Smith v. Siders

Decision Date21 September 1971
Docket NumberNo. 13107,13107
Citation155 W.Va. 193,183 S.E.2d 433
CourtWest Virginia Supreme Court
PartiesI. Brooks SMITH v. Harry SIDERS et al.

Syllabus by the Court

1. 'Due process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to the judicial branches of the governments.' Point 2 Syllabus, State ex rel. Ellis v. Kelly, 145 W.Va. 70 (112 S.E.2d 641).

2. In a case in which a county superintendent of schools was removed from office by the county board of education and the superintendent appealed from the action of the board to the State Superintendent of Schools of West Virginia pursuant to the provisions of Code, 1931, Chapter 18A--2--8, as amended, the action of the state superintendent in entertaining the appeal and in reversing the action of the county board of education is void in view of the fact that no notice of the appeal was given to the board of education and the fact that no opportunity to be heard in relation to the appellate proceedings was afforded the county board of education or the individual members thereof.

Billheimer & Losch, Larry E. Losch, Montgomery, for relator.

Greene, Ketchum & Baker, Edward H. Greene, Huntington, for respondents.

CALHOUN, Judge:

In this mandamus proceeding instituted in this Court, I. Brooks Smith, as the petitioner, seeks to require the respondents, Harry Siders, Bill Withers, Theodore Stevens, Charles Eshenaur and Ray Fields, as the Mason County Board of Education, and Michael Whalen, Acting Superintendent of Schools of Mason County, to comply with an order of Daniel B. Taylor, State Superintendent of Schools of West Virginia, which directed the respondents to reinstate the petitioner as Superintendent of Schools of Mason County; to restore his salary for the period beginning April 27, 1971; to dismiss Michael Whalen as Acting Superintendent of Schools of Mason County; and to dismiss the ten charges brought against the petitioner on April 13, 1971.

This case was submitted for decision upon the mandamus petition, an answer and demurrer to the petition and upon briefs and oral argument of counsel.

No material issue of fact is presented for decision. The primary question presented for decision by the pleadings, briefs and oral arguments is whether a county superintendent of schools, when removed from office by a county board of education for reasons of incompetency, immorality, intemperance, insubordination or willful neglect of duty, has the right to appeal the decision of removal to the State Superintendent of Schools pursuant to the provisions of Code, 1931, 18A--2--8, as amended, where the vote for removal was not unanimous.

This case involves the second of two separate proceedings for removal of the petitioner from his position as Superintendent of Schools of Mason County. In the first proceeding, the Board of Education of Mason County, on January 23, 1971, by a vote of 'four to one', served twenty-two charges upon the petitioner for the purpose of removing him as Superintendent of Schools of Mason County. A hearing was held by the board on February 20, 1971, at which time the petitioner was suspended from his official position without having been given an opportunity to be heard in relation to the charges.

By an order entered on March 23, 1971, this Court directed that the petitioner be reinstated to his rightful position as superintendent and further ordered the board 'to forthwith complete the hearing on the charges filed against the petitioner, to allow him to answer such charges fully if he so desired, * * *.'

At a meeting of the board of education held on March 25, 1971, the board unanimously voted to dismiss the charges against the petitioner and to cancel a hearing scheduled for March 27, 1971. Incorporated into the minutes of that meeting is a statement signed by four of the members of the board to the effect that they had voted to reinstate the petitioner and to dismiss the charges against him 'in order that the Board will not be jeopardized in any way in future actions.'

Thereafter, at a special meeting of the board of education held on April 7, 1971, Mr. Ed Grimes, spokesman for Mr. David Roush, presented a list of ten charges in writing for the purpose of removing the petitioner from the office of county superintendent. By a vote of four to one, the board elected to read and consider the charges. On April 13, 1971, at a regular meeting of the board of education, four of the five respondent members of the board presented to the petitioner the list of the ten written charges which had been presented to the board at the previous special meeting. The petitioner was notified at that time that a hearing on the charges would be held on April 24, 1971. This, the second hearing, is the one involved in the present case.

At the second hearing, held on April 24, 1971, witnesses were heard and evidence was taken before the respondent board of education in relation to the written charges. Testimony taken at the hearing was reported and subsequently transcribed in typewritten form. At the conclusion of the hearing, the board recessed until April 27, 1971, at which time the board presented its written findings. By a majority vote of the members present, the board found that the petitioner was guilty of nine of the ten charges filed against him and accordingly the board ordered that the petitioner be removed from his position as county superintendent. The vote by which the petitioner was removed as county superintendent of schools was three in favor and one opposed, one member being absent.

The petitioner appealed this decision of the board of education to Dr. Daniel B. Taylor, State Superintendent of Schools of West Virginia, pursuant to the provisions of Code, 1931, 18A--2--8, as amended, the language of which is as follows:

'Notwithstanding any other provisions of law, a board may suspend or dismiss any person in its employment at any time for: Immorality, incompetency, cruelty, insubordination, intemperance or wilful neglect of duty, but the charges shall be stated in writing and the employee so affected shall be given an opportunity to be heard by the board upon not less than ten days' written notice, which charges and notice shall be served upon the employee within five days of the presentation of the charges to the board. The hearing may be held at the next regular meeting of the board or at a special meeting called for that purpose; and in any case when the board is not unanimous in its decision to suspend or dismiss, the person so suspended or dismissed shall have the right of appeal to the state superintendent of schools.'

No notice that an appeal was to be made was given to the respondent board of education or to the individual members thereof. The proceedings before the State Superintendent of Schools were purely of an ex parte nature and the respondent board of education was not afforded an opportunity to be heard.

By a letter dated May 21, 1971, Dr. Taylor advised the county board of education that he had reviewed the transcript of the proceedings, 'including the notice of and charges specified, the procedures followed, the evidence adduced from exhibits filed at said hearing of April 24, 1971', and was of the opinion that the evidence presented was insufficient to sustain any of the charges and that the decision, based on the evidence, was erroneous. He ordered that the respondent board forthwith reinstate the petitioner as superintendent, with restoration of his salary from April 27, 1971. Dr. Taylor stated further in his letter that his actions were taken pursuant to his authority under Code, 1931, 18A--2--8, as amended, and Code, 1931, 18--3--4, as amended. This was the first knowledge the respondents had of the appeal.

Following the receipt of Dr. Taylor's letter, the board, at a special session held on May 26, 1971, failed to take any action in relation to the reinstatement of the petitioner.

Counsel for the respondent board of education contend that the proceedings for his removal were held pursuant to Code, 1931, 18--4--3, as amended, which, counsel contend, controls the procedure for the removal of a county superintendent of schools by a county board of education; that Code, 1931, 18--4--3, as amended, makes no provision for appeal to the State Superintendent of Schools of West Virginia; and that, therefore, the appeal provisions of Code, 1931, 18A--2--8, as amended, cannot be held to be applicable to the present case.

Code, 1931, 18--4--3, as amended, provides:

'The board may remove the superintendent from office for immorality, incompetency, insubordination, intemperance or wilful neglect of duty but the charges shall be stated in writing and the...

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