Burks v. McNeel
| Citation | 164 W.Va. 654,264 S.E.2d 651 |
| Decision Date | 04 April 1980 |
| Docket Number | No. 14615,14615 |
| Court | Supreme Court of West Virginia |
| Parties | Jane BURKS v. Tom McNEEL, Supt. of Schools of Randolph County, W. Va., et al. |
1. In reviewing the judgment of a lower court this Court does not accord special weight to the lower court's conclusions of law, and will reverse the judgment below when it is based on an incorrect conclusion of law.
2. Regulation 5300(6)(b) of the West Virginia State Board of Education entitles a probationary teacher to a hearing and a statement of reasons for termination of employment.
John C. Purbaugh, Charleston, Webster J. Arceneaux, III, Third Year Law Student, for P. E.
Brown, Harner & Busch and W. Del Roy Harner, Elkins, for D. E.
Jane Burks appeals from a final judgment of the Circuit Court of Randolph County, and asks this Court to reverse the lower court's denial of her petition for a writ of mandamus which she sought to compel the appellees to provide her with a hearing and a statement of reasons for the termination of her employment as the teacher of a nutrition program in the Randolph County School System. We conclude the circuit court committed errors which require reversal of its final judgment.
During the 1976-77 and 1977-78 school years, Ms. Burks was employed by the Randolph County Board of Education as a teacher in the ESEA IV-C Health and Nutrition Program. On April 17, 1978, she received a letter from Tom McNeel, one of the appellees, and then Superintendent of Schools of Randolph County. The letter informed Ms. Burks that McNeel would not be recommending renewal of her probationary contract of employment for the 1978-79 school term, and indicated that pursuant to W.Va.Code, 18A-2-8a she was entitled to a hearing and a statement of reasons for the decision not to recommend her reemployment. On April 20, Ms. Burks sent a letter to McNeel requesting a written statement of reasons. On April 28, McNeel responded by sending her a letter which indicated, ". . . the reason is the very questionable status of ESEA IV Health and Nutrition Program for 1978-79." The letter went on to inform Ms. Burks she could request an informal hearing before the Randolph County Board of Education. She made no such request.
Ms. Burks next heard from McNeel on June 9 when he contacted her by telephone and indicated that at its June 7 meeting the School Board had agreed to continue the nutrition program. He said he would continue her employment as the teacher in that program. Ms. Burks testified that this course of dealings corresponded to the events of the previous year.
On June 12, Ms. Burks traveled to Charleston with McNeel and others to meet with Mr. Alpha E. Wilson, a State official concerned with overseeing the nutrition program. They discussed modifications to the program in Randolph County. During the latter part of June, Ms. Burks helped to rewrite the program to incorporate the planned modifications, and made two visits to the school board office to perform activities in preparation for the coming year's program.
According to Ms. Burks' testimony, the following transpired at a July 12 meeting to which McNeel had summoned her. He informed her that he had received "some information" about her and "he would not be recommending me to be rehired for the next year." Even though she asked what the information was, he provided no reasons for his decision. McNeel did tell her that if she pursued the matter, hired a lawyer, or went to court, the board would drop the nutrition program rather than provide her with reasons for the action. He also said he would not hire her in the Randolph County school system, or give her a good recommendation of employment for another school system.
Under cross-examination McNeel admitted this conversation had occurred, but maintained that he had said only that if she followed up on an appeal of the case it would be personally difficult for him to recommend rehiring, or to give her a good recommendation for other employment. He denied making the threats that Ms. Burks described. As a rebuttal witness Ms. Burks brought on Mr. Alpha E. Wilson, who testified that on July 13, 1978 he had received a phone call from McNeel, and had made a memorandum on the phone call. Using the memorandum to refresh his recollection, he testified McNeel indicated that Ms. Burks would not be recommended for reemployment, and that if she challenged this decision the Board would not accept the nutrition program for the coming school year.
On July 17, 1978, Ms. Burks received a letter from McNeel indicating he would not be recommending her reemployment even if the program were refunded. He reiterated she was legally entitled to a hearing and a statement of reasons for termination. Ms. Burks retained an attorney, and by letter of July 19, the attorney requested a hearing and a statement of reasons.
The next communication took place on August 2, 1978 when Ms. Burks received a letter from McNeel informing her that on August 1 the Board of Education,
Ms. Burks filed the petition for a writ of mandamus, and after conducting a hearing, the court entered an order denying the petition. Upon incomplete findings of fact the court concluded as a matter of law that the Board had fully complied with the law regarding the termination of Ms. Burks, and further concluded Ms. Burks had in April failed to request a hearing within the time specified by statute, and had thereby waived her right to a hearing.
The appellant contends the trial court committed reversible error because its conclusion of law that the School Board had complied with the statutory requirements is an erroneous conclusion. The appellant says this conclusion is erroneous because she was rehired in June, and the rehiring rendered the earlier dismissal and any attendant statutory compliance null and void.
Any probationary teacher not rehired at a Board of Education meeting on or before the first Monday in May of each year shall be notified in writing of not having been rehired or not having been recommended for rehiring, and shall be entitled to a written statement of reasons and a hearing, if the requests therefor are made within ten days of the notification. At the hearing the reasons for the decision not to rehire must be shown. W.Va.Code, 18A-2-8a.
The evidence supports findings of fact that in April the Board complied with the statutory procedure, and that appellant did not request a hearing within the ten-day period. If the matter...
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