IN THE SUPREME COURT OF APPEALS OF
September 1997 Term
DAVID P. HANLON,
Plaintiff Below, Appellant,
LOGAN COUNTY BOARD OF EDUCATION
AND TIM MURPHY,
Defendants Below, Appellees.
Appeal from the Circuit Court of Kanawha
Honorable Irene C. Berger, Judge
Civil Action No. 95-AA-15
Submitted: September 16, 1997
Filed: November 20, 1997
Basil R. Legg, Jr.
Johnson, Simmerman & Broughton
Clarksburg, West Virginia
Attorney for the Appellant
JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
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. [(1992) (Repl. Vol.
1994)], and based upon findings of fact, should not be reversed
unless clearly wrong.' Syllabus Point 1, Randolph County Board
of Education v. Scalia, 182 W. Va. 289, 387 S.E.2d 524
(1989)." Syllabus point 1, Martin v. Randolph County
Board of Education, 195 W. Va. 297, 465 S.E.2d 399
2. W. Va.
Code § 18A-4-16 (1982) (Repl. Vol. 1993) does not preclude
a county board of education from entering into an extracurricular
coaching assignment agreement with an individual employed by
another county's board of education provided both county boards
of education agree to the proposed arrangement.
3. W. Va. Code § 18-29-3(a) (1992) (Repl. Vol. 1994) makes mandatory the time periods within which grievances by educational employees must be filed, heard, and decided. If a grievance evaluator does not comply with the hearing and decision time periods, and his/her inaction does not come within one of the enumerated statutory exceptions, "the grievant shall prevail by default." W. Va. Code § 18-29-3(a) (1992) (Repl. Vol. 1994).
4. In order to benefit from the "relief by default" provisions contained in W. Va. Code § 18-29-3(a) (1992) (Repl. Vol. 1994), a grieved employee or his/her representative must raise the "relief by default" issue during the grievance proceedings as soon as the employee or his/her representative becomes aware of such default.
The plaintiff below and appellant herein, David P. Hanlon [hereinafter Hanlon], appeals from a final order of the Circuit Court of Kanawha County entered July 8, 1996. Ruling in favor of the defendants below and appellees herein, the Logan County Board of Education [hereinafter LCBOE or Board] and Tim Murphy [hereinafter Murphy], the circuit court affirmed a prior decision of the Administrative Law Judge [hereinafter ALJ] for the West Virginia Education and State Employees Grievance Board. In her December 29, 1994, order, the ALJ determined that the Board had not violated the provisions of W. Va. Code § 18A-3-2a(4) (1992) (Repl. Vol. 1993) in selecting Murphy, instead of Hanlon, for the position of head coach of boys' basketball at Logan High School.See footnote 1 1 The ALJ concluded further that the default language contained in W. Va. Code § 18-29-3(a) (1992) (Repl. Vol. 1994) did not apply to the facts of this case.See footnote 2 2 Upon a review of the appellant's brief,See footnote 3 3 the record, and the relevant authorities, we are inclined
to agree with the ruling of the circuit court and affirm that
FACTUAL AND PROCEDURAL HISTORY
In 1993, David Hanlon was the assistant boys' basketball coach at Logan High School. In March, 1993, the then-head boys' basketball coach at Logan High School resigned his position. As a result, Logan County Schools posted the Logan High School head basketball coaching position. Rather than directly accepting the applications himself, the Assistant Superintendent of Logan County Schools in charge of athletics [hereinafter Assistant Superintendent], with the approval of the Superintendent of Logan County
Schools [hereinafter Superintendent], appointed a six-member
hiring committee. The committee was comprised of the Assistant
Superintendent in charge of athletics, the principal of Logan
High School, the athletic director of Logan High School, and
three community persons.See
footnote 4 4
Upon learning of the vacant coaching position, Hanlon, an employee of the Logan County Board of Education,See footnote 5 5 submitted his application to the hiring committee. Tim Murphy, an employee of the Upshur County Board of Education,See footnote 6 6 also applied for the
position. After receiving approximately ten or twelve
applications, the hiring committee interviewed all of the
applicants and narrowed the field to three top choices. Murphy
was among the top three candidates; Hanlon was not one of the
committee's top selections. Each of the remaining three
applicants was interviewed a second time, and the committee
ultimately voted to offer Murphy the coaching position. The
Superintendent then called several individuals to verify Murphy's
credentials and, upon confirming the committee's assessment of
Murphy's qualifications, directed the Assistant Superintendent to
offer the head coach position to Murphy. At the time this
position was offered to Murphy, no full- time teaching positions
were available in Logan County. Shortly thereafter, though, the
Board determined that additional itinerant teachers would be
needed to ensure that teachers received their required planning
periods. As a result, Murphy applied for a position as an
itinerant physical education [hereinafter PE] instructor.
During the July 8, 1993, meeting of the Logan County Board of Education, the Board ratified the action of the State Superintendent of SchoolsSee footnote 7 7 of hiring Murphy as an itinerant PE teacher and as the head boys' basketball coach at Logan High School. The record reflects that Murphy signed his Logan County teaching contract on July 9, 1993, and that he accepted the extracurricular assignment as head boys' basketball coach on July
Having not been selected for the head boys' basketball coaching position, Hanlon filed a grievance claiming that Murphy's hiring had been improper. On August 19, 1993, the principal of Logan High School denied Hanlon's grievance stating "[t]he committee appointed for the selection process did not recommend you as one of the two final candidates for said position,See footnote 8 8 after interviewing all candidates." Thereafter, on August 27, 1993, Hanlon appealed to Level II. Although the Level II hearing was initially scheduled for September 7, 1993, it was not held until October 7, 1993.See footnote 9 9 By decision dated November 30, 1993,See footnote 10 10 the Assistant SuperintendentSee footnote 11 11 rejected Hanlon's arguments that "he should have been awarded the Coaching position for the Logan High School
basketball team [pursuant to W. Va. Code § 18A-4-7aSee footnote 12 12 because]
he is the most qualified candidate." In denying Hanlon's
grievance, the Assistant Superintendent found that "their
[sic] is no evidence of arbitrariness or capriciousness in the
decision to hire Mr. Murphy."
Hanlon then appealed directly to Level IVSee footnote 13 13 on December 3, 1993. After holding several hearings, the Administrative Law Judge for the West Virginia Education and State Employees Grievance Board rendered a decision on December 29, 1994. The ALJ initially declined to address Hanlon's arguments regarding W. Va. Code § 18A-4-16 (1982) (Repl. Vol. 1993)See footnote 14 14 finding reliance on this statutory provision misplaced in this case. Similarly, the ALJ determined that the facts did not support a finding that Hanlon should prevail by default pursuant to W. Va. Code § 18-29-3(a) (1992) (Repl. Vol. 1994).See footnote 15 15
Denying Hanlon's grievance, the ALJ determined that the Logan County LCBOE did not violate W. Va. Code § 18A-3-2a(4) (1992) (Repl. Vol. 1993)See footnote 16 16 in selecting Murphy for the head basketball coach position instead of Hanlon. In this manner, the ALJ noted that, in hiring Murphy for the coaching position, the LCBOE did not hire an uncertified non-employee as contended by Hanlon because "Mr. Murphy qualified for certification, possessed a teaching certificate, and was an employee of Buckhannon-Upshur High School at the time this position was offered to him." The ALJ further concluded that the statute had not been violated because "although Mr. Murphy was offered the coaching position before he was selected for the itinerant PE position, he was hired for both
positions at the same board meeting. Thus, the Board did not
hire a non-employee as a coach but hired an employee." In
sum, the ALJ was unable to find that either the hiring committee
or the Superintendent had "acted in an arbitrary and
capricious manner. . . . Although reasonable minds
may differ, and perhaps frequently do when it comes to selecting
coaches, the decision to hire Mr. Murphy was not an abuse of
Hanlon then appealed to the Circuit Court of Kanawha County. By order dated July 8, 1996, the circuit court "conclude[d] that the decision of the Administrative Law Judge was neither clearly wrong nor arbitrary or capricious, and that the questions of law were decided correctly. . . . Accordingly, it is hereby ORDERED that the decision of the Administrative Law Judge be and the same is hereby affirmed." It is from this ruling of the circuit court that Hanlon appeals to this Court.See footnote 17 17
On appeal to this Court, Hanlon presents three arguments in support of his request that we overturn the decision of the Circuit Court of Kanawha County. First, he argues that Murphy's hiring violated W. Va. Code § 18A-4-16 (1982) (Repl. Vol. 1993)See footnote 18 18 in that Murphy was not an employee of the Logan County Board of Education at the time he was hired for the coaching position. Second, Hanlon contends that the hiring was in contravention of W. Va. Code § 18A-3-2a(4) (1992) (Repl. Vol. 1993)See footnote 19 19 because Hanlon, a qualified applicant employed by the hiring board of education, applied for the job. Finally, Hanlon submits that, in any event, he is entitled to a default judgment pursuant
to W. Va. Code § 18-29-3(a) (1992) (Repl. Vol.
1994)See footnote 20 20
because the LCBOE did not adhere to the time requirements
contained in W. Va. Code § 18-29-4(b) (1992) (Repl.
Vol. 1994).See footnote 21
21 After a discussion of the applicable standard of
review, we will address the merits of Hanlon's contentions.
A. Standard of Review
In determining whether a circuit court properly has reviewed a decision of the Administrative Law Judge for the West Virginia Education and State Employees Grievance Board, it is first necessary to review the statutory provision permitting appeal to the circuit court. W. Va. Code § 18-29-7 (1985) (Repl. Vol. 1994) directs that:
The decision of the hearing examiner [of the West Virginia Education and State Employees Grievance Board] shall be final upon the parties and shall be enforceable in circuit court: Provided, That either party may appeal to the 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. Such appeal shall be filed in the circuit court of Kanawha County or in the circuit court of the county in which
the grievance occurred[.]
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
Having once reached the circuit court
by way of appeal, "'[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. [(1992)
(Repl. Vol. 1994)], and based upon findings of fact, should not
be reversed unless clearly wrong.' Syllabus Point 1, Randolph
County Board of Education v. Scalia, 182 W. Va. 289, 387
S.E.2d 524 (1989)." Syl. pt. 1, Martin v. Randolph County
Bd. of Educ., 195 W. Va. 297, 465 S.E.2d 399 (1995).
That is not to say, however, that we necessarily may decide anew
those matters with which we disagree with the ALJ or the circuit
Th[e clearly erroneous] standard does not entitle a reviewing court to reverse the finder of fact simply because it may have decided the case differently. . . . 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[.]
Board of Educ. of County of Mercer v. Wirt, 192 W. Va. 568, 578-79, 453 S.E.2d 402, 412-13 (1994) (citing Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518, 528 (1985)) (footnotes omitted). See also Syl. pt. 1, in part, In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) ("A finding [of
fact] is clearly erroneous when, although there is evidence to
support the finding, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit court's
account of the evidence is plausible in light of the record
viewed in its entirety.").
Clarifying further the extent of this
Court's review, we additionally noted in Martin that:
in reviewing an ALJ's decision that was affirmed by the circuit court, this Court accords deference to the findings of fact made below. This Court reviews decisions of the circuit under the same standard as that by which the circuit reviews the decision of the ALJ. We must uphold any of the ALJ's factual findings that are supported by substantial evidence, and we owe substantial deference to inferences drawn from these facts. . . . We review de novo the conclusions of law and application of law to the facts.
195 W. Va. at 304, 465 S.E.2d at 406. Having established the applicable standard of review, we apply these procedures to our evaluation of Hanlon's contentions.
B. Propriety of Hiring under W. Va.
Code § 18A-4-16
Hanlon first argues that the Logan County Board of Education violated W. Va. Code § 18A-4-16 (1982) (Repl. Vol. 1993)See footnote 22 22 by selecting Murphy for the head
coaching position. He urges this Court to construe this
provision as requiring an individual to be an employee of a
particular county's board of education before that county can
enter into an extracurricular assignment agreement with that
Upon a review of this statute, we find Hanlon's construction thereof to be somewhat erroneous. Although this provision differentiates between a school employee's contract of employment and his/her extracurricular assignments and specifies that the extracurricular assignment is separate and apart from the employee's employment contract, see, e.g., Syl. pt. 2, in part, Cruciotti v. McNeel, 183 W. Va. 424, 396 S.E.2d 191 (1990); Smith v. Board of Educ. of County of Logan, 176 W. Va. 65, 67, 341 S.E.2d 685, 686 (1985), the statute does not specifically direct that a school employee employed by a county board of education may only accept extracurricular assignments in that county. Rather, the regulations clarifying the hiring process for extracurricular coaching assignments suggest the opposite result: "[a] member of a faculty in one school may coach in another school provided that it meets with the approval of the said County Board of Education or two different Boards of Education." 9A W. Va. C.S.R. § 127-3-6.2 (1990) (emphasis added). Reviewing this language, it appears that a school employee of one county may quite properly agree to accept an extracurricular coaching assignment in another county provided both boards agree to the arrangement. Therefore, we cannot adopt Hanlon's construction of W. Va. Code § 18A-4-16 as requiring extracurricular
coaching assignment agreements to be made with only those
individuals employed by the county board for which the assignment
is to be performed. Instead, we hold that W. Va. Code
§ 18A-4-16 (1982) (Repl. Vol. 1993) does not preclude a
county board of education from entering into an extracurricular
coaching assignment agreement with an individual employed by
another county's board of education provided both county boards
of education agree to the proposed arrangement.
Proceeding now to an application of this holding to the facts presently before us, we find that the LCBOE's hiring of Murphy as the head boys' basketball coach did not contravene W. Va. Code § 18A-4-16. Even though our analysis above indicates that Murphy quite properly could have entered into an extracurricular coaching assignment with the LCBOE while he was employed by the Upshur County Board of Education, we need not determine this issue upon this factual posture. The record before us clearly indicates that the LCBOE approved the State Superintendent's recommendation to hire Murphy for both the itinerant PE teacher job and the head boys' basketball coach position at the same board meeting. Further, the contracts evidencing these employments demonstrate that Murphy first was hired as an itinerant PE teacher, then, some twenty days later, he entered into the extracurricular assignment agreement for the coaching job in question. Thus, Murphy was an employee of the LCBOE at the time he was hired for the coaching position, and the LCBOE's decision to hire him in this capacity was proper.
C. Propriety of Hiring under W. Va. Code § 18A-3-2a(4)
Hanlon's next argument turns upon an interpretation of W. Va. Code § 18A- 3-2a(4) (1992) (Repl. Vol. 1993).See footnote 23 23 Embellishing upon his understanding of W. Va. Code
§ 18A-4-16, Hanlon contends that W. Va. Code
§ 18A-3-2a(4) permits a county board of education to hire
an individual, who is not currently employed by that board, as a
coach only if "a currently employed certified professional
educator has not applied for the position." In this manner,
Hanlon suggests that Murphy's hiring was inappropriate because
Hanlon, "a currently employed certified professional
educator," had applied for the head coaching position at
Logan High School.
Again, though, Hanlon's statutory construction misinterprets the statutory language as it applies to the facts presently before us. While it is true that a board of education's authority to hire an individual as a coach is restricted in some circumstances where "a currently employed certified professional educator" has applied for the position,
this proviso does not apply to the instant case. W. Va.
Code § 18A-3-2 (1990) (Repl. Vol. 1993) requires
"[a]ny professional educator . . . who is employed
within the public school system of the state shall hold a valid
teaching certificate licensing him or her to teach in the
specializations and grade levels as shown on the certificate for
the period of his or her employment." In accordance with
this requirement, W. Va. Code § 18A-3-2a permits the
State Superintendent of Schools to issue such certificates.See footnote 24 24 Additionally,
subsection (4) of § 18A-3-2a permits the issuance of other
certificates to those "persons who do not qualify for the
professional or paraprofessional certificate." Within this
category of other certificates, the State Superintendent also has
the authority to "issue certificates for persons to serve in
the public schools as athletic coaches or other extracurricular
activities coaches" subject to various limitations.
Hanlon contends that Murphy's hiring as a coach was improper because the § 18A-3-2a(4) limitations permit granting a special coaching certificate to an individual only if "a currently employed certified professional educator has not applied for the position." This construction, though, ignores the fact that the limitations imposed by subsection (4) apply only to those individuals who do not possess a valid teaching certificate. As Murphy had a valid teaching certificate at the time of the events at issue,
his hiring was not governed by the provisions contained in
subsection (4). Rather, Murphy qualified for the coaching
assignment without having to resort to these particular
provisions. As such, the actions of the LCBOE in hiring Murphy
for the head boys' basketball coaching position were proper and
did not violate W. Va. Code § 18A-3-2a(4).
D. Entitlement to Relief by Default pursuant
W. Va. Code §§ 18-29-3(a) and 18-29-4(b)
Finally, Hanlon contends that he is entitled to the head coaching position as a result of the "relief by default" provision contained in W. Va. Code § 18-29-3(a) (1992) (Repl. Vol. 1994)See footnote 25 25 and the grievance time periods found in W. Va. Code § 18-29-4(b)
(1992) (Repl. Vol. 1994).See footnote 26 26
With respect to the proceedings below, Hanlon claims that the LCBOE improperly continued the Level II hearing without his consent. While the facial language of W. Va. Code § 18-29-3(a) does not specifically state that a grieved employee may seek "relief by default" if a grievance evaluator fails to commence a hearing within a specified
time, we previously have decided this precise issue in Martin
v. Randolph County Board of Education, 195 W. Va. 297,
465 S.E.2d 399. In Martin, we determined that the word
"response," synonymous in this context with
"respond," "was intended to include
hearings," thereby permitting a grieved employee to seek
"relief by default" where the default was occasioned by
a delay in holding a hearing. 195 W. Va. at 305-06, 465
S.E.2d at 407-08. However, we tempered this ruling with our heavy
reliance upon the ALJ's determination that the grieved employee
waived her right to complain of this delay. Reiterating our
standard of review, we emphasized that:
the findings of the ALJ must be upheld, if at all, on the basis articulated by the ALJ. . . . Moreover, we base our review of the ALJ's determination on the full administrative record that was before the ALJ at the time she made her decision.
As a general
rule, we uphold the factual findings of an ALJ if they are
supported by substantial evidence. . . . We must
defer to the ALJ's . . . inferences from the evidence,
despite our perception of other, more reasonable conclusions from
Id., 195 W. Va. at 306, 465 S.E.2d at 408 (citations omitted).
Before determining the propriety of the ALJ's ruling in the proceedings underlying this appeal, we note, at the outset, the statutory requirements of W. Va. Code § 18-29-3(a). Essentially, W. Va. Code § 18-29-3(a) (1992) (Repl. Vol. 1994) makes mandatory the time periods within which grievances by educational employees must be
filed, heard, and decided. If a grievance evaluator does not
comply with the hearing and decision time periods, and his/her
inaction does not come within one of the enumerated statutory
exceptions, "the grievant shall prevail by default."
W. Va. Code § 18-29-3(a) (1992) (Repl. Vol. 1994).
Nevertheless, upon the record before us, we are unable to
conclude that the ALJ was clearly wrong in finding Hanlon's claim
for "relief by default," based upon the untimely
hearing, to be without merit. Despite the fact that Hanlon was
represented at the Level II proceedings by the Executive Director
of the West Virginia Professional Educators, the record does not
evidence, and the ALJ confirms, that either Hanlon or his
representative objected to the rescheduling of that hearing.
Likewise, neither Hanlon nor his representative raised the
"relief by default" issue at this hearing or otherwise
brought this matter to the attention of the Assistant
Long standing case law and procedural
requirements in this State mandate that a party must alert a
tribunal as to perceived defects at the time such defects occur
in order to preserve the alleged error for appeal. For example,
Rule 46 of the West Virginia Rules of Civil Procedure directs:
Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor[.]
(Emphasis added). See also Maples v. West Virginia
Dep't of Commerce, Div. of Parks & Recreation, 197
W. Va. 318, 322-23, 475 S.E.2d 410, 414-15 (1996)
(explaining requirements of W. Va. R. Civ. P. 46); Konchesky
v. S.J. Groves & Sons Co., Inc., 148 W. Va. 411,
414-16, 135 S.E.2d 299, 302-03 (1964) (same). We further have
consider an error which is not properly preserved in the record nor apparent on the face of the record. . . .
preserve an issue for appellate review, a party must articulate
it with such sufficient distinctiveness to alert a circuit court
to the nature of the claimed defect. The rule in West Virginia is
that parties must speak clearly in the circuit court[,] on pain
that, if they forget their lines, they will likely be bound
forever to hold their peace . . . [sic] It must be
emphasized that the contours for appeal are shaped at the circuit
court level by setting forth with particularity and at the
appropriate time the legal ground upon which the parties intend
State v. Browning, ___ W. Va. ___, ___, 485 S.E.2d 1, 9 (1997) (quoting State ex rel. Cooper v. Caperton, 196 W. Va. 208, 216, 470 S.E.2d 162, 170 (1996)) (citations omitted).
Though we do not profess to require grievance proceedings to adhere to the procedural rules and specific objection requirements applicable to circuit court proceedings, we do believe it necessary that the issue of an employee's entitlement to "relief by default" be presented to the grievance evaluator to ensure that the matter is
either dealt with at its point of origin or properly preserved
for appellate review. Therefore, we hold that, in order to
benefit from the "relief by default" provisions
contained in W. Va. Code § 18-29-3(a) (1992) (Repl.
Vol. 1994), a grieved employee or his/her representative must
raise the "relief by default" issue during the
grievance proceedings as soon as the employee or his/her
representative becomes aware of such default.
Following the above-described
procedure ensures that the appellate record before this Court
will be complete in its preservation of errors alleged in the
lower grievance proceedings. Furthermore, the employer's
entitlement to a hearing on the default issue, as provided by
this section, cannot be given complete effect without requiring
an employee to bring the alleged default to the attention of the
grievance evaluator. Common sense dictates that one cannot
request a hearing on a default issue if one has not realized that
a default has occurred, and it is naive to assume that an
employer, recognizing that a default has occurred, will
effectively concede to the default by asserting its entitlement
to a hearing even though neither the employee nor the grievance
evaluator have acknowledged such default. Thus, because neither
Hanlon nor his representative raised the hearing continuances as
invoking the "relief by default" issue, we deem waived
his right to raise this issue on appeal.
Likewise, Hanlon seeks relief based
upon the delay of the Assistant Superintendent in rendering the
Level II decision. However, both the Assistant Superintendent and
the ALJ recognized that Hanlon, himself, had agreed to an
extension of this time period. As we noted above and reiterate
here, the findings of an ALJ are entitled to substantial
deference and cannot be set aside unless they are clearly wrong.
Again, we are unable to say that the ALJ's findings in this
regard were clearly wrong.
Furthermore, although the late decision could have supported relief by default, particularly where this issue was, in fact, brought to the grievance evaluator's (ALJ's) attention, such a result is not appropriate in this case where Hanlon, himself, apparently consented to the delay. A party simply cannot acquiesce to, or be the source of, an error during proceedings before a tribunal and then complain of that error at a later date. See, e.g., State v. Crabtree, 198 W. Va. 620, 627, 482 S.E.2d 605, 612 (1996) ("Having induced an error, a party in a normal case may not at a later stage of the trial use the error to set aside its immediate and adverse consequences."); Smith v. Bechtold, 190 W. Va. 315, 319, 438 S.E.2d 347, 351 (1993) ("[I]t is not appropriate for an appellate body to grant relief to a party who invites error in a lower tribunal." (Citations omitted).). Thus, because the findings of the ALJ were not clearly wrong with respect to Hanlon's agreement to delay the issuance of the Level II decision, we conclude that Hanlon is not entitled to "relief by default" on this ground.
For the foregoing reasons, we affirm the decision of the Circuit Court of Kanawha County.
Footnote: 1 1 Before the ALJ, Hanlon also suggested that Murphy's hiring contravened W. Va. Code § 18A-4-16 (1982) (Repl. Vol. 1993). However, the ALJ found W. Va. Code § 18A-3-2a(4) "to be the more pertinent code section" and therefore declined to review the matter pursuant to § 18A-4-16. See infra note 22 for the text of § 18A-4-16 and note 23 for the text of § 18A-3-2a(4).
Footnote: 2 2 See infra note 25 for the text of W. Va. Code § 18-29-3(a).
Footnote: 3 3 Only the brief and argument of the appellant is before this Court for decision. Due to the appellee's failure to timely file a response brief, upon either the
response's original due date or upon this Court's generous
extension of that time, this Court, by order dated September 9,
1997, and pursuant to Rule 10(e) of the West Virginia Rules of
impose[d] the following sanctions
upon the appellee in regard to th[is] proceeding: (1) the
appellee, the Logan County Board of Education, is hereby
precluded from filing an appellee's brief in th[is] proceeding;
and (2) the appellee, the Logan County Board of Education, is
hereby precluded from participating in oral argument on the
Court's Argument Docket[.]
We note further, though decline to address, the potential implication of ethical standards occasioned by the appellee's failure to appear in this matter. See, e.g., W. Va. Rules of Professional Conduct Rule 1.1 ("Competence") and Rule 1.3 ("Diligence"). See also W. Va. Standards of Professional Conduct Standard I.C. ("Lawyers' Duties to the Court") and Standard I.D. ("Lawyers' Duties to the Client").
Footnote: 4 4 Each of the committee's community members had either played basketball in high school and/or college or were actively involved in managing or coaching community basketball teams (e.g., midget league). One of the community members happened also to be the son of the Logan High School athletic director. At some point after the committee's formation, the father and son committee members apparently became concerned about the appearance of impropriety arising from both of them serving on the committee. In part to alleviate these concerns, and in part due to medical problems, the Logan High School athletic director (father) continued to participate in the applicants' interviews, but abstained from the final vote to select the preferred coach candidate.
Footnote: 5 5 In addition to being the assistant boys' basketball coach for seven years at Logan High School, Hanlon had been an employee of the Logan County Board of Education since 1984. Prior to his employment in Logan County, Hanlon was employed at Sherman High School in Boone County from 1973 to 1978, where he served for two years as the assistant boys' basketball coach and three years as the head coach of boys' basketball.
Footnote: 6 6 At the time of his application, Murphy was the head boys' basketball coach at Buckhannon-Upshur High School, where he had been employed since 1986. During that time, Murphy served one year as the freshman basketball coach, four years as the head girls' basketball coach, five years as the assistant boys' basketball coach, and one year as the head boys' basketball coach.
Footnote: 7 7 Although the record is unclear on this point, the ALJ decision indicates that the State Superintendent approved Murphy's hiring because the State Department of Education had taken over various positions within the Logan County school system.
Footnote: 8 8 The record indicates that one of the top three candidates withdrew his application thereby leaving only two top candidates for the coaching position.
Footnote: 9 9 Hanlon raises this delay as one of several reasons why he should be granted relief by default pursuant to W. Va. Code § 18-29-3(a) (1992) (Repl. Vol. 1994). We will address these contentions in Section II.D., infra.
Footnote: 10 10 As for the delay in holding the Level II hearing and rendering the accompanying decision, the Assistant Superintendent noted that "[t]he initial hearing was continued at the Grievant's request and the decision was delayed by agreement of the parties."
Footnote: 11 11 The Assistant Superintendent rendering the Level II decision was not the same Assistant Superintendent who served on the hiring committee.
Footnote: 12 12 W. Va. Code § 18A-4-7a (1993) (Repl. Vol. 1993) discusses seniority and the procedures to be followed in employing, promoting, and transferring professional personnel. As this statute has not been addressed by either the ALJ's decision or the appellant's arguments before this Court, we likewise decline further treatment of this provision.
Footnote: 13 13 W. Va. Code § 18-29-4(c) (1992) (Repl. Vol. 1994) permits a grieved employee to appeal from Level II to either Level III or Level IV. Hanlon contends that the LCBOE would not permit his direct appeal to Level IV, but instead insisted that he must first appeal to Level III. Ultimately, however, the record reflects that Hanlon was permitted to bypass the Level III proceedings and to proceed directly to Level IV.
Footnote: 14 14 See infra note 22 for the text of W. Va. Code § 18A-4-16.
Footnote: 15 15 Specifically, the ALJ noted that
other issues raised by the Grievant have been found to be without merit. These issues include:
of the LCBOE to obtain written consent when the Level II hearing
was continued twice, once on Grievant's request and the second
(three days later) at the LCBOE's request. Grievant did not
object to either continuance.
. . . .
4) Failure of
LCBOE to receive written consent of parties to extend time lines
for issuing a Level II decision. The parties had agreed to
this extension verbally.
(Italicized emphasis added). See infra note 25 for the text of W. Va. Code § 18-29-3(a).
Footnote: 16 16 See infra note 23 for the text of W. Va. Code § 18A-3-2a(4).
17 At this
juncture, we note that various statements of fact made by the
appellant do not comport with the facts actually contained in the
record before this Court. Accordingly, we reiterate our prior
admonishment to appellate counsel to ensure that representations
made before this Court are accurate in their existence and in
As a reminder to future appellants, we point out that an explicit statement or implicit suggestion in the briefs that there exists a[ particular fact] when, in fact, there is no [such fact] is misleading. Appellants are required to determine the existence [and accuracy of the facts upon which they rely] before attempting to invoke the appellate jurisdiction of this Court. Failure to do so not only wastes the precious and limited resources of this Court, but also those of the lawyers and their clients. We do not wish to be perceived as "sticklers,
precisians, nitpickers, or sadists. But in an era of
swollen appellate dockets, courts are entitled to insist" on
diligence and good faith efforts from the practicing bar so that
the appellate decisional process can proceed as it should.
Coleman v. Sopher, 194 W. Va. 90, 96, 459 S.E.2d 367, 373 (1995) (quoting Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1224 (7th Cir. 1995)) (emphasis added). We note further that a party's misrepresentation of facts to a court may implicate ethical violations, though we save for another day further discussion of this matter. See, e.g., W. Va. Rules of Professional Conduct Rule 3.3 ("Candor toward the tribunal"). See also W. Va. Standards of Professional Conduct Standard I.C. ("Lawyers' Duties to the Court").
Footnote: 18 18 See infra note 22 for the text of W. Va. Code § 18A-4-16.
Footnote: 19 19 See infra note 23 for the text of W. Va. Code § 18A-3-2a(4).
Footnote: 20 20 See infra note 25 for the text of W. Va. Code § 18-29-3(a).
Footnote: 21 21 See infra note 26 for the text of W. Va. Code § 18-29-4(b).
22 W. Va.
Code § 18A-4-16 (1982) (Repl. Vol. 1993)
("Extracurricular assignments") provides, in its
assignment of teachers and service personnel to extracurricular
assignments shall be made only by mutual agreement of the
employee and the superintendent, or designated representative,
subject to board approval. Extracurricular duties shall mean, but
not be limited to, any activities that occur at times other than
regularly scheduled working hours, which include the instructing,
coaching, chaperoning, escorting, providing support services
or caring for the needs of students, and which occur on a
regularly scheduled basis.
employee and the superintendent, or a designated representative,
subject to board approval, shall mutually agree upon the maximum
number of hours of extracurricular assignment in each school year
for each extracurricular assignment.
(3) The terms
and conditions of the agreement between the employee and the
board of education shall be in writing and signed by both
employee's contract of employment shall be separate from the
extracurricular assignment agreement provided for in this section
and shall not be conditioned upon the employee's acceptance or
continuance of any extracurricular assignment proposed by the
superintendent, a designated representative, or the board.
23 W. Va.
Code § 18A-3-2a(4) (1992) (Repl. Vol. 1993) states:
accordance with state board of education rules for the education
of professional educators adopted after consultation with the
secretary of education and the arts, the state superintendent of
schools may issue certificates valid in the public schools of the
state: Provided, That a certificate shall not be issued to any
person who is not a citizen of the United States, is not of good
moral character and physically, mentally and emotionally
qualified to perform the duties for which the certification would
be granted and who has not attained the age of eighteen years on
or before the first day of October of the year in which the
certificate is issued[.]
authorized to be issued include:
. . . .
certificates; permits. --- Other certificates and permits
may be issued, subject to the approval of the state board, to
persons who do not qualify for the professional or
paraprofessional certificate. Such certificates or permits
shall not be given permanent status and persons holding such
shall meet renewal requirements provided by law and by
regulation, unless the state board declares certain of these
certificates to be the equivalent of the professional
Within the category of other certificates and permits, the state superintendent may issue certificates for persons to serve in the public schools as athletic coaches or other extracurricular activities coaches whose duties may include the supervision of students, subject to the following limitations:
(A) Such person shall be employed under a contract with the
county board of education which specifies the duties to be
performed, which specifies a rate of pay equivalent to the rate
of pay for professional educators in the district who accept
similar duties as extra duty assignments and which provides for
liability insurance associated with the activity: Provided, That
such persons shall not be considered employees of the board for
salary and benefit purposes other than as specified in the
contract; (B) a currently employed certified professional
educator has not applied for the position; and (C) such
person completes an orientation program designed and approved in
accordance with state board rules which shall be adopted no later
than the first day of January, one thousand nine hundred
Footnote: 24 24 W. Va. Code § 18A-3-2a(1) refers to the general "teaching certificate" mentioned in W. Va. Code § 18A-3-2 as a "professional teaching certificate."
25 W. Va.
Code § 18-29-3(a) (1992) (Repl. Vol. 1994) ("Grievance
procedure generally") directs, in part:
(a) A grievance must be filed within the times specified in section four [§ 18-29-4] of this article and shall be processed as rapidly as possible. The number of days indicated at each level specified in section four of this article shall be considered as the maximum number of days allowed and, if a decision is not rendered at any level within the prescribed time limits, the grievant may appeal to the next level: Provided, That the specified time limits may be extended by mutual written agreement . . . . If a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in this article, unless prevented from doing so directly as a result of sickness or illness, the grievant shall prevail by default. Within five days of such default, the employer may request a hearing before a level four hearing examiner for the purpose
of showing that the remedy received by the prevailing grievant
is contrary to law or clearly wrong. In making a determination
regarding the remedy, the hearing examiner shall presume the
employee prevailed on the merits of the grievance and shall
determine whether the remedy is contrary to law or clearly wrong
in light of that presumption. If the examiner finds that the
remedy is contrary to law, or clearly wrong, the examiner may
modify the remedy to be granted so as to comply with the law and
to make the grievant whole.
26 W. Va.
Code § 18-29-4(b) (1992) (Repl. Vol. 1994) provides, in
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[.]