KATHY HUDSON,
Grievant,
v. Docket No. 00-20-234
KANAWHA COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Kathy Hudson, filed this grievance when the Kanawha County Board of
Education ("KBOE") placed her on transfer. The statement of grievance reads:
Grievant was employed by the Respondent as an itinerant autism
mentor/teacher's aide at Point Harmony Elementary during the 1999-2000
school year. Grievant was employed in this position pursuant to a posting
advertising multi-school special education aides. Grievant was
recommended for transfer for the 2000-01 school year. Grievant contends
that she should not have been recommended and approved for transfer as
the need for an autism mentor continues to exist at Point Harmony. Grievant
alleges a violation of West Virginia Code § 18A-2-7 and additionally alleges
that the Respondent's actions in approving her transfer were arbitrary and
capricious.
(See footnote 1)
As relief Grievant seeks to be returned to her former assignment.
The following Findings of Fact are made from the evidence presented at Levels II
and IV.
FINDINGS OF FACT
1. During the 1999-2000 school year, Grievant was employed by KBOE as an
itinerant special education aide. Grievant was placed in this position after she bid on theposition. There were 17.5 such positions available in the posting. The posting, dated
September 22, 1999, stated, [t]hese are full-time itinerant regular positions which will be
eliminated at the end of the 1999-2000 school year. Only one regular employee applied
for these positions. Grievant was employed as a substitute when she bid on the position.
2. On October 25,1999, Grievant was assigned to work with an autistic student
at Point Harmony Elementary School. She has the training necessary to be an autism
mentor.
3. By letter dated March 21, 2000, Grievant was notified that, pursuant to
W.
Va. Code § 18A-2-7, she was being considered for transfer and subsequent reassignment.
The letter stated that the reason for the proposed transfer was, [t]he itinerant multi-school
position to which you are assigned will be eliminated at the end of the current school year.
4. Grievant requested a hearing before KBOE. That hearing was held on April
5, 2000. KBOE placed Grievant on the transfer list.
5. The child Grievant was assisting at Point Harmony Elementary School will
be attending that school in the coming year, and continues to need the assistance of an
aide.
6. On May 23, 2000, Grievant's former position was posted as an Itinerant
Autism Mentor, 200 days, full day, Point Harmony Elementary. Grievant applied for the
position. As of the date of the Level II hearing, that position had not been filled, but more
senior employees had applied for the position.
DISCUSSION
Grievant bears the burden of proving the elements of her grievance by a
preponderance of the evidence.
Tibbs v. Mercer County Bd. of Educ., Docket No. 96-27-
074 (Oct. 31, 1996). In this case, Grievant must demonstrate that her transfer was an
abuse of discretion or arbitrary and capricious.
"County boards of education have broad discretion in personnel matters, including
transfers, but must exercise that discretion in a manner which is not arbitrary or
capricious."
Dodson v. McDowell County Bd. of Educ., Docket No. 93-33-243 (Feb. 15,
1994). Transfer decisions "are based on the needs of the school, as decided in good faith
by the superintendent and the board. [
State ex rel.] Hawkins v. Tyler County Bd. of Educ.,
166 W. Va. 363, 275 S.E.2d [908 (1980)], and
Post [
v. Harrison County Bd. of Educ.,
Docket No. 89-17-355 (Feb. 20, 1990)].
See Jochum v. Ohio County Bd. of Educ., Docket
No. 91-35-396 (Jan. 31, 1992)."
Stewart, et al., v. Kanawha County Bd. of Educ., Docket
No. 96-20-370 (Jan. 31, 1997). No statutory limitations have been placed on the
superintendent's authority to transfer school personnel. The power to transfer employees
must be exercised reasonably and in the best interests of school systems and may not be
exercised arbitrarily or capriciously.
State ex. rel. Hawkins [
supra];
see also,
Wellman v.
Mercer County Bd. of Educ., Docket No. 95-27-327/300 (Nov. 30, 1995).
Eckenrode v.
Kanawha County Bd. of Educ., Docket No. 96-20-302 (Jan. 22, 1997). An employee . .
. has no vested right to any particular assignment within the county school system.
State
ex rel. Hawkins [
supra];
Cawthon [v. Lewis County Bd. of Educ., Docket No 21-87-244-2
(Feb. 16, 1988)].
Gunnells v. Mingo County Bd. of Educ., Docket No. 97-29-398 (Dec. 10,
1997).
The evaluation of a personnel decision under the arbitrary and capricious standard
entails close examination of the process used to make the decision. Considerable
deference must be afforded the professional judgment of those who made the decision.
Cowen v. Harrison County Bd. of Educ., 195 W. Va. 377, 465 S.E.2d 648 (1995).
Baird
v. Kanawha County Bd. of Educ., Docket No. 95-20-445 (Sept. 16, 1996). "In applying the
'arbitrary and capricious' standard, a reviewing body applies a narrow scope of review,
limited to determining whether relevant factors were considered in reaching that decision
and whether there has been a clear error of judgment.
Bowman Transp. v. Arkansas-Best
Freight System, 419 U.S. 281, 285 (1974);
Harrison v. Ginsberg, 169 W. Va. 162, 286
S.E.2d 276 (1982). Moreover, a decision of less than ideal clarity may be upheld if the
agency's path in reaching that conclusion may reasonably be discerned.
Bowman,
supra,
at 286."
Hill and Cyrus v. Kanawha County Bd. of Educ., Docket No. 96-20-362 (Jan. 30,
1997).
Grievant argued KBOE's action was arbitrary and capricious because she had
sufficient seniority in the aide classification to continue to be employed by KBOE as a
regular employee, the position continues to exist, and the autistic student was doing well
with Grievant as the aide.
KBOE believes that Grievant has done a fine job as an autism mentor, the parents
were pleased with her, and readily admits that the position is still needed, and has in fact
been posted again. KBOE simply believes that the position had to be posted because the
original posting stated that the position was for one year only. KBOE felt that this limitation
in the first posting may have prevented some employees from bidding on the position, and
in fairness to the other employees, the position should be reposted. Grievant responded
that the one year limitation in the posting was unimportant because no employee is
guaranteed employment beyond one year.
The undersigned is not convinced that employees view their employment to be so
temporary when deciding whether to bid upon a posted position. The position held by
Grievant was clearly posted as a one year position, and she was on notice from the very
beginning that her employment in this position would end after one year. Grievant had noproblem with the terms of the posting when she received the position, even though she
was then working as a substitute, and had little to no regular seniority. It should have
come as no surprise to Grievant that she was placed on transfer, and the position posted
at the end of the school year. Karen Williams, Coordinator of Human Resources for
Kanawha County Schools, testified that 10 to 15 employees called to inquire about the
17.5 itinerant special education aide positions, and when they were told the positions were
for a period of one year only, they did not apply.
Not only was KBOE's decision to place Grievant on transfer and repost the position
reasonable, once KBOE posted the position as a one year position, it was bound by that
condition, or bound to repost the [position] correctly so that other school service personnel
would not be misled, and could make an informed decision as to whether to bid on [this
position].
Conley/Farley v. Logan County Bd. of Educ., Docket No. 98-23-425 (Feb. 3,
1999).
See Underwood v. Marion County Bd. of Educ., Docket No. 94-24-535 (Jan. 30,
1995).
The following Conclusions of Law support the Decision reached.
CONCLUSIONS OF LAW
1. The burden of proof is upon Grievant to prove the elements of her grievance
by a preponderance of the evidence.
Tibbs v. Mercer County Bd. of Educ., Docket No. 96-
27-074 (Oct. 31, 1996).
2. An employee . . . has no vested right to any particular assignment within the
county school system.
State ex rel. Hawkins v. Tyler County Bd. of Educ., [166 W. Va.
363], 275 S.E.2d 908 (W. Va. 1980);
Cawthon [v. Lewis County Bd. of Educ., Docket No
21-87-244-2 (Feb. 16, 1988)].
Gunnells v. Mingo County Bd. of Educ., Docket No. 97-29-
398 (Dec. 10, 1997).
3. "County boards of education have broad discretion in personnel matters,
including transfers, but must exercise that discretion in a manner which is not arbitrary orcapricious."
Dodson v. McDowell County Bd. of Educ., Docket No. 93-33-243 (Feb. 15,
1994). Transfer decisions "are based on the needs of the school, as decided in good faith
by the superintendent and the board.
[State ex rel.] Hawkins,[
supra], and
Post [
v. Harrison
County Bd. of Educ., Docket No. 89-17-355 (Feb. 20, 1990)].
See Jochum v. Ohio County
Bd. of Educ., Docket No. 91-35-396 (Jan. 31, 1992)."
Stewart, et al., v. Kanawha County
Bd. of Educ., Docket No. 96-20-370 (Jan. 31, 1997). No statutory limitations have been
placed on the superintendent's authority to transfer school personnel. The power to
transfer employees must be exercised reasonably and in the best interests of school
systems and may not be exercised arbitrarily or capriciously.
State ex. rel. Hawkins[,
supra];
see also,
Wellman v. Mercer County Bd. of Educ., Docket No. 95-27-327/300 (Nov.
30, 1995).
Eckenrode v. Kanawha County Bd. of Educ., Docket No. 96-20-302 (Jan. 22,
1997).
4. The evaluation of a personnel decision under the arbitrary and capricious
standard entails close examination of the process used to make the decision.
Considerable deference must be afforded the professional judgment of those who made
the decision.
Cowen v. Harrison County Bd. of Educ., 195 W. Va. 377, 465 S.E.2d 648
(1995).
Baird v. Kanawha County Bd. of Educ., Docket No. 95-20-445 (Sept. 16, 1996).
"In applying the 'arbitrary and capricious' standard, a reviewing body applies a narrow
scope of review, limited to determining whether relevant factors were considered in
reaching that decision and whether there has been a clear error of judgment.
Bowman
Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974);
Harrison v. Ginsberg,
169 W. Va. 162, 286 S.E.2d 276 (1982). Moreover, a decision of less than ideal clarity
may be upheld if the agency's path in reaching that conclusion may reasonably be
discerned.
Bowman,
supra, at 286."
Hill and Cyrus v. Kanawha County Bd. of Educ.,
Docket No. 96-20-362 (Jan. 30, 1997).
5. Once KBOE posted the position held by Grievant as a one year position,itwas bound by that condition, or bound to repost the [position] correctly so that other school
service personnel would not be misled, and could make an informed decision as to
whether to bid on [this position].
Conley/Farley v. Logan County Bd. of Educ., Docket No.
98-23-425 (Feb. 3, 1999).
See Underwood v. Marion County Bd. of Educ., Docket No. 94-
24-535 (Jan. 30, 1995).
6. KBOE did not abuse its discretion or act in an arbitrary and capricious
manner in placing Grievant on transfer.
Accordingly, this grievance is DENIED.
Any party may appeal this Decision to the Circuit Court of Kanawha County. Any
such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code
§18-29-7. Neither the West Virginia Education and State Employees Grievance Board nor
any of its Administrative Law Judges is a party to such appeal, and should not be so
named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve
a copy of the appeal petition upon the Grievance Board. The appealing party must also
provide the Grievance Board with the civil action number so that the record can be
prepared and transmitted to the circuit court.
BRENDA L. GOULD
Administrative Law Judge
Dated: September 27, 2000
Footnote: 1