Beverlin v. Board of Ed. of Lewis County

• Decision Date: 17 June 1975
• Docket Number: No. 13583,13583
• Citation: 158 W.Va. 1067,216 S.E.2d 554
• Court: West Virginia Supreme Court
• Parties: , 78 A.L.R.3d 73 Carl L. BEVERLIN v. The BOARD OF EDUCATION OF the COUNTY OF LEWIS et al.

Page 554

216 S.E.2d 554

158 W.Va. 1067, 78 A.L.R.3d 73

Carl L. BEVERLIN v. The BOARD OF EDUCATION OF the COUNTY OF LEWIS et al.

No. 13583.

Supreme Court of Appeals of West Virginia.

June 17, 1975.

Rehearing Denied July 29, 1975.

Syllabus by the Court

1. The action of a county board of education in dismissing a teacher for wilful neglect of duty and insubordination is reviewable by a circuit court on certiorari.

2. The power of a county superintendent of schools to assign, transfer, suspend or promote teachers under W.Va.Code 1931, 18--4--10, as amended, must be exercised in a reasonable manner. The best interests of the schools must be intended. Arbitrary or capricious use of the power will not survive judicial scrutiny.

3. 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.

Jones, Williams, West & Jones, James C. West, Jr., Clarksburg, for appellant.

Billheimer & Losch, Gordon Billheimer, Montgomery, for appellees.

HADEN, Chief Justice:

Carl Beverlin moves to reverse a final order of the Circuit Court of Harrison County denying relief upon a writ of certiorari to a prior decision of the Board of Education of Lewis County which sustained his dismissal as a teacher under contract with that school district. By this writ of error, Beverlin attacks the Board of Education's decision on constitutional grounds and upon the ground that it was arbitrary and capricious. The movant seeks an order from this Court fully restoring him to his former position with further direction that he be awarded back pay from August 26, 1974, the date of his dismissal, to the present.

The material facts in this case are undisputed. Carl Beverlin, who had taught in Lewis County High School during the school year 1973--74, and who was under contract to teach in the same school for the school year 1974--75, decided in the latter part of the week of August 19, 1974, to take an evening class at West Virginia University during the fall semester. Accordingly, he checked with the registrar's office for a time to register and was told that registration was to commence on Monday, August 26, 1974. Although he had not received official notice that the school year was to begin for classroom teachers on August 26, 1974, Mr. Beverlin was aware of the starting date, through conversation with a fellow teacher. Recognizing the conflict between the starting date for school and his need to register for his West Virginia University class and that School Board policy directed that such conflicts be resolved with the principal of the school, Beverlin attempted to contact his principal, Mr. Kinzer, on several occasions prior to August 26. Each effort to reach Mr. Kinzer was unavailing; so he finally tried to reach the assistant principal, Mr. Rovello, but was equally unsuccessful in this effort. Family commitments required that Beverlin go to the home of his mother on Sunday, August 25, 1974, and he did not make further attempt to reach his principal on that date.

On August 26, at about 7:00 o'clock a.m., Beverlin went to Lewis County High School in search of Kinzer. From the experience of the previous year, Beverlin was aware that Kinzer usually arrived early, but on that date he could not find the principal at school. Beverlin decided to go on to Morgantown for registration and to call back to let Kinzer know where he was. Upon arrival at Morgantown, he tried calling two or more times but received no answer at the high school. He then became engrossed in the business of registering and it was not until 11:45 o'clock a.m. that he again called. On this occasion he was successful in reaching the school and talked with Rovello, the assistant principal, telling him that he would return to school as soon as he finished with registration. At about 2:45 o'clock p.m., or about four and three-fourths hours after school had opened, Beverlin returned to Lewis County High School and checked in with Mr. Kinzer and Mr. Rovello. Beverlin went to his room and proceeded to prepare for the scheduled arrival of his students, some days hence. At about 9:00 o'clock a.m. on August 27, Beverlin, at Kinzer's direction, accompanied Kinzer and Rovello to the Board of Education offices to meet with Superintendent Brown.

In the meeting on August 27, Mr. Brown pointed out the seriousness of Beverlin's absence on the preceding day and, after some discussion, suspended Beverlin on the spot for wilful neglect of duty and insubordination. Brown later testified that his sole basis for the suspension was that Beverlin did not show up for the teachers' meeting on August 26.

By 'NOTICE OF CHARGES FOR SUSPENSION AND DISMISSAL', dated August 30, 1974, Glenn L. Brown, as Secretary of the Board of Education of the County of Lewis, a public corporation, notified Beverlin that on August 29, 1974, Glenn L. Brown, as County Superintendent of Schools of Lewis County, presented to the Board the following charge against Beverlin as a teacher and employee of the Board:

'a. You did, on August 26, 1974, fail to report for duty, as directed, without proper authority or notification of your intent to be absent;

'b. You did knowingly and willfully neglect your assigned duties at Lewis County High School without prevention from doing so by personal illness or other just cause;

'c. You did knowingly and willfully violate school policy.

'These actions constitute willful neglect of duty and insubordination.'

By this notice, Beverlin further was informed of his opportunity to be heard at a meeting of the Board to be held on September 18, 1974. At that meeting, following a full evidentiary hearing at which Beverlin was represented by counsel, the Board sustained the superintendent's decision to suspend Beverlin and then dismissed him effective August 26, 1974.

Subsequently, Beverlin applied for a writ of certiorari in the Circuit Court of Lewis County. The judge of that court disqualified himself and the petition was transferred to the Circuit Court of Harrison County by agreement of the parties. That court denied Beverlin's petition, resulting in this appeal.

It is settled in this jurisdiction that a writ of certiorari is a proper procedure for testing the findings of an inferior tribunal. See W.Va.Const., Art. VIII, § 12, which provides that:

'The circuit court shall have the supervision and control of all proceedings before justices and other inferior tribunals, by mandamus, prohibition and certiorari.'

and W.Va.Code 1931, 53--3--2, as amended, which provides, with some exceptions not relevant here, that:

'(I)n every case, matter or proceeding before a county court . . . or other inferior tribunal, the record or proceeding may, after a judgment or final order therein, . . . be removed by a writ of certiorari to the circuit court of the county in which such judgment was rendered or order made; . . ..'

More specifically, it is clear that a writ of certiorari is a proper method of challenging a determination by a county board of education. In Board of Education v. Martin, 112 W.Va. 174, 163 S.E. 850 (1932), this Court held that a board of education is 'a tribunal within the meaning of the Constitution, art. 8, § 12, and of the statute, Code 1931, 53--3--2,' and that the board's decision to dismiss a school employee was subject to review by a circuit court on a writ of certiorari. Id. at 180, 163 S.E. 850.

Superintendent Brown's authority to suspend a teacher is granted by W.Va.Code 1931, 18--4--10(3), as amended, which provides, in part, that:

'The county superintendent shall:

* * *

* * *

'(3) Assign, transfer, suspend or promote teachers and all other school employees of the district, subject only to the approval of the board, and to recommend to the board their dismissal pursuant to the provisions of this chapter;'

The Lewis County Board of Education derives its power to dismiss an employee from W.Va.Code 1931, 18A--2--8, as amended, which provided in part:

'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 or wilful neglect of duty, . . ..'

Respondent contends that Beverlin's unexcused absence from meetings, of which he had notice, on the first day of school constituted a 'wilful neglect of duty' and also 'insubordination' within the meaning of W.Va.Code 1931, 18A--2--8, as amended. On the other hand, petitioner argues first, that he was deprived of his constitutional rights of due process and equal protection, and secondly, that the decisions of the superintendent and the Lewis County Board of Education were arbitrary and capricious.

We do not believe this case has constitutional infirmities. Although the petitioner was deprived of a substantial contractual right, such State action as was taken by the superintendent and the Board of Education satisfies due process requirements. Beverlin was accorded actual notice, a meaningful (albeit unsuccessful) hearing, the opportunity to confront his accusers, assistance of counsel and the availabilities of remedies for review. In that regard, he cannot ask for more. We do not question that Beverlin is entitled to equal protection under the law. He is entitled to treatment that is customarily and regularly given to others in a similar position. James v. West Virginia Board of Regents, 322 F.Supp. 217 (S.D.W.Va.1971). Nevertheless, the fact that some other teachers occasionally left school, without prior permission, because of illness within their families or that the assistant principal once departed school twenty to thirty minutes early to register for classes at West Virginia University, without prior approval or subsequent discipline, does not demonstrate that Beverlin was treated differently and unfairly in comparison with others...