Evans v. Hutchinson, 13487

Citation158 W.Va. 359,214 S.E.2d 453
Decision Date21 January 1975
Docket NumberNo. 13487,13487
PartiesRichard L. EVANS et al. v. Paul E. HUTCHINSON et al.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. A board of education is a corporation created by statute with functions of a public nature expressly given, and no other; as such, it can exercise only such power as is expressly conferred or fairly arises by necessary implication, and only in the mode prescribed or authorized by statute.

2. Code 1931, 18--5--19, as amended, permitting certain extra-educational uses of school board facilities speaks comprehensively on the subject of approved extra-educational use of school facilities and hence operates to invoke the maxim of Inclusio unius est exclusio alterius.

3. The private use of school facilities for personal gain, which is neither expressly nor impliedly permitted by law, constitutes strong evidence of malfeasance, a ground for the removal of a public officer from office.

4. Official misconduct warranting removal from public office need not arise from or involve the precise duties enjoined upon the office held; it is, rather, any unlawful behavior relevant to the duties of the office.

5. In a removal proceeding, a defense predicated upon the De minimus principle is essentially one of fact, the resolution of which by a fact finder would be entitled to great weight by this Court. Hence, where there is conflicting evidence of wrongdoing, and it appears that the trial court chose to give greater weight to the credible evidence concerning the totality of the wrongful activities knowingly conducted, the trial court's finding in such regard will be sustained on appeal.

6. Although, as a general rule, a public officer may not be removed or impeached for acts committed before his entry into office, where the alleged misconduct arises out of the exercise of anticipated authority by the official elect, relative to and under circumstances reasonably invoking response from others to the privilege or authority asserted, the so-called 'general rule' must necessarily be qualified to permit consideration of these relevant circumstances as grounds for removal.

7. Where a statute is of doubtful meaning, the contemporaneous construction placed thereon by the officers of government charged with its execution is entitled to great weight, and will not be disregarded or overthrown unless it is clear that such construction is erroneous.

8. The computation of a casual deficit, as provided for in Code 1931, 11--8--26, when considered in Pari materia with Code 1931, 18--9B--2, as amended, and other pertinent sections of Chapters 11 and 18 of Code, is calculated by comparing the amount of the deficit incurred to the total budgeted school requirements expended by a board of education in a fiscal year.

9. To warrant removal of an official pursuant to Code 1931, 6--6--7, clear and convincing evidence must be adduced to meet the statutory requirement of satisfactory proof.

10. Evidence of general negligent conduct or failure to act when action is normally required in fiscal affairs, without consequences declared unlawful by statute or case law, will not sustain the removal charges against those responsible for such fiscal affairs.

Maurice G. Taylor, Jr., William K. Napier and Philip A. Baer, Huntington, for appellants.

Greene, Ketchum & Baker, George A. Mills, III, Huntington, for appellees.

HADEN, Chief Justice:

This opinion states this Court's reasons for its order of October 22, 1974, reversing in part and affirming in part the final order of the Circuit Court of Wayne County which had removed the appellants from office as members of the Board of Education of Wayne County after a trial in which that court had found the appellants guilty of the civil charges of official misconduct, neglect of official duties, and malfeasance in office. The order of this Court affirmed the removal of the appellants Hutchinson and Stephenson on the findings of malfeasance in office and reversed the trial court's legal and factual determination that appellants Hutchinson and Brown were guilty of official misconduct and neglect of duties. Brown was thereby reinstated to his former position as board member, while Hutchinson and Stephenson were held to have forfeited their offices pursuant to the prior order of the court below.

The appellees are citizens and taxpayers of Wayne County who petitioned the court there for removal of the entire membership of the Board on various charges involving misconduct, neglect of official duties and malfeasance. At trial, proof centered upon two matters: first, an uncontroverted showing that the Board had spent itself into deficit for the consecutive fiscal years of 1970--71 and 1971--72; and second, that certain Board members and a member-elect had used the county school bus garage, its equipment and a small amount of consumable supplies owned by the Board for the painting of the members' privately owned motor vehicles.

In a comprehensive and able opinion prepared by the Honorable C. W. Ferguson, III, Judge, the circuit court set forth findings of fact and conclusions of law supporting its final order. Based upon the evidence, the trial court did not find Board members Lawrence Morrison and Frank Canterbury guilty of wrongdoing warranting removal from office. In Lawrence Morrison's case, the court found that the deficit for the fiscal year 1970--71 occurred by reason of procedures effectuated before he assumed office, and that as to the deficit for fiscal year 1971--72, Morrison was not responsible because he had on several occasions objected to the Board's fiscal practices and lack of controls, had voted against the rehiring of the encumbent superintendent and had objected to the adoption of the proposed budget for fiscal 1971--72. As to the charge of malfeasance, no evidence was adduced to demonstrate that Morrison had participated in or had knowledge of the painting incidents at the county school bus garage. Frank Canterbury and Franklin Stephenson, having first taken office on January 1, 1973, were held not chargeable for neglect of duty in regard to the occurrence of the deficits in prior fiscal years, and upon their motion, such charges against them were dismissed by the court prior to trial.

Although some evidence was introduced at trial by the petitioners' witness Glen Curnutte that he would receive a job with the Board of Education in return for painting the privately owned automobiles at the school bus garage, and that Canterbury had participated in the 'job offer' and thereby must have had knowledge of the activities involved in the malfeasance charge, the court found that this evidence, standing alone, did not rise to the level of proof sufficient to warrant Canterbury's removal on the charge of malfeasance.

On the other hand, the uncontroverted evidence demonstrated that Hutchinson, an encumbent Board member, had had his own personal automobile painted by Curnutte at the Board garage and had several times promised or implied to Curnutte that he would receive a job with the Board of Education. Additional evidence showed that Curnutte had also painted Hutchinson's aunt's automobile at Hutchinson's request at the school garage. In Stephenson's case, the evidence showed that Curnutte repaired and painted Stephenson's truck, beginning while Stephenson was a member-elect, and concluding just after the 1st of January 1973, when Stephenson assumed office. Both Hutchinson and Stephenson introduced evidence that they had either furnished or paid for the paint used on their motor vehicles and had, we well, furnished most of the incidental supplies required for the painting projects.

At trial and here, on this appeal, appellants defend against this charge of malfeasance on three bases. First, they say that the use of school board facilities was in fact a well-accepted custom and practice of long duration done to foster and promote good public relations for the School Board with the community and other units of government. As examples of 'similar' use of school facilities, they pointed to the fact that state policemen attached to the Department of Public Safety had regularly used the school bus garage on a gratuitous basis for the purpose of repairing their assigned State vehicles and privately owned vehicles and that other school facilities such as cafeterias and auditoriums had been used for dinners and meetings by the general public and by clubs and organizations. The trial court in its findings did not express approval of the use of the school bus garage by the Department of Public Safety police officers and expressly rejected, as dissimilar, the use of school board facilities for meetings and dinners by the general public, clubs and organizations from those activities charged to be malfeasant conduct in this case.

A board of education is a corporation created by statute with functions of a public nature expressly given, and no other; as such, it 'can exercise only such power as is expressly conferred or fairly arises by necessary implication, and only in the mode prescribed or authorized by the statute.' Dooley v. Board of Education, 80 W.Va. 648, 93 S.E. 766 (1917); Honaker v. Board of Education, 42 W.Va. 170, 24 S.E. 544 (1896); Shinn v. Board of Education, 39 W.Va. 497, 20 S.E. 604 (1894). See also, Herald v. Board of Education, 65 W.Va. 765, 65 S.E. 102 (1909); Pennsylvania Lightning Rod Co. v. Board of Education, 20 W.Va. 360 (1882).

The permissible extra-educational uses of school board facilities are clearly delineated in Code 1931, 18--5--19, as amended permitting, inter alia, use '. . . to promote and facilitate frequent meetings and associations of the people for discussion, study, recreation and other community activities, and (to) secure, assemble and house material for use in the study of farm, home and community problems . . ..' The statute speaks...

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    ...from necessary implication, and in no other mode than that presented or authorized by statute. See also Syl. pt. 1, Evans v. Hutchinson, 158 W.Va. 359, 214 S.E.2d 453 (1975); State v. Rouzer, 127 W.Va. 392, 397, 32 S.E.2d 865, 867 (1945); Board of Education v. Commercial Casualty Insurance ......
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