The West Virginia Senate passed Thursday a bill that would end school employees’ chance of winning grievances if the state superintendent disagrees with the workers’ position.
The vote was 21-12, with Sen. David Stover, R-Wyoming, absent. All 11 Democratic senators voted against the bill, joined by one Republican: Sen. Patrick Martin, R-Lewis.
It now heads to the House of Delegates, which also has a Republican supermajority.
“We’re stuck with one individual, with no legal background, that could intervene on a grievance board hearing and make law,” said Sen. Richard Lindsay, D-Kanawha. “Maybe good for the participants, maybe bad for the participants, but that’s not how our justice system should work.”
Lindsay said the bill (Senate Bill 566) could threaten precedent that goes back decades. Nothing in the bill says the state superintendent can’t overturn precedent that was established through the quasi-judicial grievance process alone.
These official 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.
Recent grievance rulings included one, last year, that the Kanawha County school system’s selection of South Charleston High’s then-principal was, more likely than not, tainted by bias and discrimination; and one, in 2019, granting partial victory to Boone County school workers who objected to substantial pay and benefit cuts.
Currently, under a part of state law separate from the grievance process, any citizen can ask the state superintendent to give his interpretation of any school law or state Board of Education policy.
The bill the Senate passed 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.
So, 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.
Several Republicans said the bill was needed for uniformity in law.
“We could get the same uniformity if we named the governor dictator, and he could interpret all the laws,” replied Sen. Mike Romano, D-Harrison. He said the bill makes the state superintendent like a basketball player calling his own fouls.
“Sure, most of the time he’s going to call them fairly,” Romano said. “But you know what? When the game’s on the line, he’s going to call that phantom foul and you’ve got to live with it.”
Senate Judiciary Committee Chairman Charles Trump, R-Morgan, noted the courts, upon a possible appeal of a grievance ruling, wouldn’t be bound by the state superintendent’s interpretation.
“But until you get to that point, the person who has to interpret it for everybody so that we have uniformity is the state superintendent of schools,” he said.
He said that without a court decision, “that says the superintendent was wrong in his interpretation of this statute, or this policy, absent that, the grievance board has no authority, and should have no authority, to say ‘We don’t agree with the state superintendent.’”