Howard E. Seufer, Esquire
Bowles Rice McDavid Graff & Love
Parkersburg, West Virginia
Attorney for the Appellee
Joseph P. Albright, Jr., Esquire
Albright, Bradley & Ellison
Parkersburg, West Virginia
Attorney for the Appellant
JUSTICE NEELY delivered the Opinion of the Court.
1. Hiring requirements for special summer programs
established pursuant to the Assistance for Education of All
Handicapped Children Act, 20 U.S.C. 1411 et seq., are governed by
W. Va. Code, 18A-4-8b(a) .
2. "Under W. Va. Code, 18A-4-8b(a) (1983), decisions of
a county board of education affecting teacher promotions and the
filling of vacant teaching positions must be based primarily upon
the applicants' qualifications for the job, with seniority having
a bearing on the selection process when the applicants have
otherwise equivalent qualifications or where the differences in
qualification criteria are insufficient to form the basis for an
informed and rational decision." Syllabus Point 1, Dillon v. Bd.
of Educ. of County of Wyoming, ___ W. Va. ___, 351 S.E.2d 58
3. "County boards of education have substantial
discretion in matters relating to the hiring, assignment, transfer,
and promotion of school personnel. Nevertheless, this discretion
must be exercised reasonably, in the best interests of the schools,
and in a manner which is not arbitrary and capricious." Syllabus
Point 3, Dillon v. Bd. of Educ. of County of Wyoming, ___ W. Va.
___, 351 S.E.2d 58 (1986).
4. A board of education making a hiring decision under
W. Va. Code, 18A-4-8b(a)  should use its best professional
judgment to select the applicant best suited to the needs of the
students based on qualifications and evaluations of the applicants'
past service. Only when all other factors are equal should a board
of education look to seniority.
Donald Enoch brought a grievance against the Wood County
Board of Education to the West Virginia Education and State
Employees' Grievance Board, alleging that Mr. Enoch was improperly
denied employment as a special summer program teacher at the Martin
School in Parkersburg. The hearing examiner granted Mr. Enoch's
grievance and ordered the Board of Education to pay the appellant
back wages and benefits. The Board of Education sought review in
the Circuit Court of Wood County, which found that the hearing
examiner's decision "[was] clearly wrong and contrary to law and
even seems to have been capricious." Mr. Enoch now appeals the
order of the circuit court reversing the decision of the West
Virginia Education and State Employees' Grievance Board. We affirm
the circuit court.
The Martin School is a special education school devoted
primarily to mentally retarded students. Federal law requires that
the Wood County Board of Education provide certain seriously
handicapped students with education and related services for a
period that continues beyond the end of the traditional 180 day
school year. See 20 U.S.C. 1411 et seq. See also Armstrong v.
Kline, 476 F.Supp. 583 (E.D. Pa. 1979). The school may not charge
tuition or fees. The purpose of this extended program is to
prevent backsliding among students who would probably otherwise
regress during a long summer vacation. Wood County provided such
a program at the Martin School from 12 June 1989 to 21 July 1989.
Mrs. Marie Held, the principal of Martin School, posted
the vacancies for the special summer program in May, 1989.See footnote 1
Principal Held then conducted a thorough review of the applicants
for the positions, and particularly considered the relationships
that the Martin School students had with the applicants. Thus,
applicants who had already developed relationships with students in
small classroom settings were given preference over appellant, who
taught during the regular school year at a different school.
Appellant contends that W. Va. Code, 18-5-39 ,
governs the hiring decisions made by Principal Held and that under
this section his summer school seniority required Principal Held to
hire him. W. Va. Code, 18-5-39 , provides:
Inasmuch as the present county school facilities for the most part lie dormant and unused during the summer months, and inasmuch as there are many students who are in need of remedial instruction and others who desire accelerated instruction, it is the purpose of this section to provide for the establishment of a summer school program, which program is to be separate and apart from the full school term as established by each county.
The board of education of any county shall
have authority to establish a summer school
program utilizing the public school facilities
and to charge tuition for students who attend
such summer school, such tuition not to exceed
in any case the actual cost of operation of
such summer school program: Provided, That
any deserving pupil whose parents, in the
judgment of the board, are unable to pay such
tuition, may attend at a reduced charge or
without charge. The county board of education
shall have the authority to determine the term
and curriculum of such summer schools based
upon the particular needs of the individual
county. The curriculum may include, but is
not limited to, remedial instruction,
accelerated instruction, and the teaching of
manual arts. The term of such summer school
program may not be established in such a
manner as to interfere with the regular school
The county boards may employ as teachers for
this summer school program any certified
teacher. Certified teachers employed by the
county board to teach in the summer school
program shall be paid an amount to be
determined by the county board and shall enter
into a contract of employment in such form as
is prescribed by the county board: Provided,
That teachers who teach summer courses of
instruction which are offered for credit and
which are taught during the regular school
year shall be paid at the same daily rate such
teacher would receive if paid in accordance
with the then current minimum monthly salary
in effect for teachers in that county.
Any funds accruing from such tuitions shall
be credited to and expended within the
existing framework of the general current
expense fund of the county board.
Notwithstanding any other provision of this
code to the contrary, the board shall fill
professional positions established pursuant to
the provisions of this section on the basis of
certification and length of time the
professional has been employed in the county's
summer school program. In the event that no
employee who has been previously employed in
the summer school program holds a valid
certification or licensure, a board shall fill
the position as a classroom teaching position
in accordance with section eight-b [§ 18A-4-8b], article four, chapter eighteen-a of this
code. [Emphasis added.]
The Board of Education contends that the vacancies at
Martin School were not such as were contemplated in W. Va. Code,
18-5-39 , and were properly filled under W. Va. Code, 18A-4-8b(a) , which provides in pertinent part:
A county board of education shall make decisions affecting promotion and filling of any classroom teacher's position occurring on the basis of qualifications.See footnote 2
W. Va. Code, 18-5-39  provides for traditional
summer school. The statute was enacted to take advantage of empty
schools and to provide extra instruction for students in need. The
Legislature established the summer school as separate and apart
from the regular school term. Under the summer school statute, the
Board of Education could charge tuition, determine the term of the
summer school and set the curriculum of the summer school based
upon the needs of a particular county.
The program offered at the Martin School in the summer of
1989 was not the traditional summer school contemplated by this
statute. Federal and state law required free instruction for some
of the Martin School students beyond the end of the school year,
and the curriculum was based upon federal and state policies that
require the extended year program to offer individualized
The Wood County Board of Education does provide a
traditional summer school program at Parkersburg High School, which
complies with W. Va. Code, 18-5-39 . The Board provides the
special summer program at Martin School, however, in compliance
with applicable state and federal law. Accordingly, we find that
W. Va. Code, 18A-4-8b(a)  governs the hiring for summer
programs established pursuant to these other requirements of
federal and state law.
W. Va. Code, 18A-4-8b(a)  requires the Board of
Education to fill positions based on the qualifications of the
applicants. As we stated in Syllabus Point 1 of Dillon v. Board of
Education of Wyoming County, ___ W. Va. ___, 351 S.E.2d 58 (1986):
Under W. Va. Code, 18A-4-8b(a) (1983), decisions of a county board of education affecting teacher promotions and the filling of vacant teaching positions must be based primarily upon the applicants' qualifications for the job, with seniority having a bearing on the selection process when the applicants have otherwise equivalent qualifications or where the differences in qualification criteria are insufficient to form the basis for an informed and rational decision.
In this case, Principal Held undertook an extensive review as part
of the hiring process. She talked to the applicants by telephone,
reviewed personnel files, reviewed other information provided by
the personnel department, and interviewed each candidate. After
this, Ms. Held developed a matrix that included 40 different
categories to make her personnel decisions.
We stated in Syllabus Point 3 of Dillon that:
County boards of education have substantial discretion in matters relating to the hiring, assignment, transfer, and promotion of school personnel. Nevertheless, this discretion must be exercised reasonably, in the best interests of the schools, and in a manner which is not arbitrary and capricious.
The review we have undertaken shows that Principal Held diligently,
professionally and reasonably attempted to hire the best qualified
teachers among the available applicants.See footnote 3
A board of education making a hiring decision should use
its best professional judgment to select the applicant best suited
to the needs of the students based on qualifications and
evaluations of the applicants' past service. The Circuit Court was
correct in finding that the Wood County Board of Education properly
applied W. Va. Code, 18A-4-8b(a)  in the hiring of teachers
for the summer session of 1989 at Martin School. Only when all
other factors are equal should a board of education look to
For the foregoing reasons, the judgment of the Circuit
Court of Wood County is affirmed.
Footnote: 1The openings could not be posted sooner, nor could the extended duties simply be included in the contracts of the regular teachers at Martin School because the needs of the children vary greatly from year to year. As such, the school first determines the needs for its students, and then posts the vacancies.
Footnote: 2In 1990, the Legislature moved the relevant provisions of this section to W. Va. Code, 18A-4-7a . The new statute also requires the school board to select the applicant with the highest qualifications.
Footnote: 3Mr. Enoch suggests that it was unfair of the Board to consider factors which it did not list in the posting of the opening. In particular, he suggests that the Board is using his lesser abilities at sign language as a pretext not to hire him. However, this seems to us to be a legitimate consideration in the hiring process when a significant number of the children are deaf. Contrary to appellant's contention, we have never held that a school board must list specifically in the job posting each and every factor that it might consider as a part of the hiring process. In Dillon, we attempted only to prevent pretextual requirements made to further cronyism. This is certainly not the case when the Board requires a high proficiency in signing for those teachers who will be working with deaf, retarded students.