January 2005 Term
THE BOARD OF EDUCATION OF THE COUNTY OF RANDOLPH,
Petitioner Below, Appellant
CHARLOTTE SCOTT AND JUDY CHEWNING,
Respondents Below, Appellees
Intervenor Below, Appellee
Appeal from the Circuit Court of Kanawha County
Honorable James C. Stucky, Judge
Civil Action No. 01-AA-114
Submitted: January 11, 2005
Filed: February 16, 2005
John Everett Roush, Esq.
WV School Service Personnel Association
Charleston, West Virginia
Attorney for Charlotte Scott and Judy Chewning
William B. McGinley, Esq.
WV Education Association
Charleston, West Virginia
Attorney for Melinda White
The Opinion of the Court was delivered PER CURIAM.
1. Grievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo. Syllabus Point 1, Cahill v. Mercer County Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).
2. 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, 177 W.Va. 145, 351 S.E.2d 58 (1986).
The Randolph County Board of Education appeals the June 9, 2003, order of the Circuit Court of Kanawha County that affirmed a decision of the West Virginia Education and State Employees Grievance Board. It was the decision of the Grievance Board that the Randolph County Board of Education erred by posting an Aide II position with the additional requirement that the successful applicant possess licensure as a practical nurse. For the reasons that follow, we reverse.
This Court has held,
Grievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo.
Syllabus Point 1, Cahill v. Mercer County Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000). We review decisions of the circuit court under the same standard used by the circuit court to review Grievance Board decisions. See Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995) (explaining that [t]his Court reviews decisions of the circuit court under the same standard as that by which the circuit reviews the decision of the ALJ). With this standard to guide us, we now consider the issue before us.
In ruling that the school board's action was improper, the Grievance Board looked to W.Va. Code § 18-5-22 (1996), (See footnote 5) which provides in applicable part:
Any person employed as a school nurse shall be a registered professional nurse properly licensed by the West Virginia board of examiners for registered professional nurses[.]
Specialized health procedures that require the skill, knowledge and judgment of a licensed health professional, shall be performed only by school nurses, other licensed school health care providers as provided for in this section, or school employees who have been trained and retrained every two years who are subject to the supervision and approval by school nurses. After assessing the health status of the individual student, a school nurse, in collaboration with the student's physician, parents and in some instances an individualized education program team, may delegate certain health care procedures to a school employee who shall be trained pursuant to this section, considered competent, have consultation with, and be monitored or supervised by the school nurse[.]
The Grievance Board reasoned that the administration of the students' medical care must be performed by either a school nurse or a properly trained teacher or aide. The evidence indicated, however, that the students' specialized health needs required professional judgment that teachers and aides could not be trained to exercise. Therefore, only a school nurse, required by statute to be a registered nurse, could administer the required care. Because Ms. White was a licensed practical nurse, and not a registered nurse, she should not have been permitted by the school board to administer the students' medical care. The Grievance Board concluded that the school board was left with only two choices: provide daily care by a registered nurse or train an aide or teacher to perform the necessary medical procedures. We do not agree with the Grievance Board's analysis. Rather, we believe that the school board did, in fact, train an aide to administer the students' medical care consistent with the statute. As we discuss infra, the fact that this aide was required to be a licensed practical nurse is consistent with our prior case law.
This Court previously has explained that [o]ur Legislature has devoted great attention to the regulation of school service personnel, and has established an exhaustive list of class titles [or positions or jobs] describing the general duties of any person working as a school service employee. Hancock County Bd. of Educ. v. Hawken, 209 W.Va. 259, 262, 546 S.E.2d 258, 261 (1999) (footnote omitted). According to W.Va. Code § 18A-4-8b(a) (2002),
A county board shall make decisions affecting promotions and the filling of any service personnel positions of employment or jobs occurring throughout the school year that are to be performed by service personnel as provided in section eight [§ 18A-4-8] of this article, on the basis of seniority, qualifications and evaluation of past service.
We further have held that [c]ounty 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, 177 W.Va. 145, 351 S.E.2d 58 (1986).
By best interests of the schools we mean what is in the best interest of the children of this State. One of the State's primary duties is to provide education to its citizens[.] . . . Thus, in all cases dealing with our public schools, our first concern must be the impact our decision will have on the education that the State's children will receive.
Hawken, supra, 209 W.Va. at 262, 546 S.E.2d at 261. As noted above, in the exercise of their discretion, school boards may consider job-related factors in addition to the specific statutory qualifications in selecting an applicant to fill a posted vacancy.
In Hawken, the Hancock County Board of Education created a new position titled Supervisor of Maintenance, and posted an official notice of vacancy. The Supervisor of Maintenance position was defined in W.Va. Code § 18A-4-8 (1996) (See footnote 6) as,
skilled personnel not defined as professional personnel or professional educators as in section one, article one of this chapter. The responsibilities would include directing the upkeep of buildings and shops, issuing instructions to subordinates relating to cleaning, repairs and maintenance of all structures and mechanical and electrical equipment of a board.
The posting stated that one qualification for the position was a high school diploma or a GED, but that an associate degree in a maintenance-related field or in engineering was preferred. Another requirement for the job was experience in plumbing, heating, ventilating, air conditioning, electrical work, boiler operations, and general maintenance procedures. Mr. Hawken and Mr. Culley applied for the position. Mr. Hawken had worked for the Board of Education for 27 years, had neither a high school diploma nor its equivalent, and was employed as an automobile mechanic foreman. Mr. Culley had worked for the Board for six years, had graduated from high school, and attended one year of college. Also, Mr. Cully was a heating, ventilating, and air conditioning technician and had experience or training in electrical work, asbestos abatement, radon testing, the operation of waste water treatment plants, as well as extensive training specific to the heating and cooling systems used in the buildings owned by the Board of Education. Neither applicant held the classified title Supervisor of Maintenance, so both were required to take the State Board of Education's competency test for this classified title. Both passed the test. The Board then hired Mr. Culley whom it considered to be the best-qualified applicant.
Mr. Hawken challenged the Board of Education's decision. On appeal to this Court, Mr. Hawken based his argument on W.Va. Code § 18A-4-8e (1992), (See footnote 7) which provided for testing of school service employees:
of these tests shall be to provide county boards of education a uniform means
of determining whether school service personnel employees who do not hold a classification
title in a particular category of employment can meet the definition of the classification
title in another category of employment as defined in section eight of this article.
This statute also indicated that [t]he subject matter of each competency test shall be designed in such a manner that achieving a passing grade will not require knowledge and skill in excess of the requirements of the definitions of the classification titles. Finally, the statute provided that [a]chieving a passing score shall conclusively demonstrate the qualification of an applicant for a classification title. Mr. Hawken argued that this last phrase meant,
that the passing of the test
is both the beginning and the end of a board's inquiry into the qualifications
of an applicant for a given position. His view [was] that the Legislature intended
a passing grade on the test to serve as a replacement for any review of qualifications;
once two candidates have passed the test, both are equally qualified, and the
job must go to the applicant with the most seniority.
209 W.Va. at 262-263, 546 S.E.2d at 261-262.
This Court rejected Mr. Hawken's reasoning, and explained that,
[i]n light of the importance
we place upon providing students with a thorough and efficient system of
free schools, [Pauley v.] Bailey, supra, [174 W.Va. 167,
173-174, 324 S.E.2d 128, 134 (1984), we do not believe the Legislature intended
for the passing of the test to be the alpha and the omega of a board's hiring
Id. Thus, we concluded that the Hancock County Board of Education did
not abuse its discretion by demanding additional qualifications beyond the
passing of the competency test.
Similarly, in Ohio County Bd. of Educ. v. Hopkins, 193 W.Va. 600, 457 S.E.2d 537 (1995), the Board of Education posted a vacancy for the position of Supervisor of Transportation which was defined by W.Va. Code § 18A-4-8 (1992) (See footnote 8) as qualified personnel employed to direct school transportation activities, properly and safely, and to supervise the maintenance and repair of vehicles, buses, and other mechanical and mobile equipment used by the county school system. The vacancy notice listed 13 additional qualifications for the job as well as 31 job duties. The Board hired Mr. Corra who was not an employee of the Ohio County Board of Education, because he met the qualifications listed in the notice and had worked as manager of a bus company. Another applicant, Mr. Hopkins, filed a grievance arguing that he should have been hired for the position because he was employed by the Board of Education and had general management experience.
In deciding this case,
we framed the dispositive issue as a comparison of Mr. Hopkins' qualifications
for the position of Supervisor of Transportation with those of Mr. Corra.
We determined that it was within the substantial discretion of the Board
of Education to hire Mr. Corra rather than Mr. Hopkins because Mr. Corra was more qualified
by virtue of the fact that he had experience as a manager of a commercial
bus operation whereas Mr. Hopkins had no such experience.
Likewise, in the instant
case, we believe that it was within the discretion of the Randolph County
Board of Education to hire the applicant who possessed the additional qualification
of licensure as a practical nurse as the most qualified to provide, in an
efficient manner, both educational and medical assistance to the two diabetic
students. At the Level II hearing below, Margaret McFarland, the Health Program
Specialist/School Nurse, who coordinated the School Health Program for the
Randolph County schools testified that both students were brittle diabetics
whose blood sugar was not well controlled. It was required of the students'
aide that she observe both students throughout the school day to ensure that
they did not become hypoglycemic, a condition requiring an increase in sugar
intake, or hyperglycemic, a condition requiring an increase in insulin via
either the insulin pump or injection. Nurse McFarland further testified that
both the monitoring of the students' blood sugar levels and the administration
of insulin required medical judgment and ability that a person without the
basic education of a licensed practical nurse did not possess. Accordingly,
Nurse McFarland concluded that the additional qualification of licensure
as a practical nurse was necessary to properly meet the special needs of
the diabetic students.
In light of this evidence, we
find that the Board of Education did not abuse its discretion in determining
that the students' aide required the additional qualification of a nursing license.
We agree with the school board that providing the students with a single aide
who could attend to both their educational and medical needs was in the students'
best interests in that it helped to ensure their full participation in school
activities in the least conspicuous manner.
Appellees Scott and Chewning
maintain that while a school board can require an applicant to meet an additional
qualification for a position that is consistent with the definition
of the position in the statute, it cannot require an additional qualification
that is outside the scope of and inconsistent with the statutory definition. (See
footnote 9) According to Appellees, licensure as a practical
nurse cannot reasonably be read into the statutory definition of an Aide
II. We do not agree. Under the specific facts of this case, the two students
below required an aide who could provide both educational and specialized
medical assistance. The school board, in its discretion, determined that
the specialized medical assistance could best be provided by a licensed practice
nurse. We do not believe that this is inconsistent with the statutory definition
of an Aide II.
Finally, Appellees aver that
the statutory scheme in Chapter 18A of the West Virginia Code, which connects
the definitions of classification titles with the actual duties performed by,
and the rate of pay of, school service personnel, protects school service personnel
from arbitrary conduct in hiring, job classification, and pay. Permitting an
additional and inconsistent qualification to an Aide II position as the school
board did in this case, say Appellees, makes Chapter 18A largely a dead
letter. Again, we disagree. As noted above, school boards are limited in
their employment decisions in that such decisions must be reasonable, in the
best interests of the students, and not arbitrary or capricious. Under the specific
facts of this case, this Court concludes that the Randolph County Board of Education
acted reasonably and in the best interests of the two diabetic students herein
when it required the successful applicant for the Aide II position to possess
licensure as a practical nurse.
For the foregoing
reasons, we reverse the June 9, 2003, order of the Circuit Court of Kanawha
County, and the July 27, 2001, decision of the West Virginia Education and
State Employees Grievance Board because we find that the Randolph County
Board of Education did not act arbitrarily or capriciously in adding the
qualification of licensure as a practical nurse to an Aide II position under the specific facts of this