Randolph County Bd. of Educ. v. Scalia

• Decision Date: 21 November 1989
• Docket Number: No. 18743,18743
• Citation: 182 W.Va. 289,387 S.E.2d 524
• Parties: , 58 Ed. Law Rep. 347 RANDOLPH COUNTY BOARD OF EDUCATION v. Bonnie SCALIA, Harry L. Vannoy, John P. Horne, John J. Rector, and Ben L. Johnson, Jr.
• Court: West Virginia Supreme Court

Page 524

387 S.E.2d 524

182 W.Va. 289, 58 Ed. Law Rep. 347

RANDOLPH COUNTY BOARD OF EDUCATION v. Bonnie SCALIA, Harry L. Vannoy, John P. Horne, John J.

Rector, and Ben L. Johnson, Jr.

No. 18743.

Supreme Court of Appeals of

West Virginia.

Decided Nov. 21, 1989.

Syllabus by the Court

1. A final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuant to W.Va.Code, 18-29-1, et seq. (1985), and based upon findings of fact, should not be reversed unless clearly wrong.

2. W.Va.Code, 18-4-10(10), permits a county superintendent of schools to "[a]ct in case of emergency as the best interests of the school demand."

3. In general, the essential elements of an emergency are that the condition be unforeseen or unanticipated and that it call for immediate action.

4. A fiscal emergency may arise because adequate provision was not made in a budget, even though the purpose for which the funds are needed was foreseeable when the budget was adopted. In such a case, before an emergency can be found, it must be shown that the amount placed in the budget was reasonable in light of all of the attendant circumstances, including prior budgetary experience.

William B. McGinley, Charleston, for Bonnie Scalia, Harry L. Vannoy, John P. Horne, John J. Rector, and Ben L. Johnson, Jr.

David Hart, Elkins, for Randolph County Bd. of Educ MILLER, Justice:

This appeal is brought by four guidance counselors and one librarian, all full-time employees of the Randolph County Board of Education. The appellants assert that the Circuit Court of Randolph County erred in reversing the hearing examiner's decision made pursuant to the West Virginia Educational Employees Grievance Board's procedures outlined in W.Va.Code, 18-29-1, et seq. (1985). ¹ Specifically, the appellants contend that the lower court should not have reversed the hearing examiner's decision under the standards of review contained in W.Va.Code, 18-29-7. In particular, the appellants argue that the hearing examiner's key findings were amply supported by the facts and that they were not clearly wrong.

On May 20, 1985, the appellants filed a grievance pursuant to the procedures established in W.Va.Code, 18-29-1, et seq., contesting the Board of Education's continual practice of requiring the appellants to substitute for absent classroom teachers. The appellants complained that this practice was unwarranted, that they were prevented from performing their jobs, and that they were not certified to teach in the academic areas to which they had been assigned.

The Board of Education sought to justify the assignments as an "emergency" measure under W.Va.Code, 18-4-10(10). This provision authorizes a county superintendent to "[a]ct in case of emergency as the best interests of the school demand." The Board maintained that by the time of the assignments in May, 1985, it had spent all of the money budgeted for substitute teachers.

The appellants responded that the "emergency" was not unforeseen because the Board had, for the previous five years, underfunded its substitute teacher account. Furthermore, the appellants asserted that there was actually a surplus in the Board's budget at the end of the 1985 fiscal year. Finally, the appellants argued that W.Va.Code, 18A-4-10, allows a funding deficit for substitute teachers so long as the deficit can be paid out of the next fiscal year's budget. ²

Judicial review of a hearing examiner's decision under W.Va.Code, 18-29-7, ³ is similar to the standard of judicial review of an administrative decision under the Administrative Procedure Act, W.Va.Code, 29A-5-4(g). We outlined in Syllabus Point 2 of Shepherdstown Volunteer Fire Dep't v. State ex rel. State Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983), the extent of judicial review under the Administrative Procedure Act:

"Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: '(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.' "

Syllabus Point 1, St. Mary's Hosp. v. State Health Planning & Dev. Agency, 178 W.Va. 792, 364 S.E.2d 805 (1987); Syllabus Point 3, Montgomery Gen. Hosp. v. West Virginia Human Rights Comm'n, 176 W.Va. 580, 346 S.E.2d 557 (1986); Syllabus Point 1, Johnson v. State Dep't of Motor Vehicles, 173 W.Va. 565, 318 S.E.2d 616 (1984).

Both statutes contain virtually the same criteria for reversal of the factual findings made at the administrative level, i.e., that they are "clearly wrong in view of the reliable, probative and substantial evidence on the record as a whole." We have traditionally expressed this rule in an abbreviated fashion: Evidentiary findings made at an administrative hearing should not be reversed unless they are clearly wrong. E.g., West Virginia Dep't of Health v. West Virginia Civil Serv. Comm'n, 178 W.Va. 237, 358 S.E.2d 798 (1987); West Virginia Dep't of Health v. Mathison, 171 W.Va. 693, 301 S.E.2d 783 (1983); Vosberg v. Civil Serv. Comm'n, 166 W.Va. 488, 275 S.E.2d 640 (1981); Billings v. Civil Serv. Comm'n, 154 W.Va. 688, 178 S.E.2d 801 (1971). We therefore conclude that a final order of the hearing examiner for the Educational Employees Grievance Board, made pursuant to W.Va.Code, 18-29-1, et seq., and based upon findings of fact, should not be reversed unless clearly wrong.

In the administrative record, there was substantial, reliable, and probative evidence justifying the hearing examiner's decision. In previous years, the budget allocation for substitute teachers had been consistently underestimated. One of the guidance counselors had been used as a substitute teacher for five of the last six school years. In addition, the 1985 fiscal year's line item for substitute teachers was $10,000 less than the preceding year's. The hearing examiner concluded that these facts precluded the Board's claim of an "emergency" under W.Va.Code, 18-4-10(10), which permits a county superintendent of schools to "[a]ct in case of emergency as the best interests of the school demand."

In general, the essential elements of an emergency are that the condition be unforeseen or unanticipated and that it call for immediate action. First Continental Sav. & Loan Ass'n, Inc. v. Director, State Dep't of Assessment & Taxation, 229 Md. 293, 183 A.2d 347 (1962); Layne Minnesota Co. v. Town of Stuntz, 257 N.W.2d 295 (Minn.1977); Bethlehem Steel Corp. v. Board of Educ. of City School Dist. of Lackawanna, 91 Misc.2d 258, 397 N.Y.S.2d 882 (1977); Hatfield v. Meers, 402 S.W.2d 35 (Mo.App.1966); Scatuorchio v. Jersey City Incinerator Auth., 14 N.J. 72, 100 A.2d 869 (1953); Board of Educ. v. City of Elizabeth, 13 N.J. 589, 100 A.2d 745 (1953); Scaccia v. Borough of Old Forge, 373 Pa. 161, 94 A.2d 563 (1953); City of Rock Springs v. Police Protection Ass'n, 610 P.2d 975 (Wyo.1980). See generally 29A C.J.S. Emergency pp. 141-42 (1965 & Supp.1989).

Notwithstanding this general rule, we agree with the New Jersey Supreme Court's holding in City of Passaic v. Local Fin. Bd. of the Dep't of Community Affairs, 88 N.J. 293, 441 A.2d 736 (1982), that a fiscal emergency can occur even though an expense has been anticipated and placed in the budget. In Passaic, the city was involved in collective bargaining negotiations with its employees and had to estimate labor costs. The city placed approximately $81,000 in the budget to cover anticipated wage increases. The negotiations ultimately ended in binding arbitration, and the aggregate salary increases were approximately $505,000. The Court made these observations:

"An emergency may arise because adequate provision was not made in the budget, even though the purpose for which the funds are needed was foreseeable when the budget was adopted. Circumstances may lead to conditions creating exigencies that call for immediate action....

* * * * * *

"In general, the propriety of any emergency appropriation depends upon whether the failure to make adequate provision in the budget occurred despite a bona fide effort to include whatever items should reasonably have been inserted in the budget in reasonable amounts." 88 N.J. at 298, 300, 441 A.2d at 738, 739. (Footnote omitted).

E.g., Camden v. Skokowski, 88 N.J. 304, 441 A.2d 741 (1982). Cf. Worthington v. Fauver, 88 N.J. 183, 440 A.2d 1128 (1982).

Thus, a fiscal emergency may arise because adequate provision was not made in a budget, even though the purpose for which the funds are needed was foreseeable when the budget was adopted. In such a case, before an emergency can be found, it must be shown that the amount placed in the budget was reasonable in light of all of the attendant circumstances, including prior budgetary experience.

In view of the preceding years' experience, it does not appear that there was a reasonable effort by the Board to adequately provide for the substitute teacher expense. Nor was there any showing by the Board that it was in such financial straits that it was forced to utilize the budget reduction provisions of W.Va.Code, 18-9B-8. This provision justifies fixing line items of a budget at a diminished level from the preceding fiscal year. See Summers County Educ. Ass'n v. Summers County Bd. of Educ., ...