Kathryn Reed Bayless, Esquire
J. W. Barringer, Esquire
Bayless & McFadden Feuchtenberger & Barringer
Princeton, West Virginia Princeton, West Virginia
Attorney for Appellant William B. McGinley, Esquire
Attorneys for Appellees
JUSTICE SCOTT delivered the Opinion of the Court
JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
Grievance rulings involve a combination of both deferential and plenary
review. Since a reviewing court is obligated to give deference to factual findings rendered
by an administrative law judge, a circuit court is not permitted to substitute its judgment for
that of the hearing examiner with regard to factual determinations. Credibility
determinations made by an administrative law judge are similarly entitled to deference.
Plenary review is conducted as to the conclusions of law and application of law to the facts,
which are reviewed de novo.
'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 Bd. of Ed. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). Syl. Pt. 1,
West Virginia Dep't of Health and Human Resources v. Blankenship, 189 W.Va. 342, 431
S.E.2d 681 (1993).
3. County boards of education have substantial discretion in matters relating to the hiring, assignment, transfer, and promotion of school personnel. Syl. Pt. 3, in part, Dillon v. Board of Educ., 177 W.Va. 145, 351 S.E.2d 58 (1986).
The Mercer County Board of Education (Board) appeals from the November 23, 1998, order of the Circuit Court of Mercer County following a remand by this CourtSee footnote 1 1 in connection with the lower court's July 29, 1994, ruling, through which the circuit court reversed an administrative law judge's decision concerning an educational grievance. Our prior remand of this case was necessitated by the lower court's failure to include any factual bases for its conclusion that Appellees Sue Cahill, Carolyn Donchatz, and Sue Sommer were the more qualifiedSee footnote 2 2 applicants for three supervisory positions.See footnote 3 3 Included in our previous decision was a directive that the lower court should not disregard the reevaluation committee and its results, upon which the circuit court relied, in part, in reversing the ALJ's decision in 1994.See footnote 4 4 Ignoring this Court's instructions, the lower court summarily excluded the reevaluation results and, substituting its own judgment for that of the ALJ, again ruled in favor of Appellees. The Board seeks a reversal of the November 1998 order, both as to the lower court's ruling that Appellees should be instated to the supervisory positions, which no longer exist,See footnote 5 5 and as to the award of prejudgment interest. Having fully reviewed the lower court's most recent order in conjunction with the prior opinion of this Court and the full record of this matter, we find the circuit court's ruling to be in error and accordingly, we reverse and remand for entry of an order consistent with this opinion.
In compliance with ALJ Crislip's suggestion, Superintendent Baker asked
Director of Personnel, Stephen Akers, to oversee the reevaluation process, which included
the selection of an independent committee. Mr. Akers selected six individuals, who were
either teachers or administrators, to comprise the committee suggested by the ALJ. Upon the
conclusion of the committee's evaluation,See footnote 7
the same three initially successful applicants were
again determined to be the most qualified individuals for the positions. Appellees filed a
second grievance on September 30, 1992, which proceeded through the various stages of the
administrative review process and culminated with a ruling by ALJ Jerry Wright that
Appellees had failed to demonstrate that the Board did not reasonably and adequately
reevaluate the candidates or that it otherwise acted arbitrarily or capriciously. After noting
that [i]t was determined that all applicants met the requirements of the posting and were
generally equal as to 'paper' credentials, ALJ Wright found that Appellees had failed to
show that they were more qualified as compared to those individuals who were awarded the
By order dated July 29, 1994, Judge Booker Stephens reversed ALJ Wright's
decision on three grounds: (1) the reviewing committee was not independent because of Mr.
Aker's involvement in selecting the members;See footnote 8
(2) the reviewing committee was not
independent based on relationships between applicants and committee;See footnote 9
and (3) the ALJ erred
in not recognizing Dr. Viars as an expert in the education field for certification.See footnote 10
lower court reversed ALJ Wright's decision to uphold the award of the positions to the three
successful candidates, but failed to provide the rationale for its conclusion that the ALJ's
ruling was clearly wrong as it pertained to the applicants' qualifications.See footnote 11
Based on our
conclusion that meaningful appellate review could not be accomplished in view of the lower
court's failure to include the basis for its ruling that Appellees were the more qualified
applicants, we found it necessary to remand this case. Cahill v. Mercer County Bd. of Educ.
(Cahill I), 195 W.Va. 453, 458-59, 465 S.E.2d 910, 915-16 (1995). In Cahill I, this Court
expressly reminded the lower court of its obligation to accord substantial discretion to the
hiring decisions of a county board of education and specifically instructed the circuit court
not to disregard the reevaluation of the candidates based on our determination that the
reevaluation process was not flawed or inadequate. Id. at 460, 465 S.E.2d at 917.
On remand, the lower court constructed out of whole cloth its own objective,
measurable criteria for reviewing the candidates and then concluded, based on this newly-
found standard, that Appellees were the most qualified applicants. The November 1998
order clearly reflects that Judge Stephens totally excluded the findings of the rereview
committee in considering and ruling on the applicants' qualifications.
Adamant in their contention that the lower court did not exclude the
reevaluation results on remand, Appellees cite the lower court's inclusion of a reference to
the Re-Review Committee in the November 1998, order, along with the introductory
language indicating a review of the entire record as support for their position. The mere
referencing of the committee in the order neither indicates an inclusion of the committee's
results in the lower court's ruling, nor does it suffice to comply with our specific directives
in Cahill I that the conclusions of that committee should not be disregarded as unreliable
or deficient on remand. 195 W.Va. at 460, 465 S.E.2d at 917. In addition, the lower court's
conclusion that it found neither the decision of the 'Re-Review Committee'See footnote 14
opinion of Appellees' expert witness, Dr. Viars, to be controlling as to either position, was
an attempt to circumvent this Court's prior ruling regarding the adequacy of the reevaluation
process and the lower court's duty to afford deference to the committee's results.See footnote 15
patently clear that the lower court, on remand, pretermitted the very committee results which
it was directed not to disregard by this Court.
Controlling law at the time of the hiring decisions at issue did not include the
specification of criteria to be employed in making these decisions. Cf. W.Va. Code § 18A-
4-8b(a) (1988) with W.Va. Code § 18A-4-7a (1997). Qualifications of the applicants were
the sole criteria, and only in the event that qualifications were determined to be essentially
equivalent, could seniority be used as a hiring factor. See Dillon v. Board of Educ., 177
W.Va. 145, 149, 351 S.E.2d 58, 62 (1986). While the Dillon seniority rule is no longer
necessary due to statutory amendments, one principle, which was first articulated in that
decision, still holds true:
County boards of education have substantial discretion in matters
relating to the hiring, assignment, transfer, and promotion of school personnel. Id. at 146,
351 S.E.2d at 59, syl. pt. 3, in part;
see also State ex rel. Monk v. Knight, 201 W.Va. 535,
539, 499 S.E.2d 35, 39 (1997) (recognizing that boards of education are statutorily reposed
with discretion to rate qualifications of applicants in making hiring decisions).
In disregard of its obligation to both recognize and uphold this precept of affording substantial discretion to school boards in hiring matters, the lower court's ruling completely eviscerates that principle. Despite the initial conclusion of ALJ Weekly that the reevaluation process was adequate and this Court's affirmance of that finding, the lower court opted to discard the reevaluation results, preferring instead to implement its objective, measurable criteria test for assessing the applicants' qualifications.See footnote 16 16 In so doing, the circuit court exceeded the limited scope of its review of the hiring decisions at issue. See W.Va. Code § 18-29-7. The lower court, as we stated in Martin, was not free to substitute its judgment for that of the ALJ. See 195 W.Va. at 304, 465 S.E.2d at 406. Despite this Court's extension of an opportunity to the lower court to cure the deficiencies of its 1994 ruling, the circuit court still has failed to identify a lawful basis for its reversal of ALJ Weekly's recommended decision.
Because the circuit court's November 1998 order violates well-established
principles of review, we reverse and remand for entry of an order affirming the Board's
hiring decisions and upholding the conclusion of ALJ Weekly that Appellees failed to
demonstrate that the Board did not reasonably and adequately reevaluate the candidates for
the supervisory positions at issue or that the Board acted arbitrarily or capriciously in its
selection process.See footnote 17
Reversed and remanded with directions.
(1) was contrary to law or lawfully adopted rule, regulation or written
policy of the chief administrator or governing board, (2) exceeded the
hearing examiner's statutory authority, (3) was the result of fraud or
deceit, (4) was clearly wrong in view of the reliable, probative and
substantial evidence on the whole record, or (5) was arbitrary or
capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
W.Va. Code § 18-29-7.