Butts v. HIGHER EDUC. INTERIM GOVERNING BD., No. 30120.

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 569 S.E.2d 456,212 W.Va. 209
• Parties: Joy G. BUTTS, Petitioner Below, Appellant v. HIGHER EDUCATION INTERIM GOVERNING BOARD/SHEPHERD COLLEGE, Respondent Below, Appellee
• Decision Date: 17 June 2002
• Docket Number: No. 30120.

569 S.E.2d 456
212 W.Va. 209

Joy G. BUTTS, Petitioner Below, Appellant
v.
HIGHER EDUCATION INTERIM GOVERNING BOARD/SHEPHERD COLLEGE, Respondent Below, Appellee

No. 30120.

Supreme Court of Appeals of West Virginia.

Submitted March 12, 2002.

Decided June 17, 2002.

Concurring Opinion of Justice Maynard July 2, 2002.

569 S.E.2d 457

Lawrence M. Schultz, Esq., Burke, Schultz & Harman, Martinsburg, West Virginia, Attorneys for Appellant

K. Alan Perdue, Esq., Shepherd College Counsel, Shepherdstown, West Virginia, Attorney for Appellee.

PER CURIAM:

This is an appeal by Joy Butts, an associate professor at Shepherd College, from an order of the Circuit Court of Jefferson County which affirmed and upheld a reprimand issued by her employer Shepherd College. On appeal, the appellant claims that she was improperly reprimanded and that the reprimand should be removed from her record. After reviewing the facts and issues presented, the Court agrees.

I.

FACTS

The appellant, Joy Butts, was, and is, a tenured associate professor at Shepherd College in Shepherdstown, West Virginia. Ethel Cameron was, and is, the coordinator of the appellant's program and the appellant's supervisor.

During the Fall 1999 semester of Shepherd College, Ms. Cameron asked the appellant, and other faculty members who were subject to her supervision, to provide her with the grades of their students so that she could resolve various questions relating to the program. The appellant did not comply with Ms. Cameron's request for the grades because she believed that releasing the grades to Ms. Cameron would violate the Shepherd College privacy policy contained in the 1999-2000 Shepherd College Handbook, a policy which, in relevant part, provided:

C. Prior written consent of the students concerned will be obtained before releasing information from student records to individuals other than the students referred to in those records. Exceptions to this policy are outlined below or are in other parts of this publication.

1. Members of the faculty may have access to academic records and files for internal educational purposes.

* * * * * *

The policy, however, further provided:

5. The Office of the Registrar is charged with the responsibility of releasing grades and grade point averages. No other department or division of the College may release grades without express (written) permission of the students....

In the present appeal, the appellant acknowledges that the policy allowed Ms. Cameron access to the grades, but argues that she believed, and believes, that the policy did not authorize or permit her, rather than the Office of the Registrar, to release those grades. She also argues that her release of the grades to Ms. Cameron might have violated federal law which applied to the operation of Shepherd College.

Following the failure of the appellant to provide the grades to Ms. Cameron, reprimands were issued against her on October 19, 1999, and February 9, 2000.

The appellant filed a grievance over the issuance of the reprimands, and the matter was jointly waived to Level IV of the applicable grievance procedure, where an administrative law judge conducted a hearing on October 6, 2000. After that hearing, the administrative law judge, on October 31, 2000, denied the appellant's request for relief and, in effect, affirmed the reprimands. The administrative law judge found that under various administrative decisions, the "willful failure or refusal to obey reasonable orders of a superior entitled to give such order" constituted "insubordination" by an employee and that such insubordination justified a reprimand. While recognizing that the appellant believed that Ms. Cameron's requests were improper, the administrative law judge

569 S.E.2d 458

held that an employee's belief that management's decisions are incorrect, absent a threat to the employee's health or safety, does not confer upon him the right to ignore or disregard a supervisor's order, rule or directive

The appellant appealed the administrative decision to the Circuit Court of Jefferson County, and by order entered on May 3, 2001, the court affirmed the administrative ruling. The court stated:

The Court recognizes that Petitioner may have a good faith belief that the directive from Ms. Cameron to turn over Petitioner's students' grades to Ms. Cameron, if followed, would result in Petitioner's violating federal and/or state student privacy laws. But this Court agrees with Judge Keller [the administrative law judge] that Petitioner's readings of these privacy laws is erroneous. The record amply demonstrates that Ms. Cameron, as a faculty member, was entitled to receive the grades and that her intended use of those grades was for "legitimate educational purposes." The Court agrees with Judge Keller's analysis that Petitioner's willful refusal to comply with her supervisor's directive was insubordinate.

In the present appeal, the appellant claims that, in light of the fact that the policy of Shepherd College relating to the release of grades contained in the student handbook, a policy which permitted only the Registrar to release such grades, her refusal to release the grades to Ms. Cameron did not constitute insubordinate misconduct which would support a reprimand.

II.

STANDARD OF REVIEW

The present case involves an administrative grievance prosecuted by a higher education, the appeal of which was heretofore governed by the provisions of W. Va.Code 18-29-1, et seq.

In Syllabus Point 1 of Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989), this Court indicated that: "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."

The Court has also indicated that when it examines the decision of a circuit court in such cases, it employs the same standard as that by which the circuit court reviews the decision of the administrative law judge. Martin v. Randolph County Board of Education, 195 W.Va. 297, 465 S.E.2d 399 (1995). In the same case, the Court indicated that it applied a de novo standard to the circuit court's conclusions of law and application of the law to the facts.

III.

DISCUSSION

Case law in West Virginia rather clearly recognizes that insubordination may legitimately form the basis for imposing sanctions upon college or public school employees. Trimble v. WV Board of Directors, 209 W.Va. 420, 549 S.E.2d 294 (2001); Sexton v. Marshall University, 182 W.Va. 294, 387 S.E.2d 529 (1989); and Meckley v. Kanawha County Board of Education, 181 W.Va. 657, 383 S.E.2d 839 (1989). However, case law which defines "insubordination" in the college or public school context is rather meager. In Beverlin v. Board of Education of the County of Lewis, 158 W.Va. 1067, 216 S.E.2d 554 (1975), the Court did hold that the failure of a public school teacher to report to work on a date ordered by his school board did not constitute insubordination which would support the imposition of a sanction where the teacher had a valid reason for not reporting, where he made some attempt, although abortive, to contact his principal, and where no harm resulted to his students as a result of his failure to report.

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