WVEA Legal Services Plan
The WVEA and NEA are committed to providing comprehensive legal services to affiliated local associations and/or individual members in all matters related to association activities and employment through the NEA Unified Legal Services Program, the Educational Employees Liability Program, the UniServ program and the WVEA General Counsel.
This policy shall govern the disposition of all applications for legal assistance filed after July 31, 2010 including all pending cases as to which the particular stage or level it is now at completes and it becomes necessary to determine whether or not to proceed to the next stage or level. Cases taken prior to July 31, 2010 shall be processed according to the terms of the Legal Services Plan in effect on the date of filing.
No applicant for legal assistance shall be discriminated against on the basis of race, color, religion, national origin, creed, gender, sexual orientation, age, handicap, marital status, or economic status.
The WVEA shall not assist any member or affiliate in any legal action advocating a position or seeking an outcome which is contrary to WVEA/NEA policy or interests. Failure to observe the procedures established by this plan shall be grounds for refusal of assistance.
Eligibility for Legal Service Benefits
Organizational and staff services may only be provided to members of WVEA. Certain programs of service to members of state affiliates of the National Education Association arise out of joint WVEA/NEA contractual agreements. Membership within the United Education Profession (NEA-WVEA-LOCAL) is a condition which must be met by employees eligible for membership in order to avail themselves of such WVEA services.
Persons who receive services through WVEA staff or retained legal counsel under the terms of the WVEA legal services program, and in matters relating to their employment with an employer school board or other eligible employment, shall be United Education Profession (“UEP”) members at the time of the occurrence of the incident, circumstance or event which necessitates the provision of service. "A member who is terminated from educational employment (and thus who is temporarily ineligible for membership) need not maintain membership while the termination is being challenged. This exception does not apply if the member is re-employed and becomes eligible for membership while the challenge is pending. The WVEA shall routinely reject requests of service from non-members under this policy. (However, exceptions to the foregoing membership requirements may be granted on a case by case basis, if the presence of the following extraordinary circumstances are demonstrated: )
1. When the incident or event in consideration shall dictate that handling the non-member’s complaint will aid in the recruitment of non-members or prevent/discourage membership in competing employee organizations.
2. When the employer acts in violation of its policies in a matter which, if left unchallenged, would threaten the welfare of all teachers.
3. When the WVEA wishes to use the fact situation presented in the non-member’s complaint to establish a desired legal precedent which will serve to advantage all members.
4. When the non-member is involved with members of WVEA in a class action complaint and therefore cannot be separated from the case applicable to members.
5. A matter involving an inquiry, investigation, or formal charges or petition filed against a member by the State Board of Educator Certification or by the Child Protective Services or related governmental entity for an employment related activity.
Any procedure by which a court is asked to review the decision of a lower court, an administrative agency or a county board of education.
Application For Legal Services
The form supplied by WVEA which shall be completed by the member, or local association, or WVEA staff person, and promptly returned to WVEA so that legal funding for representation may be considered.
Any matter relating to:
1. establishing, changing or defining any affiliated county education association documents;
2. legal claims or charges against county education associations.
Employment Related Matter
Any matter arising directly or indirectly out of:
1. the relationship between a county board of education or institution of higher education or other institution involved in the teaching-learning process and
a. one or more of its employees who are members of the WVEA/NEA,
b. one or more of its employees who are not members of the WVEA/NEA, if a local affiliate of the state affiliate and the NEA is obligated to provide legal assistance pursuant to a duty of fair representation, or
2. the relationship between an employer and one or more of its employees or an employee organization if the state affiliate and the NEA agree that the matter is precedential for the United Education Profession. A matter involving criminal allegations or charges against a member arising out of the member’s employment in the school district, college, university system or other institution involved in the teaching-learning process;
3. “Employment-related matter” shall not mean a matter:
a. in which the applicant for legal assistance is being challenged by one or more rank-and-file employees or an employee organization as a result of an action taken by the applicant as a management representative; or
b. which is covered by worker’s compensation; or
c. which raises a claim of libel, slander or other defamatory conduct unless the conduct complained of has a damaging effect on the WVEA, its affiliates, the United Education Profession as a whole or upon any officer or agent of the WVEA or its affiliates.
4. A matter involving an inquiry, investigation, or formal charges or petition, filed against a member by the State Board for Educator Certification; or by the Child Protective Services or related governmental entity for an employment related activity;
Legal Services Coordinator
The WVEA Legal Services Coordinator shall have responsibility for the daily administration of the WVEA Legal Services Plan. The WVEA General Counsel shall be the Legal Services Plan Coordinator.
An attorney who has agreed to provide legal services under the terms and conditions of this plan.
The WVEA shall provide a legal defense under the terms of this plan, in any employment-related matter (provided that the matter cannot be resolved administratively with the assistance of an Organizational Development Specialist). Such matter shall include, but need not be limited to:
1. a member’s statutory contract suspension, termination, non-renewal, continuing contract rights and any rights protected by a collective bargaining agreement;
2. the deprivation of a member’s rights, privileges or benefits specifically provided by West Virginia laws, the individual member’s contract of employment, or the board of education’s policy;
3. teaching assignments;
4. demotion and/or teaching or building assignments for disciplinary reasons;
5. salary disputes;
6. leaves of absence and/or reinstatement rights;
7. discipline of pupils if not covered by professional liability insurance;
8. certification matters if such actions jeopardize the member’s current contract rights;
9. personnel file matters if such could have an adverse effect on the member’s retention, promotion, professional reputation, or ability to seek other teaching employment;
10. criminal matters if such matters jeopardize current contract rights.
Employment-related criminal charges
The education employee liability (EEL) policy which is a benefit of WVEA-NEA membership provides that any member who is charged with a crime as a result of employment-related activity shall be reimbursed by the insurance company for attorney fees incurred in the defense of those charges, provided that the member is exonerated (found not guilty or charges dismissed). When the criminal charges result from administering corporal punishment, the insurance company will reimburse attorney fees regardless of the outcome. In both instances, reimbursement is limited to $30,000.
The WVEA will pay up to the first $15,000 in attorney fees incurred by a member in the defense of employment-related criminal charges from the outset of those charges. Subsequent fees will be paid on a percentage basis as follows:
• The next $1,000 or fraction thereafter $15,000.
WVEA 90 percent—Member 10 percent.
• The next $1,000 or fraction thereafter $16,000
WVEA 80 percent—Member 20 percent.
• The next $1,000 or fraction thereafter $17,000
WVEA 70 percent—Member 30 percent.
• The next $1,000 or fraction thereafter $18,000
WVEA 60 percent—Member 40 percent.
• The next $1,000 or fraction thereafter $19,000
WVEA 50 percent—Member 50 percent.
After $20,000 the member is responsible for all attorney fees charged in defense of the matter. The WVEA will not be responsible for payment of more than $18,500 in any criminal case.
The WVEA will provide payment of such attorney fees as set out herein regardless of the outcome of the charges as long as the member complies with all the remaining provisions of this plan related to procuring legal service.
The attorney fees provided by the WVEA are not in addition to the fees reimbursed by the EEL insurance carrier, but are intended to reduce the up-front expenses of the member while the criminal action is pending. In the event that the EEL insurance carrier reimburses attorney fees incurred in the defense of employment-related criminal charges, the member must agree to assign such amount of the reimbursement to the WVEA that covers the amount of fees actually paid by the WVEA in the defense of the member. Any attorney fees reimbursed in excess of the fees actually paid by the WVEA shall be paid to the member to reimburse the member for any fees he or she may have had to pay in their own defense.
The WVEA shall assist affiliated county associations and individual members, subject to the terms of this plan, in suits to enforce state law where such law has an impact on association interests, the educational system, or the safety of an individual teacher. Such assistance may include, but shall not be limited to:
1. actions to enforce the Open Meeting Law;
2. actions to enforce the Freedom of Information Act;
3. charges filed under the Teacher Assault Law.
The WVEA shall assist affiliated county education associations in any matter relating to organizational structure. Such matters shall include:
1. consultation regarding organizational documents;
2. advice regarding the organizational relationship with WVEA;
3. consultation and representation regarding political activities.
The WVEA shall not assist in disputes between:
1. affiliated county education associations, employees, officers, agents or members of affiliated associations;
2. affiliated county education associations and/or the WVEA and/or the NEA;
3. affiliated county education associations and/or the WVEA and/or NEA employees, officers or agents.
The WVEA shall provide each of its members with comprehensive professional liability insurance in the amount of $1 million.
Such insurance policy shall cover damages which a member becomes legally obligated to pay as a result of claims arising in the course of the member’s employment; when necessary shall provide for the defense of any member in any civil suit arising out of an event in the course of the member’s employment, and any charges of criminal negligence or criminal charges which result from the use of corporal punishment.
No expenses covered by the liability policy shall be paid from the WVEA general fund.
A description of the liability policy shall be made available to all WVEA members. The policy shall be that negotiated by NEA.
Costs and Fines
The WVEA shall pay all necessary and reasonable expenses arising out of any legal action covered by the terms of this plan, provided that all appropriate procedures have been followed. Such expenses shall include, but not be limited to, court costs, filing fees, and attorney’s fees.
All fines shall be paid by the individual member or affiliate unless otherwise provided for under this plan.
Reimbursement of court costs and legal fees:
1. Prior to receiving financial assistance under this plan, the applicant must agree to repay WVEA for its legal expenses in relation to the matter in question under the following circumstances. Repayment to WVEA will be upon award, settlement or insurance payment to the applicant where such payment is in excess of the applicant’s actual financial loss. WVEA must, in any event, be reimbursed with amounts recovered which have been specifically designated as attorney’s fees or court costs.
2. WVEA will be responsible for collection of such recoveries and forwarding to the NEA its fair share of the legal costs of the case, according to procedures provided by the NEA.
The Legal Services Division staff shall be responsible for reporting claims for reimbursement under the ULSP-DuShane Fund Program to NEA and shall act as liaison with the Educators Employment Liability carrier.
A. Legal Services Request
1. A timely request for legal services assistance shall come from the member, or an employee in the WVEA Help Center on behalf of the member, or the local affiliate, or from another WVEA employee designated to assist the member. The request shall be in writing or via e-mail, and submitted to the Legal Services Coordinator.
2. The member requesting legal services must deliver an executed LSP Application for Individual Employment Rights Assistance to the LSP Administrator or designee upon making the request for legal services, or at a later date as required by the LSP Administrator or designee. WVEA must have an executed Application on file to continue funding for legal services. The application shall be administered and revised as needed by the LSP Administrator or the Executive Director.
B. Funding for Legal Services
1. Legal Services funding shall be authorized in writing only and shall not be authorized by anyone other than the Legal Services Coordinator or the Executive Director.
2. Despite any of the definitions or parameters stated in these guidelines, funding for Legal Services is discretionary on the part of the Legal Services Coordinator. These guidelines define criteria and the range of disputes that may be considered in a funding decision, but do not constitute an agreement to fund any case. The LSP Administrator shall have the authority to approve funding for legal services after careful regard for the following factors:
(a) the merits of the dispute concerning which legal services have been requested,
(b) the importance of the issues involved in the dispute to the welfare of WVEA/NEA or its locals,
(c) the importance of the dispute to the teaching profession, public education employment, or public education.
(d) the time limits applicable to the dispute; and
(e) the WVEA budget, and the resources necessary to fund the legal services.
3. The Legal Services Coordinator shall not be required, as a prerequisite for the exercise of the judgment and the discretion called for in the foregoing paragraph, to be completely satisfied concerning which legal services have been requested. It is contemplated that this decision will rely largely upon information furnished by the applicant, and appropriate WVEA staff, and is subject to refinement upon further development of the facts.
4. The Legal Services Coordinator shall also have the authority to make a determination of the limits of the commitment to pay for legal services. For example, in an appropriate case, the Legal Services Coordinator may authorize only the employment of a lawyer to conduct a preliminary investigation and prepare a report; to represent a litigant only at a specified hearing or administrative proceeding; or to perform other such specifically limited services. In most cases, the Legal Services Coordinator, or designee, shall be required to state explicitly to the lawyer and the applicant, in writing, that nature and extent of the commitment and, after reasonable notice, the termination of that commitment.
“Reasonable notice” means notice adequate to allow the affected lawyer and applicant an opportunity either to renegotiate their financial arrangements, or for the lawyer to withdraw as counsel.
5. It is understood that WVEA may withdraw or curtail funding in any proceeding and seek withdrawal from a case, or deny initial funding when;
* The member/affiliate does not fully cooperate with WVEA or freely assist when requested any ‘"participating attorney" hired by the Plan. Lack of "full cooperation" includes, but is not limited to, demanding that counsel unreasonably retract or break an agreement with the opposing party, or becoming threatening or hostile with counsel.
* WVEA determines that the facts of the matter in question, as alleged by the member/affiliate, are not true.
* The member/affiliate rejects a settlement proposal or other recommended disposition of the matter as advised by WVEA or the participating attorney(ies).
* The member/affiliate retains an attorney without the knowledge and consent of WVEA.
* Except in the case of a contested suspension or discharge as mentioned in the LSP at page 1, the member/affiliate fails to maintain membership in the WVEA/NEA and local association while WVEA supported legal action is pending.
* Pursuit of the case serves no sound purpose which the Association can justify, is not cost effective or involves support of a position contrary to the policies of the WVEA or NEA.
* Lack of adequate financial resources in the LSP to meet the fiscal obligations of the fund.
6. The Legal Services Coordinator shall have the authority to condition the expenditure of funds for legal services upon the agreement of the applicant to accept the LSP Administrator’s recommendation of a lawyer or lawyers to handle the case. The recommendation shall be based on the LSP Administrator’s opinion of the competence of the lawyer to perform the authorized legal service.
7. Decision of Support or Nonsupport
An applicant shall receive a written decision regarding a request within fifteen (15) days after submission of a properly completed application. Decisions of support or nonsupport of legal services will be made by the ULSP Administrator. The decision of the LSP Administrator is appealable to the Executive Director.
8. Participating Attorneys
Participating attorneys shall agree, in writing, to consult with the WVEA staff counsel prior to initiating any action on behalf of the member/client. Participating attorneys shall submit all bills to the WVEA General Counsel.
Attorney’s fees in excess of the rate agreed upon by the WVEA and the participating attorney shall not be paid. Participating attorneys shall promptly send copies of all legal documents and judicial decisions in cases financed under this plan to the WVEA General Counsel.
9. In cases that are contemplated to be pursued, or are pursued in the court system of West Virginia, or in the federal court system, WVEA may require a member or local association to sign a representation agreement that allows WVEA to be reimbursed for its expenses and attorneys fees in some instances.
10. If a matter covered by the terms of this Plan cannot be resolved informally, the applicant shall have a right to a written evaluation of the legal merit of the case by the WVEA General Counsel.
11. Assignment of Plan Attorney
1. If an individual or affiliate is dissatisfied with the plan attorney assigned by the WVEA, the individual or affiliate may petition in writing to the WVEA General Counsel for the assignment of a different plan attorney. The petition shall state the reasons for the reassignment, and the basis for such reasons.
2. If, based upon the reasons and grounds stated in the petition and the statements of the petition, WVEA General Counsel determines that representation by the plan attorney assigned under the plan would be unethical, improper or inadequate under the circumstances of the matter involved, he/she shall direct the assignment of a new plan attorney to the individual or affiliate.
3. If however, he/she finds that the representation by the plan attorney would not be unethical, improper or inadequate under the circumstances involved, the member or affiliate shall be notified in writing. Upon receipt of such note the member or affiliate may elect to decline representation by the plan attorney. If the individual or affiliate declines representation by the previously appointed plan attorney, the individual or affiliate is free to pursue the anticipated litigation with counsel of the individual’s or affiliate’s choice at his/her or its own expense without any right of financial support or reimbursement from the WVEA/NEA Legal Services Plan.
The Legal Division staff shall be responsible for:
1. reviewing and evaluating all claims for assistance under this plan and recommending appropriate action to the Executive Director, the Director of Field Services, and the Member Rights & Responsibilities Committee (“MR&RC”);
2. reviewing and recommending payment of all bills for services rendered submitted by participating attorneys;
3. supervising the employment of participating attorneys;
4. consulting with participating attorneys regarding WVEA-financed matters and reporting to the Executive Director, the Assistant Executive Director, the Director of Field Services, and the MR&RC.
The Field Services Division staff shall be responsible for:
1. initial contact with any member or group of members seeking assistance under this plan, which shall include an explanation of the Plan coverage;
2. when appropriate, attempting to resolve the matter complained of informally;
3. initial evaluation of any complaint, recommending appropriate action to the General Counsel; and
4. acting as liaison between the General Counsel, participating attorney and/or insurer, and the member or members.
The WVEA Member Rights and Responsibilities Committee shall be responsible for hearing appeals from aggrieved WVEA members where:
1. funding of a case has been denied as described above;
2. the member alleges that the WVEA staff has failed to follow the guidelines set forth in this plan.
THE WVEA WILL NOT BE RESPONSIBLE FOR PAYMENT OF ANY ATTORNEY FEES INCURRED WITHOUT PRIOR WVEA APPROVAL.
I. Initial Steps
A. If an affiliate or member believes that the WVEA employee, through its agent, has not complied with the policy provisions of this plan, or that the decision made by a WVEA employee or agent was arbitrary, or capricious, the affiliate or member may appeal the decision as follows:
1. The appeal shall be communicated in writing to the WVEA Executive Director within fifteen (15) days of receipt of the decision that is the basis thereof,
2. The Executive Director will promptly consider the appeal and render a written decision within twenty (20) days of receiving the written appeal.
3. In the event the affiliate or member finds the decision of the Executive Director to be unacceptable, the member may notify the WVEA/MR&R Committee of their intent to appeal said decision within ten (10) days of receipt thereof.
a. The notice of appeal shall be made on the prescribed form which shall be forwarded to the member with the decision of the Executive Director if the Executive Director does not grant the appeal. A copy of this appeal procedure shall be sent to the appellant with the “intent to appeal” form.
b. The affiliate or member shall select between the written or hearing appeal by marking the appropriate space on the “intent to appeal” form.
c. The affiliate or member may file a written appeal with the MR&R Committee specifically stating:
1) their cause for appeal,
2) facts and authorities supporting their position,
3) any additional documents they wish the Committee to consider, and
4) a statement of the relief sought.
d. In lieu of a written appeal, the affiliate or member may request a hearing before the MR&R Committee, to appeal personally and present evidence in support of the appeal.
II. Written Appeal
A. If the affiliate or member elects to file a written appeal, it shall be filed with the chair of the MR&R Committee within twenty (20) days of mailing the notice of appeal. The chair will provide copies to the full Committee and the Executive Director. The Executive Director or his/her designee shall have ten (10) days from receipt of the written appeal to file a response, a copy of which shall be mailed to the appellant as well as all members of the Committee. The appellant shall have five (5) days from receipt of the Executive Director’s response to respond thereto.
B. Within thirty (30) days of receipt of all documents in the written appeal, the MR&R Committee shall meet and decide the appeal by majority vote of those members present at the meeting. The decision of the Committee shall be reduced to writing and promptly communicated to the appellant.
III. Hearing Appeal
A. If the affiliate or member elects to have a hearing instead of a written appeal, the MR&R Committee shall schedule a hearing at its next regularly scheduled meeting or at a special meeting, but in no case more than ninety (90) days from receipt of the notice of appeal.
B. All hearings shall conform to the WVEA/MR&R Hearing Guidelines.
C. The MR&R Committee shall render a written decision by majority vote of those members present at the hearing. The decision of the Committee shall be reduced to writing and communicated to the member within thirty (30) days of the conclusion of the hearing.
IV. Procedural Appeal to Executive Committee
A. In the event the affiliate or member remains dissatisfied, the decision of the MR&R Committee may be appealed to the WVEA Executive Committee based solely upon the ground that their request for legal assistance was not processed in accordance to the WVEA Legal Services Plan.
1. The appeal must be made in writing and contain the following:
a. citation of the specific procedures in the Legal Services Plan that were not followed,
b. statements of facts supporting the alleged failure to follow the specific procedure, and
c. a statement of the relief sought.
2. The appeal must be sent to the WVEA President within ten (10) days of receipt of the decision of the MR&R Committee and the WVEA president shall cause copies thereof to be distributed to all members of the Executive Committee and the Executive Director.
3. The Executive Director or his designee shall have five (5) days to respond in writing to the allegations contained in the appeal and shall provide a copy of said response to the appellant.
4. The Executive Committee shall decide the appeal at its next regularly scheduled meeting by majority vote of the members present at that meeting.
B. Affiliates or members shall be promptly informed in writing of the determination of the WVEA Executive Committee and informed of the right to appeal to the NEA if the WVEA Executive Committee rejects the application for legal assistance.
V. NEA Procedural Appeal
A. The affiliate or member may appeal an adverse decision by the WVEA Executive Committee to the NEA on the sole ground that the WVEA has failed to process the request in accordance with the WVEA Legal Services Plan.
B. The Executive Director or his/her designee shall promptly send copies of all rejected applications for legal assistance to the NEA and, if requested by the NEA, supporting materials.
C. An appeal to the NEA must be received by the NEA within ninety (90) days of the final decision of the WVEA to be considered.
VI. General Provisions
A. While the above appeal to the WVEA or the NEA is pending, the affiliate or member who has been denied legal assistance shall be responsible with regard to legal services denied, for meeting all deadlines for filing actions and prosecuting all, appeals, notices and/or other documents. The WVEA will not be responsible with regard to the legal services denied if said deadlines are not met or if the action is dismissed while this appeal process is pending. The affiliate or member shall be reimbursed for all reasonable and necessary legal expenses incurred to meet said deadlines and/or avoid dismissal of said action only if the decision to deny legal assistance is reversed.
B. “Days” shall mean calendar days. However, if the last day for completing an act herein should fall on a Saturday, Sunday or legal holiday, the party shall have until the next regular work day to complete the act.
C. All notices or appeals to be sent to the WVEA/MR&R Committee, the WVEA President, the WVEA/Executive Committee and/or the Executive Director should be addressed to the attention of that person or committee and mailed to:
WEST VIRGINIA EDUCATION ASSOCIATION
1558 Quarrier Street • Charleston WV 25311
Legal Services Plan. Amended July 31, 2010