v. Docket No. 00-30-112
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent,
and
EMILY M. SWEITZER,
Intervenor.
4. Five of the fifteen applicants were initially interviewed by a committee
composed of administrators, teachers, and parents from Brookhaven Elementary and
South Middle Schools.
5. MCBOE Superintendent Michael Vetere and Assistant Superintendent Jacob
Mullett conducted second interviews for three of the applicants, including Grievant and
Intervenor, and completed an Applicant Screening Form on which they allocated points in
seven areas: certification, relevant experience, amount of course work and degree levelin the relevant field, degree level generally, specialized training, and measures or
indicators of relative qualifications. This last area was composed of eight categories:
Leadership/Managerial Skills; Knowledge of Curriculum and Educational Innovations;
Knowledge of Instructional Practices; Communication Skills, including Public/Community
Relations; Interpersonal Skills; Knowledge of Student Support Programs; Knowledge of
Program/Staff Development and Evaluation; and, Overall Presence.
6. Both Grievant and Intervenor were determined to hold the appropriate
certification, and neither had any prior administrative experience; however, Intervenor was
rated slightly higher than Grievant in the amount of course work and degree level in the
relevant field, in degree level generally, and in specialized training. Intervenor was rated
significantly higher than Grievant in measures or indicators of relative qualifications.
7. Grievant has earned Masters degrees in Education Administration and
Counseling and Guidance. He holds what is generally referred to as a Taco Bell
administrative certificate which includes the classifications of Principal, grades K-8, and
5-12, Superintendent K-12, Supervisor of General Instruction K-12, and Vocational
Administration 5-Adult.
8. Intervenor has earned an Ed.D. in Educational Psychology and on the date
of the level four hearing held a Permit from the West Virginia Department of Education for
the position of Principal, grades K-9.
9. Superintendent Vetere recommended, and MCBOE approved, Intervenor for
the position of Assistant Principal, effective January 19, 2000.
"County boards of education have substantial discretion in matters relating to the
hiring, assignment, transfer, and promotion of school personnel. Nevertheless, this
discretion must be exercised reasonably, in the best interests of the 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). The selection of candidates for administrative positions is not
simply a mechanical or mathematical process. See Tenney v. Bd. of Educ., 183 W. Va.632, 398 S.E.2d 114 (1990); Villers v. Kanawha County Bd. of Educ., Docket No.
97-20-294 (Jan. 30, 1998). Further, the grievance procedure in W. Va. Code §§18-29-1,
et seq., is not intended as a "super interview" but merely an analysis of the legal
sufficiency of the selection process at the time it occurred. Fittro v. Cabell County Bd. of
Educ., Docket No. 97-06-556 (May 22, 1998); Stover v. Kanawha County Bd. of Educ.,
Docket No. 89-20-75 (June 26, 1989). See Sparks v. Mingo County Bd. of Educ., Docket
No. 96-29-447 (Feb. 18, 1997). Thus, W. Va. Code §18A-4-7a permits county boards of
education to determine the weight to be applied to each of the factors listed above in
assessing a candidate's qualifications for administrative positions, so long as they do not
abuse their discretion. E.g., Saunders v. Cabell County Bd. of Educ., Docket No.
97-06-149 (Dec. 29, 1997); Hughes v. Lincoln County Bd. of Educ., Docket No. 94-22-543
(Jan. 27, 1995); Blair v. Lincoln County Bd. of Educ., Docket No. 92-22-009 (July 31,
1992). See Pockl v. Ohio County Bd. of Educ., 185 W. Va. 256, 406 S.E.2d 687 (1991).
Grievant argues that MCBOE abused its discretion by appointing Intervenor to
serve as an Assistant Principal when she was not fully certified, had not taught three
years, and did not hold a valid teacher certification, while he fully met all five required
qualifications included on the job posting. MCBOE and Intervenor deny that the board
abused its discretion because W. Va. Code §18A-4-7a requires only that it consider
certification, among numerous other factors, and that it is free to determine the weight to
be applied to each of the factors when evaluating qualifications for administrative
positions. In any event, MCBOE asserts that it considered that Grievant was approved for
licensure by Dr. Perry D. Phillips, Certification Officer for West Virginia University. MCBOE further avers that it may consider Grievant's teaching experience earned on the
college level, and disputes Grievant's allegation that an applicant must hold a valid
teaching license.
The record indicates that Grievant had more total experience than Intervenor,
earned a Masters degree in education administration in 1993, and holds a professional
administrative certificate, effective July 1, 1999. Intervenor did not possess a Masters
degree in administration, nor did she hold any administrative certificate at the time she was
placed into the position of Assistant Principal. However, as previously noted, W. Va. Code
§18A-4-7a does not require an equal weighting of the criteria, but broadly allows the
school board to consider "other measures or indicators upon which the relative
qualifications of the applicant may be fairly judged." See Bell v. Lincoln County Bd. of
Educ., Docket No. 97-22-013 (July 28, 1997). While each factor specified in the first set
of factors must be considered, the board is free to consider one factor as more important
than another. See Saunders, supra.
Grievant correctly charges that Intervenor does not possess valid teacher
certification. Rather than a Professional Teaching Certificate, Intervenor is employed
under a Professional Service Certificate with a specialization in School Psychology.
Intervenor does not hold either an undergraduate degree or certification as a teacher, but
has a Bachelor of Arts degree in Psychology, a Master of Science degree in School
Psychology, and a Doctorate of Education in Educational Psychology. Intervenor is
considered a professional educator as defined by W. Va. Code §18A-1-1(c). Grievant does not argue that a school administrator must hold a valid teacher
certification, simply that it was a stated qualification on the job description. Valid teacher
certification was likely stated to be a qualification because the vast majority of individuals
applying for a school administrative position are teachers. This case illustrates that there
are exceptions, and that perhaps the qualification should be amended to certification as
a professional educator or similar language, to encompass all professional employees.
Therefore, while Grievant is technically correct that Intervenor does not hold a valid
teacher certification, she does hold a valid certification in her professional area. The
wording on the job description, as it applies to this case, is harmless error.
Grievant next complains that Intervenor does not meet the qualification of three
years of teaching experience, noting that she is paid by MCBOE for two years of
experience. However, MCBOE has elected to consider Intervenor's experience as a
Graduate Teaching Instructor, from August 1995 through May 1997, and her work as a
part-time Instructor at West Virginia University, from August through December 1997, and
at Pennsylvania State University, Fayette Campus, from January 1996 to the present.
Although Intervenor's teaching experience is not in the public school systems, the
undersigned is not aware of any restrictions regarding the level where experience may be
earned. Years of experience for salary purposes is more limited, and calculated based
upon certain criteria used by a board of education, but it is not determinative for all other
purposes, including whether an individual is qualified for an administrative position.
The third qualification which Grievant complains that Intervenor did not meet was
MA degree/Principal Certification . . .. This qualification is somewhat ambiguous.
Intervenor does possess a Masters degree. The job description does not specify that it
is to be in the area of education administration; however, that assumption would not be
unreasonable, and if an applicant held such a degree, it would seem to be preferable to
a graduate degree in another field. Unquestionably, Intervenor did not hold administrative
certification at the time she was appointed. However, MCBOE was notified by
memorandum dated January 12, 2000, that Dr. Perry Phillips, Certification Officer at West
Virginia University, would recommend that Intervenor be issued a permit as a Principal,
grades K-9. The West Virginia Department of Education subsequently issued Intervenor
a first class permit with an effective date of January 19, 2000. Thus, Intervenor was
properly certified when she assumed her duties as Assistant Principal.
As noted by Grievant, the Grievance Board has held that in order for an applicant
to be minimally qualified for an administrative position vacancy, that person must hold the
appropriate certification, and only when no certified applicant applies for a professional
position may a county board of education petition the State Department of Education for
a person to be granted a special permit to fill the post. Hoffman v. Mingo County Bd. of
Educ., Docket No. 97-29-266 (June 15, 1998). However, that holding was in error to the
extent that the West Virginia Supreme Court of Appeals had previously held the
certification requirement for professional personnel under W. Va. Code §18A-4-7a (1993)
does not establish the deadline by which an applicant must possess the appropriate
certification, and permits interviewing or hiring an applicant who does not physicallypossess the required certification, but who has completed the requirements for certification
at the time of the interview or date of hiring and is waiting for the certification results.
Keatley v. Mercer County Bd. of Educ. 200 W. Va. 487, 490 S.E.2d 306 (1997).
A preponderance of the evidence indicates Superintendent Vetere recommended
Intervenor as the best candidate to serve as Assistant Principal because he found her to
be better qualified than Grievant. Certainly, the Applicant Screening Forms completed by
the Superintendent and Assistant Superintendent indicate they both rated Intervenor
higher for her doctoral level degree, and that they both found her to be considerably
stronger in the skills and abilities which were considered as measures or indicators of
relative qualifications. While another individual might have placed more weight on a
Masters degree in education administration and certification in hand, and selected
Grievant for the position at issue, an administrative law judge may not substitute her
judgment for that of the school board. Villers, supra; Bradley v. Bd. of Directors, Docket
No. 96-BOD-030 (Jan. 28, 1997). See Harper v. Mingo County Bd. of Educ., Docket No.
93-29-064 (Sept. 27, 1993). See generally, Bedford Memorial Hosp., supra; Staton v.
Wyoming County Bd. of Educ., 184 W. Va. 369, 400 S.E.2d 613 (1990).
Grievant failed to establish that his qualifications were so superior to Intervenor's
that MCBOE's failure to select him as the Assistant Principal was necessarily an abuse of
the considerable discretion extended school boards when making such professional
determinations. See Tracewell v. Wood County Bd. of Educ., Docket No. 90-54-398 (Jan.
30, 1991). Consistent with the foregoing discussion, the following conclusions of law are made
in this matter.
Conclusions of Law
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Monongalia 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: July 25, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE