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Robbins v. McDowell County Board of Ed.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1991 Term

No. 20113
DAVID ROBBINS, DIANA PARKS, and
JAMES DAVID,
Appellants
v.
MCDOWELL COUNTY BOARD OF EDUCATION,
Appellee

Appeal from the Circuit Court of McDowell County
Honorable Rudolph J. Murensky, Judge
Civil Action No. 90-C-310-M
Reversed and Remanded

Submitted: September 18, 1991
    Filed: November 1, 1991
Larry Harless
Charleston, West Virginia
Attorney for the Appellants
Robert E. Blair
Welch, West Virginia
Attorney for the Appellee
Webster J. Arceneaux, III
Charleston, West Virginia
William McGinley
Charleston, West Virginia
Amicus Curiae Brief for
the West Virginia Education
Association
CHIEF JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1.
"Under . . . W. Va. Code, 18A-4-5a . . . , once a county board of education pays additional compensation to certain teachers, it must pay the same amount of additional compensation to other teachers performing 'like assignments and duties[.]'"  Syllabus Point 1, in part, Weimer-Godwin v. Board of Education, ___ W. Va. ___, 369 S.E.2d 726 (1988).

2.
W. Va. Code, 18A-4-5a, contains a number of provisions relating to county salary supplements. In its first paragraph, it authorizes counties to establish higher salaries than those authorized by the state minimum salaries set out in W. Va. Code, 18A-4-2. This local salary schedule must be "uniform throughout the county as to the classification of training, experience, responsibility and other requirements."


3. The second paragraph of W. Va. Code, 18A-4-5a, creates a more narrow class of salary supplements.
There are four categories of teachers who qualify for these supplements:  (1) teachers placed in special instructional assignments; (2) teachers assigned to or employed for duties other than regular instructional duties; (3) teachers of one-teacher schools; and (4) teachers assigned duties in addition to regular instructional duties and which are not a part of the scheduled hours of the regular school day.
4.
The proviso in the second paragraph of W. Va. Code, 18A-4-5a, requires a county board to maintain supplemental local salary schedules unless it is forced to abandon them by one of three events:  (1) the defeat of a

special levy, (2) a loss in assessed values, or (3) an event over which the county board has no control and for which the county board has received approval of the West Virginia State Board of Education prior to making the reduction.

5.
"The function of a proviso in a statute is to modify, restrain, or conditionally qualify the preceding subject to which it refers."  Syllabus Point 2, State v. Ellsworth J.R., ___ W. Va. ___, 331 S.E.2d 503 (1985).

6.
By the proviso in W. Va. Code, 18A-4-5a, the legislature indicated that the broad county-wide supplemental pay schedules authorized in the first paragraph of that section cannot be reduced once adopted by a county board unless one of the conditions contained in the proviso is met.  

7.
The proviso in W. Va. Code, 18A-4-5a, does not apply to those more limited categories of salary supplements outlined in the second paragraph of the statute.  Consequently, a local board may withdraw or cancel these special supplements without showing the existence of any of the three conditions set out in the proviso.  If, however, a local board determines to decrease or abolish this type of special salary supplement, it must do so uniformly for all those performing like assignments and duties within the county.


Miller, Chief Justice:
This is an appeal from a final order of the Circuit Court of McDowell County, dated September 18, 1990, which denied the petition of three vocational education teachers for a writ of mandamus to compel the McDowell County Board of Education (the Board) to grant them the same monetary inducements awarded vocational education teachers hired between 1974 and 1984.  At issue is whether the disparity in treatment violates the uniformity of pay provisions of W. Va. Code, 18A-4-5a.
The facts are essentially undisputed.  It appears that in 1974, the Board found a need to attract skilled workers, such as welders, from private industry to teach at McDowell County's vocational education school (Vo-Tech Center). To this end, the Board established a policy of paying qualified teachers at the Vo-Tech Center as if they had three additional years of teaching experience. As a result, teachers at the Vo-Tech Center were advanced three steps, or experience increments, up the pay scale ahead of equally educated and experienced teachers in other schools in the county.
In 1984, the Board repealed the policy, abolishing the supplemental experience increment for vocational education teachers hired after July 1, 1984.  Teachers who had previously received the three-year experience increment were expressly allowed to keep it.1821991948
The appellants herein are all vocational education teachers who were either hired or transferred to the Vo-Tech Center after July 1, 1984.420503800 In September of 1989, they learned that some of their colleagues were being paid the supplemental experience increment. On October 12, 1989, the appellants filed grievances, alleging that they should be compensated at the same level.  A hearing was held, and ultimately the matter came before the West Virginia Education and State Employees Grievance Board (Grievance Board).
In a decision dated February 28, 1990, the Grievance Board found no significant difference between the duties of the appellants and those of the seventeen vocational teachers then receiving the supplemental experience increment and concluded that the disparate treatment violated the uniform pay provisions of W. Va. Code, 18A-4-5a.
The Grievance Board also concluded, however, that the appellants had not demonstrated their entitlement to the supplemental increment and granted the grievance "only to the extent that the [Board] is ordered to correct the inequity as soon as such correction can legally be made."
Neither side appealed the Grievance Board's decision within thirty days as required by W. Va. Code, 18

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