Butcher v. Gilmer County BOE
Annotate this CaseJanuary 1993 Term
__________
No. 21224
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NASIA BUTCHER,
Plaintiff Below, Appellant,
v.
GILMER COUNTY BOARD OF EDUCATION,
Defendant Below, Appellee
_________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Charles King, Circuit Judge
Civil Action No. 90-AA-110
AFFIRMED
_________________________________________________
Submitted: January 19, 1993
Filed: April 23, 1993
Charles R. Garten
Charleston, West Virginia
Counsel for Appellant
Bernard Richard Mauser
Sutton, West Virginia
Counsel for Appellee
This Opinion was delivered Per Curiam.
SYLLABUS BY THE COURT
1. "'Under W. Va. Code, 18A-4-8b(a) [1983], decisions of a
county board of education affecting teacher promotions and the
filling of vacant teaching positions must be based primarily upon
the applicants' qualifications for the job, with seniority having
a bearing on the selection process when the applicants have
otherwise equivalent qualifications or where the differences in
qualification criteria are insufficient to form the basis for an
informed and rational decision.' Syllabus Point 1, Dillon v. Bd.
of Educ. of the County of Wyoming, 177 W. Va. 145, 351 S.E.2d 58
(1986)." Syl. Pt. 1, State ex rel. Oser v. Haskins, 179 W. Va.
789, 374 S.E.2d 184 (1988).
2. "'County boards of education have substantial discretion
in matters relating to the hiring, assignment, transfer, and
promotion of school personnel. Nevertheless, this discretion must
be exercised reasonably, in the best interests of the schools, and
in a manner which is not arbitrary and capricious.' Syllabus Point
3, Dillon v. Bd. of Educ. of the County of Wyoming, 177 W. Va. 145,
351 S.E.2d 58 (1986)." Syl. Pt. 2, State ex rel. Oser v. Haskins,
179 W. Va. 789, 374 S.E.2d 184 (1988).
3. "'A final order of the hearing examiner for the West
Virginia Educational Employees Grievance Board, made pursuant to W.
Va. Code, 18-29-1, et seq. (1985), and based upon findings of fact,
should not be reversed unless clearly wrong.' Syllabus Point 1,
Randolph County Board of Education v. Scalia, [182] W. Va. [289],
387 S.E.2d 524 (1989)." Syl. Pt. 4, Pockl v. Ohio County Bd. of
Educ., 185 W. Va. 256, 406 S.E.2d 687 (1991).
Per Curiam:
This is an appeal by Nasia Butcher from a December 10, 1991,
order of the Circuit Court of Kanawha County denying the Appellant
relief from a decision of the hearing examiner for the West
Virginia Education and State Employee's Grievance Board. The
Appellant contends that she should have received a teaching
position with the Gilmer County Board of Education ("the Board").
We disagree and affirm the decision of the Circuit Court of Kanawha
County.
I.
The Appellant received her Bachelor's degree in Journalism,
minoring in Economics and Marketing, and thereafter earned a
Masters degree in Education Administration. At the time a
decision on the disputed position was contemplated, she was
certified to teach English and Language Arts, grades five through
twelve, and was one course short of the requirements for
certification in Developmental Reading. The Appellant had been
employed as an administrative assistant at a community college in
Logan, West Virginia, and had worked as the Director of Public
Relations at Glenville State College in Glenville, West Virginia.
Her actual teaching experience consisted of substitute teaching for
Gilmer and Calhoun Counties in the 1987-88 and 1988-89 school
years. During her tenure at Calhoun County High School, she had
taught English and eighth-grade Language Arts, and she had been
involved with the yearbook staff. Immediately prior to her
application for the position in question, the Appellant was
employed by the Calhoun-Gilmer Vocational Technical Center as an
itinerant English teacher.
In June 1989, the Appellant applied for a full-time teaching
position of "Language Arts/Developmental Reading Teacher Gilmer
County High School 7-12." The Appellant was interviewed by
Superintendent of Schools James Lambert and Gilmer County High
School Principal and Vocational Director Dr. Richard Butler.
Subsequent to this interview, the Appellant was formally
recommended by both Mr. Lambert and Dr. Butler during a July 13,
1989, meeting of the Board. The motion, however, failed for lack
of a second. The position was thereafter re-posted, and the
Appellant submitted her name as an applicant again. During an
August 14, 1989, meeting of the Board, a motion was made to
transfer Ms. Tina Lou Duelley to the position. That motion passed,
and Ms. Duelley was granted the position.
The successful applicant, Ms. Duelley, was certified in
Language Arts, levels five through eight. She had completed all
courses for a certification in Developmental Reading but had not
yet received her permit. She had been employed for five years as
a elementary teacher in Gilmer County. She had also taught reading
labs, newspaper classes, creative writing, and research paper
classes in grades five through eight. Additionally, she had
experience teaching Language Arts in grades seven and eight.
II.
The Appellant contends that the lower court erred in affirming
the decision of the hearing examiner and asserts that the Board
inappropriately relied upon seniority as the dispositive issue.See footnote 1
For this Court to reverse the decision below on a factual basis, we
must find that the decision is clearly wrong based upon the whole
record. Pockl v. Ohio County Bd. of Educ., 185 W. Va. 256, 259-60,
406 S.E.2d 687, 690-91 (1991). In syllabus point 4 of Pockl, we
explained: "'A final order of the hearing examiner for the West
Virginia Educational Employees Grievance Board, made pursuant to W.
Va. Code, 18-29-1, et seq. (1985), and based upon findings of fact,
should not be reversed unless clearly wrong.' Syllabus Point 1,
Randolph County Board of Education v. Scalia, [182] W. Va. [289],
387 S.E.2d 524 (1989)." Pockl, 185 W. Va. at 257, 406 S.E.2d at
688.
The Appellant alleges that the decision of the Board in the
present case was not only factually erroneous but was also based on
erroneous legal principles relating to the role of seniority in the
decision-making process. The Appellant asserts that although the
clearly wrong standard of review is applicable to factual
questions, it is not the proper standard of review for alleged
misapplication of the law. In distinguishing between the scope of
judicial review of conclusions of law as opposed to findings of
fact, we explained the following in syllabus point 1 of Lough v.
Cole, 172 W. Va. 730, 310 S.E.2d 491 (1983):
"Findings of fact by the . . .
[administrative agency] . . . should not be
set aside unless such findings are plainly
wrong; however, the plainly wrong doctrine
does not apply to conclusions of law by the
. . . [administrative agency]." Syl. pt. 1,
Kisamore v. Rutledge, [166] W. Va. [675], 276 S.E.2d 821 (1981).
Furthermore, "'[i]n reviewing the judgment of a lower court this
Court does not accord special weight to the lower court's
conclusions of law, and will reverse the judgment below when it is
based on an incorrect conclusion of law.' Syl. pt. 1, Burks v.
McNeel, [164] W. Va. [654], 264 S.E.2d 651 (1980)." Syl. Pt. 1,
Pierce v. Pierce. 166 W. Va. 389, 274 S.E.2d 514 (1981).
With regard to the alleged legal error, we have consistently
held that seniority may become a decisive factor in the filling of
vacant teaching positions only when qualifications are so similar
that no meaningful distinction can be made among the applicants.
See Syl. Pt. 1, Dillon v. Board of Educ., 177 W. Va. 145, 351 S.E.2d 58 (1986). While the Appellant contends that the Board
based its decision primarily on seniority without proper emphasis
on qualifications, the Appellee argues that the decision was
properly based upon the relative qualifications of the candidates.
The Board contends that if it had in fact relied upon seniority, as
the Appellant contends, a third candidate not involved in this
litigation would have received the position. That third party was
not granted the position, however, because her qualifications were
not as strong as those of Ms. Duelley. The Appellant contends that
from references by Board members to "experience," we may infer
improper reliance upon "seniority" issues. As the Board stresses,
however, emphasis on the relative classroom experience of the
candidates does not necessarily imply that the Board was improperly
relying upon the seniority question.
In syllabus point 1 of State ex rel. Oser v. Haskins, 179 W.
Va. 789, 374 S.E.2d 184 (1988), we explained:
"Under W. Va. Code, 18A-4-8b(a) [1983],
decisions of a county board of education
affecting teacher promotions and the filling
of vacant teaching positions must be based
primarily upon the applicants' qualifications
for the job, with seniority having a bearing
on the selection process when the applicants
have otherwise equivalent qualifications or
where the differences in qualification
criteria are insufficient to form the basis
for an informed and rational decision."
Syllabus Point 1, Dillon v. Bd. of Educ. of
the County of Wyoming, 177 W. Va. 145, 351 S.E.2d 58 (1986).
In Oser, we readdressed the principles enunciated in Dillon and
explained that the decision-making entity is "required to consider
first the qualifications and then the seniority of the individuals
filling a vacant teaching position." Oser, 179 W. Va. at 791, 374 S.E.2d at 186.See footnote 2 Furthermore,
"[c]ounty boards of education have substantial
discretion in matters relating to the hiring,
assignment, transfer, and promotion of school
personnel. Nevertheless, this discretion must
be exercised reasonably, in the best interests
of the schools, and in a manner which is not
arbitrary and capricious." Syllabus Point 3,
Dillon v. Bd. of Educ. of the County of
Wyoming, [177] W. Va. [145], 351 S.E.2d 58
(1986).
Syl. Pt. 2, Oser, 179 W. Va. at 789, 374 S.E.2d at 184.
Upon examination of the record in the present case, we
conclude (1) that the Board did not abuse its discretion by failing
to hire the Appellant in the position of teacher of Language
Arts/Developmental Reading, and (2) that the Board did not
illegally rely upon the seniority issue in reaching its conclusion.
While seniority is not to become a decisive factor except in
limited circumstances, the related issue of actual teaching
experience must be acknowledged as relevant. Ms. Duelley had over
five years of teaching experience; the Appellant had only 100 days
of experience as a substitute teacher. Certainly that difference
cannot be disregarded under the guise of refraining from relying
upon the issue of seniority. While the Appellant had a Masters
Degree in Educator Administration, Ms. Duelley had considerably
more experience in the performance of tasks associated with the
position to be filled. These are valid considerations which are
well within the discretion of the Board to examine. While the
Board acknowledges the Appellant's impressive qualifications, it
maintains that Ms. Duelley demonstrated greater qualifications for
the particular position in question. Both the Board and the
Hearing Examiner conducted thorough investigations regarding the
candidates' qualifications, credentials, and experience. The
Hearing Examiner, when confronted with the contention of reliance
upon the issue of seniority, found that the Board members had not
improperly relied upon seniority as a basis for their decision. We
do not believe this factual finding to be clearly wrong; nor do we
believe that this determination was based upon an improper
conclusion of law.See footnote 3
From our review, we conclude that the evaluation did not focus
exclusively or unnecessarily upon the seniority of the candidates,
and we do not believe that the Board's factual findings regarding
Ms. Duelley's superior qualifications for this particular position
were clearly wrong. Accordingly, the judgment of the Circuit Court
of Kanawha County is affirmed.
Affirmed.
Footnote: 1In addition to her arguments regarding qualification and seniority, the Appellant asserts that the Board violated several county policies relating to hiring of the best qualified candidates. We find this argument to be without merit. Footnote: 2The current code section dealing with seniority for professional employees is West Virginia Code § 18A-4-7a [1992], and it provides a different method for determining how the county board of education shall determine whom to hire for a professional position than West Virginia Code § 18A-4-8b(a) [1983]. However, West Virginia Code § 18A-4-7a, which was implemented in 1990, does not apply to this case which arose in 1989. Footnote: 3The Board members do use the term seniority throughout their testimony. However, the record is not clear on what the Board members meant by the use of that term. The Board members could have been referring to the amount of teaching experience each candidate had. The Board members could have also meant that the appellant and the successful candidate were equally qualified so the decision came down to who had the most seniority. In any event, we have stated that we will not reverse the decision of the West Virginia Educational Employees Grievance Board unless its findings of fact are clearly wrong, and since the Board's use of the term seniority is subject to more than one interpretation, we do not find the West Virginia Educational Employees Grievance Board's determination that the Board members properly found that the successful candidate was the most qualified to be clearly wrong.
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