IN THE SUPREME COURT OF APPEALS OF WEST
September 1997 Term
STATE OF WEST VIRGINIA EX REL. JUDY MONK,
HONORABLE DAVID W. KNIGHT, JUDGE OF THE
CIRCUIT COURT OF MERCER COUNTY,
THE MERCER COUNTY BOARD OF EDUCATION, AND
Petition for Writ of Prohibition
Submitted: November 4, 1997
Filed: November 24, 1997
George P. Surmaitis, Esq.
Crandall, Pyles & Haviland
Charleston, West Virginia
William B. McGinley, Esq.
Charleston, West Virginia
Attorneys for the Petitioner
Kathryn R. Bayless, Esq.
Bayless & McFadden
Princeton, West Virginia
Attorney for Mercer County Board of Education
Mark E. Wills, Esq.
Wills & Sadler
Princeton, West Virginia
Attorney for Dalton
JUSTICE MAYNARD delivered the Opinion of the
CHIEF JUSTICE WORKMAN concurs in part, dissents in part, and reserves the right to file a separate Opinion.
SYLLABUS BY THE COURT
there is a misinterpretation or misapplication of a statute
involving school personnel, the employee affected by the
misinterpretation or misapplication of the law has no duty to
file a grievance until the misinterpretation or misapplication
2. Pursuant to W.Va. Code § 18-29-3(u), a teacher employed by a county board of education may intervene in a grievance proceeding at any level if that teacher believes the disposition of the grievance will adversely affect his or her rights or property or if that teacher believes his or her interest is not adequately represented by the existing parties.
3. When two teachers with equal qualifications apply for a vacant teaching position and one applicant files a grievance after the position is filled, the other applicant has no duty or obligation to intervene in the grievance proceeding until a decision has been rendered that substantially and adversely affects him or her.
4. Absent a specific statutory authorization, county boards of education cannot fill vacant teaching positions by random selection or lottery when two or more equally qualified employees apply for the vacant position. W.Va. Code § 18A-4-7a provides the criteria the board of education must take into consideration when determining which candidate is the most qualified. The candidate who is most qualified must be chosen to fill the vacancy.
Judy Monk, seeks a writ of prohibition against the Circuit Court
of Mercer County, the Mercer County Board of Education, and
Gregory Dalton asking that we prohibit the respondent circuit
court from enforcing its order which reversed the decision of the
Administrative Law Judge (ALJ) and remanded the case back to the
Mercer County Board of Education (Board) to decide whether Monk
or Dalton would be chosen to fill a vacant teaching position at
PikeView High School. The Board chose Dalton based on specialized
training. Monk seeks to prohibit enforcement of this
determination. We conclude the writ should be denied.
During the summer months of 1994, the Board posted a notice for a business teacher at PikeView High School. The position was to be filled in accordance with W.Va. Code § 18A-4-7a.See footnote 1 1 Monk and Dalton were both permanently employed instructional
personnel and both applied for the vacant
position. A committee interviewed the applicants and applied the
criteria listed in W.Va. Code § 18A-4-7a in an effort to
determine which applicant to hire. The committee recommended that
Dalton be hired. The Board awarded the position to Dalton, and he
began teaching at PikeView High School when school opened in
Monk filed a grievance with the West Virginia Education and State Employees Grievance Board (Grievance Board) pursuant to W.Va. Code § 18-29-1, et seq., Grievance Procedure. The grievance was denied at Level I. At Level II, the hearing examiner determined an error had been made in calculating Monk's total teaching experience. The correct calculation resulted in a tie between the two applicants. The hearing examiner directed the principal of the school to conduct a reassessment of Dalton's and Monk's credentials. The reassessment resulted in a determination that Dalton was more qualified on the basis of specialized training. Monk subsequently appealed to Level IV alleging the reassessment was flawed. The ALJ determined the matter should be remanded to Level I because the grievable event, the reassessment, was different from the assessment of credentials involved in the original grievance.
The grievance was processed according to the ALJ's order. It was denied at Level II, and the Board declined to address the matter at Level III. The case again proceeded to Level IV. The ALJ reviewed the evidence and found the principal's reliance on the area of specialized training was improper because this particular factor was not contained in the original job posting. Therefore, the area of specialized training could not be given consideration. The ALJ also noted that notwithstanding the error in considering specialized training, the private sector training relied upon by the principal was not specialized training within the meaning of W.Va. Code § 18A-4-7a.See footnote 2 2 The ALJ determined the two applicants were tied for the position. The Board was ordered to fill the vacant position by lottery or random selection.See footnote 3 3
random selection was conducted by Roger Daniels, the Director of
Human Resources, in the Central Office Conference Room. Dalton
and Monk drew numbers out of a box. Both understood the employee
who drew the higher number would be awarded the position. Dalton
drew a "4" and Monk drew a "5" from the box.
Thus, Monk displaced Dalton. Subsequent to the lottery drawing,
Dalton filed a grievance at Level I, contending he should not
have been removed from his job.
grievance was denied at Levels I and II and waived at Level III.
At Level IV, the ALJ denied the grievance, stating that:
W.Va. Code § 18-29-4(d)(2), decisions of Administrative Law
Judges at level four are final upon the parties and shall be
enforceable in circuit court, unless timely appealed, as
authorized by W.Va. Code § 18-29-7. This clear statutory
provision provides no authority for the undersigned
administrative law judge to interpret, clarify or otherwise amend
the decision of another administrative law judge at Level IV.
Indeed, this Grievance Board has declined to permit employees to
grieve actions which directly result from a board of education's
implementation of a grievance decision adjudicated at the lower
levels of the grievance procedure provided in W.Va. Code §§
18-29-1, et seq. (citations omitted).
correctly noted by MCBE, Grievant is making a collateral attack
on the Monk decision. If Grievant is permitted to challenge the
Monk ruling in this proceeding, and he prevails, why should Ms.
Monk, who likewise failed to intervene in this matter, not be
allowed to make a collateral attack on this decision? The obvious
answer is that this would permit the parties to engage in endless
rounds of litigation.
appealed the unfavorable decision to the circuit court, pursuant
to W.Va. Code § 18-29-7 (1985).See footnote 4 4 The court issued a
decision reversing the ALJ, stating:
It is necessary to consider this grievance along with the grievance of Monk v. Mercer County Board of Education in order to arrive at a fair and equitable decision here. Where two employees are "tied" in reference to the qualifications under the law for a professional position, a Board of Education should be allowed to exercise its discretion and choose the candidate of its choice in order to break the "tie" between two applicants; the Board of Education should first make a decision on whether or not it wishes to break the tie by doing so. If the Board of Education chooses not to break the tie by exercising its discretion in that manner, then and only then should some random choice procedure be used to decide who obtains the job and that random selection process for the job at issue here should be established by the employees, subject to Board approval. Such an approved random selection process was not in place at the time the position was awarded to Ms. Monk.
Court holds that the decision of Administrative Law Judge Brewer
issued on July 29, 1996, is clearly wrong in light of the
reliable, probative and substantial evidence on the whole record
and was arbitrary, capricious and characterized by an abuse of
discretion and was clearly an unwarranted exercise of discretion.
Based on this decision, the Board informed Monk in writing that she must submit documentation of specialized training. Following an evaluation of the criteria, Monk received a letter which stated "the Board of Education did approve the Superintendent's recommendation to transfer Mr. Dalton to the teaching position at PikeView High School."
now contends the circuit court exceeded its jurisdiction and
lawful authority as this case involves a collateral attack on a
grievance decision by a party who is using the grievance process
as a vehicle to arrive at circuit court in order to challenge a
previous grievance board decision. She contends the court's
decision permits Dalton to circumvent W. Va. Code § 18-29-7 by
pursuing a grievance which is not based on a dispute with the
employer, but is instead based on a prior grievance board
argues that the overriding concern when filling a vacant teaching
position should be qualifications. He contends there is no
statutory authority for choosing professional teachers by
lottery; therefore, the ALJ erred in directing that teachers be
chosen by lottery. As a result, the circuit court was correct in
reversing the ALJ's decision and directing that the position be
awarded to the most qualified candidate.
issue, as we see it, is whether the circuit court erred in
considering the merits of Dalton's grievance when Dalton did not
intervene in Monk's grievance.
"Grievance" means any claim by one or more affected employees of the governing boards of higher education, state board of education, county boards of education, regional educational service agencies and multi-county vocational centers alleging a violation, a misapplication or a misinterpretation of the statutes, policies, rules, regulations or written agreements under which such employees work, including any violation, misapplication or misinterpretation regarding compensation, hours, terms and conditions of employment, employment status or discrimination; any discriminatory or otherwise aggrieved application of unwritten policies or practices of the board; any specifically identified incident of harassment or favoritism; or any action, policy or practice constituting a substantial detriment to or interference with effective classroom instruction, job performance or the health and safety of students or employees.
W.Va. Code § 18-29-2(a) (1992). When there has
been a misinterpretation or misapplication of a statute involving
school personnel, the employee affected by the misinterpretation
or misapplication of the law has no duty to file a grievance
until the misinterpretation or misapplication occurs. Dalton
could not have known prior to the ALJ's decision being rendered
that the ALJ would misapply the law and order the Board to fill
the vacant position by lottery. Therefore, Dalton had no duty to
file a grievance prior to that decision being announced.
also believe Dalton had no reason to intervene in Monk's
grievance because he did not know until her grievance was finally
decided that his job would be adversely affected. W.Va. Code
18-29-3(u) allows for intervention if one thinks the disposition
of a case will adversely affect his or her rights or if one
thinks the existing parties will not adequately represent his or
her interest. Dalton had no duty or obligation to intervene until
a decision adversely affected his job, that is, until after the
Level IV decision had been rendered in Monk's grievance. At that
point, Dalton could not appeal the outcome of Monk's grievance to
the circuit court because he was not a party. Only the Board
could appeal, and the Board chose not to exercise that right.
Only then was Dalton removed from the teaching position. The
option which was left to him was to file his own grievance, which
other issue we believe we must address is whether teachers with
equal qualifications who apply for a vacant teaching position can
be chosen to fill the vacant position by random selection. County
boards of education are statutorily directed to make these
decisions, and the selection process is controlled by W.Va. Code
§ 18A-4-7a.See footnote 5 5
The West Virginia Code does not give ALJs authority to order
the random selection of professional teachers, and we cannot
provide it. This selection of candidates puts boards of education
in a position where they must use their discretion in rating the
qualifications of the applicants. However, this is the kind of
discretion we place in elected board members.
note here that the law, as a matter of policy, does not disfavor
random selection in a situation where it is proper to choose by
lottery. Simply put, there is nothing inherently wrong in
deciding certain issues by random selection. The Legislature has
statutorily provided for the random selection of school service
personnel. W.Va. Code § 18A-4-8b (1990) states in relevant part,
"If two or more employees accumulate identical seniority,
the priority shall be determined by a random selection system
established by the employees and approved by the county
board." This Court also recently recognized that W.Va. Code
§ 8-5-15 authorizes the breaking of a tie in a municipal
election by lot. In re Election Contest Between Moore and
Powell, ___ W.Va. ___, 489 S.E.2d 492 (1997).
no such random selection process is provided by the Legislature
for filling vacant teaching positions. Therefore, absent a
specific statutory authorization, county boards of education
cannot fill vacant teaching positions by random selection or
lottery when two or more equally qualified employees apply for
the vacant position. W.Va. Code § 18A-4-7a provides the criteria
the board of education must take into consideration when
determining which candidate is the most qualified. The candidate
who is most qualified must be chosen to fill the vacancy. In the
case at bar, the Board determined Dalton was better qualified
than Monk to fill the vacancy at PikeView High School. The
selection process mandated by the West Virginia Code was utilized
to fill the vacancy. For that reason, Dalton will remain in the
For the foregoing reasons, the writ is denied.
W.Va. Code § 18A-4-7a (1993) states in pertinent part:
If one or more permanently employed instructional personnel apply for a classroom teaching position and meet the standards set forth in the job posting, the county board of education shall make decisions affecting the filling of such positions on the basis of the following criteria: Appropriate certification and/or licensure; total amount of teaching experience; the existence of teaching experience in the required certification area; degree level in the required certification area; specialized training directly related to the performance of the job as stated in the job description; receiving an overall rating of satisfactory in evaluations over the previous two years; and seniority. Consideration shall
be given to each criterion with each criterion being given equal weight. If the applicant with the most seniority is not selected for the position, upon the request of the applicant a written statement of reasons shall be given to the applicant with suggestions for improving the applicant's qualifications.
Footnote: 2 2 Monk had been employed as a church secretary and Dalton had been employed as a clerk at an A&P store.
Dalton did not exercise his right to intervene in the Monk
grievance under W.Va. Code § 18-29-3(u) (1992), which states:
(u) Upon a timely
request, any employee shall be allowed to intervene and become a
party to a grievance at any level when that employee claims that
the disposition of the action may substantially and adversely
affect his or her rights or property and that his or her interest
is not adequately represented by the existing parties.
Even though the superintendent testified at the Level IV hearing that she believed Dalton was the best qualified applicant for the position, the Board did not exercise its authority under W.Va. Code § 18-29-7 (1985) to appeal the Level IV decision to circuit court.
W.Va. Code § 18-29-7 (1985) provides:
The decision of the
hearing examiner shall be final upon the parties and shall be
enforceable in circuit court: Provided, That either party may
appeal to the circuit court of 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 board,
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 within thirty days of receipt of the hearing examiner's
decision. The decision of the hearing examiner shall not be
stayed, automatically, upon the filing of an appeal, but a stay
may be granted by the circuit court upon separate motion
The court's ruling shall be upon the entire record made before the hearing examiner, and the court may hear oral arguments and require written briefs. The court may reverse, vacate or modify the decision of the hearing examiner or may remand the grievance to the chief administrator of the institution for further proceedings.
Footnote: 5 5 See supra note 1 for the relevant language of this code section.