SANDRA SHAFFER,

                        Grievant,

v.                                                       Docket No. 00-20-085

KANAWHA COUNTY BOARD OF EDUCATION,

      Respondent.

D E C I S I O N

      On January 5, 2000, Sandra Shaffer (Grievant) initiated this grievance pursuant to W. Va. Code §§ 18-29-1, et seq., alleging that Respondent Kanawha County Board of Education (KCBE) had improperly selected a less senior employee to fill a posted Supervisor of Transportation vacancy. Grievant's immediate supervisor did not have authority to resolve the grievance, and this matter was advanced to Level II where an evidentiary hearing was conducted on February 7, 2000. On February 21, 2000, a written decision denying the grievance was issued by Dr. Diana Long, the Superintendent's designee. Grievant elected to by-pass Level III, as authorized by W. Va. Code § 18-29- 4(c), and appealed to Level IV on March 1, 2000. On May 1, 2000, a Level IV hearing was conducted in this Grievance Board's office in Charleston, West Virginia.   (See footnote 1)  The parties madeoral closing arguments, waiving written argument, and this matter became mature for decision at the conclusion of that hearing.
      Based upon a preponderance of the credible evidence contained in the record established at Levels II and IV, the following Findings of Fact pertinent to resolution of this grievance have been determined.
FINDINGS OF FACT
      1.      Grievant is employed by Respondent Kanawha County Board of Education (KCBE) as an Accountant, a school service personnel position.
      2.      Grievant has worked for KCBE for approximately 22 years. She previously held assignments as a Special Education Aide, Clerk, and School Bus Operator. Her School Bus Operator experience covered approximately four months in 1993-94.
      3.      On October 6, 1999, KCBE posted a long-term substitute vacancy for a Supervisor of Transportation, a school service personnel position, to serve at KCBE's St. Albans Terminal until the regular employee either returned from leave or resigned. G Ex 1 at L II.
      4.      Grievant was one of several KCBE employees who made timely application for the advertised position.
      5.      Applicants for the position were required to take and pass the state competency test for Supervisor of Transportation.
      6.      In addition, applicants who successfully passed the state competency test for Supervisor of Transportation were required to take and pass an additional test developed by KCBE which was designed to verify the applicant's ability to prepare a busschedule. Preparing a workable bus schedule is one of the critical duties of a Supervisor of Transportation employed by KCBE at one of its four bus terminals. Unlike the state competency test, KCBE's supplemental test does not consist of selecting the correct answers to a series of questions. Instead, applicants are required to complete a problem- solving exercise by preparing a representative scheduling worksheet in a specified time limit, in order to demonstrate the ability to do the calculations of pay earned and time worked, as well as formulate a working transportation schedule, duties that a Supervisor of Transportation regularly performs in the position at issue.
      7.      Two evening inservice training sessions were conducted to prepare applicants for the two tests. These sessions were primarily conducted by Ruth Hatfield and Brenda Taylor, each of whom was then employed by KCBE as Supervisors of Transportation.
      8.      The inservice training included discussion of such matters as transportation procedures, personnel evaluations, various reports and records, payroll, billing, scheduling, drug testing, computer applications including electronic mail, spreadsheets, and route mapping, calling substitutes and employing long-term substitutes, conducting inservice training, ordering supplies, student discipline, bus stop location policies, facilitating meetings, bus route consolidation, and grievance procedures.
      9.      Much of the information covered during the inservice training was already familiar to applicants who hold the school service personnel classification of Bus Operator.
      10.      The trainers emphasized that scheduling and preparing weekly worksheets represents a major element of the duties required of a Supervisor of Transportationemployed by KCBE, and that having the skills necessary to prepare a workable schedule is essential for satisfactory job performance.
      11.      The applicants attending the inservice training were provided a sample scheduling worksheet, and the trainers went over examples of how to calculate time and pay, and how to prepare a schedule for one Bus Operator on the worksheet. The trainers did not go over an entire worksheet, but the applicants were given a sample worksheet on the first night, with the opportunity to prepare a worksheet on their own time, and ask questions at the following night's inservice session, if they encountered any difficulties.
      12.      Grievant took and passed the state competency test for Supervisor of Transportation. Grievant took and failed the county-developed skills test for preparing a bus schedule.
      13.      The successful applicant for the position was Nancy Bowen, a School Bus Operator, with approximately 21 years of seniority. Ms. Bowen took and passed both tests.
      14.      Jimmy Lacy, a Bus Operator/Clerk employed by KCBE, attended the inservice training with Grievant. He took and passed both the state competency test and the county skills test. The only training and experience he had in completing bus transportation schedule worksheets was obtained during the inservice training. He was not selected for the position, because he had less seniority than the successful applicant.
DISCUSSION
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her 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.
      Grievant contends KCBE's failure to select her for the Supervisor of Transportation vacancy at issue violates W. Va. Code §§ 18A-4-8b, 18A-4-8e, and 18A-4-8g. W. Va. Code § 18A-4-8b controls hiring of school service personnel, and includes the following provisions pertinent to this grievance:







* * *
      None of the applicants for the Supervisor of Transportation vacancy at issue held that classification at the time they applied. In such circumstances, county boards employ competency testing to determine qualification for employment in a particular classification in accordance with the following provisions in W. Va. Code § 18A-4-8e:










      Grievant also relies on W. Va. Code § 18A-4-8g, which provides detailed guidance on calculating seniority for service personnel. Inasmuch as it is undisputed Grievant had greater regular seniority than the successful applicant, this statute does not need to be applied to this grievance.       This Grievance Board has previously interpreted W. Va. Code §§ 18A-4-8b and 18A-4-8e consistent with Grievant's contentions in this grievance, requiring a county board to select the most senior applicant who successfully passes the state competency test for a particular service personnel classification, notwithstanding other qualifications of the applicants. Sargent v. Cabell County Bd. of Educ., Docket No. 96-06-090 (May 2, 1996), rev'd, Cir. Ct. of Kanawha County, No. 96-AA-78 (Apr. 22, 1998); Hawken v. Hancock County Bd. of Educ., Docket No. 95-15-577 (Apr. 29, 1996), rev'd, Cir. Ct. of Hancock County, No. 96-P-22-W (June 5, 1998); Bowman v. Marion County Bd. of Educ., Docket Nos. 95-24-003, 007 (Oct. 10, 1995), rev'd, Cir Ct. of Kanawha County, No. 95-AA-257 (July 17, 1996) . However, KCBE argues that the West Virginia Supreme Court of Appeals has rejected this Grievance Board's rationale, permitting a county board to select the best qualified applicant who meets the minimum requirements of the position, concluding that seniority is not necessarily a controlling factor in the selection process. Hancock County Bd. of Educ. v. Hawken, No. 25818 (W. Va. Sup. Ct. of App. July 12, 1999).
      KCBE correctly asserts that the Court stated in its Hawken decision, upholding the reversal of this Grievance Board's decision by the Circuit Court of Hancock County, “we do not believe the Legislature intended for the passing of the [competency] test to be the alpha and the omega of the board's hiring process.” The Court noted that its Hawken ruling was consistent with a previous ruling in Hyre v. Upshur County Board of Education, 186 W. Va. 267, 412 S.E.2d 265 (1991), notwithstanding that W. Va. Code § 18A-4-8e had not been enacted at the time of that decision. In rejecting this Grievance Board's approach in Hawken, the Court emphasized that “[c]ounty boards of education have substantialdiscretion 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.” Hawken, supra, citing Dillon v. Wyoming County Bd. of Educ., 177 W. Va. 145, 351 S.E.2d 58 (1986).
      In deciding Bowman, Hawken, and Sargent, this Grievance Board attempted to give a literal interpretation to the language in W. Va. Code §§ 18A-4-8b and 18A-4-8e, consistent with the legal reasoning followed in applying W. Va. Code § 18A-4-8b to a selection matter in Hopkins v. Ohio County Board of Education, Docket No. 92-35-359 (Aug. 12, 1993). Hopkins concluded that an applicant who met the qualifications for a posted school service personnel vacancy for a Transportation Supervisor, and who held the greatest seniority among the qualified applicants, was entitled to the position, regardless of the qualifications of other applicants who might have obtained more experience working outside the school system. However, just as this Grievance Board's Hawken decision was not endorsed on judicial review, the Hopkins rationale was similarly rejected by the West Virginia Supreme Court of Appeals in Ohio County Board of Education v. Hopkins, 193 W. Va. 600, 457 S.E.2d 537 (1995).
      It can be argued that because Hopkins and Hawken are per curiam decisions by the Supreme Court of Appeals, they need not be followed as precedential holdings because they do not include a syllabus point on the specific legal issue raised in this grievance. However, the undersigned Administrative Law Judge is not persuaded that these holdings can be disregarded simply because they are per curiam opinions. Further, although theCourt did not rely upon Hopkins in deciding Hawken, both decisions cite Hyre to support the conclusion that seniority is not determinative in assessing “qualifications” for a school service personnel position. In neither case does the Court note that Hyre was also a per curiam decision. See also Cox v. Hampshire County Bd. of Educ., 177 W. Va. 576, 355 S.E.2d 365 (1987).
      Moreover, even if per curiam opinions are not binding on this Grievance Board, the undersigned is persuaded that the rationale set forth by the Court in Hawken represents a correct interpretation of the overall statutory and constitutional scheme for selecting employees to serve in the school system. In support of this conclusion, it must be noted that this Grievance Board's decisions in Sargent and Bowman were likewise reversed on appeal at the circuit court level, and the West Virginia Supreme Court of Appeals declined to accept appeals from those decisions for further review. See also Ooten v. Mingo County Bd. of Educ., Docket No. 98-29-417 (Jan. 25, 1999), rev'd, Cir Ct. of Mingo County, No. 99-C-55 (May 22, 1999) .
      This Grievance Board adheres to the doctrine of stare decisis   (See footnote 2)  in adjudicating grievances that come before it. Chafin v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-132 (July 24, 1992), citing Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974). This adherence is founded upon a determination that theemployees and employers whose relationships are regulated by this agency are best guided in their actions by a system that provides for predictability, while retaining the discretion necessary to effectuate the purposes of the statutes applied. Consistent with this approach, this Grievance Board follows precedents established by the Supreme Court of Appeals of West Virginia as the law of this jurisdiction. Likewise, prior decisions of this Grievance Board are followed unless a reasoned determination is made that the prior decision was clearly in error. Belcher v. W. Va. Dep't of Transp., Docket No. 94-DOH-341 (Apr. 27, 1995).
      Based upon the holding of the West Virginia Supreme Court of Appeals in Hawken, supra, as supported by the approach taken by the Court in Hopkins, supra, and Hyre, supra, as well as the decisions of the Circuit Court of Kanawha County reversing this Grievance Board's decisions in Bowman, supra, and Sargent, supra, the undersigned Administrative Law Judge finds that these decisions were clearly wrong, insofar as they held that a county board of education could not look beyond seniority, satisfactory evaluations, and holding the classification title at issue, when selecting applicants to fill vacant service personnel positions. Accordingly, this Grievance Board's previous decisions in Sargent v. Cabell County Bd. of Educ., Docket No. 96-06-090 (May 2, 1996); Hawken v. Hancock County Bd. of Educ., Docket No. 95-15-577 (Apr. 29, 1996); and Bowman v. Marion County Bd. of Educ., Docket Nos. 95-24-003, 007 (Oct. 10, 1995), are hereby overruled. Further, to the extent this Grievance Board's decision in Hopkins v. Ohio County Board of Education, Docket No. 92-35-359 (Aug. 12, 1993), is inconsistent with the outcome in this matter, that decision is likewise overruled. Until the West Virginia SupremeCourt of Appeals provides a bright line test for when the minimum requirements in the statute may or may not be expanded for filling school service personnel positions, such matters as the propriety of the county-developed skills test applied in the selection process at issue in this grievance must be decided on a case-by-case, fact-specific basis.
      Grievant also contends KCBE violated W. Va. Code § 18A-4-8e by failing to give proper inservice training which would have permitted her to pass the skills test, in addition to the state competency test. This Grievance Board has previously determined that the language in W. Va. Code § 18A-4-8e, as previously quoted in this decision, establishes a mandatory duty for county boards of education to provide appropriate inservice training prior to administration of a competency test to a regularly employed school service personnel employee. Quintrell v. Lincoln County Bd. of Educ., Docket No. 95-22-051 (Aug. 31, 1995), aff'd, Cir. Ct. of Kanawha County No. 95-AA-241 (Apr. 30, 1996). See Marion County Bd. of Educ. v. Bonfantino, 179 W. Va. 202, 366 S.E.2d 650 (1988); Edmonds v. Lincoln County Bd. of Educ., Docket No. 97-22-120 (May 27, 1998); Ashley v. Kanawha County Bd. of Educ., Docket No. 97-20-555 (Mar. 31, 1998). However, this training does not need to include the answers to any of the specific questions on the examination, because the purpose of the training is to “assist” the employee in test preparation by providing generic information that would be helpful to anyone preparing to take the competency test for that particular classification. Bailey v. Logan County Bd. of Educ., Docket No. 97-23-436 (Feb. 27, 1998). The undersigned administrative law judge concludes that KCBE provided helpful inservice training to Grievant in substantial compliance with W. Va. Code § 18A-4-8e.      Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
      
CONCLUSIONS OF LAW

      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her 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.      Boards of education in West Virginia must fill school service personnel positions on the basis of seniority, qualifications and evaluation of past service. W. Va. Code § 18A-4-8b. Further, achieving a passing score on the state competency test for a particular classification of employment shall conclusively demonstrate that an applicant is qualified to hold that classification title. W. Va. Code § 18A-4-8e. However, a county board is not precluded from considering other job-related factors in determining which applicant who meets the minimum qualifications for a school service personnel position, as specified in W. Va. Code §§ 18A-4-8b and 18A-4-8e, is best qualified for selection to fill a postedvacancy. Hancock County Bd. of Educ. v. Hawken, No. 25818 (W. Va. Sup. Ct. of App. July 12, 1999); Ohio County Bd. of Educ. v. Hopkins, 193 W. Va. 600, 457 S.E.2d 537 (1995); Hyre v. Upshur County Bd. of Educ., 186 W. Va. 267, 412 S.E.2d 265 (1991).
      4.      To the extent this Grievance Board's decisions in Sargent v. Cabell County Board of Education, Docket No. 96-06-090 (May 2, 1996), Hawken v. Hancock County Board of Education, Docket No. 95-15-577 (Apr. 29, 1996), and Bowman v. Marion County Board of Education, Docket Nos. 95-24-003, 007 (Oct. 10, 1995), are inconsistent with Conclusion of Law No. 3, above, and the decisions of the West Virginia Supreme Court of Appeals cited therein, those decisions were clearly wrong, and are hereby overruled. Similarly, this Grievance Board's decision in Hopkins v. Ohio County Board of Education, Docket No. 92-35-359 (Aug. 12, 1993), is overruled to the extent that it precludes a county board from considering factors other than seniority, satisfactory evaluations, and meeting the definition for the classification title, in determining which applicant is best qualified to fill a vacant school service personnel position.
      5.      In selecting an applicant who was able to demonstrate the ability to prepare a complex bus transportation schedule in a limited time period by completing a practical exercise, a job-related qualification which Grievant was unable to successfully demonstrate, Respondent Kanawha County Board of Education did not violate W. Va. Code §§ 18A-4-8b, 18A-4-8e, 18A-4-8g, or any other statute, policy, rule, or regulation applicable to this employment decision.
      6.      Grievant failed to establish by a preponderance of the evidence that the Kanawha County Board of Education violated W. Va. Code § 18A-4-8e in regard to thenature of the inservice training provided Grievant, to assist her in preparing for the state competency test for the Supervisor of Transportation classification, or the additional skills test developed by the county. See Bailey v. Logan County Bd. of Educ., Docket No. 97-23- 436 (Feb. 27, 1998).

      Accordingly, this grievance is DENIED.
      
      Any party may appeal this decision to the Circuit Court of Kanawha 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.

                                                                                                  LEWIS G. BREWER
                                                ADMINISTRATIVE LAW JUDGE

Dated: June 12, 2000


Footnote: 1
      Grievant appeared pro se. KCBE was represented by its counsel, James W. Withrow.
Footnote: 2
      Literally, "to stand by things decided." This is the doctrine that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases, where the facts are substantially the same. Black's Law Dictionary 1414 (7th ed. 1999). See W. Va. Dep't of Admin. v. W. Va. Dep't of Health & Human Resources, 192 W. Va. 202, 451 S.E.2d 768, 771 (1994).