OPINION ISSUED FEBRUARY 3, 1989

THE BOARD OF EDUCATION OF THE
COUNTY OF McDOWELL, A CORPORATION,
TONY J. ROMERO, AS PRESIDENT, AND
BENNY J. CASSADY, LEONARD H. NESTER,
NOAH DELL'ORSO, AND TED OSBORNE,
AS MEMBERS OF SAID THE BOARD OF
EDUCATION OF THE COUNTY OF McDOWELL,
A CORPORATION
VS.
THE WEST VIRGINIA BOARD OF EDUCATION
(CC-84-128)

AND

THE BOARD OF EDUCATION OF THE
COUNTY OF McDOWELL, A CORPORATION,
BENNY J. CASSADY, AS PRESIDENT, AND
J. CURTIS HARMON, LINDA K. DOUGLAS,
HOBERT F. MUNCEY AND TED D. OSBORNE, AS
MEMBERS OF SAID THE BOARD OF EDUCATION
OF THE COUNTY OF McDOWELL, A CORPORATION
VS.
THE WEST VIRGINIA BOARD OF EDUCATION
(CC-85-114)

David Allen Barnette, Attorney at Law, for claimant.
Robert D. Pollitt, Senior Assistant Attorney General, for respondent.


PER CURIAM:

Claimants brought this action to recover funds which it expended to
satisfy judgements
rendered by the McDowell County Circuit Court. The claims was submitted
to the Court upon a
written Stipulation of Facts and Memorandum of Law. The facts of the
claims are as follows:

In 1973, a Special Levy Election in McDowell County provided a
supplement of $55.00 to all
non-teaching personnel for five years, commencing with the 1974-75
fiscal year.

In 1975, the West Virginia Legislature passed Senate Bill 121 which
provided a minimum pay
schedule for non-teaching personnel and teaching personnel which became
effective July 1,
1975.

The McDowell County Board of Education requested an interpretation of
the application of
the Special Levy Election provisions and Senate Bill 121. More
specifically, the Board wished
to determine whether the $55.00 supplement was in addition to the
minimum pay schedule in
Senate Bill No. 121 or was included as a part of the minimum pay
schedule.

The Superintendent of the State Board of Education advised the McDowell
County Board of
Education to include the $55.00 supplement as part of the minimum salary
schedule.

The McDowell County Board of Education was then challenged by the
McDowell County
Non-teaching Employees Association in McDowell County Circuit Court.

The McDowell County Circuit Court issued a decision supporting the
position of the
McDowell County Board of Education. However, on December 11, 1979, the
West Virginia
Supreme Court of Appeals held that the McDowell County Board of
Education failed to
properly pay the non-teaching employees the supplement required to be
paid under the
provisions of the Special Levy Election.

The McDowell County Circuit Court thereafter granted a judgement
against the McDowell
County Board of Education in the amount of $1,355,936.97, which
judgement has been
satisfied.

A second Special Levy Election was also instituted and a judgement was
rendered against the
Board in the amount of $949,879.63 to satisfy the pronouncement of the
Supreme Court in the
original case.

The McDowell County Board of Education attempted to recover these two
judgements in an
action against the State Board of Education in the Kanawha County
Circuit Court. However, the
complaint was dismissed based upon the provision of immunity in Article
VI, Section 35 of the
West Virginia Constitution. The West Virginia Supreme Court denied a
petition to review the
Kanawha County Circuit Court decision, thus upholding the immunity
provision.

It is the claimants' position that the McDowell County Board of
Education was required to
follow the advice of the West Virginia Board of Education. Therefore,
there is a moral obligation
on the part of the State Board of Education to reimburse the McDowell
County Board of
Education for the monies expended to satisfy the judgements rendered
against it.

The respondent contends that the McDowell County Board of Education
made a
conscientious decision in its adherence to the advice from the West
Virginia Board of
Education. The McDowell County Board of Education paid its professional
personnel the
supplement provided in the Special Levy Election or $105.00 over and
above the minimum
salary schedule provided by the State formula. However, the McDowell
County Board of
Education included the supplement of the special Levy Election as part
of the minimum salaries
for its non-teaching personnel.

Not only was this decision based upon information furnished by the West
Virginia Board of
Education, the West Virginia Legislature in enacting Senate Bill No. 121
specifically based its
own fiscal calculations on the inclusion of the local salary supplement
in meeting the minimum pay
scales.
The West Virginia Supreme Court in Thomas, et al. vs. McDowell County
Board of
Education, 261 S.E.2d 66 (1979) was either unaware of this specific
legislative intent or chose
to give it no weight.

The Legislature gave the State Board of Education no alternative but to
include the special levy
funds in the minimum salary requirements. The State Board in turn placed
the same burden on
the claimant, McDowell County Board of Education.

The Court, having reviewed the stipulation and memorandum of law, is of
the opinion that the
McDowell County Board of Education acted in good faith throughout this
controversy, has been
diligent in attempting to seek redress, and is the innocent victim of
the Legislature's attempt to
reduce the cost of the minimum non-teaching personnel salaries to the
State's general revenue.

Under such circumstances, the Court is of the opinion that there is a
clear moral obligation on
the part of the respondent to rectify this situation, and an award in
the amount of the judgements
entered by the Circuit Court of McDowell County of $2,305,816.60 is
accordingly made.

Award of $2,305,816.60.