Board of Educ. of County of Mercer v. Wirt

Decision Date21 December 1994
Docket NumberNo. 22117,22117
Citation453 S.E.2d 402,192 W.Va. 568
CourtWest Virginia Supreme Court
Parties, 97 Ed. Law Rep. 549 BOARD OF EDUCATION OF the COUNTY OF MERCER, Petitioner Below, Appellant, v. Charles WIRT, Respondent Below, Appellee.

Syllabus by the Court

1. "The Legislature by enacting W.Va.Code, 18A-2-6 (1973), which gives auxiliary and service personnel continuing contract status after three years of acceptable employment and providing that their employment could be terminated upon cause intended to extend a tenure status to such employees." Syllabus Point 4, Bonnell v. Carr, 170 W.Va. 493, 294 S.E.2d 910 (1982).

2. " 'The extent of due process protection affordable for a property interest requires consideration of three distinct factors: first, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of a property interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' Syllabus Point 5, Waite v. Civil Service Commission, W.Va. , 241 S.E.2d 164 (1977)." Syllabus Point 4, State ex rel. McLendon v. Morton, 162 W.Va. 431, 249 S.E.2d 919 (1978).

3. Under W.Va.Code, 18A-2-8 (1990), due process requires a pre-termination hearing of a tenured employee under W.Va.Code, 18A-2-6 (1989). It is not necessary for a pre-termination hearing to be a full adversarial evidentiary hearing; however, an employee is entitled to a written notice of the charges, an explanation of the evidence, and an opportunity to respond prior to a Board of Education's decision to terminate the employee. If an employee presents a danger to students or others at work and there is no reasonable way to abate the danger, a pre-termination hearing is not required.

Kathryn Reed Bayless, Princeton, for appellant.

David M. Katz, Bluefield, for appellee.

CLECKLEY, Justice:

The Mercer County Board of Education (Board of Education) appeals the final order of the Circuit Court of Mercer County, entered on September 9, 1993, that affirmed the findings and conclusions made by the Chief Administrative Law Judge (ALJ) at a level IV grievance hearing. The circuit court specifically found no reason to reverse the decision upon the grounds listed in W.Va.Code, 18-29-7 (1985). 1 Therefore, the circuit court ordered the Board of Education to reinstate Charles Wirt, the respondent below and appellee herein, to the position of head custodian at Ramsey Elementary School; to award him backpay; to redact references of his suspension and dismissal from his personnel file; and to award $1,000 in attorney's fees. The Board of Education asserts the ALJ erred by ruling Mr. Wirt was denied adequate notice and an opportunity to respond to charges when his termination was made pursuant to W.Va.Code, 18A-2-8 (1990). In addition, the Board of Education claims the circuit court erred by affirming the level IV decision finding the Board of Education failed to prove "the grievant engaged in immoral conduct[.]"


On September 29, 1992, Amanda W., 2 a sixth-grade student at Ramsey Elementary School, reported to her school principal, John Fleming, that Mr. Wirt touched her breast and buttocks on September 25, and September 28, 1992. Shortly thereafter, Mr. Fleming, Mr. Wirt, and Rick Ball, an elementary supervisor, met to discuss the allegations, and Mr. Wirt agreed to change his scheduled shift to work at night.

The interim school superintendent, Dr. Deborah Akers, ordered an investigation of the allegations made by Amanda W. On October 10, 1992, Dr. Akers met with Mr. Wirt at which time she suggested Mr. Wirt resign his position. Mr. Wirt refused, and, by letter dated October 13, 1992, Dr. Akers gave notice to Mr. Wirt that he was suspended without pay pursuant to W.Va.Code, 18A-2-7 (1990), 3 for "the inappropriate touching of a female student." In the letter, Dr. Akers also informed Mr. Wirt she would "present charges and a recommendation to the Board of Education concerning further action" pursuant to W.Va.Code, 18A-2-8.

By letter dated October 28, 1992, Dr. Akers notified Mr. Wirt she would present charges to the Board of Education on November 2, 1992, and, after the Board of Education heard the charges, a written copy of the charges would be given to him. The letter also specifically said:

"The Board of Education will not conduct a hearing concerning these charges prior to acting upon any recommendation.... However, you should feel free to attend the Board meeting. If you so desire and the Board is in agreement, you may have the opportunity of addressing the Board concerning the charges.... The opportunity to address the Board is voluntary in nature and it is not required that you attend the meeting nor is it required that you address the Board if you do attend."

According to the Board of Education's brief, Mr. Wirt and his counsel attended the Board of Education meeting. The Board of Education voted 4-0 to terminate Mr. Wirt's employment. Mr. Wirt officially was notified of his termination by a letter dateD november 4, 1992. subsequently, mr. wirt filed to have a level IV grievance hearing.

A level IV hearing was held on December 8, 1992. At the hearing, Dr. Akers, Amanda W., Mr. Wirt, and two witnesses of one of the incidents testified. The two witnesses were Carrie B., a sixth-grade student, and Jessie Hurt, a custodian.

Amanda W. testified Mr. Wirt inappropriately touched her on two occasions. The first incident, on September 25, 1992, occurred when she was near a snack machine. The second incident, on September 28, 1992, occurred in the school cafeteria. Amanda W. said Mr. Wirt touched her similarly on both days. Amanda W. alleged Mr. Wirt put his right hand over her shoulder and then used his right hand to touch her right breast. She claimed he also touched her "[a]bout mid-way down the buttocks area," and he brought his arm up the right side of her body with his hand under her right breast. On cross-examination, Amanda W. agreed with Mr. Wirt's counsel that Mr. Wirt "brushed" her breast on September 25. She stated she did not tell anyone immediately after it happened on September 25, because she thought it was an accident. However, she told her mother about both incidents after school on September 28.

Amanda W. also testified on cross-examination the incident on September 28 occurred while she was putting her coat on a stage in the cafeteria, and she said the students in the cafeteria line were "right in front of [her]." She asserted she was facing the stage with her back to the other students when Mr. Wirt put his arm around her waist and then "[h]e brought it up and touched my butt and then he put his around [sic] here and came up and touched my ... under my breast." (Ellipsis in original). In addition, she alleged Mr. Wirt had his hand on her buttock for "[a] couple of minutes."

Carrie B. said she and Amanda were close to each other and facing each other in the cafeteria line when the touching occurred. Carrie B. asserted the two girls were near an ice cream machine which was about fifteen steps away from the stage area. Carrie B. described Mr. Wirt as being beside Amanda W. when she saw him "put his [right] arm around Amanda and [he] touched her breast and then when [he] was ready to leave, he touched her rear end." Carrie B. said Mr. Wirt did not put his hand around Amanda W.'s waist, but put it on her shoulder, and he patted her left buttock. Although she claimed Amanda W. was facing her, Carrie B. stated she could tell Mr. Wirt patted Amanda W.'s buttock by the way he moved his hand. When Carrie B. was asked if she saw Amanda W. near the stage when the touching occurred or if she noticed Amanda W. putting her coat on the stage, Carrie B. replied no. She also maintained she saw Mr. Wirt pat Amanda W. on the buttocks in the hallway a few days after September 28.

Mr. Wirt's counsel attempted to discredit Carrie B.'s testimony by disclosing that Mr. Wirt was suspended in January, 1990, for his "threatening action and words to a student of Ramsey Elementary School." Mr. Wirt admitted it involved pulling a knife on Carrie B.'s older brother. Carrie B. indicated she had no bad feelings or problems with Mr. Wirt as the result of what happened with her brother.

Mr. Hurt also testified he witnessed Mr. Wirt touching Amanda W. He said Amanda W. had put her coat at a table before she got her lunch, and he saw her near the stage two or three times standing in line. He claimed he never saw Amanda W. and Mr. Wirt together by the stage. Mr. Hurt stated Amanda W. was near the ice cream machine when Mr. Wirt approached her on her right side. Mr. Hurt then alleged Mr. Wirt "put his left arm around" Amanda W.'s neck and rubbed her breast. 4 He alleged Mr. Wirt remained in the position for "five to ten minutes," but he did not see Mr. Wirt put his hand around Amanda W.'s waist. Mr. Hurt claimed Mr. Wirt tapped Amanda W.'s buttock when he walked away from her.

Immediately thereafter, Mr. Hurt asserted he spoke with Mr. Wirt. He also told the school principal. He testified he never spoke to Amanda W. or to Carrie B. about the incident. Mr. Hurt maintained he and Mr. Wirt had some problems over the years, but "got along pretty good."

Mr. Wirt testified he and Mr. Hurt had problems on a regular basis. He also consistently has denied the allegation that he inappropriately touched Amanda W. However, he did state he remembered one occasion when Amanda W. and another child were running in the cafeteria near the stage when Amanda W. slipped and he grabbed her "by the strap or waistband on her jeans" to prevent her from hitting her head against a table. Mr. Wirt was not sure the date of this event. Amanda W....

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