Ron L. Tucker, Esq.
Fairmont, West Virginia
Attorney for Appellant
Darrell V. McGraw, Esq.
Kelli D. Talbott, Esq.
Deputy Attorney General
Katherine A. Campbell, Esq.
Assistant Attorney General
Attorneys for Appellee
SYLLABUS BY THE COURT
This appeal by Brian M. Powell (hereinafter referred to as Appellant), arises from the September 17, 2009, order of the Circuit Court of Kanawha County, which was entered pursuant to this Court's opinion in Powell v. Paine, 221 W. Va. 458, 655 S.E.2d 204 (2007) (hereinafter referred to as Powell I). In this order, the circuit court was attempting to comply with the mandate issued by this Court in Powell I to reinstate the appellant's teaching license. At issue is whether the circuit court should have awarded to Powell the costs associated with pursuing this matter, including reasonable attorneys fees, as well as other employment-related benefits, including back wages.
After review of the record in this matter, the briefs of the parties, the arguments of counsel and all pertinent authorities, we conclude that the lower court correctly applied the law in the original remand of this case and affirm the decision of the Circuit Court of Kanawha County.
Appellant was disciplined by the county board by having his suspension from employment extended until the next school year and by not being awarded back pay for the period of suspension following his conviction of domestic battery.
Powell I, supra, at 463, 209.
The county superintendent then notified the appellee State School Superintendent of the action as contemplated by West Virginia Code §18A-3-6 (2007). (See footnote 2) The appellee then notified Powell that the West Virginia Department of Education was conducting an investigation regarding the aforementioned incident with his son. This notice also included a provision for a hearing on October 25, 2005, before the Professional Practice Panel (hereinafter referred to as PPP). The PPP recommended that the appellant's license
to teach be suspended for four years, a decision adopted by the appellee. As a result, on December 9, 2005, the appellee suspended the teaching license of the appellant for a period of four years. Because he did not have a valid teaching license, the Hardy County Board of Education terminated the appellant's employment. Pursuant to West Virginia Code §29A-5- 4 (2007), the appellant appealed the decision of the State School Superintendent to the circuit court of Kanawha County.
As we noted in Powell I, the challenge made by Powell was not to the PPP's finding of cruelty based upon his guilty plea to domestic battery, but to his contention that insufficient evidence existed to support the suspension of his teaching license. In Powell I, we found that while the physical punishment inflicted upon the appellant's son was egregious and indefensible conduct, the suspension of the appellant's teaching license was not supported by the findings of the PPP, because the findings did not connect Powell's cruelty to his son to the performance of his teaching and coaching duties. Absent evidence of any ill-effects on his ability to teach, Appellant has complied with the redemptive measures established in our society to rehabilitate his behavior and we find no reason why Appellant should not be permitted to resume his teaching career without further delay. Powell I supra at 465, 201.
After our mandate in Powell I issued, the appellee promptly reinstated Powell's teaching license. Subsequent to the reinstatement of the appellant's teaching license, Powell submitted to the circuit court through his counsel a proposed order that sought an award of attorneys' fees, back wages and other employment-related benefits that he lost because of his termination by the Hardy County Board of Education. The appellee objected to the entry of this order. After due consideration the circuit court entered an order on September 17, 2009, that denied the requested monetary award. In its final order, the circuit court opined that it does not have authority to award Powell employment-related benefits or attorneys fees in this matter. The circuit court reasoned that the remand issued in Powell I was a limited remand, that gave the circuit court a narrow framework within which the court must act. Proceeding in accordance with the directives established on appeal, the circuit court found that the requested attorney fees and other employment benefits were not within the narrow scope of this Court's ruling in Powell I.. It is from this order and denial of attorney fees and other employment benefits that Powell undertook the present appeal.
As we have previously explained, the mandate from our Court controls the framework that the circuit court must use in effecting the remand. Frazier & Oxley, supra, at 809, 735. We further explained that there are two types of remands issued by this Court, general and limited. A general remand gives a circuit court authority to address all matters, as long as the actions are consistent with the remand language. Id. A limited remand, however, explicitly outlines the issues to be addressed by the circuit court. Id. There is no universally applicable standard for determining whether a remand is general or limited, and the particular intricacies of each case will bear on the issue. Id.
Our mandate in Powell I was simple and direct. We reversed the ruling of the circuit court that upheld the suspension of the appellant's teaching license. We stated that we find it necessary to reverse the circuit court's order affirming the agency's action suspending the Appellant's certificates to teach. Our specific directive to the circuit court was:
In keeping with the foregoing, the May 26, 2006, order of the Circuit Court of Kanawha County is reversed and the matter is remanded for reinstatement of the Appellant's teaching license.
Powell I, supra, at 465, 211. Thus, the mandate was limited, within the definitions prescribed by this Court in Oxley, infra. Upon reviewing the order of the circuit court, we find that the circuit court did exactly what it was directed to do in Powell I. It ordered the reinstatement of the appellant's teaching license. There was no authority or directive to do anything more than that. The circuit court was correct in limiting its actions to the directions this Court included in the mandate.
West Virginia Code §18A-2-8 states, in pertinent part:
(a) Notwithstanding any other provisions of law, a board may suspend or dismiss any person in its employment at any time for: Immorality, incompetency, cruelty, insubordination, intemperance, willful neglect of duty, unsatisfactory performance, the conviction of a felony or a guilty plea or a plea of nolo contendere to a felony charge.
The state superintendent may, after ten days' notice and upon proper evidence, revoke the certificates of any teacher for any of the following causes: Intemperance; untruthfulness; cruelty; immorality; the conviction of a felony or a guilty plea or a plea of no contest to a felony charge; the conviction, guilty plea or plea of no contest to any charge involving sexual misconduct with a minor or a student; or for using fraudulent, unapproved or insufficient credit to obtain the certificates: Provided, That the certificates of a teacher may not be revoked for any matter for which the teacher was disciplined, less than dismissal, by the county board that employs the teacher, nor for which the teacher is meeting or has met an improvement plan determined by the county board, unless it can be proven by clear and convincing evidence that the teacher has committed one of the offenses listed in this subsection and his or her actions render him or her unfit to teach: Provided, however, That in order for any conduct of a teacher involving intemperance; cruelty; immorality; or using fraudulent, unapproved or insufficient credit to obtain the certificates to constitute grounds for the revocation of the certificates of the teacher, there must be a rational nexus between the conduct of the teacher and the performance of his or her job. The state superintendent may designate the West Virginia commission for professional teaching standards or members thereof to conduct hearings on revocations or certificate denials and make recommendations for action by the state superintendent.
It shall be the duty of any county superintendent who knows of any acts on the part of any teacher for which a certificate may be revoked in accordance with this section to report the same, together with all the facts and evidence, to the state superintendent for such action as in the state superintendent's judgment may be proper.