State ex rel. Kondos v. West Virginia Bd. of Regents, 12929

• Decision Date: 16 June 1970
• Docket Number: No. 12929,12929
• Citation: 175 S.E.2d 165,154 W.Va. 276
• Parties: STATE ex rel. Peter KONDOS v. The WEST VIRGINIA BOARD OF REGENTS, etc. and Roland H. Nelson, Jr., etc.
• Court: West Virginia Supreme Court

Page 165

175 S.E.2d 165

154 W.Va. 276

STATE ex rel. Peter KONDOS v. The WEST VIRGINIA BOARD OF REGENTS, etc. and Roland H.

Nelson, Jr., etc.

No. 12929.

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1970.

Decided June 16, 1970.

Syllabus by the Court

1. One who seeks relief in mandamus must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded.

2. Code, 1931, 18A--2--8, as amended, providing for a hearing 'by the board' prior to the suspension or dismissal of a person employed by the board, refers to and means a hearing before a county board of education rather than the West Virginia Board of Education, predecessor of the West Virginia Board of Regents.

Thomas E. Medeiros, Huntington, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Deputy Atty. Gen., Joseph E. Hodgson, Asst. Atty. Gen., Charleston, for respondents.

CAPLAN, Judge:

Peter Kondos, the petitioner in this original proceeding in mandamus, seeks to compel the respondents, The West Virginia Board of Regents, a corporation created by statute, and Roland H. Nelson, Jr., individually and as President of Marshall University, to reinstate him in his contract with full pay and allowances 'until such time as said respondents act in accordance with the laws of this state.'

Upon said petition a rule was granted, returnable April 28, 1970. On that date the case was submitted for decision upon the petition, together with its exhibits, the demurrer to the petition and upon briefs and arguments filed and made by counsel for the respective parties.

By a 'Notice of Appointment' dated April 14, 1969, designated Relator's Exhibit #1, Peter Kondos was notified of his appointment as assistant football coach at Marshall University for a period of twelve months, beginning July 1, 1969, at a salary of $10,440.00. This notice was from the West Virginia Board of Education and was signed by Roland H. Nelson, Jr., President of Marshall University. It was therein stated that acceptance will constitute a contract. Presumably, Kondos accepted.

By letter dated August 1, 1969, respondent Nelson notified the petitioner that 'the Athletic Committee and the University Council have recommended that I take steps which would lead to your dismissal.' The letter continued, 'I am recommending to the Board of Regents that your contract for the academic year 1969--70 be terminated as of September 30, 1969. This recommendation is based on the judgment that you have performed your duties as Assistant Football Coach in an incompetent manner.' Specific violations were then enumerated. He was therein informed that he could appeal this action to a faculty committee appointed by the chairman of the University Council and, if he desired, he could appeal the action of the said faculty committee to the Board of Regents. Alleging in effect that an appeal to a faculty committee, subordinate to respondent Nelson, would be a useless act, the petitioner waived such hearing.

Thereafter, by letter dated August 28, 1969, signed by respondent Nelson, Mr. Kondos was notified that his contract with the West Virginia Board of Regents, successor to the West Virginia Board of Education, was terminated, effective September 30, 1969. Again, the violations allegedly committed by the petitioner were listed. The petitioner sought an appeal from this dismissal to the Board of Regents and on February 4, 1970 was notified by that body that it had confirmed the action of Dr. Nelson and had dismissed his appeal. It is by reason of this action that the petitioner seeks this writ of mandamus.

The petitioner relies on the provisions of Code, 1931, 18A--2--8, as amended, contending that he has been denied due process of law. He reasons that the termination of his contract and dismissal without being afforded a hearing as provided in the aforesaid code section constitutes such violation of his rights.

As indicated in the demurrer filed by the respondents, they take the position that Peter Kondos was serving at the will and pleasure of the Board of Regents and was not legally entitled to a hearing prior to his dismissal from employment. Also, say the respondents, the petitioner was accorded an opportunity to be heard, which he waived.

The sole question presented for decision is whether, under the applicable statutes, the petitioner, prior to his dismissal, was entitled to a hearing before the Board of Regents.

Code, 1931, 18A--2--8, as amended, entitled 'Suspension and dismissal of school personnel by board', provides:

'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...