Cowen v. Harrison County Board of Ed.
Annotate this Case
September 1995 Term
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No. 22704
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VALERIE COWEN, GWEN COWEN,
DEBRA DODD, AND LISA DEMARCO,
Appellees
v.
HARRISON COUNTY BOARD OF EDUCATION,
Appellant
___________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Paul Zakaib, Jr., Judge
Civil Action No. 92-AA-287
REVERSED, IN PART;
AFFIRMED, IN PART; AND
REMANDED WITH DIRECTIONS
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Submitted: September 20, 1995
Filed: December 13, 1995
Webster J. Arceneaux, III, Esq. Basil R. Legg, Jr., Esq.
Lewis, Friedberg, Glasser, Casey & Rollins David J. Romano, Esq.
Charleston, West Virginia Law Offices of David J. Romano
Attorney for the Appellees Clarksburg, West Virginia
Attorney for the Appellant
JUSTICE RECHT delivered the Opinion of the Court.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE ALBRIGHT did not participate.
SYLLABUS BY THE COURT
1. No deference is given to conclusions of law of an administrative law
judge or a circuit court, so that the standard of judicial review by this Court is de novo.
2. County boards of education have substantial discretion in matters
relating to hiring, assignment, transfer, and promotion of school personnel, as well as matters
involving curricular programs and qualification and placement of personnel implementing
those programs. However, that discretion must be tempered in a manner that is reasonably
exercised, in the best interest of the schools, and in a manner which is not arbitrary and
capricious.
Recht, Justice:
The Harrison County Board of Education appeals from a Final Order of the
Circuit Court of Kanawha County, entered the 29th of July, 1994, requiring it to repost
teaching positions at Lumberport Middle School without the requirement that applicants hold
Elementary Education 6-8 Certification. On appeal, the Board of Education asserts that the
circuit court erred in (1) finding that the teacher certification requirements established by the
Harrison County Board of Education were arbitrary and capricious and not reasonably
related to the teaching positions; and (2) applying the doctrine of equitable estoppel against
the Board of Education as an additional basis for concluding that the certification
requirements were improper.
I.
UNDERLYING FACTS AND PROCEDURAL BACKGROUND
In the Fall of 1991, the teaching staff at Shinnston Intermediate School,
including the appellees, Valerie Cowen, Gwen Cowen, Debra Dodd, and Lisa DeMarco,
attended a breakfast meeting with members of the Harrison County Board of Education
(hereinafter "Board") and Robert E. Kittle, Superintendent of the Harrison County Schools.
The meeting was held to discuss the ramifications of converting the junior high schools in
Harrison County to middle schools.See footnote 1 At this meeting, the appellees were informed by Superintendent Kittle and members of the Board that teachers with Elementary Education
1-6 Certification would be eligible to apply for the newly created sixth grade positions at
Lumberport Middle School and Bridgeport Middle School. The appellees testified that they
left the meeting with the assurance that their Elementary Education 1-6 Certification
(hereinafter "1-6 Certification") would be sufficient to secure the newly created middle
school positions, and that they would not be required to obtain Elementary Education 6-8
Certification.See footnote 2
On February 25, 1992, a listing of vacant positions at Lumberport and
Bridgeport Middle Schools was posted by the Board. The qualifications for these middle
school positions required an Elementary Education 6-8 Certification (hereinafter "6-8
Certification"), contrary to the representations made by the Board and Superintendent Kittle.
After the job vacancies were posted, Ed Stephenson of the West Virginia
Education Association, telephoned Nile Goff, principal of Lumberport Junior High (now
Lumberport Middle School), who verified that the positions posted were essentially sixth
grade positions. Mr. Stephenson relayed this information to the appellees. Consequently, the appellees applied for the sixth grade teaching positions without obtaining 6-8
Certification.
At a meeting held on March 11, 1992, the Board filled the vacant positions at
Lumberport Middle School and Bridgeport Middle School with teachers other than the
appellees.See footnote 3 The reason assigned by the Board for rejecting the appellees' applications was
that they did not have 6-8 Certification. As a result, the appellees filed a grievance with the
West Virginia Education and State Employees Grievance Board on May 5, 1992.
At the Level II hearing, held pursuant to W. Va. Code 18-29-4 (1995),See footnote 4 the
appellees testified as to what occurred during the breakfast meeting in the Fall of 1991 to the
extent that, as a result of that meeting, they were under the distinct impression that they would not need to obtain any additional certification for the newly created teaching positions
at either middle school. All of the appellees, with the exception of Valerie Cowen, testified
that they could have obtained the additional certification in approximately three weeks,
simply by filling out a short form, and without having to take additional courses.See footnote 5
Also during the course of the Level II hearing, testimony developed that at
some time after the Fall 1991 breakfast meeting, a decision was made to implement a
teaching program known as "cross-teaching," where a group of teachers would instruct
students at the sixth grade level, progress with them through the eighth grade, and then begin
instruction on another group of sixth grade students. In order to properly implement this
program, 6-8 Certification was required. The appellees were never informed of the decision
to implement a cross-teaching program between the breakfast meeting in the Fall of 1991 and
the date of the posting of the vacancies on February 25, 1992.
The Level II decision was adverse to the appellees with Superintendent Kittle
finding that the Board did not violate W. Va. Code 18A-4-7a (1993)See footnote 6 because this statute, which establishes the protocols for filling vacant teaching positions, does not expressly
mandate that teaching positions be posted as "grade-specific."
The appellees appealed the Level II decision directly to Level IV,See footnote 7 and in a
decision dated September 18, 1992, the administrative law judge denied the appellees'
grievance by concluding that on the record there was a failure to demonstrate that the Board
acted improperly by requiring all applicants for the middle school positions to have 6-8
Certification.
The appellees then filed an appeal of the administrative law judge's decision
in the Circuit Court of Kanawha County on October 19, 1992, pursuant to the provisions of
W. Va. Code 18-29-7 (1985).See footnote 8
By Order entered July 29, 1994, the circuit court concluded that the Board
acted in an arbitrary and capricious manner by posting certification requirements more
restrictive than those previously represented to the appellees. The circuit court also found
that the Board was estopped from requiring a 6-8 Certification based upon their
representations that this certification would not be a necessary prerequisite for appointment
to the vacancies at Lumberport Middle School. The circuit court directed the Board to repost
all of the positions at Lumberport Middle School without the 6-8 Certification requirements.
It is from this decision that the Board now appeals.
II.
STANDARD OF REVIEW
The circuit court's conclusion to reverse the administrative law judge's decision
was centered on whether the Board of Education of Harrison County acted in an arbitrary
and capricious manner by limiting the qualification requirement for Lumberport Middle
School to 6-8 Certification. This conclusion requires an interpretation of W. Va. Code 18A-
4-7a (1993) which demands that special criteria or skills for a position must be job related.See footnote 9
The administrative law judge concluded as a matter of law that the 6-8
Certification was job related. The circuit court disagreed and found as a matter of law that
the decision to insist upon a 6-8 Certification was arbitrary and capricious. Our review, then,
is one purely of law with no deference being given to the conclusions of the administrative
law judge or the circuit court, so that the standard of judicial review by this Court is de novo.
See Martin v. Randolph County Board of Education, No. 22680, slip op. at 9 (W. Va. Nov.
17, 1995); Adkins v. Gatson, 192 W. Va. 561, 565, 453 S.E.2d 395, 399 (1994).
Through our de novo review, we are persuaded that while the Board did not
act in an arbitrary and capricious manner in effecting a decision as to the structure of the
curriculum in the middle schools of Harrison County, its refusal to permit the appellees to
have a sufficient period of time to obtain the 6-8 Certification was under the facts and
circumstances of this case arbitrary and capricious.
III.
DISCUSSION
We have repeatedly recognized that county boards of education have
substantial discretion in matters relating to hiring, assignment, transfer, and promotion of
school personnel. However, that discretion must be tempered in a manner that is reasonably
exercised, in the best interest of the schools, and in a manner which is not arbitrary and
capricious. Syllabus Point 3, Dillon v. Board of Education of County of Wyoming, 177
W. Va. 145, 351 S.E.2d 58 (1986).
We now have no hesitancy in expanding the Dillon standard to matters
involving curricular programs and the qualification and placement of personnel implementing
those programs. See Pauley v. Bailey, 174 W. Va. 167, 324 S.E.2d 128 (1984) (holding that
the West Virginia Board of Education and the State Superintendent of Schools have a duty
to ensure delivery and maintenance of a "thorough and efficient system of free schools" in
West Virginia as embodied in A Master Plan for Public Education).
We are mindful of the delicate balance measuring the extent of judicial
involvement in the public schools of this State and of our obedience to the West Virginia
Constitution, which assures every student in West Virginia a thorough and efficient
education. Id. While we will continue to remain circumspect in our scrutiny of purely
"educational" issues, we will be constantly vigilant in assuring that the constitutional
guarantee of a thorough and efficient education is maintained. Requiring the boards of
education to act in a manner that is not arbitrary and capricious in matters of curricular programs and personnel assigned to implement those programs, in our view, maintains the
balance between these goals.
A.
Was the decision requiring 6-8 Certification in the best
interest of Harrison County Schools and not arbitrary and capricious?
We are informed by the testimony at the Level II hearing that the Board
decided to implement an innovative teaching method known as "cross-teaching" or "cross-
teaming." This method groups teachers into teaching teams that follow one class of students
from sixth grade through eighth grade. Teachers at Lumberport Middle School could be
required to teach eighth grade students, a task exceeding that permitted teachers with 1-6
Certification.
In order for this Court to conclude that the Board acted in an arbitrary and
capricious manner in requiring a 6-8 Certification, we must attack the underpinning of that
requirement, namely, the decision to implement a "cross-teaming" or "cross-teaching"
concept at Lumberport Middle School. We are not willing to interfere with a Board's
educational discretion in this regard. Based on the record before us, we are not in a position
to conclude that this method is not in the best interest of the schools of Harrison County, and
certainly without a sufficient record, we are unwilling to label this decision arbitrary and
capricious.See footnote 10
B.
Was the conduct of the Board vis-à-vis the appellees arbitrary & capricious?
We are not so reluctant to criticize the Board in adopting a 6-8 Certification
after the appellees were specifically informed that the 1-6 Certification would be sufficient
to teach at the middle school level. After the Board determined that it would implement a
"cross-teaching" program at Lumberport Middle School, it had the responsibility of
informing the appellees of that decision in sufficient time so that they could, if they chose,
do what might be necessary to obtain 6-8 Certification. This responsibility was an outgrowth
of the misinformation that was given to the appellees in the Fall of 1991. The failure of the
Board to do everything necessary to put the appellees in parity with their peers, when the
lack of parity was the result of being misled by the Board, constitutes conduct which is
arbitrary and capricious under Dillon v. Board of Education of County of Wyoming, 177
W. Va. 145, 351 S.E.2d 58 (1986), as expanded by our decision today, and cannot be
tolerated.See footnote 11
The only way that this Court can correct the Board's misconduct toward the
appellees is to require a reposting of all the vacancies at Lumberport Middle School after
giving the appellees an adequate opportunity to meet the 6-8 Certification requirements.See footnote 12
In view of the amount of time that has elapsed since the date of the initial posting on
February 25, 1992, it is reasonable to assume that each of the appellees has obtained the
necessary certification.See footnote 13 However, if this assumption is incorrect, the Board should be
entitled to repost the vacant positions no later than February 1, 1996. There may be a
number of ramifications to this relief, which might involve the displacement of incumbent
teachers who are without fault, and could involve a possible award of back pay and other
benefits. However, those matters are not before us today and until and unless they are fully
developed and properly raised in this Court, we will not comment on what the legal effects
will be when the relief required by this decision is implemented.
IV.
CONCLUSION
That portion of the judgment of the Circuit Court of Kanawha County that
concluded that the Board of Education of Harrison County acted in an arbitrary and
capricious manner by requiring an Elementary Education 6-8 Certification for the vacant
positions at Lumberport Middle School is reversed. That portion of the judgment of the
Circuit Court of Kanawha County that concluded that the Board of Education of Harrison
County acted in an arbitrary and capricious manner by not permitting the appellees the
opportunity to obtain the necessary certification to be eligible for the vacant positions at
Lumberport Middle School requiring an Elementary Education 6-8 Certification is affirmed,
and this case is remanded to the Circuit Court of Kanawha County with directions to enter
an order requiring the Board of Education of Harrison County to repost the positions at
Lumberport Middle School requiring an Elementary Education 6-8 Certification with specific
directions that the appellees be given an adequate and sufficient opportunity to obtain the
necessary certification to be considered as eligible applicants for the vacant positions at
Lumberport Middle School, which opportunity shall not extend later than February 1, 1996.
Reversed, in part;
affirmed, in part; and
remanded with directions.
Footnote: 1
The reconfiguration of all grades in Harrison County resulting from the middle
school concept would be that the high schools would expand to grades nine through twelve;
middle schools would include grades six through eight, and elementary schools would be
reduced to grades kindergarten through five. Significant to the resolution of this case, sixth
grade would be moved from elementary schools to middle schools.Footnote: 2
The Board asserts in its brief that Superintendent Kittle was the only one who
represented to the appellees that additional certification was unnecessary; however, no
evidence was offered to refute the testimony of the appellees that members of the Board also
made those representations.Footnote: 3
While the vacant positions involved both Lumberport Middle School and Bridgeport
Middle School, this appeal only involves those vacancies at Lumberport Middle School.Footnote: 4
W. Va. Code 18-29-4 (1995) provides, in pertinent part:
(b) Level two.
Within five days of receiving the decision of the immediate
supervisor, the grievant may appeal the decision to the chief
administrator, and such administrator or his or her designee
shall conduct a hearing in accordance with section six [§ 18-29-
6] of this article within five days of receiving the appeal and
shall issue a written decision within five days of such hearing.
Such decision may affirm, modify or reverse the decision
appealed from. Level four hearing examiners or the chief
administrator shall have the authority to subpoena witnesses and
documents for level two and level three hearings in accordance
with the provision of section one [§ 29A-5-1], article five,
chapter twenty-nine-a of this code, and may issue a subpoena
upon the written request of any party to the grievance.Footnote: 5
At the time of Level II hearing in May, 1992, Gwen Cowen, Debra Dodd and Lisa
DeMarco had obtained K-8 Certification which would have been sufficient to satisfy the 6-8
Certification requirement. Valerie Cowen, who had obtained her 1-6 Certification through
a program different than the other appellees, testified that obtaining the additional 6-8
Certification would involve "a little bit of a different process," including submission of her
transcript. Testimony from the Level II hearing did not reveal whether Valerie Cowen would
need to take additional courses, or how long it would take to obtain her 6-8 Certification.Footnote: 6
W. Va. Code 18A-4-7a (1993) provides, in pertinent part:
Boards shall be required to post and date notices of all
openings in established, existing or newly created positions in
conspicuous working places for all professional personnel to
observe for at least five working days. The notice shall be
posted within twenty working days of such position openings
and shall include the job description. 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.Footnote: 7
W. Va. Code 18-29-4 (1995) provides, in pertinent part:
(d) Level four.
(1) If the grievant is not satisfied with the action taken by the
chief administrator [at the Level two hearing], or, if appealed to
level three, the action taken by the governing board, within five
days of the written decision the grievant may request, in writing,
on a form furnished by the employer, that the grievance be
submitted to a hearing examiner as provided for in section five
[§ 18-29-5] of this article, such hearing to be conducted in
accordance with section six of this article within ten days
following the request therefor; Provided, That such hearing may
be held within thirty days following the request or within such
time as is mutually agreed upon by the parties, if the hearing
examiner gives reasonable cause, in writing, as to the necessity
for such delay.
(2) Within thirty days following the hearing, the hearing
examiner shall render a decision in writing to all parties setting
forth findings and conclusions on the issues submitted. Subject
to the provisions of section seven of this article, the decision of
the hearing examiner shall be final upon the parties and shall be
enforceable in circuit court.
All information and data generated by the board and in its
custody relative to level four decisions and copies of such
decisions shall be provided at reasonable cost to any individual
requesting it.Footnote: 8
W. Va. Code 18-29-7 (1985) provides, in pertinent part:
The decision of the hearing examiner shall be final upon the
parties and shall be enforceable in circuit court: Provided, That
either party may appeal to . . . the circuit court of Kanawha
County or in the circuit court of the county in which the
grievance occurred within thirty days of receipt of the hearing
examiner's decision. . . .
The court's ruling shall be upon the entire record made before
the hearing examiner, and the court may hear oral arguments
and require written briefs. The court may reverse, vacate or
modify the decision of the hearing examiner or may remand the
grievance to the chief administrator of the institution for further
proceedings.Footnote: 9
See supra note 6, for pertinent text of W. Va. Code 18A-4-7a (1993).Footnote: 10
We find nothing in the record that challenges the "cross-teaching" or "cross-
teaming" concept as being contrary to the Master Plan for Public Education, found to be
constitutionally acceptable in Pauley v. Bailey, 174 W. Va. 167, 324 S.E.2d 128 (1984).Footnote: 11
The circuit court also applied the doctrine of equitable estoppel in requiring the
Board to repost without 6-8 Certification. The circuit court found the misrepresentation of
the Board during the meeting of the Fall of 1991 as strength for the application of the
estoppel doctrine. Because we have concluded that the Board acted in a manner which was
not arbitrary and capricious insofar as requiring 6-8 Certification and did act in an arbitrary
and capricious manner in not permitting the appellees sufficient time to meet the 6-8
Certification, we need not address the estoppel issue.Footnote: 12
The scope of the relief requested by the appellees appears to be limited to a request
for reposting without a 6-8 Certification. Since we conclude that a 6-8 Certification
requirement is properly within the discretion of the Board, the only relief to which the
appellees would be entitled is another opportunity to reapply for the vacancies after having
an adequate opportunity to meet the 6-8 Certification requirements. We are awarding this
relief even though the appellees have not specifically demanded such relief in their
grievance. See W. Va. R. Civ. P. 54(c).Footnote: 13
See supra note 5.
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