Henry M. Hills, III, Esq.
R. Conaway, Esq.
Dennie S. Morgan, Jr., Esq. Madison, West Virginia
Crandall, Pyles, Haviland & Turner, LLP Attorney for Respondents
Logan, West Virginia
Attorneys for Petitioner
JUSTICE MAYNARD delivered the Opinion of the Court.
Once a county board of education selects a qualified applicant to fill a vacancy for a properly noticed job and that selection is rescinded within the time period prescribed by W.Va. Code § 18A-4-7a, if more than one applicant meets the qualifications, the board is legally bound to choose a successor from the original list of applicants.
This case arises on certified
questions from the Circuit Court of Kanawha County and presents issues concerning
the posting, filling, and vacating of an assistant principal's position within
the thirty-day period prescribed by W.Va. Code § 18A-4-7a. Rather than
choosing a successor to fill the newly vacated assistant principal's position
from among the original applicants, the Boone County Board of Education reposted
the position. The Board chose a successor who applied after the reposting.
The lone remaining original applicant believes she should fill the vacancy.
The circuit court certified
two questions; however, we have deemed that the questions are not in a proper
posture for us to consider. This Court has the discretion to reformulate certified
(See footnote 1) The question we must address reads as follows
Once a board of education selects a qualified applicant to fill a vacancy for a properly noticed job and that selection is rescinded within the time period prescribed by W.Va. Code § 18A-4-7a(o)(3), if more than one applicant meets the qualifications, is the board legally bound to choose a successor from the original list of applicants?
After applying the law to the facts in this case, we answer the question in the affirmative.
The facts are not
in dispute. The Boone County Board of Education employs Diana Bossie as a
teacher at Sherman High School. She holds a permanent teaching certificate
for grades 7-12 and a Master's Degree in Educational Leadership for grades
7-12. The Master's Degree qualifies her to work as an administrator in the
school system in West Virginia. There is no question that Ms. Bossie is qualified
to fill the position she seeks.
During the summer of 1999,
the Board posted the vacant principal's position at Van Junior-Senior High
School. Diana Bossie and Earnest Wilson, assistant principal at the school,
applied for the position. The applicants were interviewed by Dr. Richard Adkins,
Executive Director of Personnel, and Steve Pauley, Assistant Superintendent
for Secondary Education. During the interview, Ms. Bossie was told that she
would be considered for the assistant principal's position if Mr. Wilson was
chosen for the principal's job. The Board chose Mr. Wilson to fill the vacant
On July 26, 1999, the Board
posted a notice of vacancy for the assistant principal's position. Two applicants,
Diana Bossie and Tom Bias, a teacher at Scott High School, applied for the job.
After interviewing each applicant, the Board chose Mr. Bias to fill the vacancy.
Mr. Bias held the position from August 17, 1999 through August 26, 1999, even
though he actually worked on the job as assistant principal for one day. After
his first day on the job, he told the personnel director that he wished to be
relieved of the position. As the Board did not post the teaching position Mr.
Bias vacated at Scott High School, Mr. Bias returned to his former teaching
job. On August 26, 1999, the Board voted to rescind its hiring action.
The Board was then faced
with the question of whether to choose a successor from the original pool
of applicants or repost the opening. On August 30, 1999, the Board reposted
the assistant principal's position. This time the Board received three applications,
that of Diana Bossie, Rodney Cummings, a Lincoln County classroom teacher,
and a third unknown applicant. After interviewing the applicants, the Board
chose Mr. Cummings to fill the vacant assistant principal's position.
On September 15, 1999, Ms. Bossie
filed a grievance alleging violations of W.Va. Code § 18A-4-7a
(See footnote 2)
and W.Va. Code § 18-29-2(m).
(See footnote 3) The Board prevailed at level
one and level two of the grievance process. Ms. Bossie waived level three. The
grievance proceeded to level four where the administrative law judge upheld
the decision made at level two. This exhausted Ms. Bossie's administrative remedies.
She appealed to circuit court.
The circuit court framed and answered questions sua sponte and certified the questions to this Court. The relevant facts were noted by the circuit court in its order entered on March 23, 2001. The court found that the July 26, 1999 posting closed on July 30, 1999. Mr. Bias left his teaching job on August 17, 1999 to assume the assistant principalship and left the assistant principalship to return to his teaching position on August 18, 1999 with eleven days of the statutory thirty days remaining. The Board rescinded its hiring action on August 26, 1999. The circuit court believed the Board followed existing legal procedure and that the second posting of the assistant principal's position essentially put all prospective applicants back to the place where they were before the job was first posted.
The court affirmed the administrative law judge's decision but stayed that
ruling while the certified question is pending in this Court.
(o) Openings in established, existing or newly created positions shall be processed as follows:
(1) Boards shall be required to post and date notices which shall be subject to the following:
(A) The notices shall be posted in conspicuous working places for all professional personnel to observe for at least five working days;
(B) The notice shall be posted within twenty working days of the position openings and shall include the job description;
(C) Any special criteria or skills that are required by the position shall be specifically stated in the job description and directly related to the performance of the job;
(D) Postings for vacancies made pursuant to this section shall be written so as to ensure that the largest possible pool of qualified applicants may apply; and
(E) Job postings may not require criteria which are not necessary for the successful performance of the job and may not be written with the intent to favor a specific applicant;
(2) No vacancy shall be filled until after the five-day minimum posting period;
(3) If one or more applicants meets the qualifications listed in the job posting, the successful applicant to fill the vacancy shall be selected by the board within thirty working days of the end of the posting period[.] (Emphasis added).
Board reposted and filled the position in accordance with these statutory requirements.
Ms. Bossie contends that rather than reposting the job, the Board was legally bound to hire her to fill the vacant position because the Board's hiring action was rescinded within the thirty-day statutory period and she was the sole remaining original applicant. Sheavers that the assistant principal's position did not become vacant when Mr. Bias's hiring was rescinded because [b]y rescinding its action, the Board voided the selection, as if it had never been filled in the first place.
In Mingo County Bd. of
Educ. v. Jones, 204 W.Va. 340, 512 S.E.2d 597 (1998), the Board posted
notice of a vacancy in a high school principal's position. Frank Jones was
the only person who applied for the job. After interviewing Jones, the selection
committee reported to the superintendent that Jones met the basic qualifications
for the job; however, the committee requested that the position be reposted
so other applicants could be evaluated. The superintendent complied and reposted
the position. Jada Hunter then applied for the job. After interviewing Hunter,
the committee reported to the superintendent that both applicants were qualified
and each would be a benefit to the school. Based upon personal knowledge of
the backgrounds of the two applicants, the superintendent recommended that
the Board hire Hunter.
Jones filed a grievance which the West Virginia Education and State Employees Grievance Board granted, ordering that Jones be placed in the principal's position. The Board appealed to circuit court where the Grievance Board's decision was reversed. Jones appealed to this Court, contending that the circuit court erred by holding that the statute permits multiple postings of a job vacancy as long as the vacancy is filled withinthe thirty-day time limit. Because county boards of education are bound by procedures they establish and the Board set a deadline in the original posting, this Court held that it was bound to adhere to the deadline, and to hire the single qualified applicant who had filed during that application period. Id., 204 W.Va. at 343, 512 S.E.2d at 600.
We must go a step beyond
Jones in the case presently before us. We must determine if county
boards of education are bound to hire from the original pool of qualified
applicants when a successful applicant
(See footnote 4) is hired but that hiring
action is rescinded within thirty working days of the end of the posting
To rescind is [t]o abrogate or cancel (a contract) unilaterally or by agreement or [t]o make void; to repeal or annul[.] Black's Law Dictionary 1308 (7th ed. 1999). More specifically, it has been said that:
rescind a contract is not merely to terminate it but to abrogate and undo it
from the beginning; that is, not merely to release the parties from further
obligation to each other in respect to the subject of the contract, but to annul
the contract, and to restore the parties to the relative positions which they
would have occupied if no such contract had ever been made.
Sylvania Industrial Corporation v. Lilienfeld's Estate, 132 F.2d 887, 892 (1943) (quoting Black, Rescission and Cancellation, 2d ed., vol. 1, § 1). Stated another way,
speaking, the effect of a rescission is to extinguish the contract and to
annihilate it so effectually that in contemplation of law it has never had
any existence, even for the purpose of being broken.
The effect of a rescission of an agreement is to put the parties back in the same position they were in prior to the making of the contract.
17A Am. Jur. 2d Contracts § 600 (1991).
If the parties are placed
back in the position they were in before the Board made a contract with Mr.
Bias, then the Board has one qualified applicant seeking a vacant assistant
principal's position at Van Junior-Senior High School and Mr. Bias is placed
exactly where we find him today, teaching at Scott High School. Importantly,
at the time the contract was rescinded, the statutory thirty-day period in
which the Board must fill the slot had not expired. In this instance, the
statute neither authorizes nor precludes reposting the job.
This Court has said,
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. Board of Education of Wyoming County, 177 W.Va. 145, 351 S.E.2d 58 (1986).
Syllabus Point 1, Mingo County Bd. of Educ.v. Jones, 204 W.Va. 340, 512 S.E.2d 597 (1998). Nobody contends that Mr. Bias was placed in the job in an attempt to circumvent the law and thereby prevent Ms. Bossie from getting the job. (See footnote 5) Even though we give substantial discretion to decisions made by county boards of education regarding hiring decisions, in this scenario, we believe that Ms. Bossie should have been given the job when Mr. Bias's contract was rescinded. The facts show that the position was posted and filled with a qualified candidate. That hiring agreement was rescinded leaving the Board with one qualified applicant who could fill the vacant position within the statutory thirty-day period.
We, therefore, hold that once a county board of education selects a qualified applicant to fill a vacancy for a properly noticed job and that selection is rescinded within the time period prescribed by W.Va. Code § 18A-4-7a (2001), if more than one applicant meetsthe qualifications, the board is legally bound to choose a successor from the original list of applicants. The certified question is answered in the affirmative.
Certified question answered.