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No. 32783 Kanawha County Board of Education v. Johnny Sloan
Benjamin, Justice, concurring, in part, and dissenting, in part:
I concur with the majority's decision to affirm the circuit court's order
upholding the Grievance Board's finding that Mr. Sloan had committed immoral conduct,
rather than sexual harassment, and reversing the Grievance Board's decision to impose only
a three-day unpaid suspension as the appropriate discipline for such offense. I dissent,
however, from the majority's decision for this Court itself to determine the appropriate
discipline from the appellate level, rather than remanding this issue to the Grievance Board
which, in its role as fact-finder, had, among other things, the benefit of observing witness
demeanor to guide its determination of appropriate discipline. While I agree that the
Grievance Board was clearly wrong in imposing a three-day unpaid suspension, a mere slap
on the wrist for the serious offense committed, this finding does not, I believe, strip the
Grievance Board of its discretion to determine a more appropriate punishment.
The Legislature has vested the Grievance Board with the responsibility to serve
as fact-finder in employee grievance proceedings, including an employee's appeal of
disciplinary action taken by a local school board. (See footnote 1)
In its role as fact-finder, the Grievance
Board necessarily must make credibility determinations which impact its conclusions as to
the appropriate discipline for the offense or offenses committed. While this discretion is not
unlimited, such as where the discipline is unduly light or harsh under the circumstances, this
discretion is required to determine appropriate disciplinary sanctions.
A fact-finder, such as the Grievance Board, has the advantage of a three
dimensional view of facts, including not just the black and white of what was said, but also
witness demeanor and tone. On appeal, we are limited to a two-dimensional review of the
facts as revealed in the written transcript of what was said, without the benefit of visually and
audibly observing the witness' demeanor and tone. (See footnote 2)
As such, I believe it is more appropriate
to remand this matter to the Grievance Board for the determination of the appropriate
sentence in light of our determination that the discipline previously imposed was a grossly
inadequate punishment in light of the severity of the offense committed. See, e.g.
, State v.
, 214 W. Va. 410, 416, 589 S.E.2d 552, 558 (2003) (Davis, J., concurring, in part,
and dissenting, in part) (recognizing that determination of appropriate sentence to be imposed
should ordinarily be determined by the trial court on remand, rather than at the appellate
Accordingly, I respectfully dissent from my colleagues' decision to determine
the discipline to be imposed at the appellate level. I would, instead, have directed this matter
be remanded to the Grievance Board for its reconsideration of the sentence to be imposed in
light of our decision that the discipline previously imposed was inadequate.
W. Va. Code § 18A-2-8 (1990) authorizes an employee to appeal a school board's
disciplinary action directly to a Level IV hearing before the Grievance Board.
In the criminal law context, Justice Maynard has aptly summarized this principle,
sentencing, and especially whether to grant probation or not, is
usually best left to trial judges. This is so for several reasons.
Chief among them is the fact that the trial judge sees the
defendant in person, interacts with him or her, can see the
defendant's demeanor and attitude, and observes a hundred
other subtle factors which enable the trial judge to determine the
defendant's remorse or lack thereof. Since this Court never sees
the defendant, we cannot make the same crucial observations.
Therefore, absent some truly horrible mistake, I would leave
criminal sentencing and probation decisions to the sound
discretion of our very wise trial judges.
State v. Arbaugh, 215 W. Va. 132, 151, 595 S.E.2d 289, 308 (2004) (per curiam) (Maynard,