WOOD COUNTY BD. OF EDUC. v. SMITH

PER CURIAM:[fn1] [fn1] We point out that a per curiam opinion is not legal precedent.See Lieving v. Hadley, 188 W. Va. 197, 201 n. 4, 423 S.E.2d 600,604 n. 4. (1992).

This appeal was brought by Peggy L. Smith, et al., appellants and grievants below (hereinafter "grievants"), from an order of the Circuit Court of Wood County. The circuit court reversed a decision of an administrative law judge for the Education and State Employees Grievance Board (hereinafter "ALJ"). The ALJ ruled that the Wood County Board of Education, appellee and respondent below (hereinafter the "Board"), could not award the grievants' extracurricular school bus driving routes to employees with greater seniority. The Board appealed the decision to the circuit court. The circuit court reversed the ALJ. In this appeal, the grievants allege that the circuit court committed error (1) in finding that a reduction-in-force occurred when the Board eliminated certain extracurricular school bus driving positions, (2) in finding that extracurricular school bus drivers whose positions were eliminated could use their seniority to obtain the extracurricular school bus driving positions that were not eliminated, and (3) in failing to review the entire record in the case.

Beginning in the school year 1996-97, the Board was required to provide full-day kindergarten programs instead of half-day programs. This change necessitated eliminating 19 extracurricular school bus driver positions which serviced the half-day kindergarten programs. In reliance upon a memorandum opinion by the State Superintendent of Schools, dated August 26, 1996, the Board permitted those employees whose extracurricular positions were eliminated to replace those less senior employees who had extracurricular positions which were not eliminated.

The less senior employees who are grievants in this case filed a grievance over the loss of their extracurricular bus driver positions. On October 31, 1996, the ALJ rendered a decision prohibiting the Board from eliminating the grievants' extracurricular positions. The ALJ concluded that W. Va. Code § 18A-4-8(b) did not apply to the extracurricular bus driver positions. The Board appealed the ALJ's decision to the circuit court. The circuit court reversed the decision of the ALJ. This appeal resulted.

This Court has held that "[a] final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuant to W. Va. Code § 18-29-1, et. seq. [1985], and based upon findings of fact, should not be reversed unless clearly wrong." Syl. pt. 1, Randolph County Board of Education v. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989). W. Va. Code § 18-29-7 (1994) provides that an ALJ's decision may be set aside if it: (1) was contrary to law or lawfully adopted rule, regulation or written policy of the chief administrator or governing board, (2) exceeded the hearing examiner's statutory authority, (3) was the result of fraud or deceit, (4) was clearly wrong in view of the reliable, probative and substantial evidence on the whole record, or (5) was arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. See Board of Education of the County of Mercer v. Wirt, 192 W. Va. 568, 453 S.E.2d 402 (1994). We elaborated on the standard of review in Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 304, 465 S.E.2d 399, 406 (1995), where we said:

The scope of review under the arbitrary and capricious standard is narrow, and a court is not to substitute its judgment for that of the hearing examiner. . . . Similarly, in reviewing an ALJ's decision that was affirmed by the circuit court, this Court accords deference to the findings of fact made below. This Court reviews decisions of the circuit [court] under the same standard as that by which the circuit [court] reviews the decision of the ALJ. We must uphold any of the ALJ's factual findings that are supported by substantial evidence, and we owe substantial deference to inferences drawn from these facts. Further, the ALJ's credibility determinations are binding unless patently without basis in the record. Nonetheless, this Court must determine whether the ALJ's findings were reasoned, i.e., whether he or she considered the relevant factors and explained the facts and policy concerns on which he or she relied, and whether those facts have some basis in the record. We review de novo the conclusions of law and application of law to the facts. (Citations omitted.)

III. DISCUSSION A. Elimination of Extracurricular School Bus Driving Positions Constitutes a Reduction in Force Grievants argue that the elimination of the half-day kindergarten bus route positions did not constitute a reduction-in-force within the meaning of W. Va. Code § 18A-4-8b (1996). W. Va. Code § 18A-4-8(b) provides in pertinent part: "If a county board is required to reduce the number of employees within a particular job classification, the employee with the least amount of seniority within that classification or grades of classification shall be properly released and employed in a different grade of that classification if there is a job vacancy." The grievants contend that there was no reduction in the number of bus operators, but merely a reduction in extracurricular positions. The ALJ agreed with the grievants. The ALJ found that the language of W. Va. Code § 18A-4-8(b) has no application to the elimination of half-day kindergarten bus route positions.

The Board correctly asserts that the issue of whether elimination of those positions constitutes a reduction-in-force has previously been decided by this Court. This Court observed in Berry v. Kanawha County Bd. of Educ., 191 W. Va. 422, 424, 446 S.E.2d 510, 512 (1994) that "a reduction in force, obviously can occur when job positions are eliminated." Berry explicitly held in the single syllabus of the opinion that "[i]f a board of education decides to reduce the number of jobs for service personnel, the board must follow the reduction in force procedures of W. Va. Code § 18A-4-8b."

The Board also contends that it was erroneous for the ALJ to overrule the position adopted by the State Superintendent. See W. Va. Code § 18-29-7(1)(1994) (providing that an administrative law judge's decision may be set aside if it was contrary to a lawfully adopted rule or written policy of the chief administrator). In a memorandum opinion dated August 26, 1996, the State Superintendent opined that a reduction-in-force occurred when half-day kindergarten bus route positions were eliminated. We have consistently held that "[i]nterpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous." Syl. pt. 4, Security National Bank Trust Company v. First W. Va. Bancorp, Inc., 166 W. Va. 775, 277 S.E.2d 613 (1981). See also Syl. pt. 1, Smith v. Board of Educ. of County of Greenbrier, 192 W. Va. 321, 452 S.E.2d 412 (1994); Syl. pt. 3, Smith v. Board of Educ. of Logan County, 176 W. Va. 65, 341 S.E.2d 685 (1985). The ALJ rejected the memorandum opinion because of a contrary opinion authored by the State Superintendent' office in 1989. It is now well settled fundamental law that "when two statutes conflict, the general rule is that the statute last in time prevails as the most recent expression of the legislative will." West Virginia Health Care Cost Review Authority v. Boone Memorial Hosp., 196 W. Va. 326, 336, 472 S.E.2d 411, 421 (1996). See also, Syl. pt. 2, Stamper by Stamper v. Kanawha County Bd. of Educ., 191 W. Va. 297, 445 S.E.2d 238 (1994); Syl. pt. 2, State ex rel. Dept. of Health and Human Resources, etc. v. West Virginia Public Employees Retirement System, 183 W. Va. 39, 393 S.E.2d 677 (1990). This axiom holds true for competing administrative opinions interpreting the same statute. Confronted with a similar issue in Smith v. Board of Educ. of County of Greenbrier, 192 W. Va. at 324, 452 S.E.2d at 415, we held that "[w]hile the existence of conflicting opinions from two state superintendents admittedly raises a question of the precedential value to be accorded the opinions, nonetheless, . . . [t]he interpretation currently in effect is that of Mr. Marockie, and unless we can find clear error in such opinion, it should be accorded `great weight.'" We discern no basis to disturb the circuit court's ruling on this assignment of error.

B. School Bus Drivers Whose Extracurricular Positions Are Eliminated May Use Their Seniority to Obtain Extracurricular School Bus Driving Positions That Were Not Eliminated The grievants contend that no authority exists allowing them to be "bumped" from their extracurricular bus driving positions by more senior drivers whose half-day kindergarten route positions were eliminated. The Board counters that, since this was a reduction-in-force, W. Va. Code § 18A-4-8b (supra) necessitated release of the grievants as they were the least senior extracurricular bus drivers. The Board contends that its actions did not constitute bumping. The Board followed the requirements of W. Va. Code § 18A-4-8b. Insofar as the elimination of the half-day kindergarten bus route positions was a reduction-in-force, the Board's position is correct. Therefore, the circuit court's decision on this issue will not be disturbed.

The last argument raised by the grievants is that the circuit court did not have the full administrative record when it made its review of the ALJ's decision. The Board contends that the issue ruled upon by the circuit court was a question of law. Therefore, the entire record was unnecessary for legal determination. We have held that "[q]uestions of law are subject to a de novo review." Syl. pt. 1, Public Citizen, Inc. v. First National Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538 (1996). The Board's position is correct. The circuit court had a sufficient record for the dispositive legal determination in this case. Any error in not having a full record was harmless. See Parham v. Horace Mann Ins. Co., 200 W. Va. 609, 617, 490 S.E.2d 696, 704 (1997) ("[W]e conclude the procedural error committed by the trial court did not result in substantial injustice or prejudice the substantive rights of Appellants. Therefore, we consider such error harmless, and decline to reverse the final decision of the trial court").

In view of the foregoing, we affirm the circuit court's order.

Affirmed.