I. F. "FRANK" HUGHES,
            Grievant,

v.                                                       Docket No. 99-18-538

JACKSON COUNTY BOARD OF EDUCATION,
            Respondent.

D E C I S I O N


      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:

      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.
Issues and Arguments

      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) 
Findings of Fact

      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.
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.
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.
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.

      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.

                                     __________________________________
                                           JANIS I. REYNOLDS
                                          Administrative Law Judge

Dated: February 4, 2000


Footnote: 1
      The issue of whether Grievant had standing to grieve, since he did not meet the certification requirements, was not raised by Respondent. Typically, employees who are not qualified for a position do not have standing to grieve the posting and subsequent selection. Mullins v. Kanawha County Bd. of Educ., Docket No. 94-20-364 (Dec. 29, 1994). See Farley v. Wayne County Bd. of Educ., Docket No. 96-50-272 (Feb. 28, 1997);
Footnote: 2
      There was no verbatim transcript of the Level II hearing, only a summary of the key points. This was used for some data as Grievant agreed in his default hearing that the information was correct. See Hughes v. Jackson County Bd. of Educ., Docket No. 99-18- 387D (Jan. 27, 2000). Even though the undersigned Administrative Law Judge reminded Grievant that the record below was very sparse, Grievant still placed little evidence into the record at Level IV.
Footnote: 3
      The prior counselor in this position also had 7-12 certification, but had received permanent authorization from the West Virginia State Department of Education to work one grade level below her certification. This certification is no longer available. (Level I decision.)