RAY WILSON,
                  Grievant,

v.                                                 Docket No. 00-30-112

MONONGALIA COUNTY BOARD OF EDUCATION,
                  Respondent,
and

EMILY M. SWEITZER,
                  Intervenor.

D E C I S I O N

      Grievant, Ray Wilson, employed by the Monongalia County Board of Education (MCBOE) as a guidance counselor, initially filed this complaint at level two in which he alleged a violation of W. Va. Code §18A-4-7a, after he was not selected for the position of Assistant Principal at South Middle and Brookhaven Elementary Schools. Grievant seeks instatement, with back pay and benefits. The grievance was denied on March 20, 2000, following an evidentiary hearing at level two. Grievant elected to bypass consideration at level three, as is permitted by W. Va. Code §18-29-3(c), and advanced the matter to level four on March 31, 2000. A level four hearing was conducted on May 22, 2000, at which time Grievant was represented by Don Craft, WVEA UniServ Consultant, MCBOE was represented by Harry M. Rubenstein, Esq., of Kay Casto & Chaney, and Intervenor was represented by John R. Angotti, Esq., of Angotti and Straface. The grievance became mature for decision with the submission of post-hearing proposed findings of fact and conclusions of law and responses on June 30, 2000.
      The following Findings of Fact pertinent to the resolution of this matter have been determined based upon a preponderance of the credible evidence of record, including thetranscript of the level two hearing, the testimony of the witnesses who appeared at level four, and documentary evidence admitted at both levels.
Findings of Fact
      1.      Grievant has been employed by the Monongalia County Board of Education (MCBOE) as a professional employee assigned as a guidance counselor at South Middle School at all times pertinent to this grievance.
      2.      Intervenor has been employed by MCBOE since January 1998, as a School Psychologist. She also has experience teaching at the college level.
      3.      By posting dated October 28, 1999, MCBOE announced the vacancy for Assistant Principal at Brookhaven Elementary/South Middle Schools. Qualifications for the position were:
1 MA degree/Principal certification K-6; K-12; K-8(9)
2 Valid teacher certification
3 Three years teaching experience
4 Good communication and organizational skills
5 Experience in working with school parent/community organizations.

      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.

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.
      Filling vacancies for administrative positions, including Assistant Principals, is accomplished under the more flexible standards contained in the so-called "first set of factors" in W. Va. Code §18A-4-7a:
A county board of education shall make decisions affecting the hiring of professional personnel other than classroom teachers on the basis of the applicant with the highest qualifications. . . . In judging qualifications, consideration shall be given to each of the following: Appropriate certification and/or licensure; amount of experience relevant to the position, or, in the case of a classroom teaching position, the amount of teaching experience in the subject area; the amount of course work and/or degree level in the relevant field and degree level generally; academic achievement; relevant specialized training; past performance evaluations conducted pursuant to section twelve [§18A-2-12], article two of this chapter; and other measures or indicators upon which the relative qualifications of the applicant may be fairly judged.

      "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

      1.      In a nondisciplinary grievance, the grievant has the burden of proving each element of 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 the hiring, assignment, transfer, and promotion of school personnel so long as that discretion is 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).
      3.      A county board of education must make decisions on the selection of professional personnel other than classroom teachers on the basis of the highest qualifications. In making its selection, the board must give consideration to appropriate certification, experience relevant to the position, course work and degree level in the relevant field, degree level generally, academic achievement, relevant specialized training, past performance evaluations and other measures or indicators upon which the relative qualifications of the applicants may be fairly judged. Once they have reviewed the criteriain W. Va. Code §18A-4-7a, county boards have wide discretion in choosing school administrators. Frashier v. Jackson County Bd. of Educ., Docket No. 98-18-485 (May 26, 1999); Villers v. Kanawha County Bd. of Educ., Docket No. 97-20-294 (Jan. 30, 1998). See Pockl v. Ohio County Bd. of Educ., 185 W. Va. 256, 406 S.E.2d 687 (1991).
      4.       The grievance procedure in W. Va. Code §§18-29-1, et seq., is not intended to be a "super interview" for unsuccessful job applicants, rather, in this context it allows review of the legal sufficiency of the selection process. 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).
      5.      In reviewing a county board's exercise of discretion in a hiring decision, the inquiry into the process by which the decision was made must be thorough and searching, but considerable deference must be afforded those conducting it. Fittro, supra; Hopkins v.
Monroe County Bd. of Educ.
, Docket No. 95-31-477 (Feb. 21, 1996).
      6.      Grievant failed to establish that he was more qualified than Intervenor for the Assistant Principal's position at issue in accordance with the requirements of W. Va. Code
§18A-4-7a. See Pockl, supra; Tracewell v. Wood County Bd. of Educ., Docket No. 90-54-398 (Jan. 30, 1991).
      Accordingly, the grievance is DENIED.


      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