By Ryan Quinn

West Virginia Supreme Court unanimously reversed Wednesday a ruling that favored state education unions, in a case stretching back to 2011 and dealing with whom is defined as a "teacher."

The high court reversed Monongalia Circuit Court Judge Phillip D. Gaujot's June 2015 ruling that "interventionists" who work in Monongalia's public school system must be considered classroom teachers and must be afforded the same benefits, hiring practices and other treatment as regular teachers.

The state chapter of the American Federation of Teachers union and the larger AFL-CIO union of which it is part filed suit in 2011 against the Monongalia public school system and its superintendent, Frank Devono, alleging they were skirting teacher employment laws by paying Regional Education Service Agency VII to hire for Monongalia what are effectively classroom teachers and calling them interventionists.

RESAs are the eight multi-county agencies meant to aid public school systems.

The state Board of Education, which governs the RESAs, filed a brief in the case in favor of the Monongalia school system, alongside all eight RESAs, the West Virginia Association of School Administrators and the West Virginia School Board Association.

AFT's side received briefs in support from the other two main state education workers unions: the West Virginia Education Association and the West Virginia School Service Personnel Association.

Wednesday's Supreme Court ruling means Monongalia can continue to use interventionists as it has been. Monongalia said its interventionists are part-time, at-will employees who are provided $25 an hour and no benefits to provide personalized instruction to over 300 struggling elementary and middle school students.

Justice Robin Davis wrote the high court's opinion, saying state law doesn't directly define what interventionist means and saying that the existing law that may define that term is contradictory.

"This Court is now faced with two legislative schemes applicable to interventionists: one governing classroom teachers and one governing RESAs," Davis wrote. "Under the statutory provisions pertaining to classroom teachers, an interventionist must be employed by a county board of education.

"On the other hand, the RESA provisions allow county boards to contract with RESAs to obtain interventionist services for their students. Thus, while both legislative schemes are applicable, they also are inconsistent and irreconcilable."

Davis wrote that the rules for interpreting conflicting laws favored the RESA provisions because they were amended more recently than the law defining "classroom teacher," which was last amended in 2009.

"It really came down to technical rules about how you interpret and give effect to statutes," said Charleston-based attorney Howard Seufer Jr., who represented Devono and Monongalia's school system.

The state law establishing RESAs and legislative rules governing them were last amended in 2015, and RESA VII's strategic plan, which mentions providing interventionists, is annually approved by the state school board, as all eight RESAs' strategic plans are supposed to be. Davis also noted a legislative rule requires "liberal construction" of the RESA provisions.

Davis also said the statutory interpretation rules favor more specific laws over more general ones, noting again that RESA VII's strategic plan specifically mentions the interventionists.

Gaujot, despite issuing the initial ruling in AFT's favor, expressed concerns with the implications of his own decision. He wrote in his June 2015 decision that "it is highly unfortunate that the existing number of 'Interventionists' in our schools will likely be reduced," due to his ruling and the budgetary constraints it would impose.

"This Court is bound by what the law is, not what it would have it be," Gaujot wrote in his ruling. "As much as the Court would have wanted to see a different outcome, as it cannot help but feel that this State's students will end up being the losers in this case, the law cannot be re-written, nor can statutes be interpreted in a manner inconsistent with the plain meaning of the words therein."

The Supreme Court's ruling noted that the Legislature stated, in law, that it established RESAs "to provide for high quality, cost effective education programs and services to students, schools and school systems." In stating that interventionists' services are high quality, the high court noted that "interventionists providing contracted services through a RESA must have the same licensure as educators employed directly by county boards of education."

In deeming interventionists cost effective, the Supreme Court cited Gaujot's finding that the "opportunity to deploy multiple part-time interventionists, rather than a fewer number of regular full-time employees, results in the ability to offer services to a significantly greater number of students during a school day," due to "the greater flexibility in scheduling multiple interventionists in more than one classroom during the same time period."

Bob Bastress, a Morgantown-based attorney representing AFT-WV, said after September oral arguments before the Supreme Court that his side hadn't done the math on how much more it would cost Monongalia to hire interventionists as part time teachers, but said fringe benefits don't kick in until a certain number of hours. He said the statutory protections the workers would gain, like protection from wrongful discharge and arbitrary transfers and use of the public employees grievance process, were all indirect costs.

(c)2016 The Charleston Gazette (Charleston, W.Va.)