Kathryn Reed Bayless
Princeton, West Virginia
Attorney for the Appellant
David M. Katz
Bluefield, West Virginia
Attorney for the Appellee
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
1. "The Legislature by enacting W. Va. Code, 18A-2-6
(1973), which gives auxiliary and service personnel continuing
contract status after three years of acceptable employment and
providing that their employment could be terminated upon cause
intended to extend a tenure status to such employees." Syllabus
Point 4, Bonnell v. Carr, 170 W. Va. 493, 294 S.E.2d 910 (1982).
2. "'The extent of due process protection affordable for
a property interest requires consideration of three distinct
factors: first, the private interests that will be affected by the
official action; second, the risk of an erroneous deprivation of a
property interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards;
and finally, the government's interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.'
Syllabus Point 5, Waite v. Civil Service Commission,  W. Va.
, 241 S.E.2d 164 (1977)." Syllabus Point 4, State ex rel.
McLendon v. Morton, 162 W. Va. 431, 249 S.E.2d 919 (1978).
3. Under W. Va. Code, 18A-2-8 (1990), due process
requires a pre-termination hearing of a tenured employee under
W. Va. Code, 18A-2-6 (1989). It is not necessary for a pre-
termination hearing to be a full adversarial evidentiary hearing; however, an employees is entitled to a written notice of the
charges, an explanation of the evidence, and an opportunity to
respond prior to a Board of Education's decision to terminate the
employee. If an employee presents a danger to students or others
at work and there is no reasonable way to abate the danger, a pre-
termination hearing is not required.
The Mercer County Board of Education (Board of Education)
appeals the final order of the Circuit Court of Mercer County,
entered on September 9, 1993, that affirmed the findings and
conclusions made by the Chief Administrative Law Judge (ALJ) at a
level IV grievance hearing. The circuit court specifically found
no reason to reverse the decision upon the grounds listed in W. Va.
Code, 18-29-7 (1985).See footnote 1 Therefore, the circuit court ordered the
Board of Education to reinstate Charles Wirt, the respondent below
and appellee herein, to the position of head custodian at Ramsey
Elementary School; to award him backpay; to redact references of
his suspension and dismissal from his personnel file; and to award
$1,000 in attorney's fees. The Board of Education asserts the ALJ
erred by ruling Mr. Wirt was denied adequate notice and an
opportunity to respond to charges when his termination was made pursuant to W. Va. Code, 18A-2-8 (1990). In addition, the Board of
Education claims the circuit court erred by affirming the level IV
decision finding the Board of Education failed to prove "the
grievant engaged in immoral conduct[.]"
On September 29, 1992, Amanda W.,See footnote 2 a sixth-grade student at Ramsey Elementary School, reported to her school principal, John Fleming, that Mr. Wirt touched her breast and buttocks on September 25, and September 28, 1992. Shortly thereafter, Mr. Fleming, Mr. Wirt, and Rick Ball, an elementary supervisor, met to discuss the allegations, and Mr. Wirt agreed to change his scheduled shift to work at night.
The interim school superintendent, Dr. Deborah Akers,
ordered an investigation of the allegations made by Amanda W. On
October 10, 1992, Dr. Akers met with Mr. Wirt at which time she
suggested Mr. Wirt resign his position. Mr. Wirt refused, and, by
letter dated October 13, 1992, Dr. Akers gave notice to Mr. Wirt
that he was suspended without pay pursuant to W. Va. Code, 18A-2-7 (1990),See footnote 3 for "the inappropriate touching of a female student." In
the letter, Dr. Akers also informed Mr. Wirt she would "present
charges and a recommendation to the Board of Education concerning
further action" pursuant to W. Va. Code, 18A-2-8.
By letter dated October 28, 1992, Dr. Akers notified Mr.
Wirt she would present charges to the Board of Education on
November 2, 1992, and, after the Board of Education heard the
charges, a written copy of the charges would be given to him. The
letter also specifically said:
"The Board of Education will not conduct a hearing concerning these charges prior to acting upon any recommendation . . . . However, you should feel free to attend the Board meeting. If you so desire and the Board is in agreement, you may have the opportunity of addressing the Board concerning the charges . . . . The opportunity to address the Board is voluntary in nature and it is not required that you attend the meeting nor is it required that you address the Board if you do attend."
According to the Board of Education's brief, Mr. Wirt and his counsel attended the Board of Education meeting. The Board of Education voted 4-0 to terminate Mr. Wirt's employment. Mr. Wirt officially was notified of his termination by a letter dated November 4, 1992. Subsequently, Mr. Wirt filed to have a level IV grievance hearing.
A level IV hearing was held on December 8, 1992. At
the hearing, Dr. Akers, Amanda W., Mr. Wirt, and two witnesses of
one of the incidents testified. The two witnesses were Carrie B.,
a sixth-grade student, and Jessie Hurt, a custodian.
Amanda W. testified Mr. Wirt inappropriately touched her
on two occasions. The first incident, on September 25, 1992,
occurred when she was near a snack machine. The second incident,
on September 28, 1992, occurred in the school cafeteria. Amanda W.
said Mr. Wirt touched her similarly on both days. Amanda W.
alleged Mr. Wirt put his right hand over her shoulder and then used
his right hand to touch her right breast. She claimed he also
touched her "[a]bout mid-way down the buttocks area," and he
brought his arm up the right side of her body with his hand under
her right breast. On cross-examination, Amanda W. agreed with Mr.
Wirt's counsel that Mr. Wirt "brushed" her breast on September 25.
She stated she did not tell anyone immediately after it happened on
September 25, because she thought it was an accident. However, she
told her mother about both incidents after school on September 28.
Amanda W. also testified on cross-examination the
incident on September 28 occurred while she was putting her coat on
a stage in the cafeteria, and she said the students in the
cafeteria line were "right in front of [her]." She asserted she
was facing the stage with her back to the other students when Mr.
Wirt put his arm around her waist and then "[h]e brought it up and touched my butt and then he put his around [sic] here and came up
and touched my...under my breast." (Ellipsis in original). In
addition, she alleged Mr. Wirt had his hand on her buttock for "[a]
couple of minutes."
Carrie B. said she and Amanda were close to each other
and facing each other in the cafeteria line when the touching
occurred. Carrie B. asserted the two girls were near an ice cream
machine which was about fifteen steps away from the stage area.
Carrie B. described Mr. Wirt as being beside Amanda W. when she saw
him "put his [right] arm around Amanda and [he] touched her breast
and then when [he] was ready to leave, he touched her rear end."
Carrie B. said Mr. Wirt did not put his hand around Amanda W.'s
waist, but put it on her shoulder, and he patted her left buttock.
Although she claimed Amanda W. was facing her, Carrie B. stated she
could tell Mr. Wirt patted Amanda W.'s buttock by the way he moved
his hand. When Carrie B. was asked if she saw Amanda W. near the
stage when the touching occurred or if she noticed Amanda W.
putting her coat on the stage, Carrie B. replied no. She also
maintained she saw Mr. Wirt pat Amanda W. on the buttocks in the
hallway a few days after September 28.
Mr. Wirt's counsel attempted to discredit Carrie B.'s
testimony by disclosing that Mr. Wirt was suspended in January,
1990, for his "threatening action and words to a student of Ramsey
Elementary School." Mr. Wirt admitted it involved pulling a knife on Carrie B.'s older brother. Carrie B. indicated she had no bad
feelings or problems with Mr. Wirt as the result of what happened
with her brother.
Mr. Hurt also testified he witnessed Mr. Wirt touching
Amanda W. He said Amanda W. had put her coat at a table before she
got her lunch, and he saw her near the stage two or three times
standing in line. He claimed he never saw Amanda W. and Mr. Wirt
together by the stage. Mr. Hurt stated Amanda W. was near the ice
cream machine when Mr. Wirt approached her on her right side. Mr.
Hurt then alleged Mr. Wirt "put his left arm around" Amanda W.'s
neck and rubbed her breast.See footnote 4 He alleged Mr. Wirt remained in the
position for "five to ten minutes," but he did not see Mr. Wirt put
his hand around Amanda W.'s waist. Mr. Hurt claimed Mr. Wirt
tapped Amanda W.'s buttock when he walked away from her.
Immediately thereafter, Mr. Hurt asserted he spoke with
Mr. Wirt. He also told the school principal. He testified he
never spoke to Amanda W. or Carrie B. about the incident. Mr. Hurt maintained he and Mr. Wirt had some problems over the years, but
"got along pretty good."
Mr. Wirt testified he and Mr. Hurt had problems on a
regular basis. He also consistently has denied the allegation that
he inappropriately touched Amanda W. However, he did state he
remembered one occasion when Amanda W. and another child were
running in the cafeteria near the stage when Amanda W. slipped and
he grabbed her "by the strap or waistband on her jeans" to prevent
her from hitting her head against a table. Mr. Wirt was not sure
the date of this event. Amanda W. and Carrie B. both testified
they did not remember such an event.
The first issue presented by this case is whether Mr. Wirt was entitled to a pre-termination hearing before the Board of Education under W. Va. Code, 18A-2-8. In essence, the ALJ concluded Mr. Wirt was entitled to a pre-termination hearing. Furthermore, the ALJ determined Mr. Wirt not only was denied a proper hearing, but he also was denied proper notice containing sufficient information for him to defend himself against the allegations presented to the Board of Education. For the reasons stated below, we agree and we hold due process generally requires some form of a pre-termination hearing under W. Va. Code, 18A-2-8.
W. Va. Code, 18A-2-8, establishes the procedure by which
a Board of Education may suspend or dismiss a school employee, and
it covers the right of an employee to appeal such a decision. This
statute was amended in 1985 and 1990. Prior to 1985, W. Va. Code,
18A-2-8 (1969), in relevant part, explicitly provided an employee
is entitled to written charges and "shall be given an opportunity
to be heard by the board upon not less than ten days' written
notice, which charges and notice shall be served upon the employee
within five days of the presentation of the charges to the board."
In 1985, the legislature removed from the statute an employee's
right "to be heard by the board[.]" The statute again was amended
in 1990, but the legislature did not reinstate this language.See footnote 5
The 1990 version of the statute applies to this case.
The 1990 version of W. Va. Code, 18A-2-8, provides, in pertinent
"Notwithstanding any other provisions of law, a board may suspend or dismiss any person in its employment at any time for: Immorality . . . . The charges shall be stated in writing served upon the employee within two days of presentation of said charges to the board. The employee so affected shall be given an opportunity, within five days of receiving such written notice, to request, in writing, a level four hearing and appeals pursuant to provisions of article twenty-nine [§ 18-29-1 et seq.] chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended[.]"
Thus, in the current version of W. Va. Code, 18A-2-8, the statute is silent as to whether an employee has a right to receive notice and have a hearing prior to dismissal by the Board of Education. Although the specific language in the statute was removed, this Court, nevertheless, is required to protect any due process rights employees may have who are dismissed under the statute.
In determining employees' due process rights, the first
inquiry by this Court must be whether the employees have property
or liberty interests in their employment protected by Section 10 of
Article III of the West Virginia Constitution and the Fourteenth
Amendment to the United States Constitution. In making this
determination in the present case, it is helpful to examine W. Va.
Code, 18A-2-6 (1989). This statute states, in relevant part,
"[a]fter three years of acceptable employment, each service
personnel employee who enters into a new contract of employment
with the board shall be granted continuing contract status . . . .
The continuing contract . . . shall remain in full force and effect
. . . unless and until terminated with written notice, stating
cause or causes[.]"See footnote 6 In Syllabus Point 4 of Bonnell v. Carr, 170
W. Va. 493, 294 S.E.2d 910 (1982), we determined:
"The Legislature by enacting W. Va. Code, 18A-2-6 (1973), which gives auxiliary and service personnel continuing contract status after three years of acceptable employment and providing that their employment could be terminated upon cause intended to extend a tenure status to such employees." (Emphasis added).See footnote 7
In other words, a person who has a "continuing contract status" is a tenured employee. In the present case, Mr. Wirt worked for the Board of Education from 1977 until his termination, and the ALJ found he was a tenured employee.
There can be little doubt tenured employees have
property and liberty interests in their employment. In State ex
rel. McLendon v. Morton, 162 W. Va. 431, 444, 249 S.E.2d 919, 926
(1978), we stated, with regard to teachers, that tenure is both a
"substantial right" and a "valuable property interest." We find
such a right and an interest is equally applicable to other school
employees who the legislature has granted tenured status. See also
Duruttya v. Bd. of Educ., 181 W. Va. 203, 205, 382 S.E.2d 40, 42
(1989) (a tenured teacher was entitled to procedural safeguards).See footnote 8
If employees have property and liberty interests in their
employment, the next determination is what due process protection
the employees must be afforded. In Syllabus Point 4 of McLendon,
"'The extent of due process protection affordable for a property interest requires consideration of three distinct factors: first, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of a property interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' Syllabus Point 5, Waite v. Civil Service Commission,  W. Va. , 241 S.E.2d 164 (1977)."
See also Matthews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976); Syllabus Point 5, Major v. DeFrench, 169 W. Va. 241, 286 S.E.2d 688 (1982).
In Cleveland Board of Education v. Loudermill, 470 U.S.
532, 105 S. Ct. 1487, 84 L.Ed.2d 494 (1985), the Supreme Court
addressed substantially the same factors with regard to the right
of a pre-termination hearing. In the case, two employees, a
security guard and a bus mechanic, were terminated by the Cleveland
Board of Education without pre-termination hearings. Although
under the law of Ohio employees were provided a full post-
termination hearing, the employees challenged their termination for
violating their due process rights. After concluding the employees
had a property interest in their jobs, the Supreme Court said "some
opportunity for the employee to present his side of the case is
recurringly of obvious value in reaching an accurate decision.
Dismissals for cause will often involve factual disputes." 470 U.S. at 543, 105 S. Ct. at 1494, 84 L.Ed.2d at 504. (Citation
As to the government's interest in immediately
terminating the employees, the Supreme Court stated:
"[A]ffording the employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays. Furthermore, the employer shares the employee's interest in avoiding disruption and erroneous decisions; and until the matter is settled, the employer would continue to receive the benefit of the employee's labors. It is preferable to keep a qualified employee on than to train a new one. A governmental employer also has an interest in keeping citizens usefully employed rather than taking the possibly erroneous and counterproductive step of forcing its employees onto the welfare rolls." 470 U.S. at 544, 105 S. Ct. at 1494-95, 84 L.Ed.2d at 505.
After determining due process required a pre-termination hearing in the case before it, the Supreme Court explicitly said such a hearing need not be "a full adversarial evidentiary hearing," but "[i]t should be an initial check against mistaken decisions-- essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." 470 U.S. at 545-46, 105 S. Ct. at 1495, 84 L.Ed.2d at 506. (Citation omitted).
Specifically, the Supreme Court said a "tenured public
employee is entitled to oral or written notice of the charges
against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." 470 U.S. at 546,
105 S. Ct. at 1495, 84 L.Ed.2d at 506. The Supreme Court reasoned
"[t]o require more than this prior to termination would intrude to
an unwarranted extent on the government's interest in quickly
removing an unsatisfactory employee." 470 U.S. at 546, 105 S. Ct.
at 1495, 84 L.Ed.2d at 506.
We agree with the Supreme Court's analysis in Loudermill.
Therefore, we hold under W. Va. Code, 18A-2-8, due process requires
a pre-termination hearing of a tenured employee under W. Va. Code,
18A-2-6. It is not necessary for a pre-termination hearing to be
a full adversarial evidentiary hearing; however, an employee is
entitled to a written notice of the charges, an explanation of the
evidence, and an opportunity to respond prior to a Board of
Education's decision to terminate the employee. If an employee
presents a danger to students or others at work and there is no
reasonable way to abate the danger, a pre-termination hearing is
not required.See footnote 9 See Loudermill, 470 U.S. at 545 n.10, 105 S. Ct. at 1495 n.10, 84 L.Ed.2d at 505 n.10.See footnote 10 Given that W. Va. Code, 18A-2-
8, requires the Board of Education to serve a written copy of the
charges within two days of them being presented, we find it is not
an unreasonable governmental burden to require "written notice of
the charges," instead of oral notice, prior to them being presented
to the Board of Education.
Applying the preceding principles to the present case, we
determine Mr. Wirt was denied due process as the result of not
being provided adequate written notice of the charges against him
and an explanation of the evidence prior to the Board of
Education's meeting. Thus, even though the Board of Education
asserts Mr. Wirt and his counsel appeared before it, without
sufficient notice of the charges against him, his opportunity to
address the Board was meaningless.See footnote 11 We find it unnecessary to
address Mr. Wirt's remedy for the due process violations because the issue is moot as the result of our conclusion in Section III,
infra, that the ALJ's decision to reinstate Mr. Wirt is not clearly
In addition to the due process issue raised in this case, a second issue arises with regard to whether the circuit court's determination that the decision of the ALJ "was not clearly wrong in the view of the reliable, probative and substantial evidence on the whole record" was clearly erroneous. The ALJ essentially found the Board of Education failed to establish by a preponderance of the evidence that an improper touching occurred. The ALJ particularly was concerned with a number of significant discrepancies he found in the testimony.
After reviewing the record, we find several areas in
which we disagree with the findings and conclusions of the ALJ with
regard to discrepancies in the testimony. For instance, the ALJ
concluded Amanda W.'s recollection of the events on September 28
was inconsistent. Although we agree that Amanda W.'s recollection
is somewhat inconsistent, we do not find Amanda W.'s testimony was
inconsistent in all the respects upon which the ALJ based his
decision. The ALJ concluded Amanda W. first alleged the incident
"occurred in the cafeteria when only one other person was present and later, during cross- examination, related that a lot of students were in a lunch line waiting to be served. She stated that the incident occurred when she was near a stage in the cafeteria putting her coat away. She explained that she had her back to the others present when the incident occurred. Later [Amanda W.] related that it happened when she was in line talking to [Carrie B.]."
Upon review of the record, we cannot find any place where Amanda W. initially states there only was one person in the cafeteria and later states there was a group of students in the cafeteria.
From her first mention of who was present in the room on
direct examination, Amanda W. claimed she thought Carrie B.
witnessed the incident. The testimony the ALJ seems to be
referring to in making his conclusion is when Amanda W. was asked
by Mr. Wirt's counsel where she was standing on September 28 when
Mr. Wirt allegedly touched her. Amanda W. replied she was putting
her coat on the stage in the cafeteria. She then was questioned if
she was in the cafeteria because it was lunch time. She replied
no, she was helping a photographer on school picture day. Mr.
Wirt's counsel asked if there were "a lot of people around there?"
(Emphasis added). Amanda answered "[j]ust Jackie, and she was
already eating." When asked who Jackie was, Amanda stated "[t]he
one that helped me, Collins, and then there was people in [the
lunch] line and Carrie saw that one." From these responses, it is
obvious Amanda did not mean there only was one person in the
cafeteria when the incident occurred. Instead, she interpreted
"there" as being the stage where she was helping the photographer, and, apparently, someone named Jackie was helping her before Jackie
went to eat her lunch.
The next problem we find with the ALJ's conclusion is
when he determined Amanda W. said it happened when she was near the
stage and, later, said it happened when she was talking to Carrie
B. We cannot find anywhere in Amanda W.'s testimony where she says
the incident occurred while "she was in line talking to [Carrie
B.]." In fact, when Mr. Wirt's counsel asked Amanda W. where she
thought Carrie B. was when the incident occurred, she replied "[i]n
line with our class." Amanda W. consistently said it happened by
the stage. On redirect examination, Amanda W. was questioned
whether she remembered speaking with Carrie B. "after the incident
happened in the cafeteria on picture day[.]" (Emphasis added).
Amanda W. said "[Carrie B.] told me she saw it."
The next conclusion the ALJ made was that Amanda W. said
"with some certainty that the grievant approached her from her left
side, placed his right hand around her and placed his hand under
her breast. Subsequently, she recounted that he had placed his
hand on her breast and rubbed it." (Emphasis in original). What
Amanda W. actually demonstrated at the hearing, that was narrated
for the record by counsel for the Board of Education, was Mr.
Wirt's placing his right hand "over [her] shoulder and with his
right hand then in position touched [her] right breast." When
asked whether Mr. Wirt touched her anywhere else, the Board of Education's counsel stated Amanda W. demonstrated his hand being
"[a]bout mid-way down the buttocks area . . . [and] [h]e would
bring his arm then up on the right side of [her] body sort of
having his arm around [her] body and the hand being under the right
breast again." Thus, Amanda W. apparently demonstrated Mr. Wirt
touched her on the breast and under her breast.
The ALJ also found it inconsistent that Amanda W.
asserted Mr. Wirt "'patted' her on the buttocks," and alleged he
"'rested' his hand there for 'two or three minutes.'" In referring
to where Mr. Wirt had his hand, Amanda W. had the following
dialogue with Mr. Wirt's counsel:
"Mr. Katz: You got that statement in front of
you, Amanda? You said in the third
line, he put his arm around my waist
and touched my breast and touched my
butt. You show this here with your
mother. You put your arm her [sic]
waist, as if she were you, and you put
your hand flat on...where the pocketSee footnote 12
would on [sic] the right hand side. Is
that what...what he did on that day?
"Amanda: He sort of rubbed it.
"Mr. Katz: What do you mean sort of rubbed
"Amanda: He brought it down here, and went
...and just let it settle.
"Mr. Katz: I didn't hear the last...
"Amanda: He laid it and then he sat it still.
"Mr. Katz: Well..[.]how long did he have his
hand on your...on your buttock?
"Amanda: A couple of minutes." (Ellipses
We can find nowhere in the record where Amanda W. said Mr. Wirt "'patted'" her buttocks.
In addition, we question any significance the ALJ placed
on Amanda W.'s asserting Mr. Wirt "blocked" her from leaving.
Amanda W. testified Mr. Wirt "was behind [her] and got beside [her]
where [she] couldn't leave." She indicated he was not holding on
to her and she was not prevented from walking away from him which
she eventually did do to get in the cafeteria line. This Court
understands it certainly is possible in this situation that a
sixth-grade girl could perceive herself as being "blocked" when an
adult male is directly beside her performing the acts Amanda W.
We agree with the ALJ's findings that, in reference to
Mr. Wirt, Amanda W. testified "[s]ometimes he got along with me,
and sometimes he didn't"; however, she indicated she and Mr Wirt
did not fight or argue over anything. The ALJ also found Amanda W.
stated Mr. Wirt had "never touched her 'in improper places' before
and had not done so since September 28." (Emphasis added). We
agree Amanda W. denied Mr. Wirt's touching her after September 28,
but she definitely maintained he "brushed" her breast on September
25 although she thought it was an "accident[.]"
As to Carrie B.'s testimony, we agree with the ALJ that
her recollection of the events, at times, conflicts with Amanda
W.'s. The most significant conflict is the location of the
incident. Amanda W. said it occurred near the stage and her back
was to the other children. On the other hand, Carrie B. asserted
the incident occurred while she and Amanda were in the lunch line
and the two girls were facing each other having a conversation.
When Carrie B. was asked whether the incident happened near the
stage, Carrie B. said no. Similarly, Mr. Hurt testified Amanda W.
was in the cafeteria lunch line when the incident happened.
As to Mr. Hurt's testimony, the ALJ stated, in part,
"[s]ignificantly, Mr. Hurt was certain that the incident occurred
on September 25 and that [Mr. Wirt] approached [Amanda W.] from her
right and used his left hand when he made the inappropriate
contact." We do not agree entirely with this conclusion. We find
Mr. Hurt never really was clear as to the exact date of the
incident, except that he maintained it was on picture day which was
Monday, September 28. In a prior statement he gave, Mr. Hurt said
the incident in the cafeteria happened on Friday, September 25.
When questioned about the date by Mr. Wirt's counsel, Mr. Hurt said
"[i]t was the day they took pictures." Mr. Wirt's counsel then
asked "[a]ll right, but it was on a Friday," to which Mr. Hurt
responded "I can't remember what day...exactly what day it was, but
I know I seen [sic] it." (Ellipsis in original). Thereafter, Mr.
Wirt's counsel asked "well when you signed this statement, are you sure it was on that Friday? That was a Friday wasn't it." Mr.
Hurt stated "[y]eah, it was on a Friday."
We do agree generally with the ALJ that there are
inconsistencies with the ways Amanda W., Carrie B., and Mr. Hurt
described the alleged touching. Such inconsistencies include what
arm Mr. Wirt allegedly used, the manner in which he allegedly did
the touching, the length of time the alleged incident occurred, and
the significantly different accounts of where the alleged touching
In his analysis, the ALJ determined the witnesses and Mr.
Wirt did not appear to be anything other than "forthright in their
testimony." The ALJ then stated:
"Further, the discrepancies, in and of themselves, do not support that the witnesses were not being truthful. Nevertheless, the discrepancies are not of the minor, insignificant type of differences in perception which are to be normally expected in the accounts of different witnesses to the same events. They are of the type which cannot be ignored. While it would not be completely accurate to characterize the testimony of [Amanda W.], [Carrie B.] and Mr. Hurt as unreliable, the conflicts in their testimony essentially requires that it be treated as such."
The ALJ went on to say "it can be concluded" that Mr. Wirt made physical contact with Amanda W. on September 25 and September 28; however, "it cannot be concluded with sufficient certainty that the testimony accurately portrays the nature of that contact. Since the Board bears the burden in the case, that uncertainty must be resolved in [Mr. Wirt's] favor." (Emphasis in original).
We review these decisions under the clearly erroneous
standard as mandated by W. Va. Code, 18-29-7.See footnote 13 This standard does
not entitle a reviewing court to reverse the finder of fact simply
because it may have decided the case differently.See footnote 14 Anderson v.
Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L.Ed.2d
518, 528 (1985). "'In applying the clearly erroneous standard to
the findings of a [lower tribunal] sitting without a jury,
appellate courts must constantly have in mind that their function
is not to decide factual issues de novo.'" 470 U.S. at 573, 105
S. Ct. at 1571, 84 L.Ed.2d at 528, quoting Zenith Radio Corp. v.
Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S. Ct. 1562, 1576,
23 L.Ed.2d 129, ___ (1969). Indeed, if the lower tribunal's
conclusion is plausible when viewing the evidence in its entirety,
the appellate court may not reverse even if it would have weighed
the evidence differently if it had been the trier of fact. 470 U.S. at 573-74, 105 S.Ct. at 1511, 84 L.Ed.2d at 528.See footnote 15 Moreover, we
must afford the lower tribunal's findings great weight in this case
because the factual determinations largely are based on witness
credibility. Upon reviewing the evidence in its entirety, we
conclude that the ALJ's findings of fact were based on a plausible
view of the evidence. The ALJ conducted the hearing and observed
the witnesses firsthand, so he was in the best position to make
Applying these principles to the facts of this case, we
are of the opinion that the ALJ's findings were not clearly
erroneous. There was a great deal of evidence on both sides of
this controversy, and we determine that a finding either way by the
ALJ would not have been clearly erroneous. In addition, we note it
is difficult in many places in the transcript to determine what
exactly occurred because Amanda W. physically demonstrated at the
hearing how Mr. Wirt allegedly touched her. The ALJ, sitting as
the trier of fact, had the benefit of being present to view these
demonstrations and judge the credibility of the witnesses.
In sum, we find due process generally requires a pre- termination hearing under W. Va. Code, 18A-2-8. Such a pre- termination hearing need not be a full-scale adversarial evidentiary hearing, but at minimum an employee must be provided with written notice of the charges, an explanation of the evidence, and an opportunity to respond. We find Mr. Wirt was denied adequate notice of the charges against him and, thereby, was denied an adequate opportunity to respond. In addition, we conclude the decision that the Board of Education failed to meet its burden of proof is not clearly erroneous.See footnote 16
For the foregoing reasons, we affirm the order of the
Circuit Court of Mercer County.
Footnote: 1 W. Va. Code, 18-29-7, provides, in relevant part:
"The decision of the hearing examiner shall be final upon the parties and shall be enforceable in the circuit court: Provided, That either party may appeal to circuit court of the county in which the grievance occurred on the grounds that the hearing examiner's decision (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."
Footnote: 2 As is our traditional practice, we avoid using the last names of the parties in cases involving sensitive facts. See State v. Derr, W. Va. , S.E.2d (No. 22101 11/18/94); State ex rel. Div. of Human Serv. by Mary C.M. v. Benjamin P.B., 183 W. Va. 220, 395 S.E.2d 220 (1990).
Footnote: 3 W. Va. Code, 18A-2-7, provides, in part, "[t]he superintendent, subject only to approval of the board, shall have authority to . . . suspend school personnel and to recommend their dismissal pursuant to provisions of this chapter."
Footnote: 4 During direct examination, it seems that Mr. Hurt was indicating Mr. Wirt used his right hand to touch Amanda W.'s breast and buttock. The relevant transcript section reads as follows:
"Mr. Hurt: Well, he put his arm around her and touched her on her breast and patted her on her behind.
"Ms. Bayless: All right, you're motioning with your
"Mr. Hurt: Right."
Footnote: 5 The 1990 amendment added certain language not relevant to this case.
Footnote: 6 W. Va. Code, 18A-1-1(e) (1981), defines "service personnel" as "those who serve the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch, and as aides."
Footnote: 7 W. Va. Code, 18A-2-6, was amended three times after the 1973 version of the statute we cited in Bonnell. The current version of W. Va. Code, 18A-2-6, however, does not affect our holding in Syllabus Point 4 of Bonnell. W. Va. Code, 18A-2-6, now provides in its entirety:
"After three years of acceptable
employment, each service personnel employee
who enters into a new contract of employment
with the board shall be granted continuing
contract status: Provided, That a service
personnel employee holding continuing
contract status with one county shall be
granted continuing contract status with any
other county upon completion of one year of
acceptable employment if such employment is
during the next succeeding school year or
immediately following an approved leave of
absence extending no more than one year. The
continuing contract of any such employee
shall remain in full force and effect except
as modified by mutual consent of the school
board and the employee, unless and until
terminated with written notice, stating cause
or causes, to the employee, by a majority
vote of the full membership of the board
before the first day of April of the then
current year, or by written resignation of
the employee before that date, except that
for the school year one thousand nine hundred
eighty-eight--eighty-nine only, the board shall have until the fourth Monday of April, one thousand nine hundred eighty-nine, to initiate termination of a continuing contract. The affected employee shall have the right of a hearing before the board, if requested, before final action is taken by the board upon the termination of such employment.
"Those employees who have completed three years of acceptable employment as of the effective date of this legislation shall be granted continuing contract status."
Footnote: 8 Duruttya was decided after the language with regard to a pre-termination hearing was removed from W. Va. Code, 18A-2-8. Nevertheless, we stated "[b]y enacting the grievance procedures set forth in W. Va. Code §§ 18-29-1 et seq. and 18A-2-8, the Legislature clearly intended to ensure that school system employees receive due process in the form of notice and hearing prior to their dismissal." 181 W. Va. at 205, 382 S.E.2d at 42. (Emphasis added). The issue of the right to a pre-termination hearing under W. Va. Code, 18A-2-8, was not squarely before this Court in Duruttya; therefore, we now find it necessary to more fully address the issue with regard to due process.
Footnote: 9 In the present case, school officials abated any alleged danger posed by Mr. Wirt by switching his work schedule so he would not be at the school when students were present and, subsequently, by suspending him from work.
Footnote: 10 The Board of Education cites Fayette County Board of Education v. Lilly, 184 W. Va. 688, 403 S.E.2d 431 (1991), to support its position that a pre-termination hearing is not required. The decision in Lilly is not binding upon this Court because it is a per curiam opinion. Cf. Syllabus Point 2, Graf v. West Virginia University, 189 W. Va. 214, 429 S.E.2d 496 (1992) ("[a] per curiam opinion that appears to deviate from generally accepted rules of law is not binding on the circuit courts, and should be relied upon only with great caution").
Footnote: 11 For instance, the ALJ found, in part, "[a]t best, the grievant, at the time the Board was to take up the matter, was
prepared to defend against the allegation that he had committed one wrongdoing."
Footnote: 12 When summarizing Amanda W.'s testimony, Mr. Wirt's counsel identified the pocket as being on jeans.
Footnote: 13 The standard of review that we discuss in the text of this opinion as applying to this Court is the same standard for a circuit court. This standard includes reviewing the record for errors of law; ensuring the decision is supported by competent, material, and substantial evidence in the whole record; and ensuring the findings and ultimate decision of the ALJ is not clearly erroneous.
Footnote: 14 "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L.Ed. 746, ___ (1948).
Footnote: 15 See also Bloss & Dillard, Inc. v. West Va. Human Rights Comm'n, 183 W. Va. 702, 398 S.E.2d 528, 531 (1990); Frank's Shoe Store v. West Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251 (1986).
Footnote: 16 The Board of Education argues if this Court affirms Mr. Wirt's reinstatement, Mr. Wirt's award of backpay should be calculated with deductions for unemployment benefits and other income Mr. Wirt received while he was discharged. The circuit court ordered Mr. Wirt be reimbursed his salary, minus usual deductions, "without an offset for other income or unemployment benefits[.]" We affirm the circuit court's decision. However, if Mr. Wirt received unemployment benefits, such benefits may be recovered by the Employment Security Commissioner as provided under W. Va. Code, 21A-10-21 (1989).