Webster County BOE v. Johns
Annotate this CaseJanuary 1994 Term
__________
No. 21965
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WEBSTER COUNTY BOARD OF EDUCATION,
Petitioner Below, Appellee
v.
WANETTA JOHNS,
Respondent Below, Appellant
________________________________________________
Appeal from the Circuit Court of Webster County
Honorable A.L. Sommerville, Jr., Circuit Judge
Civil Action No. 88-MSC-34
REVERSED AND REMANDED
______________________________________________
Submitted: May 4, 1994
Filed: July 20, 1994
Jack Alsop
Webster Springs, West Virginia
Attorney for the Appellee
John Everett Roush
West Virginia School Service Personnel Assoc.
Charleston, West Virginia
Attorney for the Appellant
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE NEELY dissents, and reserves the right to file a
dissenting opinion.
Syllabus
1. "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."
Syl. Pt. 3, Dillon v. Board of Education, 177 W. Va. 145, 351 S.E.2d 58 (1986).
2. Given that the terms "applicant" and "apply" appear to
be an integral part of West Virginia Code § 18A-4-8b (1988), a
board of education clearly exceeds its discretion in assigning an
individual to a newly-created service personnel position who did
not apply for the position, but was otherwise qualified for the
opening, when another individual, holding the necessary
qualifications and superior seniority, applied for the position.
Workman, Justice:
Wanetta Johns appeals from an order of the Circuit Court of
Webster County which reversed the May 26, 1988, decision of a
hearing examiner awarding her instatement to the kindergarten
aide position to which she claimed entitlement. Having carefully
reviewed this matter, we reverse.
Ms. Johns was employed as an Aide IV by the Webster County
Board of Education ("Board") during the 1986-87 school year and
was assigned to Glade Elementary School ("Glade") as a Chapter
OneSee footnote 1 Aide for the seventh and eighth grade classrooms. Towards
the end of the 1986-87 school year, the principal, Mr. Friend,
informed Ms. Johns that a new kindergarten aide position was
going to be created for the 1987-88 school year at Glade. Given
her interest in the forthcoming position and previously-scheduled
surgery during the anticipated posting period for the position,
Mr. Friend agreed to accept Ms. Johns' application for the
position early. Accordingly, she tendered her application to Mr.
Friend on June 3, 1987.
The new kindergarten aide position was first posted on June
9, 1987, and then reposted on June 14, 1987. Although Ms. Johns
was the most senior applicant for the position, Sharon Weese, an aide with six years less seniority than Ms. Johns was awarded the
new kindergarten aide position.See footnote 2 The record reflects that Ms.
Weese did not apply for the kindergarten aide position.See footnote 3 Ms.
Johns was given an aide position in a newly-created classroom at
Glade for children whose academic level placed them between
kindergarten and first grade.See footnote 4
Based on these placements, Ms. Johns filed a grievance
seeking instatement to the kindergarten aide position at Glade on
September 14, 1987. See W. Va. Code §§ 18-29-1 to -11 (1994).
The grievance was denied at the first three levels, but granted
at the fourth level pursuant to the hearing examiner's decision
dated May 26, 1988.See footnote 5 The Board filed an appeal with the circuit
court challenging the hearing examiner's decision as being
contrary to law and clearly wrong. See W. Va. Code § 18-29-7. By order dated May 13, 1993, the circuit court reversed the
decision of the hearing examiner.See footnote 6
The issue, as framed by the Board, is whether a building
principal has discretion to place an employee in any position
within the school provided that the placement does not require
the employee to alter the employee's classification category.
The Board's position is simply that Mr. Friend, as principal, had
the discretion regarding which aide position Ms. Johns should be
assigned to, notwithstanding her undisputed seniority as between
herself and Ms. Weese. In support of its argument, the Board
states that this Court has held that county boards of education
have substantial discretion in matters relating to the hiring,
assignment, transfer, and promotion of school personnel. See
Board of Educ. v. Enoch, 186 W. Va. 712, 414 S.E.2d 630 (1992);
Egan v. Board of Educ., 185 W. Va. 302, 406 S.E.2d 733 (1991).
This Court stated in syllabus point three of Dillon v. Board
of Education, 177 W. Va. 145, 351 S.E.2d 58 (1986), that
"[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."
In this case, the hearing examiner found that "[b]ased upon his
belief that . . . [Ms. Johns'] experience in the federal Chapter
One program would be beneficial in the new federal program the
building principal reassigned her to the early childhood program
for 1987-88." The Board maintains that in placing Ms. Johns in
the aide position for the class comprised of students not yet
ready for first grade, the principal was properly exercising
discretion reposed in the county boards of education to make
decisions "which best promote the interest of the schools."
Egan, 185 W. Va. at 304, 406 S.E.2d at 735.
The Board argues that the Mr. Friend should not be second-
guessed in the exercise of his discretion that Ms. Johns was the
preferred aide for the ECAP kindergarten/first grade classroom.
In Enoch, we looked at this issue of discretion as it pertains to
teachersSee footnote 7 and ruled that "[a] board of education making a hiring
decision should use its best professional judgment to select the
applicant best suited to the needs of the students based on qualifications and evaluations of the applicants' past service."
186 W. Va. at 716, 414 S.E.2d at 634.
Ms. Johns, as an aide, is governed by the statutory
provision that addresses the filling of service personnelSee footnote 8
positions. That statute, provides:
A county board of education shall make
decisions affecting promotion and filling of
any service personnel positions of employment
or jobs occurring throughout the school year
that are to be performed by service personnel
as provided in section eight [§ 18A-4-8],
article four of this chapter, on the basis of
seniority, qualifications and evaluation of
past service.
Qualifications shall mean that the
applicant holds a classification title in his
category of employment as provided in this
section and must be given first opportunity
for promotion and filling vacancies. Other
employees then must be considered and shall
qualify by meeting the definition of the job
title as defined in section eight, article
four of this chapter, that relates to the
promotion or vacancy. If the employee so
requests, the board must show valid cause why
an employee with the most seniority is not
promoted or employed in the position for
which he applies. Applicants shall be
considered in the following order:
(1) Regularly employed service
personnel;
(2) Service personnel whose employment
has been discontinued in accordance with this
section;
(3) Professional personnel who held
temporary service personnel jobs or positions
prior to the ninth day of June, one thousand nine hundred eighty-two, and who apply only
for such temporary jobs or positions;
(4) Substitute service personnel; and
(5) New service personnel.
W. Va. Code § 18A-4-8b(b) (1988) (emphasis supplied).
While the Board prefers to couch the issue presented in this
case as the scope of discretion imposed in school principals, we
believe the case turns on a different issue. In reading the
controlling statute, West Virginia Code § 18A-4-8b(b),See footnote 9 the term
"applicant" or "apply" appears throughout. Importantly, Ms.
Weese, the aide given the kindergarten position to which Ms.
Johns claims entitlement, did not even apply for the position.
Similarly, Ms. Johns did not apply for the ECAP position to which
she was assigned.See footnote 10
Given that the terms "applicant" and "apply" appear to be an
integral part of West Virginia Code § 18A-4-8b, a board of
education clearly exceeds its discretion in assigning an
individual to a newly-created service personnel position who did not apply for the position, but was otherwise qualified for the
opening, when another individual, holding the necessary
qualifications and superior seniority, applied for the position.
By this ruling, we do not suggest that a board of education has
no discretion in filling positions, nor that a school principal
lacks discretion in assignments of aides to selected groups of
students, but instead we require, consistent with the statutory
requirements, that this discretion does not come into play until
an individual has first applied for the position opening. See W.
Va. Code § 18A-4-8(b). For example, in the event that both Ms.
Johns and Ms. Weese had applied for the traditional kindergarten
position, the Board would have had discretion statutorily to
determine who would be the best person to fill the position after
first considering the statutorily-required factors. See W. Va.
Code § 18A-4-8b. Accordingly, because the position to which Ms.
Johns claims entitlement was duly posted and because she applied
for said position with the requisite qualifications and
seniority, whereas Ms. Weese did not apply for the new position,
Ms. Johns is entitled to the kindergarten aide position.
Based on the foregoing opinion, the decision of the Circuit
Court of Webster County is hereby reversed and remanded for entry
of an order reflecting the rulings herein.
Reversed and
remanded.
Footnote: 1Chapter One is apparently funded, at least in part, through federal funds. Footnote: 2At the time of her application for the kindergarten aide position, Ms. Johns had thirteen years seniority as an aide. Footnote: 3Ms. Weese was previously an aide in a special education classroom at Glade. Footnote: 4This class was created in August 1987 pursuant to the federal Early Childhood Assistance Program (ECAP). Footnote: 5The hearing examiner's decision was predicated on the fact that Ms. Johns did not even apply for the position to which she was assigned and further, on the grounds that a school principal does not have the authority to "assign[,] transfer, promote, demote or suspend school personnel. W. Va. Code, 18A-2-7 and 18A-2-9 . . . . " Footnote: 6The basis of the circuit court ruling was its conclusion "that pursuant to provisions of Chapter 18A, Article 4, Section 8B of the Code of West Virginia, that a Board of Education and a building principal did have the discretion to place service personnel in a particular classroom when such placement does not transfer said service personnel to another classification category or to a different place of employment." Footnote: 7A teacher is defined as a "professional personnel" pursuant to West Virginia Code § 18A-1-1(b) (1993), and is therefore governed by subsection a. of the statute as opposed to subsection b. See W. Va. Code §18A-4-8b(a), (b) (1988). In 1990, through the creation of West Virginia Code § 18A-4-7a, which governs the employment, promotion, transfer, and seniority of professional personnel, the legislature separated these statutory provisions as they relate to service and professional personnel. Footnote: 8Ms. Johns qualified as "service personnel" pursuant to the definition found in West Virginia Code § 18A-1-1(e) (1993): "'Service personnel' shall mean those who serve the school or schools as a whole, in a nonprofessional capacity, including such areas as . . . aides." Footnote: 9Although the statute was amended in 1990 to carve out those provisions which previously pertained to professional personnel, see supra note 7, the statutory provisions at issue in this case pertaining to school service personnel have not been amended. See W. Va. Code § 18A-4-8b (1993). Footnote: 10During the oral argument of this case, the Court learned that Ms. Johns is no longer at Glade due to the fact that the ECAP program lost its funding. Accordingly, as a result of the principal's placement of her in a position for which she had not applied, as opposed to one for which she had applied and was qualified, Ms. Johns, despite her seniority, was forced to leave Glade, while Ms. Weese remains at Glade in the kindergarten aide position.
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