v. Docket No. 99-18-538
JACKSON COUNTY BOARD OF EDUCATION,
Respondent.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Jackson County and 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. Any appealing party must advise this office of
the intent to appeal and provide the civil action number so that the record can be prepared
and transmitted to the appropriate court.
__________________________________
Dated: February 4, 2000
Grievant Frank Hughes filed this grievance on July 29, 1999, alleging in his
Statement of Grievance that the Jackson County Board of Education, ("JCBOE") had:
In the posting for a counselor who works primarily with eighth graders and
ninth graders at Ripley Middle School and Ripley High School, the
certification required was "counselor grades 6-12." It is not necessary to be
certified for grade 6 to work with 8th graders. RELIEF SOUGHT: Repost
with the proper requirements. Allow me to interview for the position. I
should be considered.
This grievance was denied at Levels I and II, and waived at Level III. Grievant
appealed to Level IV on September 10, 1999. On November 1, 1999, a hearing was held
in the Grievance Board's Charleston, West Virginia, office on the issue of default. An
Order Denying Default was issued on January 27, 2000. See Hughes v. Jackson County
Bd. of Educ., Docket No. 99-18-387D (Jan. 27, 2000). At the parties request, a hearing
on the merits of this case was also held on November 1, 1999. This grievance became
mature for decision on December 2, 1999, after receipt of Grievant's proposed findings of
fact and conclusions of law. Grievant represented himself, and JCBOE was represented
by Attorney Greg Bailey.
Grievant argued the posting was part of a continuing practice designed to exclude
certain applicants and to pre-select the successful applicant for this counseling position. He maintained the required certification was excessive, as the successful applicant would
spend the majority of the time working with eighth graders in developing their five-year
plans. He noted he had prior experience working with high school students.
Respondent asserted Grievant did not meet the minimum qualifications for the
position, as he did not possess the posted certification. Respondent noted the successful
applicant will occasionally be required to work with sixth graders; and thus, is required to
have a 6-12 certification. Respondent maintained the requirements are essential to the
performance of the position, and they are not irrelevant or pretextual.
(See footnote 1)
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact.
(See footnote 2)
1. Grievant is currently employed as a teacher with JCBOE.
2. In June of 1999, a position for a counselor at Ripley Middle/High School was
posted. This posting listed the required certification as "Counselor 6-12."
3. Grievant's counselor certification is 7-12.
(See footnote 3)
4. Grievant was not considered or interviewed for the position, as he did not
possess the posted and required minimum qualifications.
5. Although the counselor in this position will work primarily with eight graders
in developing their five-year plans, the incumbent will and has worked with sixth graders.
6. No evidence was presented on the qualifications of the successful applicant.
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving his grievance by a preponderance of the evidence. Procedural Rules of the
W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Holly v.
Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell
County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.
Crum v. Mingo County Bd. of Educ., Docket No. 96-29-495 (May 30, 1997).
Grievant did not allege a violation of any statute, rule, regulation, or policy. The
focus of his argument is that since the successful applicant will work primarily with eightgraders, JCBOE's decision to post the position as requiring a Counselor, 6-12 certification
was unnecessary and excessive. Grievant argues JCBOE should repost the position
without requiring a 6-12 counselor certification, and allow him to be considered for the
position with his 7-12 certification.
It is well-settled that [c]ounty boards of education have substantial discretion in
matters relating to hiring, assignments, transferring and promotion of school personnel,
as long as they exercise this discretion reasonably, in the best interests of the schools,
and in a manner which is not arbitrary and capricious. Dillon v. Bd. of Educ. of County of
Wyoming, 177 W. Va. 145, 351 S.E.2d 58 (1986). See Hyre v. Upshur County Bd. of
Educ., 186 W. Va. 267, 412 S.E.2d 265 (1991). The West Virginia Supreme Court of
Appeals has expanded this discretion to matters involving curricular programs and the
qualification and placement of personnel implementing those programs. Cowen v.
Harrison County Bd. of Educ., 195 W. Va. 377, 381, 465 S.E.2d 648, 652 (1995). See
Suan v. Lewis County Bd. of Educ., Docket No. 96-21-269 (Sept. 30, 1997); Mounts v.
Mingo County Bd. of Educ., Docket No. 96-29-476 (June 27, 1997); Bailey v. Mingo
County Bd. of Educ., Docket No. 95-29-346 (Feb. 21, 1996); Crum v. Mingo County Bd.
of Educ., Docket No. 95-29-224 (Feb. 9, 1996); Spaulding v. Mingo County Bd. of Educ.,
Docket No. 95-29-357 (Jan. 31, 1996).
"A board of education's right to set standards is crucial, especially when it desires
to hire the most qualified person for a specific position[,] and the potential field of
applicants may include the most minimally certified or qualified persons." Gilkey v. Brooke
County Bd. of Educ., Docket No. 91-05-489 (June 25, 1992). See Argabright v. WyomingCounty Bd. of Educ., Docket No. 93-55-03 (Apr. 6, 1993). Additionally, "[a] board of
education may identify required certification for a position, as long as this decision is not
arbitrary and capricious or an abuse of discretion." Crawford v. Boone County Bd. of
Educ., Docket No. 94-03-1131 (June 30, 1995); Bradley v. Cabell County Bd. of Educ.,
Docket No. 99-06-128 (June 10, 1999). See Dillon, supra. Thus, unless Grievant can
demonstrate JCBOE's decision to require a Counselor, 6-12 certification was arbitrary and
capricious, this grievance must fail.
"Generally, an action is considered arbitrary and capricious if the agency did not
rely on criteria intended to be considered, explained or reached the decision in a manner
contrary to the evidence before it, or reached a decision that was so implausible that it
cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v.
Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the
Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996). Arbitrary and capricious
actions have been found to be closely related to ones that are unreasonable. State ex rel.
Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as
arbitrary and capricious when "it is unreasonable, without consideration, and in disregard
of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker,
547 F. Supp. 670 (E.D. Va. 1982)). While a searching inquiry into the facts is required to
determine if an action was arbitrary and capricious, the scope of review is narrow, and an
administrative law judge may not simply substitute her judgment for that of a board of
education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283(W. Va. 1982)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-
322 (June 27, 1997).
After a review of all the evidence of record, the undersigned Administrative Law
Judge cannot find JCBOE's decision to require a counselor to be certified to work with all
students at the school is arbitrary and capricious or unreasonable. This decision clearly
falls within the discretion authorized by Dillon and Cowen. Thus, although Grievant would
be allowed to work with the majority of the students at issue, he is not certified to fill the
position as he does not possess the certification posted and required by JCBOE. Gilkey,
supra. See Argabright, supra.
The above-discussion will be supplemented by the following Conclusions of Law.
1. As this grievance does not involve a disciplinary matter, Grievant has the
burden of proving his grievance by a preponderance of the evidence. Procedural Rules
of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Holly
v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v.
McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code
§ 18-29-6.
2. "County boards of education have substantial discretion in matters relating
to hiring, assignment, transfer and promotion of school personnel" as long as they exercise
this discretion "reasonably, in the best interest of the school, and in a manner which is not
arbitrary and capricious." Dillon v. Bd. of Educ. of the County of Wyoming, 177 W. Va.
145, 351 S.E.2d 58 (1986). 3. County boards of education have substantial discretion in matters involving
curricular programs and the qualification and placement of personnel implementing those
programs. Cowen v. Harrison County Bd. of Educ., 195 W. Va. 377, 381, 465 S.E.2d 648,
652 (1995).
4. "A board of education may identify required certification for a position, as
long as this decision is not arbitrary and capricious or an abuse of discretion." Crawford
v. Boone County Bd. of Educ., Docket No. 94-03-1131 (June 30, 1995); Bradley v. Cabell
County Bd. of Educ., Docket No. 99-06-128 (June 10, 1999). See Dillon, supra.
5. An action is arbitrary and capricious if the agency making the decision did
not rely on criteria intended to be considered, explained or reached the decision in a
manner contrary to the evidence before it, or reached a decision that is so implausible that
it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v.
Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the
Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996).
6. Arbitrary and capricious actions have been found to be closely related to
ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534
(1996). An action is recognized as arbitrary and capricious when "it is unreasonable,
without consideration, and in disregard of facts and circumstances of the case." Eads,
supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)).
7. While a searching inquiry into the facts is required to determine if an action
was arbitrary and capricious, the scope of review is narrow, and an administrative law
judge may not simply substitute her judgment for that of a board of education. Seegenerally, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276, 283 (1982); Trimboli v.
W. Va. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 26, 1997).
8. Grievant, who was certified as a Counselor, 7-12, has failed to demonstrate
JCBOE acted in an arbitrary and capricious or unreasonable manner when it required
applicants for the counselor position at Ripley Middle/High School which serves students
in grades 6-12, to be certified in grades 6-12.
9. Grievant did not demonstrate JCBOE actions were part of a continuing
practice designed to preselect the successful applicant.
Accordingly, this grievance is DENIED.
JANIS I. REYNOLDS
Administrative Law Judge
Footnote: 1
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