State ex rel. Serdich v. Preston County Board of Education

488 S.E.2d 34, 200 W. Va. 34, 1997 W. Va. LEXIS 87
CourtWest Virginia Supreme Court
DecidedMay 30, 1997
DocketNo. 23536
StatusPublished
Cited by5 cases

This text of 488 S.E.2d 34 (State ex rel. Serdich v. Preston County Board of Education) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Serdich v. Preston County Board of Education, 488 S.E.2d 34, 200 W. Va. 34, 1997 W. Va. LEXIS 87 (W. Va. 1997).

Opinion

MAYNARD, Justice:

The appellant in this proceeding, Nicholas P. Serdich, who was dismissed as a school teacher by the Preston County Board of Education, requested that the Circuit Court of Preston County issue a writ of mandamus to compel the Preston County Board of Education to place him in a position which he claimed was “open.” He contended that he was entitled to such placement because of the provisions of W.Va.Code § 18A-4-7a which gives school teachers who have been dismissed in a reduction in force certain recall rights. The circuit court denied the appellant’s petition on the ground that the position which he sought was not “open” and that he was not clearly entitled to the relief which he sought. In the present appeal the appellant .claims that the circuit court erred in reaching this decision. After reviewing the issues raised and the facts presented, this Court believes that the circuit court did err in holding that the position was not “open” and that the appellant was not entitled to recall. Accordingly, we reverse the judgment of the Circuit Court of Preston County.

The appellant, Nicholas P. Serdich, a classroom teacher certified to teach English, was employed by the Preston County Board of Education prior to 1992, and in 1992, he was terminated in a reduction in force carried out by the Preston County Board of Education pursuant to W.Va.Code § 18A-4-7a.

West Virginia Code § 18A-4-7a contains a recall provision which states that:

All professional personnel whose seniority with the county board is insufficient to allow their retention by the county board during a reduction in work force shall be placed upon a preferred recall list. As to any professional position opening within the area where they had previously been employed or to any lateral area for which they have certification and/or licensure, such employee shall be recalled on the basis of seniority if no regular, full-time professional personnel, or those returning from leaves of absence with greater seniority, are qualified, apply for and accept such position. Before position openings that are known or expected to extend for twenty consecutive employment days or longer for professional personnel may be filled by the board, the board shall be required to notify all qualified professional personnel on the preferred list and give them an opportunity to apply, but failure to apply shall not cause such employee to forfeit any right to recall.

A related statute, W.Va.Code § 18A-2-2, provides for the creation of a preferred recall list and establishes the order of filling vacancies when more than one dismissed teacher has recall rights under W.Va.Code § 18A-4-7a. W.Va.Code § 18A-2-2 provides in relevant part:

[I]n case of ... [dismissals pursuant to a reduction in force], the teachers so dismissed shall be placed upon a preferred list in the order of their length of service with that board, and no teacher shall be employed by the board until each qualified teacher upon the preferred list, in order, shall have been offered the opportunity for reemployment in a position for which they are qualified: And provided further, That he has not accepted a teaching position elsewhere. Such reemployment shall be upon a teacher’s preexisting continuing contract and shall have the same effect as though the contract had been suspended [36]*36during the time the teacher was not employed.

At the beginning of the 1993-94 school year, a Ms. Milne, an English teacher at Preston High School, who was ill, was absent from duty because of that illness, and the appellant, Mr. Serdich, was called to serve as a substitute teacher for her. After Mr. Ser-dich had served as a substitute for a short time, Ms. Milne returned to work, but thereafter she again became unable to perform her duties because of her illness. On October 11,1993, Ms. Milne’s physician wrote the director of personnel for the Preston County Board of Education indicating that Ms. Milnes would need additional time off from her work responsibilities. The physician also wrote that she was unable to predict with certainty when she would be able to return. In a second letter dated October 20,1993, the doctor again indicated that she was unable to predict with certainty when Ms. Milne would be able to return to her employment.

Mr. Serdich was not recalled to replace Ms. Milne after her abortive attempt to return to work.

Thereafter, on January 31,1994, Ms Milne, at one time, signed and filed nine separate ten-day leave request forms. Eight of these were prospective and provided for her to be absent on sick leave through June 14, 1994. In effect, Ms. Milne notified the School Board that she anticipated being absent from work for an additional eighty school days, a period equal to the remainder of the school year.

After receiving the January 31,1994, leave requests, the School Board which considered Ms. Milne to be absent on temporary personal leave, and which did not consider her position to be open, did not notify the appellant of Ms. Milne’s absence and did not afford him an opportunity to apply for Ms. Milne’s position.

When the appellant learned that Ms. Milne had notified the school board that she would probably be absent for an additional eighty days, a situation which he believed created an opening within the meaning of W.Va.Code § 18A-4-7a, he filed the present action for a writ of mandamus in the Circuit Court of Preston County. In his petition he prayed that the circuit court issue a write of mandamus to compel the respondent, Board of Education, to place him in the opening.

After the development of the facts of the case, the circuit court, in an opinion dated June 23, 1995, concluded that Mr. Serdich was not entitled to the relief which he sought. Essentially, the circuit court reasoned that Ms. Milne was off work because of her illness and was absent because of personal leave. The court concluded that such an absence did not constitute an “opening” of her position within the meaning of the recall statute, W.Va.Code § 18A-4-7a, and that, since there was no “opening,” the Preston County Board of Education had no statutory duty to notify the appellant of her absence. The court also reasoned that the law authorized the Preston County Board of Education to hire substitute teachers, as it did in this case, under the circumstances presented. The court stated:

Even if the Board anticipated that Milne (the ill teacher) might be absent for more than twenty consecutive days, the Board was not required by law to open her position, but was within its discretion in employment substitute teachers to fill her temporary absence. The law grants the Board flexibility in its hiring of substitute teachers and does not require that substitutes be taken from the preferred recall list.
Serdich has not established that Milne’s position was ever ‘open’ so that the statutory requirements of W.Va.Code § 18A-4-7a, would then be applicable. Nor has he established that the Board abused its discretion when it chose to hire substitute teachers to fill in for Milne as a teacher on personal leave.

On July 13, 1995, the circuit court entered an order formally denying Mr. Serdich the mandamus relief which he sought.

In the present appeal Mr. Serdich claims that he is entitled to the mandamus relief and that the circuit court erred in denying him that relief, and as previously indicated, the real question presented is whether Ms. Milne’s absence in the present case consti[37]

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State v. PRESTON CTY. BD. OF EDUC.
488 S.E.2d 34 (West Virginia Supreme Court, 1997)

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Bluebook (online)
488 S.E.2d 34, 200 W. Va. 34, 1997 W. Va. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-serdich-v-preston-county-board-of-education-wva-1997.