Bolyard v. Kanawha Co. Board of Education
Annotate this Case
January 1995 Term
___________
No. 22348
___________
HURFORD H. BOLYARD,
Plaintiff Below, Appellant
v.
KANAWHA COUNTY BOARD OF EDUCATION,
Defendant Below, Appellee
___________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable A. Andrew MacQueen, Judge
Civil Action No. 91-AA-27
AFFIRMED
___________________________________________________
Submitted: May 9, 1995
Filed: June 19, 1995
Richard J. Lindroth
South Charleston, West Virginia
Attorney for the Appellant
Gregory W. Bailey
Charleston, West Virginia
Attorney for the Appellee
This Opinion was delivered PER CURIAM.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
CHIEF JUSTICE McHugh, deeming himself disqualified, did not
participate in the consideration of this case.
RETIRED JUSTICE MILLER, JUDGE FOX and JUDGE JOLLIFFE sitting by
temporary assignment.
SYLLABUS BY THE COURT
1. "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." Syl. pt. 1,
Randolph County Board of Education v. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989).
2. "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." Syl. pt. 1, Dillon v. Wyoming
County Board of Education, 177 W. Va. 145, 351 S.E.2d 58 (1986).
3. "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. Wyoming County Board of Education, 177 W. Va. 145, 351 S.E.2d 58 (1986).
Per Curiam:
This case is before this Court upon an appeal from the
final order of the Circuit Court of Kanawha County, West Virginia,
entered on December 16, 1993. Pursuant to that order, the circuit
court affirmed the decision of the West Virginia Education and
State Employees Grievance Board which denied the grievance of the
appellant, Hurford H. Bolyard, that he should have been selected
for the position of technology education teacher at South
Charleston High School, in Kanawha County. For the reasons stated
below, the final order of the circuit court is affirmed.
I
In 1990, the appellant applied for the position of
technology education teacher at South Charleston High School, in
Kanawha County. The notice advertising the position, posted by the
appellee, the Kanawha County Board of Education, stated that the
employment would involve "team teaching in a high tech lab." At
that time, the appellant was an industrial arts teacher at Herbert
Hoover High School, also in Kanawha County. The appellant had been
employed by the Kanawha County Board of Education for twenty-five
years and held a masters degree, plus thirty additional credit
hours.
Based upon seniority, four applicants, including the
appellant who had the most seniority, were selected to be
interviewed for the position. The interview committee consisted of
the Principal and two Assistant Principals of South Charleston High School. The same questions were asked of each applicant in
separate interviews.
Following the interviews, the committee recommended that
applicant William Bass, another industrial arts teacher employed by
the Kanawha County Board of Education, be selected for the
position. According to the record, the recommendation of the
committee was based upon educational background, experience, the
interview process, review of personnel files and discussions with
the industrial arts supervisor of the Kanawha County Board of
Education. William Bass had been employed by the Board for twenty-
two years and held a bachelors degree, plus fifteen additional
credit hours. The committee's recommendation was adopted by the
Kanawha County Board of Education.
Soon after, the appellant filed a grievance with the West
Virginia Education and State Employees Grievance Board. W. Va.
Code, 29-6A-1, et seq.; W. Va. Code, 18-29-1, et seq. The
appellant asserted that he should have been selected for the
position of technology education teacher at South Charleston High
School. As the grievance progressed through various levels,
hearings were conducted in September and December, 1990. By
decision dated January 31, 1991, at the Level IV stage, the hearing
examiner denied the grievance but directed the Kanawha County Board
of Education to furnish the appellant with a written statement
setting forth reasons why the appellant was not selected and
containing suggestions for improving his qualifications for future
consideration. W. Va. Code, 18A-4-8b(a) [1988].
In particular, indicating that the appellant had
demonstrated no significant flaw in the selection process for the
position of technology education teacher at South Charleston High
School and that the Kanawha County Board of Education made a
reasoned decision based upon the information available, the hearing
examiner concluded in his decision of January 31, 1991, that the
Board did not err in finding the appellant to be less qualified for
the position than William Bass. In that decision, however, the
hearing examiner confused the educational backgrounds of the two
applicants. The hearing examiner incorrectly stated that the
appellant held a bachelors degree, plus fifteen additional credit
hours, and that William Bass held a masters degree, plus thirty
additional credit hours.
The appellant appealed the decision of the hearing
examiner to the Circuit Court of Kanawha County. W. Va. Code, 29-
6A-7 [1988]; W. Va. Code, 18-29-7 [1985]. The circuit court, by
final order entered on December 16, 1993, affirmed the decision of
the hearing examiner of the West Virginia Education and State
Employees Grievance Board. The circuit court stated:
As Appellant has noted in his brief, the
Hearing Examiner did, in part, base his
decision on a factual error. The grievant,
who did not receive the position, had a
masters degree plus thirty hours; the
successful applicant had an A.B. degree plus
fifteen hours. The Hearing Examiner had
attributed each person's credentials to the
other. However, the Court finds that this is
of no consequence here. The Board, in making
the original decision to offer the position to
the other applicant, knew of each party's
educational credentials. Its decision was
based upon other factors, including performance evaluations, superior performance
in the interview process, and the fact that
the successful applicant had helped write the
county's curriculum for the area in which the
position was offered.
In his appeal to this Court, the appellant contends that
he should have been selected for the position of technology
education teacher at South Charleston High School because he was
the most senior and best qualified applicant. Furthermore, the
appellant contends that the Circuit Court of Kanawha County
committed error in determining that the Level IV hearing examiner's
confusion of the educational background of the appellant and
William Bass was of no consequence.
II
In this Court's recent opinion in Ohio County Board of
Education v. Hopkins, No. 22492, ___ W. Va. ___, ___ S.E.2d ___
(April 14, 1995), we reaffirmed the principle expressed in syllabus
point 1 of Randolph County Board of Education v. Scalia, 182 W. Va.
289, 387 S.E.2d 524 (1989), that "[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." See also syl. pt. 3, Lucion v. McDowell County Board of
Education, 191 W. Va. 399, 446 S.E.2d 487 (1994); syl. pt. 1,
Department of Natural Resources v. Myers, 191 W. Va. 72, 443 S.E.2d 229 (1994); syl. pt. 1, Department of Health v. Blankenship, 189 W.
Va. 342, 431 S.E.2d 681 (1993); syl. pt. 3, Butcher v. Gilmer
County Board of Education, 189 W. Va. 253, 429 S.E.2d 903 (1993). See W. Va. Code, 29-6A-7 [1988]; W. Va. Code, 18-29-7 [1985]. That
principle is, of course, consistent with our observation that
rulings upon questions of law are reviewed de novo. Stephen L. H.
v. Sherry L. H., No. 22084, ___ W. Va. ___, ___ n. 19, ___ S.E.2d
___, ___ n. 19 (Mar. 6, 1995); State v. Honaker, ___ W. Va. ___,
___, 454 S.E.2d 96, 101 (1994); Adkins v. Gatson, ___ W. Va. ___,
___, 453 S.E.2d 395, 399 (1994); State v. Stuart, ___ W. Va. ___,
___, 452 S.E.2d 886, 891 (1994); syl. pt. 3, Committee on Legal
Ethics v. McCorkle, ___ W. Va. ___, 452 S.E.2d 377 (1994).
Although the provisions of W. Va. Code, 18A-4-7a [1993],
currently govern the filling of teaching positions by a county
board of education, the statute applicable to the period in
question in this case, as the parties have stated, is W. Va. Code,
18A-4-8b [1988]. In 1988, W. Va. Code, 18A-4-8b, provided in part:
A county board of education shall make
decisions affecting promotion and filling of
any classroom teacher's position occurring on
the basis of qualifications. If the applicant
with the most seniority is not selected for
the position a written statement of reasons
shall be given to the applicant with the most
seniority with suggestions for improving the
applicant's qualifications.
The above statutory language was present in the 1983
version of W. Va. Code, 18A-4-8b and was discussed by this Court in
Dillon v. Wyoming County Board of Education, 177 W. Va. 145, 351 S.E.2d 58 (1986). Syllabus point 1 of Dillon states:
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.
In Dillon, the appellant, a teacher, filed a grievance
because she had not been selected for the position of language arts
teacher at Mullens Middle School in Wyoming County. Relief was
denied her in the grievance proceedings and at the circuit court
level. Upon appeal, this Court reversed and directed that the
position of language arts teacher at Mullens Middle School be
reposted and a proper evaluation of the applicants, including the
appellant, be conducted. In so holding, we indicated, in Dillon,
that (1) the county board of education should not have made the
successful applicant's advanced degree the sole criteria for its
hiring decision, (2) the board failed to investigate and evaluate
the qualifications of the other applicants and (3) the appellant's
seniority should have been considered. Syllabus point 3 of Dillon
states: "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." See also syl.,
Harrison County Board of Education v. Coffman, 189 W. Va. 273, 430 S.E.2d 331 (1993); syl. pt. 2, State ex rel. Melchiori v. Marshall
County Board of Education, 188 W. Va. 575, 425 S.E.2d 251 (1992);
syl. pt. 6, Triggs v. Berkeley County Board of Education, 188 W. Va. 435, 425 S.E.2d 111 (1992); syl. pt. 1, Hyre v. Upshur
County Board of Education, 186 W. Va. 267, 412 S.E.2d 265 (1991).
Although the parties have correctly indicated that the
legal principles discussed in Dillon are dispositive in this case,
the circumstances before this Court lack the compelling quality
which, in Dillon, required the reversal of the circuit court.
Unlike the facts in Dillon, the evidence is clear in this case that
the Kanawha County Board of Education evaluated the qualifications
of each applicant for the position of technology education teacher
at South Charleston High School. Specifically, the record
demonstrates that William Bass was selected by the Kanawha County
Board because (1) he had substantially contributed to the
development of a technology education curriculum for Kanawha
County; (2) he consistently exceeded performance evaluation
standards, whereas the appellant "met" those standards; and (3) he
was rated higher than the appellant with regard to the interview
process.
Moreover, even though the respective qualifications of
the appellant and William Bass were viewed as significantly
different by the Kanawha County Board, the Board also considered
seniority. As indicated above, seniority status led the Board in
its selection of four applicants, including the appellant, to be
interviewed. In particular, in his testimony during the grievance
proceedings, the Principal of South Charleston High School
testified that, although the appellant was the most senior
applicant, William Bass was the second most senior applicant, and their years of teaching experience were not that much different.
The appellant had been employed for twenty-five years, and William
Bass had been employed for twenty-two years. This Court noted in
Dillon that "the statute clearly contemplates that if one candidate
for a teaching position is clearly more qualified, the seniority of
another applicant will not be sufficient to justify denying the
position to the more qualified applicant." 177 W. Va. at 149, 351 S.E.2d at 62.
Finally, the confusion of the hearing examiner of the
West Virginia Education and State Employees Grievance Board, in his
decision of January 31, 1991, of the educational background of the
appellant and William Bass is deprived of significance in view of
the fact that the Kanawha County Board of Education had correct
information upon which to make its selection for the position. The
appellant testified during the grievance proceedings that he was
given ample opportunity to present his qualifications to the
interview committee. Furthermore, as the Principal of South
Charleston High School specifically stated:
Yes, we did mention on the evaluations that
Mr. Bolyard did have a Masters plus 30. I
believe Mr. Bass had an A.B. plus 15. One of
the things that we were aware of, though,
which Mr. Bass brought up in his interview
that he had been involved in the development
of the technical education curriculum for
Kanawha County. He had helped write it and
such so, as far as getting some background in
this area, that was something that we did
include as far as our evaluation of the
individual.
While the hearing examiner at Level IV did, in fact,
confuse the educational backgrounds of the appellant and William Bass, the decision of December 31, 1991, accurately conforms to the
evidence in all other respects. Importantly, the Level II
grievance decision, which also upheld the selection of the Kanawha
County Board, noted that "the grievant was more senior and
possessed a masters degree[.]" The more comprehensive hearing in
this matter occurred at Level II.
Upon all of the above, therefore, this Court is of the
opinion that the Kanawha County Board of Education reasonably
exercised its discretion in its selection for the position of
technology education teacher at South Charleston High School, and
the circuit court was correct in affirming the West Virginia
Education and State Employees Grievance Board with regard to that
selection. Accordingly, the final order of the Circuit Court of
Kanawha County, entered on December 16, 1993, is affirmed.
Affirmed.
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