Alderman v. Pocahontas County Bd. of Educ.

• Decision Date: 30 January 2009
• Docket Number: No. 33922.,33922.
• Citation: 675 S.E.2d 907
• Parties: Norman ALDERMAN, Petitioner Below, Appellee, v. POCAHONTAS COUNTY BOARD OF EDUCATION, Respondent Below, Appellant.
• Court: West Virginia Supreme Court

675 S.E.2d 907

Norman ALDERMAN, Petitioner Below, Appellee, v. POCAHONTAS COUNTY BOARD OF EDUCATION, Respondent Below, Appellant.

No. 33922.

Supreme Court of Appeals of West Virginia.

Submitted January 14, 2009.

Decided January 30, 2009.

Syllabus by the Court

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 Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000).

2. "Although we accord great deference to the findings of fact of the West Virginia Educational Employees Grievance Board, we review, de novo, questions of law." Syllabus point 2, Maikotter v. University of West Virginia Board of Trustees, 206 W.Va. 691, 527 S.E.2d 802 (1999).

3. "`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.' Syllabus Point 1, Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989)." Syllabus point 1, Martin v. Randolph County Board of Education, 195 W.Va. 297, 465 S.E.2d 399 (1995).

4. "Under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), public employees are entitled to be protected from firings, demotions and other adverse employment consequences resulting from the exercise of their free speech rights, as well as other First Amendment rights. However, Pickering recognized that the State, as an employer, also has an interest in the efficient and orderly operation of its affairs that must be balanced with the public employees' right to free speech, which is not absolute." Syllabus point 3, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).

5. There are some general restrictions on a public employee's right to free speech. First, an employee's speech, to be protected, must be spoken as a citizen on a matter of public concern. If the employee did not speak as a citizen on a matter of public concern, then the employee has no First Amendment cause of action based on the employer's reaction to the speech. If the employee did speak as a citizen on a matter of public concern, the possibility of a First Amendment claim arises and a second and a third factor are invoked. The second factor that is invoked considers statements that are made with the knowledge that they were false or with reckless disregard of whether they were false, and such statements are not protected. The third factor that is invoked considers statements made about persons with whom there are close personal contacts that would disrupt discipline or harmony among coworkers or destroy personal loyalty and confidence, and such statements may not be protected.

6. The burden is properly placed on the public employee to show that conduct is constitutionally protected and, further, that this conduct was a substantial or motivating factor in the employment decision. Once the public employee carries that burden, however, the public employer must show by a preponderance of the evidence that it would have reached the same decision as to the public employee's employment even in the absence of the protected conduct.

7. "`The authority of a county board of education to dismiss a teacher under W. Va Code 1931, 18A-2-8, as amended, must be based upon the just causes listed therein and must be exercised reasonably, not arbitrarily or capriciously' Syl. Pt. 3, Beverlin v. Board of Educ., 158 W.Va. 1067, 216 S.E.2d 554 (1975)." Syllabus point 4, Maxey v. McDowell County Board of Education, 212 W.Va. 668, 575 S.E.2d 278 (2002).

Howard E. Seufer, Jr., Gregory W. Bailey, Ashley P. Hardesty, Bowles Rice McDavid Graff & Love LLP, Morgantown, for the Appellant, Pocahontas County Board of Education.

Norman Lee Alderman, Marlinton, Pro Se.

Kathryn Reed Bayless, Bayless Law Firm, PLLC, Princeton, for Amici Curiae, Boards of Education for the Counties of Braxton, Greenbrier, Nicholas, Pleasants, Mason, and Wyoming.

DAVIS, Justice:¹

The respondent below and appellant herein, Pocahontas County Board of Education (hereinafter "the Board"), appeals from an order entered October 2, 2007, by the Circuit Court of Kanawha County. In that order, the circuit court reversed the September 22, 2006, decision by the Administrative Law Judge (hereinafter "ALJ") of the West Virginia Education and State Employees Grievance Board (hereinafter "Grievance Board").² The circuit court concluded that the Board's termination of the petitioner below and appellee herein, Norman Alderman (hereinafter "Mr. Alderman"), was in error, reversed the ALJ's decision affirming the same, and ordered his reinstatement. In so ruling, the circuit court found that Mr. Alderman's speech was protected speech and, further, that even if the speech was not protected, that a mitigation of punishment less severe than termination should have been considered. Based upon the parties' arguments,³ the record designated for our consideration, and the pertinent authorities, we find that the circuit court erred in its conclusions. Accordingly, we reverse the circuit court's order and reinstate the ALJ's findings of fact and conclusions of law.

I. FACTUAL AND PROCEDURAL HISTORY

The facts are relatively undisputed. Prior to 2006, Mr. Alderman had been an employee of the Board for twenty-six years. During that time, all of his performance evaluations had been positive and he had never been disciplined. In 2006, his current assignment was in the Central Office as a technology facilitator and home bound instructor. In Spring 2006, Pocahontas County Schools suffered a projected loss of enrollment for the upcoming school year, resulting in a need to reduce staff. Superintendent Law recommended that Mr. Alderman be transferred to a classroom teaching position. Superintendent Law testified that the reason for the transfer request was due to declining student enrollment and a desire to preserve classroom teaching positions. Mr. Alderman requested a hearing on the proposed transfer before the Pocahontas County Board of Education, which date was set for March 21, 2006.

Prior to the March 21, 2006, hearing, Mr. Alderman declared his intent to disparage Superintendent Law and Treasurer Irvine at the upcoming hearing. Mr. Alderman operates a website called "E-Tater Forum," and his purported use of the website is to "provid[e] citizens with a forum for criticizing public officials and is `dedicated to the task of exposing dishonest [and] corrupt ... public officials.'" Prior to the transfer hearing, Mr. Alderman posted on this website the location and date of the transfer hearing, with the following statement:

This is the night to expose the cockroaches. We'll be exposing [Treasurer] Alice Irvine and Dr. Law [Superintendent] as nothing more or less than common thieves of public money.⁴ Vanreene has been asked to step aside because he is not [sic] legitimate board member.⁵ Likewise I have asked Grimes to step aside because he is living in the Central District and not the northern. His wife is in the northern, his mistress in the central.

(Footnotes added).

These same allegations were reasserted orally during the transfer hearing. Despite being prompted on several occasions to address the merits of the proposed transfer, Mr. Alderman's argument never reached the substance of the issue at hand.⁶ During his oral argument, Mr. Alderman alleged that the treasurer was a thief and should be removed. Mr. Alderman asserted that Treasurer Irvine had stolen money from the golf team. He stated to her that she had "stolen and thieved and lied enough. You are on trial, my lady." He further alleged that one of the Board members was an adulterer who no longer lived in the appropriate district because he now lives with his mistress, and therefore, failed the residency requirement. Specifically, Mr. Alderman stated to the Board member that he "has no authority to sit at this table because he's an adulterer." Regarding Board member VanReenen's authority, Mr. Alderman stated that "[h]e is an imposter. He has no place at the table." During its deliberation, the Board ultimately approved the transfer requested by Superintendent Law.

Following the transfer hearing, Mr. Alderman posted on his public website that

We did have an opportunity to expose Alice Irvine [sic] for what she really is! Alice is not used to people being truthful with her! She and Dr. Law took the kids['] golf money for equipment and gave it to Jimmy Cutlip for gas, food and mileage. SOMETIME'S [sic] WRONG.

Dr. Law is Alice's lapdog.

We did get a chance to expose Emery Grimes and Tommy Vanreenen.... Both Emery and Glen [Ward?]⁷ are adulterers.

(Original footnote omitted, footnote added). A meeting was held following the transfer hearing, wherein Mr. Alderman, Superintendent Law, and several administrators were present. During this meeting, Mr. Alderman was informed that Superintendent Law planned to recommend Mr. Alderman's termination for insubordination. He again accused Dr. Law of being a "thief" and a "cockroach" and further stated that Dr. Law was the "dumbest man I have ever seen." Based on all of the behavior, Superintendent Law recommended that Mr. Alderman's employment be terminated. A hearing was held on Superintendent Law's recommendation to terminate Mr. Alderman. The Board voted to terminate his employment for insubordination.

Mr. Alderman initiated an employee grievance and a hearing was held...