IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2002 Term
May 29, 2002
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
May 31, 2002
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
BOONE COUNTY BOARD OF EDUCATION AND
GARY SUMPTER, SUPERINTENDENT,
Certified Question from the Circuit Court of Kanawha County
Honorable Tod J. Kaufman, Judge
Civil Action No. 00-AA-20
CERTIFIED QUESTION ANSWERED
Submitted: April 3, 2002
Filed: May 29, 2002
Henry M. Hills, III, Esq.
Dennie S. Morgan, Jr., Esq.
Crandall, Pyles, Haviland & Turner, LLP
Logan, West Virginia
Attorneys for Petitioner
Timothy R. Conaway, Esq.
Madison, West Virginia
Attorney for Respondents
JUSTICE MAYNARD delivered the Opinion of the Court.
Once a county board of education selects a qualified applicant to fill a vacancy
for a properly noticed job and that selection is rescinded within the time period prescribed by
W.Va. Code § 18A-4-7a, if more than one applicant meets the qualifications, the board is
legally bound to choose a successor from the original list of applicants.
This case arises on certified questions from the Circuit Court of Kanawha
County and presents issues concerning the posting, filling, and vacating of an assistant
principal’s position within the thirty-day period prescribed by W.Va. Code § 18A-4-7a. Rather
than choosing a successor to fill the newly vacated assistant principal’s position from among
the original applicants, the Boone County Board of Education reposted the position. The
Board chose a successor who applied after the reposting. The lone remaining original
applicant believes she should fill the vacancy.
The circuit court certified two questions; however, we have deemed that the
questions are not in a proper posture for us to consider. This Court has the discretion to
reformulate certified questions.1 The question we must address reads as follows :
Once a board of education selects a qualified applicant to
fill a vacancy for a properly noticed job and that selection is
rescinded within the time period prescribed by W.Va. Code §
18A-4-7a(o)(3), if more than one applicant meets the
qualifications, is the board legally bound to choose a successor
from the original list of applicants?
See Syllabus Point 3 of Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993)
(“When a certified question is not framed so that this Court is able to fully address the law
which is involved in the question, then this Court retains the power to reformulate questions
certified to it under both the Uniform Certification of Questions of Law Act found in
W.Va.Code, 51-1A-1, et seq. and W.Va.Code, 58-5-2 , the statute relating to certified
questions from a circuit court of this State to this Court.”).
After applying the law to the facts in this case, we answer the question in the affirmative.
The facts are not in dispute. The Boone County Board of Education employs
Diana Bossie as a teacher at Sherman High School. She holds a permanent teaching certificate
for grades 7-12 and a Master’s Degree in Educational Leadership for grades 7-12. The
Master’s Degree qualifies her to work as an administrator in the school system in West
Virginia. There is no question that Ms. Bossie is qualified to fill the position she seeks.
During the summer of 1999, the Board posted the vacant principal’s position at
Van Junior-Senior High School. Diana Bossie and Earnest Wilson, assistant principal at the
school, applied for the position. The applicants were interviewed by Dr. Richard Adkins,
Executive Director of Personnel, and Steve Pauley, Assistant Superintendent for Secondary
Education. During the interview, Ms. Bossie was told that she would be considered for the
assistant principal’s position if Mr. Wilson was chosen for the principal’s job. The Board
chose Mr. Wilson to fill the vacant principal’s position.
On July 26, 1999, the Board posted a notice of vacancy for the assistant
principal’s position. Two applicants, Diana Bossie and Tom Bias, a teacher at Scott High
School, applied for the job. After interviewing each applicant, the Board chose Mr. Bias to fill
the vacancy. Mr. Bias held the position from August 17, 1999 through August 26, 1999, even
though he actually worked on the job as assistant principal for one day. After his first day on
the job, he told the personnel director that he wished to be relieved of the position. As the
Board did not post the teaching position Mr. Bias vacated at Scott High School, Mr. Bias
returned to his former teaching job. On August 26, 1999, the Board voted to rescind its hiring
The Board was then faced with the question of whether to choose a successor
from the original pool of applicants or repost the opening. On August 30, 1999, the Board
reposted the assistant principal’s position. This time the Board received three applications,
that of Diana Bossie, Rodney Cummings, a Lincoln County classroom teacher, and a third
unknown applicant. After interviewing the applicants, the Board chose Mr. Cummings to fill
the vacant assistant principal’s position.
On September 15, 1999, Ms. Bossie filed a grievance alleging violations of
W.Va. Code § 18A-4-7a2 and W.Va. Code § 18-29-2(m).3 The Board prevailed at level one
W.Va. Code § 18A-4-7a(o)(3) (2001) states, “If one or more applicants meets the
qualifications listed in the job posting, the successful applicant to fill the vacancy shall be
selected by the board within thirty working days of the end of the posting period[.]”
Regarding her W.Va. Code § 18-29-2(m) (1992) claim, Ms. Bossie states in her brief
that “[t]his section deals with sexual discrimination and is unrelated to this appeal to the West
and level two of the grievance process. Ms. Bossie waived level three. The grievance
proceeded to level four where the administrative law judge upheld the decision made at level
two. This exhausted Ms. Bossie’s administrative remedies. She appealed to circuit court.
The circuit court framed and answered questions sua sponte and certified the
questions to this Court. The relevant facts were noted by the circuit court in its order entered
on March 23, 2001. The court found that the July 26, 1999 posting closed on July 30, 1999.
Mr. Bias left his teaching job on August 17, 1999 to assume the assistant principalship and left
the assistant principalship to return to his teaching position on August 18, 1999 with eleven
days of the statutory thirty days remaining. The Board rescinded its hiring action on August
26, 1999. The circuit court believed the Board followed existing legal procedure and that the
second posting of the assistant principal’s position “essentially put all prospective applicants
back to the place where they were before the job was first posted.” The court affirmed the
administrative law judge’s decision but stayed that ruling while the certified question is
pending in this Court.
STANDARD OF REVIEW
Virginia Supreme Court.”
“‘The appellate standard of review of questions of law answered and certified by
a circuit court is de novo.’ Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va.
172, 475 S.E.2d 172 (1996).” Syllabus Point 2, Keplinger v. Virginia Elec. and Power Co.,
208 W.Va. 11, 537 S.E.2d 632 (2000).
The Board readily admits that after Mr. Bias’s placement at Van Junior-Senior
High School was rescinded, the question arose as to whether the position should be reposted.
The Board decided upon reposting rather than filling the position with the remaining original
applicant by reasoning as follows. When Mr. Bias accepted the assistant principal’s position,
the job was filled. When Mr. Bias left the job, the position was once again open. W.Va. Code
§ 18A-4-7a(o) (2001) states in pertinent part:
Openings in established, existing or newly created
positions shall be processed as follows:
Boards shall be required to post and date notices
which shall be subject to the following:
(A) The notices shall be posted in conspicuous working
places for all professional personnel to observe for at least five
(B) The notice shall be posted within twenty working
days of the position openings and shall include the job
(C) Any special criteria or skills that are required by
the position shall be specifically stated in the job description and
directly related to the performance of the job;
(D) Postings for vacancies made pursuant to this
section shall be written so as to ensure that the largest possible
pool of qualified applicants may apply; and
Job postings may not require criteria which are not
necessary for the successful performance of the job and may not
be written with the intent to favor a specific applicant;
No vacancy shall be filled until after the five-day
minimum posting period;
If one or more applicants meets the qualifications
listed in the job posting, the successful applicant to fill the
vacancy shall be selected by the board within thirty working days
of the end of the posting period[.] (Emphasis added).
Believing an “opening” was created when Mr. Bias vacated the assistant principal’s job after
one day, the Board reposted and filled the position in accordance with these statutory
Ms. Bossie contends that rather than reposting the job, the Board was legally
bound to hire her to fill the vacant position because the Board’s hiring action was rescinded
within the thirty-day statutory period and she was the sole remaining original applicant. She
avers that the assistant principal’s position did not become vacant when Mr. Bias’s hiring was
rescinded because “[b]y rescinding its action, the Board voided the selection, as if it had never
been filled in the first place.”
In Mingo County Bd. of Educ. v. Jones, 204 W.Va. 340, 512 S.E.2d 597 (1998),
the Board posted notice of a vacancy in a high school principal’s position. Frank Jones was the
only person who applied for the job. After interviewing Jones, the selection committee
reported to the superintendent that Jones met the basic qualifications for the job; however, the
committee requested that the position be reposted so other applicants could be evaluated. The
superintendent complied and reposted the position. Jada Hunter then applied for the job. After
interviewing Hunter, the committee reported to the superintendent that both applicants were
qualified and each would be a benefit to the school. Based upon personal knowledge of the
backgrounds of the two applicants, the superintendent recommended that the Board hire
Jones filed a grievance which the West Virginia Education and State Employees
Grievance Board granted, ordering that Jones be placed in the principal’s position. The Board
appealed to circuit court where the Grievance Board’s decision was reversed. Jones appealed
to this Court, contending that the circuit court erred by holding that the statute permits
multiple postings of a job vacancy as long as the vacancy is filled within the thirty-day time
limit. Because county boards of education are bound by procedures they establish and the
Board set a deadline in the original posting, this Court held that “it was bound to adhere to the
deadline, and to hire the single qualified applicant who had filed during that application period.”
Id., 204 W.Va. at 343, 512 S.E.2d at 600.
We must go a step beyond Jones in the case presently before us. We must
determine if county boards of education are bound to hire from the original pool of qualified
applicants when a successful applicant4 is hired but that hiring action is rescinded “within thirty
working days of the end of the posting period[.]”
To “rescind” is “[t]o abrogate or cancel (a contract) unilaterally or by agreement”
or “[t]o make void; to repeal or annul[.]” Black’s Law Dictionary 1308 (7th ed. 1999). More
specifically, it has been said that:
“To rescind a contract is not merely to terminate it but to
abrogate and undo it from the beginning; that is, not merely to
release the parties from further obligation to each other in
respect to the subject of the contract, but to annul the contract,
and to restore the parties to the relative positions which they
would have occupied if no such contract had ever been made.”
Sylvania Industrial Corporation v. Lilienfeld’s Estate, 132 F.2d 887, 892 (1943) (quoting
Black, Rescission and Cancellation, 2d ed., vol. 1, § 1). Stated another way,
Generally speaking, the effect of a rescission is to
extinguish the contract and to annihilate it so effectually that in
Ms. Bossie also asks this Court to find that Mr. Bias was not a “successful applicant”
because he chose not to remain in the position. We decline to so find. The statute actually
states that “the successful applicant to fill the vacancy shall be chosen by the board[.]” W.Va.
Code § 18A-4-7a(o)(3) (2001). (Emphasis added). This language is self-explanatory; Mr. Bias
was the successful applicant because he was chosen by the Board to fill the vacancy. See
Butcher v. Gilmer County Bd. of Educ., 189 W.Va. 253, 429 S.E.2d 903 (1993) (per curiam)
(The applicant was successful at the time she was granted a teaching position by the Board.);
Pockl v. Ohio County Bd. of Educ., 185 W.Va. 256, 406 S.E.2d 687 (1991) (The hearing
examiner found that the successful applicant, the person who was chosen to fill the vacant
assistant principal’s position, was better qualified than the grievant.); Staton v. Wyoming
County Bd. of Educ., 184 W.Va. 369, 400 S.E.2d 613 (1990) (per curiam), overruled on
other grounds by Pockl, id., (Don E. Nuckols was the successful applicant when he was
chosen to fill the vacant principal’s position.).
contemplation of law it has never had any existence, even for the
purpose of being broken.
The effect of a rescission of an agreement is to put the
parties back in the same position they were in prior to the making
of the contract.
17A Am. Jur. 2d Contracts § 600 (1991).
If the parties are placed back in the position they were in before the Board made
a contract with Mr. Bias, then the Board has one qualified applicant seeking a vacant assistant
principal’s position at Van Junior-Senior High School and Mr. Bias is placed exactly where we
find him today, teaching at Scott High School. Importantly, at the time the contract was
rescinded, the statutory thirty-day period in which the Board must fill the slot had not expired.
In this instance, the statute neither authorizes nor precludes reposting the job.
This Court has said,
“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. Board of Education of Wyoming County, 177 W.Va.
145, 351 S.E.2d 58 (1986).
Syllabus Point 1, Mingo County Bd. of Educ.v. Jones, 204 W.Va. 340, 512 S.E.2d 597
(1998). Nobody contends that Mr. Bias was placed in the job in an attempt to circumvent the
law and thereby prevent Ms. Bossie from getting the job.5 Even though we give substantial
discretion to decisions made by county boards of education regarding hiring decisions, in this
scenario, we believe that Ms. Bossie should have been given the job when Mr. Bias’s contract
was rescinded. The facts show that the position was posted and filled with a qualified
candidate. That hiring agreement was rescinded leaving the Board with one qualified applicant
who could fill the vacant position within the statutory thirty-day period.
We, therefore, hold that once a county board of education selects a qualified
applicant to fill a vacancy for a properly noticed job and that selection is rescinded within the
time period prescribed by W.Va. Code § 18A-4-7a (2001), if more than one applicant meets
the qualifications, the board is legally bound to choose a successor from the original list of
applicants. The certified question is answered in the affirmative.
Certified question answered.
This Court is not unmindful of the Board’s quandary. We are aware that if the position
had not been reposted, other people who wished to apply for the position might have filed
grievances claiming the Board failed to follow statutory posting requirements.