Triggs v. Berkeley County Bd. of Educ., 20220

• Decision Date: 17 December 1992
• Docket Number: No. 20220,20220
• Court: West Virginia Supreme Court
• Parties: , 80 Ed. Law Rep. 334 Joyce TRIGGS, Appellant v. BERKELEY COUNTY BOARD OF EDUCATION, Appellee of Election Below, Appellee.

Page 111

425 S.E.2d 111

188 W.Va. 435, 80 Ed. Law Rep. 334

Joyce TRIGGS, Appellant v. BERKELEY COUNTY BOARD OF EDUCATION, Appellee of Election

Below, Appellee.

No. 20220.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 15, 1992.

Decided April 2, 1992.

As Modified May 15, 1992.

Concurring and Dissenting Opinion of

Chief Justice McHugh

Dec. 17, 1992.

Syllabus by the Court

1. "The legislative intent expressed in W.Va.Code, 18-29-1 (1985), is to provide a simple, expeditious and fair process for resolving problems." Syllabus Point 3, Spahr v. Preston County Bd. of Educ. 182 W.Va. 726, 391 S.E.2d 739 (1990).

2. Under W.Va.Code, 18-29-3(t) [1985], a county board of education or its superintendent may appeal a grievance decision made by the superintendent's designee at level two or by an independent hearing examiner at level four.

3. W.Va.Code, 18A-4-8b(a) [1983] does not provide clear and unambiguous instruction concerning what happens to the seniority of a person who voluntarily resigns or retires from a public school system and is subsequently reemployed by the same board of education. However, based on the other code provisions dealing with professional employment and the commonly accepted meaning of the term "seniority," the court concludes that the legislature did not intend, upon reemployment, to resurrect the seniority of a person who had voluntarily resigned or retired. Thus, when a teacher resigns from a school system, that teacher loses seniority. That teacher, even if reemployed as a substitute teacher, does not regain even a limited employment preference until the reemployed substitute teacher has been employed in a professional capacity for 133 days or more in any one school year. W.Va.Code, 18A-4-7a [1990].

4. Seniority for professional employees of a county board of education is based on "regular, full-time" professional employment and the only seniority that a substitute teacher can earn is "exclusively for the purpose of applying for employment" and this limited employment preference accrues "[u]pon completion of one hundred thirty-three days of employment in any one school year." W.Va.Code, 18A-4-7a [1990].

5. "Under W.Va.Code, 18A-4-8b(a) (1983), decisions of a county board of education affecting teacher promotions and the filling of vacant teaching positions must be based primarily upon the applicants' qualifications for the job, with seniority having a bearing on the selection process when the applicants have otherwise equivalent qualifications or where the differences in qualification criteria are insufficient to form the basis for an informed and rational decision." Syllabus Point 1, Dillon v. Bd. of Educ. of County of Wyoming, 177 W.Va. 145, 351 S.E.2d 58 (1986).

6. "County boards of education have substantial discretion in matters relating to the hiring, assignment, transfer, and promotion of school personnel. Nevertheless, this discretion must be exercised reasonably, in the best interests of the schools, and in a manner which is not arbitrary and capricious." Syllabus Point 3, Dillon v. Bd. of Educ. of County of Wyoming, 177 W.Va. 145, 351 S.E.2d 58 (1986).

7. Teachers who have voluntarily withdrawn from school employment to raise families or for other reasons have valuable experience that must be taken into consideration when such former teachers reapply for full-time positions in the school system. Under W.Va.Code, 18A-4-7a [1990] (formerly W.Va.Code, 18A-4-8b [1983] ), hiring must always be done on the basis of qualifications, and it is therefore inappropriate to hire new and inexperienced teachers over older, more experienced teachers simply because young personnel are cheaper for the board to hire. However, this general proposition should not discourage a board from hiring young teachers when they are the best qualified applicants.

8. "A board of education making a hiring decision under W.Va.Code, 18A-4-8b(a) [1988], should use its best professional judgment to select the applicant best suited to the needs of the students based on qualifications and evaluations of the applicants' past service. Only when all other factors are equal should a board of education look to seniority." Syllabus Point 4, Bd. of Educ. of the County of Wood v. Enoch, 186 W.Va. 712, 414 S.E.2d 630 (1992).

Lawrence M. Schultz, Askin, Pill, Scales & Burke, L.C., Martinsburg, for appellant.

Richard L. Douglas, Claudia W. Bentley, Bowles Rice McDavid Graff & Love, Martinsburg, for appellee.

NEELY, Justice:

Joyce Triggs, alleging that she was improperly denied employment as a full-time elementary school teacher, appeals the order of the Circuit Court of Berkeley County that refused to award her a full-time position. Because Ms. Triggs did not show that she was the best qualified candidate for a position as a full-time teacher, we affirm the circuit court.

Ms. Triggs was a full-time teacher with the Berkeley County Board of Education from 1960 to 1971, when she resigned. Ms. Triggs, who holds a West Virginia professional certificate with a specialization in elementary education for grades one through eight, was recommended for tenure in a 1963 favorable evaluation and was a tenured teacher from 1963 through 1971. In 1979 and every year thereafter, Ms. Triggs contracted with the Board to be a substitute teacher.

In 1987 Ms. Triggs sought to regain a full-time teaching position and, between 1987 and 1989, Ms. Triggs applied for roughly twenty-nine posted vacancies. Ms. Triggs maintains that she should have been hired because her qualifications in at least three cases were superior to the qualifications of the successful applicant. ¹ Ms. Triggs alleges that even though more than 100 positions became available between 1987 and 1989, she was never interviewed. The three vacancies that Ms. Triggs alleges were filled by applicants with less teaching experience include: a first grade position at Tuscarora School that was awarded to an applicant with no teaching experience in Berkeley County; a second grade position at Berkeley Heights School that was awarded to an applicant with only one year of experience as a substitute teacher; and, another first grade position at Tuscarora School that was awarded to an applicant with no teaching experience.

Alan Canonico, the Board's Assistant Superintendent for Personnel, testified that his office prepared a list of the applicants with the appropriate certification for each vacancy. The list, which was given to the principal of the school where the vacancy existed, indicated the applicant's status as a regular employee, a substitute teacher, or a prospective employee. The selection from the list was made by the principal, after which the superintendent and the board usually approved the principal's recommendation. Mr. Canonico did not know why Ms. Triggs was not interviewed for the three vacancies for which she had more experience than the successful applicants, nor could he explain how the principals reached their hiring decisions. ² Mr. Canonico did note that the successful applicants had taught, either as student or substitute teachers, in the school where they were hired.

Ms. Triggs filed a grievance and a level two hearing was conducted by Craig Manford, the superintendent's designee. Mr. Manford found that Ms. Triggs was entitled to a full-time position and recommended that she be offered employment at the next possible opportunity. Both the Board and Ms. Triggs appealed the decision; however, Ms. Triggs' appeal was limited to the issue of back pay. The Board waived the matter to level four. After the level four hearing examiner of the West Virginia Education and State Employees Grievance Board found Ms. Triggs was not entitled to full-time employment, Ms. Triggs appealed to the Circuit Court, which upheld the level four decision. Ms. Triggs now appeals here alleging that the Board cannot appeal an unfavorable decision made by a superintendent's designee and that she was improperly denied a full-time position and back pay.

I.

First, Ms. Triggs argues that the Board of Education cannot appeal the level two decision granting her employment made by the superintendent's designee under W.Va.Code, 18-29-4 [1985], the statute establishing the grievance levels and procedures.

The grievance procedures set out in W.Va.Code, 18-29-1 et seq. [1989], "are to be given a flexible interpretation in order to carry out the legislative intent." Spahr v. Preston County Bd. of Educ., 182 W.Va. 726, 391 S.E.2d 739, 743 (1990). See Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245, 249 (1990) (discussing procedural issues under the W.Va. Human Rights Act); Duruttya v. Bd. of Educ. of County of Mingo, 181 W.Va. 203, 382 S.E.2d 40 (1989). In Syllabus Point 3, Spahr supra, we said:

The legislative intent expressed in W.Va.Code, 18-29-1 (1985), is to provide a simple, expeditious and fair process for resolving problems.

The first hearing ³ in this matter was conducted by a designee of the superintendent under W.Va.Code, 18-29-4(b) [1985], which states:

Within five days of receiving the decision of the immediate supervisor, the grievant may appeal the decision to the chief administrator, and such administrator or his or her designee shall conduct a hearing in accordance with section six [§ 18-29-6] of this article within five days of receiving the appeal and shall issue a written decision within five days of such hearing. Such decision may affirm, modify or reverse the decision appealed from. [Emphasis added.]

An appeal of the level two decision by the grievant is allowed under W.Va.Code, 18-29-4(c) [1985], which states in pertinent part:

Except as to faculty and classified employees of the board of regents or any state institution of higher education who shall have the option to proceed directly to level four, within five days of receiving the decision of the chief administrator, the grievant may appeal the decision to the governing board of the institution. ⁴...