DORETTA WALKER,

      Grievant,

v.                                                      Docket No. 99-17-520

HARRISON COUNTY BOARD OF EDUCATION,

      Respondent,

and

CAROLE CRAWFORD,

      Intervenor.

DECISION

      Doretta Walker (“Grievant”) initiated this grievance on September 2, 1999, challenging Respondent Harrison County Board of Education's (“HCBOE”) selection of Carole Crawford (“Intervenor”) to fill a fourth grade teaching position at Norwood Elementary School. A level two hearing was held on October 20, 1999.   (See footnote 1)  The grievance was denied in a written level two decision dated December 10, 1999. Level three consideration was bypassed, and Grievant appealed to level four on December 13, 1999. A level four hearing was held in the Grievance Board's office in Morgantown, West Virginia, on March 3, 2000. Grievant was represented by William White of the West Virginia Education Association; HCBOE was represented by counsel, Basil Legg; and Intervenor was represented by counsel, Darrell Ringer. This matter became mature for consideration upon receipt of the parties' fact/law proposals on April 4, 2000.
      The following findings of fact are made from a preponderance of the evidence ofrecord.

Findings of Fact

      1.      Grievant has been employed by HCBOE as a classroom teacher for 15 years.
      2.      Intervenor has been employed by HCBOE as a classroom teacher for nine years.
      3.      On July 26, 1999, HCBOE posted a vacancy for a fourth grade teacher at Norwood Elementary School. The posting contained the language “[t]he WV Blue Ribbon Commission on Early Childhood is a part of the interview process. It is available at the Central Office, personnel department for review.”
      4.      The West Virginia Blue Ribbon Commission on Early Childhood was a 30- member commission of various persons who were asked in the early 1990's to recommend to the West Virginia Board of Education “initiatives for the future of West Virginia's children.” As a result of their deliberations, the Commission issued a 20-page pamphlet (“the Blue Ribbon Report”), which identifies and discusses fifteen recommendations to the Department of Education for improving early childhood education. L II, Board Exhibit 1.
      5.      The qualifications of four applicants, including Grievant and Intervenor, were evaluated by Norwood Principal Phil Brown, utilizing the seven criteria set forth in the “second set of factors” in W. Va. Code § 18A-4-7a. After his initial assessment, Mr. Brown found Intervenor to be the most qualified candidate.
      6.      Pursuant to Mr. Brown's initial assessment, both Grievant and Intervenor received credit for certification/licensure, satisfactory evaluations and specialized training. Grievant received additional credit in the category of seniority,and Intervenor received credit in the areas of total amount of teaching experience, existence of teaching experiencein the required certification area, and degree level. Accordingly, Grievant had four points, and Intervenor had six points.
      7.      Robert Skidmore, HCBOE's Administrative Liaison, discovered that Mr. Brown had made errors in assessing two of the statutory criteria, so he directed Mr. Brown to again assess the candidates. Mr. Brown had incorrectly assessed the categories of amount of teaching experience and specialized training.   (See footnote 2) 
      8.      In order to assess the candidates' qualifications in the area of specialized training, Mr. Brown convened an interview committee. Each applicant was asked five questions which quoted language from the Blue Ribbon report, asking what specific training the applicant had which would pertain to the particular subject matter quoted.
      9.      After the second assessment of qualifications, Grievant received credit for total amount of teaching experience and seniority. Intervenor received credit in the areas of existence of teaching experience in the required certification area, degree level, and specialized training. Grievant received credit for total amount of teaching experience and seniority.
      10.      Intervenor was again recommended for the position and was approved by HCBOE on August 10, 1999.
      11.      During his tenure as Administrative Liaison, Mr. Skidmore usually recommended the employee with the most seniority when two or more candidates “tied” in qualifications assessed under the statutory criteria of W. Va. Code § 18A-4-7a, and HCBOE accepted his recommendations. Mr. Skidmore resigned from his position afterIntervenor was selected for the position at issue in this grievance.
      
Discussion

      In a non-selection grievance, Grievant bears the burden of proving, by a preponderance of the evidence, that she should have been selected for a particular position rather than another applicant, by establishing that she was the more qualified applicant, or that there was such a substantial flaw in the selection process that the outcome may have been different if the proper process had been used. 156 C.S.R. § 4.19 (1996); Black v. Cabell County Bd. of Educ., Docket No. 89-06-707 (Mar. 23, 1990); Lilly v. Summers County Bd. of Educ., Docket No. 90-45-040 (Oct. 17, 1990), aff'd Cir. Ct. of Kanawha County, No. 90-AA-181 (Mar. 25, 1993). See also, W. Va. Code §18-29-6. "The grievance procedure . . . allows for an analysis of legal sufficiency of the selection process at the time it occurred." Stover v. Kanawha County Bd. of Educ., Docket No. 89-20-75 (June 26, 1989). This analysis must acknowledge that county boards of education have substantial discretion in matters relating to the hiring of school personnel, so long as the "qualifying factors" set forth in W. Va. Code §18A-4-7a are considered, and the exercise of discretion is neither arbitrary nor capricious. Cummings v. Lincoln County Bd. of Educ., Docket No. 97-22-324 (Dec. 3, 1997). See Hyre v. Upshur County Bd of Educ., 186 W. Va. 267, 412 S.E.2d 265 (1991).
      The arbitrary and capricious standard of review requires a searching and careful inquiry into the facts; however, the scope of review is narrow, and an administrative law judge may not substitute her judgment for that of the board of education. See generally, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982). An action is arbitrary or capricious if it does not rely on factors intended to be considered, entirely ignores importantaspects of the problem, is explained in a manner contrary to the evidence before the board of education, or is a decision so implausible that it cannot be ascribed to a difference of view. Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985).
      As both applicants were permanently employed instructional personnel, the selection process in this instance was governed by the "second set of criteria" found in W. Va. Code §18A-4-7a:

      Grievant contends that, after Mr. Brown's initial assessment in the category of total amount of teaching experience was corrected, she and Intervenor were “tied,” with each having been given credit in five statutory categories. Therefore, pursuant to Mr. Skidmore's past practice, the tie should have been broken in Grievant's favor, as the more senior employee. She argues that HCBOE's reassessment of specialized training was improper, because the required specialized training was not stated in the job posting. Accordingly, if Intervenor had not been given credit for the specialized training criterion after the interviews and reassessment, she and Grievant would have been tied.
      HCBOE contends that the statement that the Blue Ribbon Commission would be “part of the interview process” was sufficient to notify applicants that familiarity with the components of the Blue Ribbon Report was required as “specialized training.” Because, during her interview, Intervenor discussed training and workshops which HCBOE deemedto be relevant to the goals stated in the Blue Ribbon Report, she was properly credited in the specialized training category. HCBOE argues that no tie occurred in this case. However, if one had occurred, Respondent does not believe it is bound by Mr. Skidmore's past practice of breaking ties by seniority.
      This Grievance Board has previously held that a generic job description applicable to all classroom teaching positions does not sufficiently notify applicants of the specialized training required for the position, so consideration of that criterion was improper. Hall v. Mercer County Bd. of Educ., Docket No. 96-27-175 (April 30, 1997). Citing prior Grievance Board decisions, the administrative law judge in Hall, supra, noted:

      In the instant case, the applicants were questioned regarding broad educational goals stated in the Blue Ribbon Report, such as “[d]escribe the training you have had in the use of instructional materials for classroom teaching,” and “[d]escribe the training you have had helping 'families with guidance and support on how to foster their child's formal school learning.'” L IV, Resp. Exhibit 1. The Blue Ribbon Report itself is a 20-page document which purports to state broad-ranging goals for the Department of Education, containing objectives such as “[i]mprove the knowledge and skills of personnel in early childhood programs and child care facilities.”
      The undersigned finds that including familiarity with the Blue Ribbon Report in the posting did not sufficiently notify the applicants as to what specialized training was required for this position. Requiring knowledge of a document containing various educational goalsfor the State Department of Education and any training which might be pertinent to the information in that document is similar to “a reference to any training assisting in performing generic teaching duties” which was found insufficient to allow consideration of this criterion in Hall, supra. Accordingly, HCBOE should not have considered the specialized training criterion in this case.
      Without the specialized training component, Grievant and Intervenor would be tied under the remaining statutory criteria. However, Respondent contends that, if a tie did occur, this case should be remanded to the board of education so that the tie can be broken. The West Virginia Supreme Court of Appeals has held that it is within the sound discretion of boards of education to resolve ties between candidates, utilizing the selection process set forth in W. Va. Code § 18A-4-7a. State ex rel. Monk v. Knight, 201 W.Va. 535, 499 S.E.2d 35 (1997). However, Grievant argues that HCBOE should be bound by its prior practice of breaking ties by seniority. Because no specific tie-breaking method is mandated by the statute, experience and seniority are reasonable bases for making such decisions. Any tie-breaking method utilized should be assessed under the arbitrary and capricious standard pronounced in Dillon, supra. Cummings v. Lincoln County Bd. of Educ., Docket No. 97-22-324 (Dec. 3, 1997).
      Ms. Brisbin testified that she had spoken with Mr. Skidmore, who confirmed that he utilized seniority as the tie-breaking criterion in the past. In fact, this Grievance Board has previously recognized HCBOE's practice of breaking ties by seniority. See Belcher v. Harrison County Bd. of Educ., Docket No. 97-17-389 (Dec. 9, 1997). Respondent contends that it has no written policy on this subject, and that it was merely Mr. Skidmore's personal practice to utilize this method. However, the board approved Mr. Skidmore'srecommendations, thus giving approval to his selection process.
      When a board of education establishes hiring procedures, it is bound by these practices. State ex rel. Hawkins v. Tyler County Bd. of Educ., 166 W. Va. 363, 275 S.E.2d 908 (1981); Tallman v. Wetzel County Bd. of Educ., Docket No. 52-86-270-3 (Mar. 20, 1987). It is likewise well established that "[a]n administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs." Syl. Pt. 1, Powell v. Brown, 160 W. Va. 723, 238 S.E.2d 220 (1977). See Bailey v. W. Va. Dept. of Transp., Docket No. 94-DOH-389 (Dec. 20, 1994); Wright v. McDowell County Bd. of Educ., Docket No. 93-33-115 (Nov. 30, 1993). In Spolarich v. Wyoming County Board of Education, Docket No. 99-55-452 (Dec. 23, 1999), it was held that a board of education was bound by the unwritten selection criteria it had used for similar positions in the past, as enunciated by the person making the selection recommendation. It was found to be an arbitrary and capricious decision, indicating an abuse of discretion, for the board to fail to employ the selection process in place at the time of the hiring decision at issue.
      Accordingly, the undersigned finds that, because seniority was the tie-breaking factor utilized by HCBOE at the time of the hiring decision in this case, it is bound by its established selection process. Utilizing that method for breaking the tie that occurred between Grievant and Intervenor, Grievant should have been awarded the teaching position at Norwood Elementary, because she had more seniority than Intervenor. However, because the end of the school year is so close, it may not be in the best interests of the elementary school students to place a new teacher in their classroom at this time, after they have become used to Intervenor. Therefore, although Grievant should have been placed in the position at the beginning of the 1999-2000 school year, HCBOE is notrequired to allow her to assume the position until the beginning of the 2000-2001 school year. If there is any difference between Grievant's present salary and the salary she would have received in the position at issue for the current school year, she is entitled to that back pay, along with credit for seniority and other benefits since the beginning of the 1999- 2000 school year, as if she had served in the position at Norwood Elementary. Respondent must then allow Grievant to assume the fourth grade position at the beginning of the new school year.
      Consistent with the foregoing findings and discussion, the following conclusions of law are appropriate.
      
Conclusions of Law

      1.      In a non-selection grievance, Grievant bears the burden of proving, by a preponderance of the evidence, that she should have been selected for a particular position rather than another applicant, by establishing that she was the more qualified applicant, or that there was such a substantial flaw in the selection process that the outcome may have been different if the proper process were used. 156 C.S.R. §4.19 (1996); Black v. Cabell County Bd. of Educ., Docket No. 89-06-707 (Mar. 23, 1990); Lilly v. Summers County Bd. of Educ., Docket No. 90-45-040 (Oct. 17, 1990), aff'd Cir. Ct. of Kanawha County, No. 90-AA-181 (Mar. 25, 1993).
      2.      The selection process in this case is governed by the "second set of criteria" found in W. Va. Code § 18A-4-7a.
      3.      An action is arbitrary or capricious if it does not rely on factors intended to be considered, entirely ignores important aspects of the problem, is explained in a manner contrary to the evidence before the board of education, or is a decision so implausible thatit cannot be ascribed to a difference of view. Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985).
      4.      A reference to generic training requirements is insufficient to allow consideration of the specialized training criterion under the second set of factors set forth in W. Va. Code § 18A-4-7a. Hall v. Mercer County Bd. of Educ., Docket No. 96-27-175 (April 30, 1997). See Sisk v. Mercer County Bd. of Educ., Docket No. 95-27-113 (Sept. 22, 1995), app. den'd, Civil Action No. 95-CV-777 (Mercer County Circuit Court).
      5.      Grievant established by a preponderance of the evidence that Respondent improperly considered the specialized training criterion in making the selection decision in this case.      
      6.      A board of education has substantial discretion in determining a tie-breaking method to be employed where applicants for a professional position are tied under the selection criteria set forth in W. Va. Code §18A-4-7a. State ex rel. Monk v. Knight, 201 W.Va. 535, 499 S.E.2d 35 (1997).
      7.      When a board of education establishes hiring procedures, it is bound by these practices. State ex rel. Hawkins v. Tyler County Bd. of Educ., 166 W. Va. 363, 275 S.E.2d 908 (1981); Tallman v. Wetzel County Bd. of Educ., Docket No. 52-86-270-3 (Mar. 20, 1987).
      8.      HCBOE is bound by its established practice of breaking ties by seniority, which policy had not been changed at the time Intervenor was selected for the teaching position at issue.
      9.      As the applicant with the most seniority, Grievant is entitled to the fourth grade teaching position at Norwood Elementary School.
      Accordingly, this grievance is GRANTED, and Grievant is entitled to the relief discussed above.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or the Circuit Court of Harrison 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. 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 Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

Date:      April 19, 2000                         ________________________________
                                                DENISE M. SPATAFORE
                                                Administrative Law Judge

      


Footnote: 1
      The record does not reflect what occurred at level one of the grievance process.
Footnote: 2
      All parties agree that the initial assessment in these two categories was contrary to the provisions of the statute.