an administrative law judge.
The employee and employer can both appeal the administrative law judge’s ruling to the courts, but the grievance process provides a chance for the issue to be settled without hitting court.
Currently, any citizen can ask the state superintendent to give his interpretation of any school law or state Board of Education policy.
The legislation (Senate Bill 566) would add after that line that any such interpretation “shall be upheld and applied by affected entities and parties, including, but not limited to, the West Virginia Public Employees Grievance Board.”
That’s the agency that handles grievances and employs the administrative law judges.
If the bill passes, the administrative law judge in a grievance hearing would have to honor the state superintendent’s interpretation of what a law or policy means, above that judge’s own interpretation. This would cut off workers’ opportunity to win a grievance in cases where the state superintendent feels differently than they do.
Sen. Ryan Weld, R-Brooke and the bill’s sole sponsor, highlighted a particular grievance during Friday’s Senate Judiciary Committee meeting.
In that grievance, filed by a Barbour County speech-language pathologist, Administrative Law Judge Ronald Reece ruled last March that the employee, Paula Townsend, was entitled to the salary boost that the 2019 omnibus education law granted to special education teachers.
“Speech pathology is considered part of special education in West Virginia,” Reece wrote. He also noted specifics related to Townsend that suggested she is a teacher.
The ruling itself, which the Barbour school system has appealed to the courts, only awarded the raise to Townsend. But Sarah Stewart — legislative liaison for the state education department, which the state superintendent leads — told the Judiciary Committee the ruling has already had a statewide impact through setting a precedent.
“We now increased the fiscal note, the cost to the state for that, by a million dollars,” Stewart said. “And that was by one decision by the grievance board which was never contemplated during the passage of that bill. Not to suggest that those employees aren’t deserving of any kind of increase, but that’s a decision that should be within the purview of the Legislature and not the grievance board.”
Weld asked, “So there was no weight given whatsoever to the superintendent’s interpretation, is that correct?”
“That’s correct,” Stewart said, after being sworn in to give her testimony.
But Reece’s ruling said this “superintendent’s interpretation” was merely a line in a FAQ on the education department’s website, unsupported by justification. The Barbour school system also pointed to an email from the department’s speech-language services coordinator, not the superintendent.
Reece also wrote that, under already existing law, “the West Virginia Department of Education’s interpretation of State Code provisions within its purview are entitled to great weight unless clearly erroneous.” In this case, he said, the “interpretation” was clearly erroneous.
Andy Katz, general counsel for the West Virginia Education Association union, is representing Townsend. In an interview, he said the bill could mean future superintendent interpretations could overturn decades of grievance precedent “in two or three lines.”
“With the flip of a switch they could undo all kind of grievance board decisions,” Katz said.
Kim Croyle, the Bowles Rice education attorney on the other side of Townsend case, said the bill would affect, and probably reduce, grievance cases going forward. But she said she doesn’t think it would “claw back” previous decisions.
“I think, more than anything, employees and the boards [of education] just want to know what the rules are,” Croyle said. “They want to be consistent in what they do and the state superintendent’s interpretation allows them to do that and allows everyone to know before grievances are filed what the rule is.”
Sen. Richard Lindsay, D-Kanawha, said of the new bill, “I don’t understand why we would empower a superintendent who is not an attorney to swoop down and take any type of role in what the grievance board does.”
Lindsay noted the bill wouldn’t ban the superintendent from reinterpreting past interpretations, either.
Sen. Mike Caputo, D-Marion, said it seemed the bill would cut off the grievance avenue not only based on interpretations preceding a grievance, but also based on interpretations that county school officials could request and receive in the middle of defending against a grievance.
“That would stop the process,” said Caputo.
The committee staff attorney explaining the bill said she didn’t think that would be the case, but said the committee could choose to clarify the issue.
Committee Chairman Charles Trump, R-Morgan, said that, even if mid-grievance interpretations are allowed under the bill, he has no problem with that.
“It should end it, right?” Trump said. “The superintendent has spoken, the courts haven’t addressed it, it’s over. If somebody doesn’t like it they can appeal … have a full judicial review of whether or not the interpretation is correct.”
Katz raised concern that either side of a grievance could write a one-sided letter requesting an interpretation, with no chance for the other side to have input.
“It just doesn’t seem to be a good method, in conforming with due process, to follow this procedure as opposed to everything the grievance board does, [where] the two parties battle it out,” he said.
Sen. Mike Romano, D-Harrison, said the bill would mean “it’s almost like the superintendent can make precedent himself, as far as school law goes.”
“It’s going to be up to the poor, financially strapped teacher, who’s not making enough money anyway, to decide whether to go forward,” to court, Romano said.
Education department General Counsel Heather Hutchens spoke for the bill. She said it could mean “the grievant could be in circuit court sooner.”
The grievance process does take time, and a superintendent’s interpretation effectively settling the outcome could speed the process toward the allowable appeal to the courts. Katz said some types of disputes have to go through the process before they can become a lawsuit, while, in other disputes, workers already have the option of taking their arguments straight to court.
Caputo said of the bill, “I think it’s going to be very costly, and I think that’s the intent, that we get things shut down, the grievant can’t go to court, can’t afford it, and the case is over.”
“That is not my intent,” Weld replied. “I would like to make that clear.”
The committee then voted, 9-6, to advance the bill to the full Senate floor.