Golden v. Board of Educ. of Harrison County

• Decision Date: 18 December 1981
• Docket Number: No. 15211,15211
• Citation: 285 S.E.2d 665,169 W.Va. 63
• Court: West Virginia Supreme Court
• Parties: , 1 Ed. Law Rep. 1354 Arlene GOLDEN v. BOARD OF EDUCATION OF the COUNTY OF HARRISON.

Page 665

285 S.E.2d 665

169 W.Va. 63, 1 Ed. Law Rep. 1354

Arlene GOLDEN v. BOARD OF EDUCATION OF the COUNTY OF HARRISON.

No. 15211.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1981.

Dissenting Opinion Jan. 7, 1982.

Syllabus by the Court

1. When the circuit court sits in review of the decisions of county boards of education and other administrative tribunals it shall record findings of fact and conclusions of law along with the judicial orders which it issues.

2. In order to dismiss a school board employee for acts performed at a time and place separate from employment, the Board must demonstrate a "rational nexus" between the conduct performed outside of the job and the duties the employee is to perform.

Jacqueline A. Kinnaman, Charleston, for appellant.

Irene M. Keeley, Herbert G. Underwood, Steptoe & Johnson, Clarksburg, for appellee.

McGRAW, Justice:

On March 27, 1980, the Circuit Court of Harrison County entered an order affirming the action of the Harrison County Board of Education (hereinafter cited as Board of Education or Board) wherein, pursuant to W.Va.Code § 18A-2-8 (1977 Replacement Vol.), it dismissed the appellant, Arlene Golden, from her position as high school guidance counselor.

The appellant was employed by the Board of Education as a high school guidance counselor beginning in 1974. On December 11, 1978, she was arrested at Watson's Department Store in the Middletown Mall for felony shoplifting. On December 20, 1978, she pled nolo contendere in a magistrate court and was fined $100 for the misdemeanor of petty theft. News of this was published in the local newspaper.

By letter dated January 18, 1979, the Board informed Golden that it considered the shoplifting incident and the resulting fine to be a "serious act of immorality" under W.Va.Code § 18A-2-8 (1977 Replacement Vol.), and dismissed her effective January 19, 1979, pending her right to request a hearing before the Board on the matter. On January 23, 1979, Golden requested that a hearing be scheduled before the Board. The Board, meanwhile, was advised by counsel that its handling of the matter might not be in compliance with the provisions of the Code. On February 8, 1979, at a special meeting, the Board rescinded its dismissal of Golden, granting her back pay from January 19, 1979, through February 8, 1979, and voted to suspend her pending their determination as to the merits of the charge of immorality. On February 27, 1979, a hearing was held at which Golden was present along with her West Virginia Education Association (WVEA) representatives. At the hearing of February 27, Golden elucidated the incident upon which the Board had based its action. She testified that she had been "totally distraught" because she was going to have to go to Washington, D.C., to place her aged, crippled mother, a mugging victim, into a nursing home and because subsequent to her arrival at the mall she had talked by telephone with her sixteen year old daughter who hysterically related that she had just wrecked the family car. While waiting for some monograming to be completed she picked up several items and walked inadvertently out of the store. She stated that she had walked 50 feet or so from the store, when she realized that the items were in her purse and stopped in order to turn around and go back to the store. She was apprehended at this time by a store detective.

At the hearing, evidence was presented by Mrs. Golden, other teachers, and school administrators, all of which went to support her professional competency. At the hearing the next day, the Board met in closed session and, based on all the evidence available to it, concluded that Golden's employment should be terminated. Mrs. Golden appealed this decision to the Circuit Court of Harrison County, which affirmed the action of the Board. It is from that judgment that she appeals.

Golden lists two reasons for the reversal of the circuit court's judgment. First, that the Board erred in failing to notify her of the charge against her and of her right to a hearing prior to her dismissal; ¹ and second, because a misdemeanor conviction does not by itself constitute "immorality." ² This Court finds the second argument to be persuasive and it does therefore order the reversal of the circuit court's affirmance of the Board's action and the reinstatement of Mrs. Golden with full back pay for the period of her dismissal.

Prior to examining this ground for reversal, the Court first considered several issues which, although not raised by either party, constitute additional grounds for reversal. Magistrate courts in this State are established by Chapter 50 of the State Code. W.Va.Code § 50-2-3 (1981 Cum.Supp.) provides that magistrate courts shall have jurisdiction "of all misdemeanor offenses committed in the county and to conduct preliminary examinations on warrants charging felonies." A study of the record submitted with this case reveals that the magistrate court acted beyond its jurisdiction. It issued a warrant for Mrs. Golden's arrest for what would appear to be the felony of shoplifting merchandise of a value in excess of $50. W.Va.Code § 61-3A-2 (1977 Replacement Vol.). Some nine days later another magistrate took a plea of nolo contendere to the charge and entered a misdemeanor conviction in his record. The magistrate was acting without jurisdiction. His lawful authority is to conduct a preliminary hearing and, upon a finding of probable cause, to bind the case over to the circuit court grand jury. It is fundamental to say that if the magistrate court finds no probable cause that the defendant committed the felony crime charged, the court is under a duty to dismiss the warrant. The magistrate court's order which shows that the defendant is guilty of a misdemeanor upon a nolo contendere plea to a felony charge is void.

It should also be noted that the record of this case reached this Court in an incomplete format, a format which makes review very difficult. Rule 52(a) of the West Virginia Rules of Civil Procedure requires that "[i]n all actions tried upon the facts, without a jury ... the court should find the facts especially and state separately its conclusions of law thereon." The purpose of this rule is to better enable the reviewing court to apply the law to the facts. Commonwealth Tire Co. v. Tri-State Tire Co., 156 W.Va. 351, 193 S.E.2d 544 (1972). This rule is mandatory and, when not complied with a remand to the trial court is required. Peoples Bank v. Pied Piper Retreat, Inc., W.Va., 209 S.E.2d 573 (1974). This Court has not previously placed this requirement on circuit courts when they are reviewing the decisions of county boards of education and other administrative tribunals. We do so now and require that in this case on remand and in future cases the circuit court submit findings of fact and conclusions of law with the orders in these cases. ³

Turning to the second ground argued by the petitioner, W.Va.Code § 18A-2-8 (1977 Replacement Vol.) authorizes a county board of education to suspend or dismiss any of its employees at any time for "[i]mmorality, incompetency, cruelty, insubordination, intemperance, or willful neglect of duty." The statute does not define immorality and this Court has not been referred to, nor has it located, any case decided in West Virginia which construes the meaning of the term "immorality" within the context of this Code section.

Immorality is an imprecise word which means different things to different people, but in essence it also connotes conduct "not in conformity with accepted principles of right and wrong behavior; contrary to the moral code of the community; wicked; especially, not in conformity with the acceptable standards of proper sexual behavior." Webster's New Twentieth Century Dictionary Unabridged 910 (2d ed. 1979).

When confronted with this problem courts seek to determine if a "rational nexus" exists between the conduct complained of and the duties to be performed. In Thurmond v. Steele, W.Va., 225 S.E.2d 210 (1976), which involved the dismissal of a civil service employee who was charged with driving while intoxicated, failure to obey an officer, driving recklessly, and leaving the scene of an accident in which he had been involved, the Court reversed the Civil Service Commission's dismissal on the ground that the charges were "based on conduct which had no rational nexus with the duties to be performed or the rights and interest of the public." Id. at 213. Thus, the primary principle to be gleaned from Thurmond is that conduct of a state or public employee outside the job may be examined, but disciplinary action against the employee based upon that conduct is proper only where there is a proven "rational nexus" between the conduct and the duties to be performed.

There is a corollary to this principle. Although it is undisputed that a teacher holds a strategic position in the shaping of young minds, and although the State may legitimately look into a teacher's conduct outside the classroom, Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958) and Adler v. Board of Education, 342 U.S. 485, 493, 72 S.Ct. 380, 385, 96 L.Ed. 517 (1952), nonetheless, the conduct in question must indicate unfitness to teach. No abstract...