Woo v. Putnam County Bd. of Educ.

• Citation: 504 S.E.2d 644,202 W.Va. 410
• Decision Date: 24 June 1998
• Docket Number: No. 24631.,24631.
• Court: Supreme Court of West Virginia
• Parties: Matthew J. WOO, Petitioner below, Appellee, v. PUTNAM COUNTY BOARD OF EDUCATION, Respondent below, Appellant.

504 S.E.2d 644

202 W.Va. 410

Matthew J. WOO, Petitioner below, Appellee, v. PUTNAM COUNTY BOARD OF EDUCATION, Respondent below, Appellant.

No. 24631.

Supreme Court of Appeals of West Virginia.

Submitted May 6, 1998.

Decided June 24, 1998.

Mike Kelly, Charleston, for Appellee.

James Allan Colburn, Baer & Colburn, L.C., Huntington, for Appellant.

PER CURIAM:¹

The appellant, Putnam County Board of Education ("the Board"), appeals a March 13, 1997 order of the Circuit Court of Kanawha County that reversed an administrative law judge ("ALJ") decision that upheld the termination of employment of the appellee, Matthew Woo, as a teacher employed by the appellant. We reverse the circuit court's decision and remand this case for reinstatement of the ALJ's decision.

I.

The appellee was employed from 1986 to 1993 by the appellant as a math teacher at Hurricane High School. In February of 1993, appellee was arrested and charged with the felony of sale of a controlled substance, marijuana, to an undercover police operative. Upon learning of appellee's arrest, the Board transferred appellee from his teaching position to a job at the Board office that did not involve regular contact with students.

At his trial in May of 1993, appellee successfully asserted the defense of entrapment and a jury found him not guilty. However, during his testimony appellee admitted that for a couple of years he had smoked marijuana at home in the evenings on a regular basis. He denied any use of marijuana during work hours or school activities and no such use has ever been alleged.

Shortly after appellee was acquitted, in early June of 1993, two local newspaper articles about the appellee's case were published. Almost immediately after the two articles were published, a Hurricane area parent began to circulate petitions that opposed appellee's return to teaching at Hurricane High School.

Thereafter, during the summer of 1993 while the appellee was on summer break, the Board and its counsel exchanged correspondence about appellee's situation, debating what could and should be done about appellee's employment as a teacher, in the wake of appellee's acquittal and his admission of regular marijuana use.

This correspondence was leaked to the media, apparently by someone associated with the Board, and quotations from this correspondence appeared in several news stories in August 1993. The gist of these stories was the Board's likely intent to fire appellee.

On August 30, 1993, the Board met to consider appellee's possible termination. The petitions opposing his teaching at Hurricane (some 700 signatures) were given to the Board. However, the Board decided not to take action on a possible termination and instead directed its counsel to explore the possibility of appellee's transfer to another school. Soon thereafter appellee submitted a request for a transfer to a vacant teaching position in Winfield, another Putnam County school. Although this request was confidential, presumably the fact of the request was leaked, because a new set of petitions against appellee's employment as a school teacher began to circulate in Winfield, and these were delivered to the Board.

On September 24, 1993, the Board sent a letter to appellee regarding appellee's possible dismissal. This letter was also leaked to the press and quoted in a newspaper article.

On October 4, 1993, the Board voted 3-2 to dismiss appellee as a teacher, on the grounds of immorality and intemperance, citing W.Va. Code, 18A-2-8 [1990].²

Appellee grieved his termination, and after a Level IV hearing, a West Virginia Educational Employees Grievance Board ALJ upheld appellee's termination, by order dated June 2, 1994. The Circuit Court of Kanawha County, by order dated March 13, 1997, reversed the ALJ's decision. This is an appeal of that order.

II.

In Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 465 S.E.2d 399 (1995), this Court stated:

This Court reviews appeals from the West Virginia Educational Employees Grievance Board under W.Va.Code, 18-29-7 (1985), which provides that a court may set aside a decision of a hearing examiner for the Board if it is arbitrary, capricious, an abuse of discretion, or contrary to law. Board of Education of the County of Mercer v. Wirt, 192 W.Va. 568, 453 S.E.2d 402 (1994). The scope of review under the arbitrary and capricious standard is narrow, and a court is not to substitute its judgment for that of the hearing examiner. In Randolph County Board of Education v. Scalia, 182 W.Va. 289, 292, 387 S.E.2d 524, 527 (1989), Justice Miller compared the standard of review applicable to a review of an ALJ's decision under W.Va. Code, 18-29-7, to that of an administrative decision under the Administrative Procedures Act, W.Va.Code, 29A-5-4(g) (1964): "Both statutes contain virtually the same criteria for reversal of the factual findings made at the administrative level, i.e., that they are `clearly wrong in view of the reliable, probative and substantial evidence on the record as a whole.'" In reviewing the decision of an ALJ following a Level IV grievance hearing, the circuit court should give deference to such findings. In Syllabus Point 1 of Randolph County Board of Education v. Scalia, supra,

we stated:

A final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuant to W.Va.Code, 18-29-1, et seq. (1985), and based upon findings of fact, should not be reversed unless clearly wrong.

Similarly, in reviewing an ALJ's decision that was affirmed by the circuit court, this Court accords deference to the findings of fact made below. This Court reviews decisions of the circuit under the same standard as that by which the circuit reviews the decision of the ALJ. We must uphold any of the ALJ's factual findings that are supported by substantial evidence, and we owe substantial deference to inferences drawn from these facts. Further, the ALJ's credibility determinations are binding unless patently without basis in the record. Nonetheless, this Court must determine whether the ALJ's findings were reasoned, i.e., whether he or she considered the relevant factors and explained the facts and policy concerns on which he or she relied, and whether those facts have some basis in the record. We review de novo the conclusions of law and application of law to the facts.

195 W.Va. at 304, 465 S.E.2d at 406.

III.

The ALJ determined that the Board had shown that there was a rational nexus between appellee's off-duty conduct outside of his job and his ability to perform that job because of the notoriety which had attached to appellee. Such a rational nexus is required in order to permit a termination for off-duty conduct, under Syllabus Point 2 of Golden v. Bd. of Educ., 169 W.Va. 63, 285 S.E.2d 665 (1981), that states:

In order to dismiss a school board employee for acts performed at a time and place separate from employment, the Board must demonstrate a "rational nexus" between the conduct performed outside of the job and the duties the employee is to perform.

This Court also said in Golden:

The conduct of a teacher ceases to be private in at least two circumstances: (1) if the conduct directly affects the performance of the occupational responsibilities of the teacher; or (2) if, without contribution on the part of the school officials, the conduct has become the subject of such notoriety as to significantly and reasonably impair the capability of the particular teacher to discharge the responsibilities of the teaching position.

169 W.Va. at 69, 285 S.E.2d at 669.

W.Va.Code, 18-29-6 (1992) states, in part: "In any grievance involving disciplinary or discharge actions ... the burden of proof is on the employer...." The Board had the burden of proof to show that there was sufficient notoriety upon which the Board based appellee's termination that was not contributed to by the Board.

The ALJ did find that some of appellee's notoriety was contributed to by the Board— specifically, the notoriety reflected in the later "Winfield" petitions. The ALJ further held that these petitions could not provide evidence of or support a finding of job-related notoriety sufficient to warrant termination.

However, the ALJ also found—upon an extensive record, including testimony by the person circulating the Hurricane petitions— that there was substantial notoriety regarding appellee that was independent of the Board's conduct or contribution.

Specifically, the ALJ concluded that:

Notwithstanding that PCBE [Putnam County Board of Education] "contributed" to the notoriety of

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