State ex rel. Bd. of Educ. of Kanawha County v. Casey, No. 16796

• Court: Supreme Court of West Virginia
• Writing for the Court: McGRAW; NEELY
• Citation: 349 S.E.2d 436,176 W.Va. 733
• Parties: , 35 Ed. Law Rep. 590 STATE ex rel. the BOARD of EDUCATION OF the COUNTY OF KANAWHA v. The Honorable Patrick CASEY, as Judge of the Circuit Court of Kanawha County, West Virginia, and, David P. Gillispie.
• Docket Number: No. 16796
• Decision Date: 04 April 1986

Page 436

349 S.E.2d 436 176 W.Va. 733, 35 Ed. Law Rep. 590 STATE ex rel. the BOARD of EDUCATION OF the COUNTY OF KANAWHA
v.
The Honorable Patrick CASEY, as Judge of the Circuit Court
of Kanawha County, West Virginia, and, David P. Gillispie. No. 16796. Supreme Court of Appeals of West Virginia. April 4, 1986.
Dissenting Opinion Oct. 8, 1986.

Page 437

[176 W.Va. 734] Syllabus by the Court

1. The doctrine of exhaustion of administrative remedies is inapplicable where resort to available procedures would be an exercise in futility.

2. Where no vacancy in a secondary principalship currently exists at the time a county board of education votes to close a particular secondary school, a reduction in force of secondary principalships occurs, imposing upon the county board of education, under West Virginia Code § 18A-4-8b (1984 Replacement Vol.), a nondiscretionary duty to notify and release from employment, pursuant to the provisions of West Virginia Code § 18A-2-2 (Supp.1985), the secondary principal with the least amount of seniority, and to place in such secondary principalship the principal whose school is to be closed.

3. "Mandamus will not lie to compel the performance of an illegal or unlawful act, and it should not be refused in a case in which the use of the writ is proper when the effect of such refusal is to permit the committing of an illegal or unlawful act." Syl. pt. 3, State ex rel. Schenerlein v. City of Wheeling, 144 W.Va. 434, 108 S.E.2d 788 (1959), overruled on other grounds, Syl. pt. 2, State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741 (1964).

John O. Kizer, Love, Wise & Woodroe, Charleston, for petitioner.

J. David Cecil, Cecil, Barth & Thompson, Charleston, for respondent.

McGRAW, Justice:

The petitioner, the Board of Education of Kanawha County, seeks a writ of prohibition against enforcement of an order by respondent judge, the Honorable Patrick Casey of the Circuit Court of Kanawha County, which mandated that the petitioner place respondent David P. Gillispie in the secondary principalship occupied by the least secondary principal in Kanawha County, contending that the respondent judge exceeded his authority by entry of this order. Specifically, the petitioner complains that Gillispie failed to exhaust his administrative remedies prior to securing relief below by way of mandamus; that the trial court's order impermissibly infringed upon the discretion of the county superintendent and board of education with respect to transfer; and, that the court's order improperly required it to violate certain statutory provisions with respect to the removal of professional school personnel. Finding no merit in any of these contentions, we therefore dismiss.

On February 27, 1985, Gillispie was notified that he was being recommended for placement on administrative transfer due to the proposed closure of his school. This action was taken pursuant to West Virginia Code § 18A-2-7 (1984 Replacement Vol.), which provides, in relevant part, that, "[A]n employee shall be notified in writing by the superintendent on or before the first Monday in April if he is being considered for transfer...." On May 6, 1985, the Board of Education voted to place Gillispie, along with several others, on "administrative transfer." This action was also taken pursuant to West Virginia Code § 18A-2-7 (1984 Replacement Vol.), which further provides that, "The superintendent at a meeting of the board on or before the first Monday in May, shall furnish in writing to the board a list of teachers and other employees

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to be considered for transfer and subsequent assignment for the ensuing school year."

[176 W.Va. 735] On July 1, 1985, Gillispie filed a petition for writ of mandamus in the Circuit Court of Kanawha County, requesting that he be placed in the secondary principalship occupied by the least senior principal under West Virginia Code § 18A-4-8b (1984 Replacement Vol.), which provides that, "Whenever a county board is required to reduce the number of professional personnel in its employment, the employee with the least amount of seniority shall be properly notified and released from employment pursuant to the provisions of section two [§ 18A-2-2], article two of this chapter...." Following a hearing on Gillispie's petition, the circuit court held that by closing Gillispie's school, the Kanawha County Board of Education was effectively reducing the number of secondary principalships by one, thereby triggering its obligation to release the least senior secondary principal in favor of Gillispie. Although the displaced least senior secondary principal was apparently placed in one of three principalships which became available in April and May 1985, the Board of Education nevertheless seeks prohibition of enforcement of the circuit court's order.

I

The petitioner first asserts the inappropriateness of mandamus given Gillispie's failure to exhaust available administrative remedies. This assertion is founded upon West Virginia Code § 18A-2-7 (1984 Replacement Vol.), which provides that after notification of proposed transfer:

Any teacher or employee who desires to protest such proposed transfer may request in writing a statement of the reasons for the proposed transfer. Such statement of reasons shall be delivered to the teacher or employee within ten days of the receipt of the request. Within ten days of the receipt of the statement of the reasons, the teacher or employee may make written demand upon the superintendent for a hearing on the proposed transfer before the county board of education. The hearing on the proposed transfer shall be held on or before the first Monday in May. At the hearing, the reasons for the proposed transfer must be shown.

Unquestionably, as this Court held in Syllabus Point 1 of Daurelle v. Traders Federal Savings & Loan Association, 143 W.Va. 674, 104 S.E.2d 320 (1958), "The general rule is that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body, and such remedy must be exhausted before the courts will act." See also Syl. pt. 1, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985); Syl. pt. 1, Cowie v. Roberts, 173 W.Va. 64, 312 S.E.2d 35 (1984); Syl. pt. 3, State ex rel. Arnold v. Egnor, 166 W.Va. 411, 275 S.E.2d 15 (1981); Syl. pt. 3, State ex rel. Gooden v. Bonar, 155 W.Va. 202, 183 S.E.2d 697 (1971); Syl. pt. 2, Bank of Wheeling v. Morris Plan Bank & Trust Co., 155 W.Va. 245, 183 S.E.2d 692 (1971); Syl., Capitol Business Equipment, Inc. v. Gates, 155 W.Va. 260, 184 S.E.2d 125 (1971); Syl. pt. 1, State ex rel. Burchett v. Taylor, 150 W.Va. 702, 149 S.E.2d 234 (1966). On the other hand, the doctrine of exhaustion of administrative remedies is inapplicable where resort to available procedures would be an exercise in futility. See Mountaineer Disposal Service, Inc. v. Dyer, 156 W.Va. 766, 772, 197 S.E.2d 111, 115 (1973) (rejecting the applicability of the exhaustion of administrative remedies doctrine where "it is obvious that further pursuit of administrative remedies ... will be unavailing."); see also 4 K. Davis, Administrative Law Treatise § 26:11 (1983); A. Neely, Administrative Law in West Virginia § 605 (1962); 73 C Public Administrative Law and Procedure § 40, at 463-64 (1983).

The exhaustion doctrine contemplates an efficacious administrative remedy. Certainly, in the present action, it would have been pointless for Gillispie to have protested his transfer from a school which was to be closed. He objected, not

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to the proposed transfer, which was inevitable, but rather to the manner in which it was being executed. The administrative procedures provided under West Virginia Code § 18A-2-7 (1984 Replacement Vol.) [176 W.Va. 736] would not have afforded an opportunity for Gillispie to secure the relief desired. Therefore, because recourse to those procedures would have been a futile gesture, Gillispie was not precluded by the exhaustion of administrative remedies doctrine from seeking extraordinary relief in circuit court. II

The petitioner's second contention is that the trial court's order impermissibly impinged upon the discretion of the county superintendent and board of education with respect to transfers under West Virginia Code § 18A-2-7 (1984 Replacement Vol.), which provides, in pertinent part, that, "The superintendent, subject only to approval of the board, shall have authority to assign, transfer, promote, demote or suspend school personnel and to recommend their dismissal pursuant to provisions of this chapter." In State ex rel. Hawkins v. Tyler County Board of Education, 166 W.Va. 363, 275 S.E.2d 908, 911 (1980), we remarked that:

This provision vests great discretion in the county superintendent and the county board of education to transfer and assign teachers to designated schools and this Court will not interfere with the exercise of that discretion where such action is taken in good faith for the benefit of the school system and is not arbitrary. Bates v. Board of Education of Mineral County, 133 W.Va. 225, 55 S.E.2d 777 (1949); Weaver v. Board of Education of Calhoun County, 128 W.Va. 42, 35 S.E.2d 679 (1945).

This discretion with respect to transfer, however, is clearly not without limitation. Even in State ex rel. Hawkins v. Tyler County Board of Education, 166 W.Va. 367, 275 S.E.2d at 912, this Court was cautious to note:

[T]he power of the county superintendent to transfer teachers must be exercised in a reasonable manner and in the best interests of the schools. Arbitrary and capricious use of...