Powell v. Brown, No. 13955

• Court: Supreme Court of West Virginia
• Writing for the Court: HARSHBARGER
• Citation: 160 W.Va. 723,238 S.E.2d 220
• Parties: Willis D. POWELL, Jr. v. James R. BROWN, Superintendent Ritchie County Schools.
• Docket Number: No. 13955
• Decision Date: 18 October 1977

Page 220

238 S.E.2d 220 160 W.Va. 723 Willis D. POWELL, Jr.
v.
James R. BROWN, Superintendent Ritchie County Schools. No. 13955. Supreme Court of Appeals of West Virginia. Oct. 18, 1977.

Syllabus by the Court

1. An administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs.

2. Failure to renew a probationary teacher's employment contract is an administrative act that entitles the teacher to a [160 W.Va. 724] grievance procedure hearing, where such procedure has been adopted by the employer board of education and made applicable to all school employees. The fact that the procedure may be generous beyond statutory or constitutional requirements does not preclude the teacher from availing himself of the rights provided by the procedure.

M. E. Mowery, Jr., Parkersburg, for relator.

Richard A. Hayhurst, Pros. Atty., Ritchie County, Harrisville, for respondent.

HARSHBARGER, Justice:

In this original proceeding in mandamus the question presented is whether, under the pertinent statutes, a probationary ¹ teacher who was not rehired for the ensuing year and was not given any reason therefor has the right to avail himself of grievance procedures of the county board of education for the purpose of learning the reasons for nonrenewal of his teaching contract.

Page 221

The petitioner, William D. Powell, was a probationary teacher employed by the Ritchie County Board of Education. James R. Brown, the respondent, was the Superintendent[160 W.Va. 725] of Schools of Ritchie County. At a regular meeting of the Ritchie County Board of Education on May 2, 1977, Brown did not recommend Powell for reemployment and shortly thereafter so notified Powell without giving reasons for the action. Powell attempted to initiate a grievance procedure and made several requests therefor of Brown. Brown claims that Powell has no right to grievance hearings; that the failure of the board to renew his contract, he being a probationary teacher, is not a proper matter for grievance and he so informed Powell. The petitioner then instituted this mandamus proceeding praying that Brown be compelled to permit him to avail himself of the grievance procedure that had been adopted by the county board of education and was in effect at the time.

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), establishes that a nontenured teacher, in general, has no property interest protected by the Fourteenth Amendment to the United States Constitution and is not entitled to a hearing, under the due process clause of the Fourteenth Amendment, if school officials do not rehire him. See also, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Satterfield v. Edenton-Chowan Board of Education, 530 F.2d 567 (4th Cir. 1975); Sheppard v. West Virginia Board of Regents, 516 F.2d 826 (4th Cir. 1975); Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971); Drown v. Portsmouth School District, 435 F.2d 1182 (1st Cir. 1970); Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966); Shields v. Watrel, 333 F.Supp. 260 (W.D.Pa.1971). ²

[160 W.Va. 726] These holdings indicate that Powell has no constitutional right to a hearing. But we do not believe the case is disposed of so easily.

In West Virginia the State Board of Education has adopted Regulation 5300 which applies to every local board. Regulation 5300 (6) through (7) are set forth below:

(6) (a) Every employee is entitled to know how well he is performing his job, and should be offered the opportunity of open and honest evaluation of his performance on a regular basis. Any decision concerning promotion, demotion, transfer or termination of employment should be based upon such evaluation, and not upon...