Ewing v. Board of Educ., No. 24902.

• Court: Supreme Court of West Virginia
• Writing for the Court: DAVIS, Chief Justice
• Citation: 202 W.Va. 228,503 S.E.2d 541
• Parties: Linda EWING, Petitioner Below, Appellee, v. THE BOARD OF EDUCATION OF THE COUNTY OF SUMMERS and Charles R. Rodes, Superintendent/Secretary, Respondents Below, Appellants.
• Decision Date: 12 June 1998
• Docket Number: No. 24902.

503 S.E.2d 541
202 W.Va. 228

Linda EWING, Petitioner Below, Appellee,
v.
THE BOARD OF EDUCATION OF THE COUNTY OF SUMMERS and Charles R. Rodes, Superintendent/Secretary, Respondents Below, Appellants

No. 24902.

Supreme Court of Appeals of West Virginia.

Submitted June 3, 1998.

Decided June 12, 1998.

503 S.E.2d 544

Kathryn Reed Bayless, Bayless & McFadden, Princeton, for Appellants

George A. Mills, III, Huntington, for Appellee.

William B. McGinley, Charleston, for Amicus Curiae, The West Virginia Education Association.

DAVIS, Chief Justice:

The respondents below and appellants herein, the Summers County Board of Education and Charles R. Rodes, Superintendent of Summers County Schools and Secretary of the Summers County Board of Education [hereinafter collectively referred to as "the Board"], appeal from an order entered August 22, 1997, by the Circuit Court of Summers County. In this decision, the circuit court denied the Board's motion to dismiss the petition for writ of mandamus filed by the petitioner below and appellee herein, Linda Ewing. The circuit court additionally granted Ms. Ewing mandamus relief and ordered the Summers County Board of Education to vacate its challenged hiring decision and to select one of two permanently employed applicants to fill a vacant teaching position. Upon a review of the parties' arguments, the record in this case, and the pertinent authorities, we vacate the writ of mandamus awarded by the Circuit Court of Summers County and reverse the circuit court's denial of the Board's motion to dismiss Ms. Ewing's petition for writ of mandamus.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts underlying the instant appeal are not disputed by the parties. On April 17, 1997, the Board posted a hiring notice for a business teacher at Summers County High School for grades nine through twelve,¹ upon the retirement of the individual employed in this position. Four persons applied for this job: Linda Ewing, the petitioner below and appellee herein; Sharon Romanello; Susan Lawrence; and Susie Hudson. In April, 1997, both Ms. Ewing and Ms. Romanello were permanently employed instructional personnel (teachers) in Summers County. The third applicant, Ms. Lawrence, previously had been a permanently employed teacher in Summers County; however, the Board terminated her employment in 1995 due to a

503 S.E.2d 545

reduction in force² and placed her on the preferred recall list. The final applicant, Ms. Hudson, was employed by the Board as a substitute teacher

In evaluating the qualifications of the four applicants, the Board considered the second set of hiring criteria enumerated in W. Va. Code § 18A-4-7a (1993) (Repl.Vol.1997):

If one or more permanently employed instructional personnel apply for a classroom teaching position and meet the standards set forth in the job posting, the county board of education shall make decisions affecting the filling of such positions on the basis of the following criteria: Appropriate certification and/or licensure; total amount of teaching experience; the existence of teaching experience in the required certification area; degree level in the required certification area; specialized training directly related to the performance of the job as stated in the job description; receiving an overall rating of satisfactory in evaluations over the previous two years; and seniority. Consideration shall be given to each criterion with each criterion being given equal weight. If the applicant with the most seniority is not selected for the position, upon the request of the applicant a written statement of reasons shall be given to the applicant with suggestions for improving the applicant's qualifications.

Based upon these guidelines, the Board ranked Ms. Lawrence first, awarding her five points, followed by Ms. Ewing and Ms. Romanello, awarding both Ms. Ewing and Ms. Romanello four points each. Accordingly, the Superintendent recommended hiring Ms. Lawrence for the business teacher position, and the Board unanimously approved her employment during its May 1, 1997, meeting.

On May 14, 1997, Ms. Ewing filed a grievance complaining of the Board's failure to hire her for the business teacher position. In accordance with grievance procedures, a Level II grievance hearing was scheduled for June 2, 1997, but Ms. Ewing requested that it be continued. Ms. Ewing subsequently retained legal counsel. On June 17, 1997, Ms. Ewing, by counsel, filed a petition for writ of mandamus, as permitted by W. Va. Code § 18A-4-7a,³ in the Circuit Court of Summers County, wherein she requested the rescission of Ms. Lawrence's hiring and the award of the business teacher position.

In its August 22, 1997, order, the circuit court first denied the Board's motion to dismiss, on procedural grounds, Ms. Ewing's petition for writ of mandamus. The court determined that Ms. Ewing's failure to exhaust her administrative remedies by pursuing relief through her previously initiated grievance proceedings did not preclude her right to petition the court for a writ of mandamus. Explaining its reasoning, the circuit court noted that it

503 S.E.2d 546

may have granted this motion ... had it been raised prior to the [mandamus] hearing. Since it was raised only at the time of the hearing, both parties were present with their evidence and prepared to go forward, the case calls for a rapid resolution, in order to avoid disrupting school, and the state statutes seem to allow the Petitioner [Ewing] the option to either pursue a grievance, or a mandamus, the motion is denied

The court then addressed the primary contention raised by Ms. Ewing: whether the Board improperly awarded the business teacher position to an individual who was on the preferred recall list and who was not then permanently employed by the Board, when two other qualified applicants were permanent Board employees. Construing the statutory language of W. Va.Code § 18A-4-7a,⁴ the circuit court determined that the Board had erroneously hired Ms. Lawrence for the business teacher position. In this regard, the court

[b]elieve[d] that a purpose behind this statute is to establish a means of hiring, in which certain preferences are established. These preferences are that all other things being equal, seniority controls, and that permanent employees are preferred over "riffed" employees.[⁵] Any other reading of the statute ignores part of the statute.

It would thus appear that the person ultimately selected, Susan Lawrence, should not have been given preference over the two full time, permanent employees who applied. The position should thus be vacated, and the Respondent should reconsider the matter and full [sic] the position in accordance with the second set of criteria, set forth in WVC [sic] 18-4-7[sic].

The court further denied Ms. Ewing's request that she be awarded the position, finding the more appropriate resolution to be a reevaluation of the two permanent employee applicants by the Board given the fact that Ms. Romanello was not a party to Ms. Ewing's mandamus proceeding.⁶ From these rulings of the circuit court, the Board appeals to this Court.

II.

DISCUSSION

On appeal to this Court, the Board raises three assignments of error: (1) the circuit court incorrectly found that Ms. Ewing was entitled to a writ of mandamus; (2) the circuit court improperly denied the Board's motion to dismiss by determining that once an

503 S.E.2d 547

employee has initiated a grievance he/she is not required to exhaust the grievance procedure before he/she seeks extraordinary relief by mandamus pursuant to W. Va.Code § 18A-4-7a (1993) (Repl.Vol.1997) in the circuit court; and (3) the circuit court erred in interpreting the hiring guidelines of W. Va. Code § 18A-4-7a (1993) (Repl.Vol.1997) as requiring the preferential hiring of a permanent employee over a former employee on the preferred recall list. Following a brief discussion of the applicable standard of review, we will address the merits of the parties' contentions.⁷

A. Standard of Review

The instant appeal comes to this Court by way of a ruling by the circuit court granting Ms. Ewing a writ of mandamus against the Board. When determining the propriety of a lower court's decision to grant the extraordinary remedy of mandamus, "`[t]he standard of appellate review of a circuit court's order granting relief through the extraordinary writ of mandamus is de novo.' Syllabus Point 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995)." Syl. pt. 1, O'Daniels v. City of Charleston, 200 W.Va. 711, 490 S.E.2d 800 (1997). Accord Martin v. West Virginia Div. of Labor Contractor Licensing Bd., 199 W.Va. 613, 616, 486 S.E.2d 782, 785 (1997); Phillip Leon M. v. Greenbrier County Bd. of Educ., 199 W.Va. 400, 404, 484 S.E.2d 909, 913 (1996); State exrel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996). In this regard, "we consider de novo whether the legal prerequisites for mandamus relief are present." State ex rel. Cooper v. Caperton, 196 W.Va. at 214, 470 S.E.2d at 168 (citations omitted).

"`A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syllabus Point 1, State ex rel. Billy Ray C. v. Skaff, 190 W.Va. 504, 438 S.E.2d 847 (1993); Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538,170 S.E.2d 367 (1969)." Syl. pt. 2, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576. Accord Syl. pt. 2, State ex rel. Sowards v. County Comm'n of Lincoln County, 196 W.Va. 739, 474 S.E.2d 919 (1996). In other words, when reviewing a petitioning party's entitlement to the remedy of mandamus, we examine whether "`the party seeking the writ [has] show[n] a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded.' Syllabus Point 1,...