JAMES F. SHORTS,

                  Grievant,

v.                                                       DOCKET NO. 00-41-228

RALEIGH COUNTY BOARD OF EDUCATION,

                  Respondent.


DECISION

      James F. Shorts (Grievant) alleges that Raleigh County Board of Education (RCBE) improperly selected another employee for a summer bus operator position. This grievance was denied at Level I by Ronald L. Cobb on June 9, 2000. A Level II hearing was held on June 26, 2000. Grievant was represented at this hearing by Kimberly Levy, Esq. of the West Virginia School Service Personnel Association and Arnold W. Ryan. This grievance was denied at Level II by RCBE Superintendent Dwight D. Dials on July 6, 2000. Proceedings at Level III were apparently bypassed pursuant to W. Va. Code § 18-29-4(c).       A Level IV hearing was held on September 13, 2000, before the undersigned Administrative Law Judge, at the Grievance Board's Beckley office. Grievant was again represented by Ms. Levy, and RCBE was represented by Erwin Conrad, Esq. The parties were given until October 17, 2000, to submit proposed findings of fact and conclusions of law, both parties did so, and this grievance became mature for decision on that date. The following Findings of Fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.
                         FINDINGS OF FACT      1.       Grievant is employed by RCBE as a bus operator.
      2.      In the spring of 2000, RCBE posted a vacancy for a bus operator in its Special Education Extended Year Program.
      3.      Grievant and successful applicant Randall Milam (Milam) applied for the position.
      4.      Neither Grievant nor Milam had been a bus operator in the Special Education Extended Year Program the previous summer.
      5.      Grievant had more overall bus operator seniority than Milam, and had three days of summer substitute bus operator seniority, dating from the late 1980s.
      6.      Milam had at least nine years of summer bus operator seniority.       
      7.      Since the 1980s, RCBE has had several different summer programs requiring summer bus operators. It has traditionally filled those positions by considering summer bus operator seniority.
DISCUSSION

      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. A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's LawDictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      Grievant alleges that he should have been selected for the bus operator position in RCBE's Special Education Extended Year Program, and argues that his non-selection violated W. Va. Code §§ 18-5-39 and 18A-4-8b. RCBE responds that it has traditionally filled those positions by considering summer bus operator seniority, and that Milam had more such seniority than Grievant.   (See footnote 1) 
      W. Va. Code § 18-5-39 states, in pertinent part: “[a]n employee who was employed in any service personnel job or position during the previous summer shall have the option of retaining the job or position if the job or position exists during any succeeding summer. If the employee is unavailable or if the position is newly created, the position shall be filled pursuant to section eight-b [§ 18A-4-8b], article four, chapter eighteen-a of this code.”
      There is little disagreement about the facts in this grievance, and a preponderance of the evidence demonstrates that RCBE was acting within its discretion when it selected Milam as a bus operator in its Special Education Extended Year Program.
       As neither Grievant nor Milam had been a bus operator in the Special Education Extended Year Program the previous summer, neither was entitled to the position during the summer of 2000 pursuant to W. Va. Code § 18-5-39.       “County boards of education have substantial discretion in matters relating to the hiring, assignment, transfer, and promotion of school personnel so long as the discretion is exercised reasonably, in the best interests of schools, and in a manner which is not arbitrary and capricious.” Syl. Pt. 3, Dillon v. Bd. of Educ., 177 W. Va. 145, 351 S.E.2d 58 (1986).
       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).
      The credible evidence of record in this grievance shows that RCBE has traditionally filled its summer bus operator positions by considering summer seniority. This practice has been accepted by this Grievance Board. Panrell v. Monongalia County Bd. of Educ., Docket No. 96-30-408 (Apr. 25, 1997). Milam had at least nine years of summer bus operator seniority, compared to Grievant's three days, and so was selected by RCBE.
      Under these circumstances, the undersigned concludes that relevant factors were considered by RCBE in reaching its decision, and cannot conclude that there has been a clear error of judgment. Bowman, supra. Respondent's policy of filling its summer bus operator positions by considering summer seniority was not arbitrary and capricious.      Accordingly, Grievant failed to prove, by a preponderance of the evidence, that he should have been selected for the position of bus operator in RCBE's Special Education Extended Year Program. Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
CONCLUSIONS OF LAW
      1.      Grievant bears 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. A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993).
      2.      “County boards of education have substantial discretion in matters relating to the hiring, assignment, transfer, and promotion of school personnel so long as the discretion is exercised reasonably, in the best interests of schools, and in a manner which is not arbitrary and capricious.” Syl. Pt. 3, Dillon v. Bd. of Educ., 177 W. Va. 145, 351 S.E.2d 58 (1986).
       3.      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. BowmanTransp. 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).
      4.      Respondent's policy of filling its summer bus operator positions by considering summer seniority was not arbitrary and capricious.
      5.      Grievant failed to prove, by a preponderance of the evidence, that he was improperly denied the position of bus operator in RCBE's Special Education Extended Year Program.
      Accordingly, the grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Raleigh 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.

                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE
Dated November 13, 2000


Footnote: 1
            RCBE's denial of this grievance at Level II was based upon a conclusion that a reduction in force had occurred. However, this was not established by a preponderance of the evidence, and Grievant's argument that his non-selection violated W. Va. Code §18A-4-8b is rejected.