Logan County Board of Education and West Virginia Department of Education v. Briana Mary Crisp and Erica Reann Lockhart

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
LOGAN COUNTY BOARD OF EDUCATION and December 23, 2024
WEST VIRGINIA DEPARTMENT OF EDUCATION, ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondents Below, Petitioners INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 24-ICA-64 (Grievance Bd. Case No. 2023-0581-CONS)

BRIANA MARY CRISP and
ERICA REANN LOCKHART,
Grievants Below, Respondents

MEMORANDUM DECISION

Petitioners the Logan County Board of Education (“Logan BOE”) and West
Virginia Department of Education (“WVDE”) appeal the January 22, 2024, Decision of
the West Virginia Public Employees Grievance Board (“Board”). The Decision granted the
grievances of Respondents Briana Mary Crisp and Erica Reann Lockhart, finding that
Logan BOE had violated West Virginia Code § 18A-4-14 (2017) by requiring them to
cover other classrooms during their statutorily prescribed planning periods. Respondents
filed a joint response.1 Petitioners did not file a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Respondents are employed by Logan BOE as full-time teachers at Logan County
High School (“LHS”). On January 19, 2023, they filed separate grievances against Logan
BOE, protesting its repeated practice of requiring them to give up their planning periods to
cover other LHS classrooms in violation of West Virginia Code § 18A-4-14, which they
asserted statutorily guaranteed them a daily, duty-free planning period. Relevant to this
appeal, West Virginia Code § 18A-4-14 provides:

(a) Notwithstanding section seven, article two of this chapter, every teacher
who is employed for a period of time more than one half the class periods of
the regular school day and every service person whose employment is for a

1
Petitioners are represented by Donald C. Wandling, Esq. Respondents are
represented by Jeffrey G. Blaydes, Esq.
1
period of more than three and one-half hours per day and whose pay is at
least the amount indicated in the state minimum pay scale as set forth in
section eight-a of this article shall be provided a daily lunch recess of not less
than thirty consecutive minutes, and the employee shall not be assigned any
responsibilities during this recess. The recess shall be included in the number
of hours worked, and no county shall increase the number of hours to be
worked by an employee as a result of the employee being granted a recess
under this section.

(b) Every teacher who is regularly employed for a period of time more than
one half the class periods of the regular school day shall be provided at least
one planning period within each school day to be used to complete necessary
preparations for the instruction of pupils. No teacher may be assigned any
responsibilities during this period, and no county shall increase the number
of hours to be worked by a teacher as a result of such teacher being granted
a planning period subsequent to the adoption of this section (March 13,
1982). Educators shall receive uninterrupted time for planning periods each
day. Administrators may not require a teacher to use the planning period time
allotted to complete duties beyond instructional planning, including, but not
limited to, administrative tasks and meetings.

The duration of the planning period shall be in accordance with the
following:

(1) For grades where the majority of the student instruction is delivered by
only one teacher, the planning period shall be no less than forty minutes;
and

(2) For grades where students take separate courses during at least four
separate periods of instruction, most usually delivered by different
teachers for each subject, the planning period shall be the length of the
usual class period taught by the teacher, but no less than forty minutes.
Principals, and assistant principals, where applicable, shall cooperate in
carrying out the provisions of this subsection, including, but not limited
to, assuming control of the class period or supervision of students during
the time the teacher is engaged in the planning period. Substitute teachers
may also be utilized to assist with classroom responsibilities under this
subsection: Provided, That any substitute teacher who is employed to
teach a minimum of two consecutive days in the same position shall be
granted a planning period pursuant to this section.

2
(c) Nothing in this section prevents any teacher from exchanging his or her
lunch recess or a planning period or any service person from exchanging his
or her lunch recess for any compensation or benefit mutually agreed upon by
the employee and the county superintendent or his or her agent: Provided,
That a teacher and the superintendent or his or her agent may not agree to
terms which are different from those available to any other teacher granted
rights under this section within the individual school or to terms which in any
way discriminate among those teachers within the individual school, and a
service person granted rights under this section and the superintendent or his
or her agent may not agree to terms which are different from those available
to any other service personnel within the same classification category granted
rights under this section within the individual school or to terms which in any
way discriminate among those service personnel within the same
classification category within the individual school.

According to respondents, their grievances arose when LHS changed its internal
policy for classroom coverage and student supervision around December of 2022.
Previously, when teachers were sick or absent, LHS would seek substitute teachers first. If
there was still a need for coverage, then teachers who volunteered to give up their planning
period were utilized. LHS administrators would also cover classes, and administrators from
Logan BOE’s central office were also an option for coverage and student supervision. If
there were insufficient personnel to meet coverage and supervision needs, LHS would use
a gymnasium and theatre on its campus to facilitate student supervision. Under this system,
the school made an announcement each morning wherein all students were told which
classes, if any, would, for instance, report to the gym or theatre for the day. Prior to
December of 2022 there were documented instances where LHS had three to eleven
teachers absent at a time.

However, WVDE assumed control of Logan BOE just prior to December of 2022,
based upon its finding of several issues with the management and administration of the
school system. There was no mention of teacher absenteeism or student supervision as a
basis for the takeover. WVDE appointed Jeff Huffman (“Superintendent Huffman”) as
interim superintendent of schools, and he was later hired to the permanent position. Around
December of 2022, Superintendent Huffman, citing parental complaints and other
observations, directed LHS’ principal, Kelly Stanley (“Principal Stanley”), to revise the
school’s practice for classroom coverage and related student supervision. Thereafter, LHS
began taking planning periods from teachers, including from those who did not agree to
give up their planning period. Under this new system, a sign was placed on the door of the
absent teacher’s classroom, informing students to report to an alternate classroom. The
gymnasium and theatre were not permitted to be used for coverage. Also, under this system,
covering teachers did not have specific instructions on how to cover the class, were not
given complete or updated class rosters, and were not required to teach that day’s lesson.

3
The respondents claimed they were forced to give up their planning periods to cover
unsupervised classrooms on several occasions over their objections.

At the request of the respondents, their grievances were consolidated by the Board,
and on or about January 24, 2023, the WVDE was joined as a party. An administrative
hearing was held in the matter on September 13, 2023, and October 13, 2023. According
to the Decision, Respondent Crisp testified that a planning period is the only “student free”
time a teacher has during an instructional day. During her planning period, she grades
papers; prepares lesson plans; answers students’ questions remotely; makes copies (at a
copier some distance from her classroom); cleans; utilizes Google classroom; designs units;
prepares the bulletin board; chairs an honors society; gets a snack; and takes a restroom
break. Similarly, Respondent Lockhart stated that her planning period is used for grading;
preparing lesson plans; copying; cleaning; getting supplies; utilizing Google classroom;
processing Learning Community data; doing literary initiative work; addressing social
issues with the school counselor; and taking restroom breaks or getting a snack. It is
undisputed that respondents informed LHS administration that they did not consent to
foregoing their planning periods. According to Respondent Crisp, the new system created
confusion and led to more students skipping class or leaving LHS’ campus.

Principal Stanley’s testimony offered the general contention that Superintendent
Huffman directed her to provide coverage and supervision using classrooms and available
teachers without the use of the gym or theatre. She acknowledged that LHS had taken
respondents’ planning periods without their consent and over their objections. Principal
Stanley could not explain why respondents lost planning time while others, such as
substitute teachers who were working at LHS on days when one or both respondents lost
their planning periods, did not. Nor could she explain what staff shortages, emergency or
exigent circumstances existed, if any, on the days where respondents were denied their
planning periods. Notably, the Decision also found that, contrary to Principal Stanley’s
testimony, respondents were not the only teachers who sought to maintain their planning
periods, but rather, that the evidence established that there were approximately eighteen
teachers who objected to giving up their planning periods to provide coverage.

Superintendent Huffman admitted that Ms. Crisp and Ms. Lockhart have been
regularly denied their planning periods but claimed those denials were justified over his
concerns regarding supervision. He further testified that in December of 2022, he believed
that the gym and theatre did not provide adequate settings for the supervision of students
when the school was short staffed. However, based upon the record, it was determined that
since December of 2022, those two areas continue to be used to supervise students; namely,
the entire student body reports to the gym each morning, and the gym and theatre are used
to organize and supervise students for field trips. Also, Superintendent Huffman could not
explain an e-mail dated May 24, 2023, wherein Respondent Lockhart was informed that
she was losing her planning periods for eight consecutive school days even though no staff
shortages had been established for any of those forthcoming days.

4
Before the Board, petitioners argued that its concerns over student supervision
required it to take planning periods due to emergencies or exigent circumstances at LHS.
It was contended that teacher absenteeism and a shortage of willing substitute teachers
prompted it to implement a new method of supervising students when adequate substitutes
and administrators were not available. In support, Logan BOE claimed that the language
of West Virginia Code § 18A-5-1(a) (2023)2 provides that school personnel have in loco
parentis authority to stand in the place of the parents to exercise authority over the students.

In its Decision, the Board found petitioners’ reliance on issues with student
supervision and staff shortages to be pretextual and unsupported by the record. The Board
rejected their interpretation of West Virginia Code § 18A-5-1(a), finding that nothing
within that statute permitted the unilateral denial of a teacher’s statutory right to a planning
period under West Virginia Code § 18A-4-14. Instead, the Board determined that the plain
language of the statute showed that our Legislature intended for planning periods to be
mandatory. The Board found this determination to be consistent with the decision of our
Supreme Court of Appeals of West Virginia (“SCAWV”) in Gant v. Waggy, 180 W. Va.
481, 377 S.E.2d 473 (1988) (per curiam). The issue in Gant was whether, pursuant to West
Virginia Code § 18A-4-14, a board of education had the authority to break a teacher’s
planning period up into different time segments throughout a school day to prevent
potential issues with school scheduling and personnel availability. Id. The SCAWV found
that county boards of education did not have such authority, explaining as follows:

In W. Va. Code [§] 18A–4–14, the Legislature has indicated that there will
be at least one planning period within each regular school day and that “such
planning period shall be the length of the usual class period in the school to
which the teacher is assigned and shall not be less than thirty minutes.” This
Court believes that the plain meaning of this language is inescapable. Each
teacher must be provided with at least one planning period of the length of
the usual class period in the school, but no shorter than thirty minutes.

2
For simplicity, we cite to the current version of the statute, noting its language
mirrors the former version of the statute, West Virginia Code § 18A-5-1(a) (2008), which
was in effect at the time of the underlying case. To that end, West Virginia Code § 18A-5-
1(a) provides:

The teacher shall stand in the place of the parent(s), guardian(s), or
custodian(s) in exercising authority over the school and has control of all
students enrolled in the school from the time they reach the school until they
have returned to their respective homes, except where transportation of
students is provided, the driver in charge of the school bus or other mode of
transportation shall exercise such authority and control over the students
while they are in transit to and from the school.

5
In arguing that the plain meaning of the statute should not be applied, the
appellees have suggested that providing the teachers with a planning period
at least the length of a regular school period might cause scheduling and
personnel disruption in the Pendleton County schools. This Court does not
find this to be so impelling a reason as to permit deviation from the
Legislature’s obvious intention. The Court believes that there are valid
reasons for providing a teacher with a sufficiently long and uninterrupted
planning period, the most salient of which is to afford the teacher with an
opportunity to review, organize, and reflect on the material which is to be
taught. Teaching is the fundamental function of the schools, and this Court
believes that the obvious benefit of the provision of an appropriate planning
period on the teaching process outweighs the negative scheduling effect that
compliance with the legislative mandate might entail.

Id. at 483, 377 S.E.2d at 475 (emphasis added). The Decision also found that “[s]chool
personnel regulations and laws are to be strictly construed in favor of the employee.” Syl.
Pt. 1, Morgan v. Pizzino, 163 W. Va. 454, 256 S.E.2d 592 (1979). Moreover, it was noted
that to the extent that West Virginia Code § 18A-5-1 and West Virginia Code § 18A-4-14
dealt with the same subject matter and were in conflict, West Virginia Code § 18A-4-14
controlled and took precedence as the more specific statute. See Int’l Union of Operating
Eng’rs v. L.A. Pipeline Const. Co., 237 W. Va. 261, 267, 786 S.E.2d 620, 626 (2016)
(noting that where two statutes apply to the same subject matter, the more specific statute
prevails over the general statute).

Considering those principles, the Board determined that absent a separate
agreement, a teacher has a statutory right to a full, duty-free planning period. W. Va. Code
§ 18A-4-14(c) (stating that a teacher may enter into an agreement with the county
superintendent or his or her designated representative to forego their planning period in
exchange for other compensation or benefits). Here, the Board found that neither
Respondent Crisp nor Respondent Lockhart had entered into any such agreement. As such,
it was determined that petitioners had unilaterally denied both respondents their statutorily
required planning period on multiple occasions.3 The Board ordered LHS to cease its
practice of requiring teachers to give up their planning period without their written consent.
It was further ordered that respondents be provided makeup planning periods for each of
the planning periods they lost. It was directed that the makeup planning periods be in
addition to their normal planning periods required by statute. This appeal followed.

In this appeal, our governing standard of review is as follows:

3
Specifically, the Board determined that between the 2022-23 and 2023-24 school
years, Respondent Crisp had lost fourteen planning periods and that Respondent Lockhart
had lost thirteen planning periods during the same period.

6
A party may appeal the decision of the administrative law judge on the
grounds that the decision:
(1) Is contrary to law or a lawfully adopted rule or written policy of the
employer;
(2) Exceeds the administrative law judge’s statutory authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative, and substantial
evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

W. Va. Code § 6C-2-5(b) (2007);4 accord W. Va. Code § 29A-5-4(g) (2021) (specifying
the standard for appellate review of administrative appeal). Likewise, “[t]he ‘clearly
wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which
presume an agency’s actions are valid as long as the decision is supported by substantial
evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483
(1996); see also, Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177
(1996) (on appeal, a court may not overturn a finding simply because it would have decided
case differently); Syl. Pt. 1, Francis O. Day Co., Inc., v. Dir., Div. of Env’t Prot., 191 W.
Va. 134, 443 S.E.2d 602 (1994) (evidentiary findings should not be reversed unless clearly
wrong); Princeton Cmty. Hosp. v. State Health Plan., 174 W. Va. 558, 564, 328 S.E.2d
164, 171 (1985) (“[A]n agency’s determination of matters within its area of expertise is
entitled to substantial weight.”).

On appeal, petitioners set forth five assignments of error, contending the Board
committed multiple errors in its Decision. Upon review, we have determined that
petitioners’ argument only address two of the listed assignments of error: (1) The Board
erred by finding that petitioners had violated West Virginia Code § 18A-4-14; and (2) The
Board erred when it determined that petitioners could not use the in loco parentis doctrine
in West Virginia Code § 18A-5-1 to suspend the requirements of West Virginia Code
§18A-4-14 in light of the exigent circumstances at LHS.5 Therefore, we deem the
remaining assignments of error to be waived.6 See Syl. Pt. 6, Addair v. Bryant, 168 W. Va.

4
Although West Virginia Code § 6C-2-5 was substantively amended, effective
March 1, 2024, the former version of the statute was in effect at the time the Board’s
decision was entered and applies to this case.
5
These were identified as petitioners’ first and fifth assignments of error.
6
Specifically, petitioners’ brief failed to argue its second, third, and fourth
assignments of error, namely: (2) The Board erred in ordering petitioners to discontinue
the practice of requiring teachers to give up their planning periods without their written
consent; (3) The Board erred by granting respondents makeup planning periods; and (4)
7
306, 284 S.E.2d 374 (1981) (“Assignments of error that are not argued in the briefs on
appeal may be deemed by this Court to be waived.”); Brown v. W. Va. Univ., No. 23-ICA-
328, 2024 WL 3582141, at *3 n.5 (W. Va. Ct. App. July 30, 2024) (memorandum decision)
(declining to address assignments of error not argued in brief on appeal); W. Va. R. App.
P. 10(c) (stating this Court may disregard errors not adequately supported by specific
references to the appellate record).

Petitioners maintain that the Board erred in finding that they had violated West
Virginia Code § 18A-4-14. On this issue, it is asserted that staff shortages at LHS resulted
in inadequate student supervision, and that the shortage required the taking of respondents’
planning periods to provide coverage for unsupervised classrooms. It is also contended that
these issues justified Superintendent Huffman’s directive to adopt this practice. We find
no merit in this argument.

Aside from offering this general assertion, petitioners provide no actual argument
concerning the Board’s interpretation and application of West Virginia Code § 18A-4-14
or to differentiate this case from the holding in Gant. Likewise, petitioners make no
argument, supported by appropriate citations to the record, to challenge the Board’s
determination that there was no evidence of staff shortages or student supervision issues at
LHS. It is well established that “[a] skeletal ‘argument,’ really nothing more than an
assertion, does not preserve a claim.” State v. Kaufman, 227 W. Va. 537, 555 n.39, 711
S.E.2d 607, 625 n.39 (2011) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991)); see also W. Va. R. App. P. 10(c)(7) (requiring a petitioner’s brief to include “an
argument exhibiting clearly the points of fact and law presented . . . and citing the
authorities relied on”). As such, upon review of the Board’s ruling, we conclude that it did
not err in its determination that petitioners violated West Virginia Code § 18A-4-14.

Petitioners also argue that the Board erred when it determined that they could not
rely upon the in loco parentis doctrine under West Virginia Code § 18A-5-1 to circumvent
the requirements of West Virginia Code § 18A-4-14 and implement a new classroom
coverage policy which they believed provided for the safety and supervision of the students
at LHS. According to petitioners, the Legislature intended for West Virginia Code § 18A-
5-1 to take precedence over any competing statute, relying upon the SCAWV’s decision in
Smith v. West Virginia State Board of Education, 170 W. Va. 593, 295 S.E.2d 680 (1982).
We disagree.

To begin, we find that Smith exclusively addressed the application of in loco
parentis doctrine under West Virginia Code § 18A-5-1 to a school system’s corporal
punishment of students. Id. at 594, 295 S.E.2d at 681, syl. pts. 3-5. Thus, it has no
precedential effect on the issue in this case, and petitioners offer no other authority to

The Board erred by finding that exigent circumstances did not exist to justify petitioners’
unilateral taking of respondents’ planning periods.
8
support its contention. Instead, we reiterate the clear language from the SCAWV in Gant,
“the plain meaning of [West Virginia Code § 18A-4-14 (2017)] is inescapable. Each
teacher must be provided with at least one planning period of the length of the usual class
period in the school, but no shorter than [forty]7 minutes.” Gant, 180 W. Va. at 483, 377
S.E.2d at 475. Moreover, “[t]he general rule of statutory construction requires that a
specific statute be given precedence over a general statute relating to the same subject
matter where the two cannot be reconciled.” Syl. Pt. 1, UMWA v. Kingdon, 174 W. Va.
330, 325 S.E.2d 120 (1984). Applying those principles here, we agree with the Board’s
rationale and affirm its determination on this issue.

Accordingly, we affirm the Board’s Decision.

Affirmed.
ISSUED: December 23, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

7
Under the applicable version of West Virginia Code § 18A-4-14, the duration of
the planning period has been extended to forty minutes.
9