Clarke v. West Virginia Bd. of Regents, 14773

• Citation: 166 W.Va. 702,279 S.E.2d 169
• Decision Date: 03 April 1981
• Docket Number: No. 14773,14773
• Parties: Paul A. CLARKE v. WEST VIRGINIA BOARD OF REGENTS, a Corporation Created By Statute, and Wendell G. Hardway, President of Fairmont State College.
• Court: Supreme Court of West Virginia

Page 169

279 S.E.2d 169

166 W.Va. 702

Paul A. CLARKE v. WEST VIRGINIA BOARD OF REGENTS, a Corporation Created By

Statute, and Wendell G. Hardway, President of

Fairmont State College.

No. 14773.

Supreme Court of Appeals of West Virginia.

April 3, 1981.

Rehearing Denied June 18, 1981.

Syllabus by the Court

1. "The extent of due process protection affordable for a property interest requires consideration of three distinct factors: first, the private interest 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 functions involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Syl. pt. 5, Waite v. Civil Service Commission, W.Va., 241 S.E.2d 164 (1978).

2. "Where an act of misconduct is asserted in a notice of dismissal, it should be identified by date, specific or approximate, unless the characteristics are so singular that there is no reasonable doubt when it occurred. If an act of misconduct involves persons or property, these must be identified to the extent that the accused employee will have no reasonable doubt as to their identity." Syl. pts. 4 and 5, Snyder v. Civil Service Commission, W.Va., 238 S.E.2d 842 (1977).

3. In the report of findings and recommendations, a hearing examiner should list the specific charges found to be supported by the evidence adduced at the hearing and provide some reference to the evidence supporting those findings.

4. The proper remedy for reversable due process procedural defects in administrative proceedings is to remand the case to the appropriate tribunal with directions to order the administrative institution to remedy the defect.

5. "Due process must generally be given before the deprivation occurs unless a compelling public policy dictates otherwise." Syl. pt. 2 (in part), North v. West Virginia Board of Regents, W.Va., 233 S.E.2d 411 (1977).

R. F. Gallagher and Samuel Spencer Stone, Morgantown, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., and Gregory W. Bailey, Asst. Atty. Gen., Charleston, for appellees.

McGRAW, Justice:

This case comes before us upon appeal from a judgment of the Circuit Court of Kanawha County which affirmed a decision of the West Virginia Board of Regents upholding the dismissal of the appellant, Paul A. Clarke, from his tenured teaching position at Fairmont State College. Dr. Clarke was fired by the college's president, Wendell G. Hardway, effective May 29, 1978. A hearing examiner's report, completed almost one year later, confirmed the dismissal. Dr. Clarke claims that the dismissal procedures violated his constitutional right to due process. His primary assignments of error are that the notice of his dismissal was too vague to allow him to properly defend himself, and that the hearing examiner's findings were too general to allow for effective review. He also questions the propriety of a post-deprivation hearing.

Denied relief by the West Virginia Board of Regents, Dr. Clarke filed a petition for a writ of certiorari in the Circuit Court of Kanawha County against both the Board and President Hardway to obtain a review of the procedures employed in effecting his dismissal. After reviewing the dismissal procedures, the lower court denied the relief prayed for and affirmed the decision of the Board upholding the actions of President Hardway. It is from this adverse ruling that Dr. Clarke takes this appeal. We find merit in two of the appellant's due process contentions and reverse the lower court ruling.

Dr. Clarke was a tenured, full-time, professor of education at Fairmont State College. He taught there for three years, gained tenure, and continued teaching for eight more years. On March 22, 1978, President Hardway informed Dr. Clarke by letter that he would be fired at the end of the semester, May 29, 1978. The letter was sent in accordance with Policy Bulletin No. 36 of the West Virginia Board of Regents (hereinafter Bulletin). The Bulletin provides that dismissal can be effected only for one or more of five grounds specifically enumerated therein. ¹ President Hardway's letter enumerated three causes for the dismissal of Dr. Clarke and listed fifteen reasons in support of the causes. Some of the reasons listed in support of the charges seem duplicitous but apparently were included because they can relate to more than one charge. President Hardway's letter also included a copy of the Bulletin and informed Dr. Clarke that he had 30 days within which he could respond to the charges.

Dr. Clarke filed a timely response to the charges either by denial or by indicating that the charges failed to state proper grounds for dismissal and, at that time, raised the issue of defective notice which is one of his principal assignments of error here. He requested a hearing before a hearing examiner in accordance with the options set out in the Bulletin, and on May 18, 1978, the Board of Regents appointed an attorney to act as hearing examiner. Dr. Clarke was dismissed from his post on May 29, 1978, less than two weeks before his scheduled hearing on June 7, 1978. At the two-day hearing, sixteen witnesses testified, including Dr. Clarke. Both parties were represented by counsel and made informal use of evidentiary rules. The 324-page transcript of the hearing was not completed until November 9, 1978, and when it was reviewed by counsel, numerous errors and inaccuracies were noted. By agreement of the parties, both counsel revised the record and had it retyped. It was delivered to the hearing examiner on January 17, 1979. Counsel also provided the hearing examiner with memoranda summarizing their views of the evidence.

On February 16, 1979, the hearing examiner filed a seven-page recommendation which found that President Hardway dismissed Dr. Clarke pursuant to the procedures listed in the Bulletin and that the dismissal was for cause. Citing only the impressive testimony of other faculty members testifying in support of the firing, the hearing examiner did not reveal the factual basis for his recommendation, nor did he designate the charges which he found were supported by the evidence. Dr. Clarke contends that the failure of the hearing examiner to specify his findings on the record rendered illusory his right of review.

On March 2, 1979, President Hardway, pursuant to the Bulletin, informed Dr. Clarke in writing that he was adopting the findings of the hearing examiner and affirming the dismissal. Dr. Clarke requested and was granted an appeal before the Board of Regents. The Board, by resolution dated April 6, 1979, affirmed President Hardway's dismissal of Dr. Clarke, finding that due process was accorded Dr. Clarke and that his dismissal was not arbitrary or capricious. After reviewing the record and the pleadings in the case, the circuit court affirmed the Board of Regents' resolution.

While this Court has never before had occasion to address the question of what procedural safeguards are required by due process ² when dismissing a tenured professor we have discussed on several occasions the procedural safeguards required when the state seeks to deprive one of an interest it has bestowed upon him. State ex rel. McLendon v. Morton, W.Va., 249 S.E.2d 919 (1978); Waite v. Civil Service Commission, W.Va., 241 S.E.2d 164 (1978); Snyder v. Civil Service Commission, W.Va., 238 S.E.2d 842 (1977); Fox v. Board of Education of Doddridge County, W.Va., 236 S.E.2d 243 (1977); North v. West Virginia Board of Regents, W.Va., 233 S.E.2d 411 (1977).

The threshold question in any inquiry into a claim that an individual has been denied procedural due process is whether the interest asserted by the individual rises to the level of a "property" or "liberty" interest protected by Article III, Section 10 of our constitution. Waite, supra. This question is easily decided in the instant case as both sides agree that under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); State ex rel. McLendon v. Morton, supra; Waite v. Civil Service Commission, supra ; and North v. West Virginia Board of Regents, supra, Dr. Clarke has both property and liberty interests warranting due process protection. Having satisfied the initial question of Dr. Clarke's entitlement to due process protection, our inquiry becomes what procedural due process is constitutionally required.

In North v. West Virginia Board of Regents, supra, we said that before a student can be expelled from a state-supported university, he is entitled to a "formal written notice of charges; sufficient opportunity to prepare to rebut the charges; opportunity to have retained counsel at any hearings on the charges, to confront his accusers, and to present evidence on his own behalf; an unbiased hearing tribunal; and an adequate record of the proceedings." Syl. pt. 3 (in part), 233 S.E.2d 411. The North criteria, however, are not rigid standards. They represent only the touchstones by which we test the adequacy of procedures in a particular case. Outside of the criminal field, due process is a flexible concept which requires courts to balance competing interests in determining the protection to be accorded one facing a deprivation of rights. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); North, supra. See also Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). This court has embraced an approach which effectively serves to balance these interests.

In Waite, supra, we summarized some broad principles relating to the scope of due process procedures that would be made available in given cases.

The extent of due process protection affordable for a...