LINDA THOMPSON and LINDA BEATY,

                  Grievants,

      v.

DOCKET NO. 00-06-290

CABELL COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N

      Grievants, Linda Beaty and Linda Thompson, filed identical grievances against their employer, the Cabell County Board of Education (“Board”) on May 19, 2000:


      The grievances were denied at level one by Grievants' principal. The grievances were consolidated at level two, and a level two hearing was held on August 10, 2000. Thegrievance was again denied at level two by Linda Curtis, the Superintendent's designee, by decision dated August 30, 2000. Grievants by-passed level three, and appealed to level four on September 8, 2000. A level four hearing was held in the Grievance Board's Charleston, West Virginia, office on October 25, 2000, and this matter became mature for decision on November 29, 2000, the deadline for the parties' proposed findings of fact and conclusions of law. Grievants were represented by John E. Roush, Esq., West Virginia School Service Personnel Association, and the Board was represented by Howard E. Seufer, Jr., Esq., Bowles, Rice, McDavid, Graff & Love.
SUMMARY OF EVIDENCE

LII Agreed Exhibits
Ex. 1 - Ex. 2 - Ex. 3 -
Testimony

      Grievants Thompson and Beaty testified in their own behalf. The Board presented the testimony of George D. Clark, Sandra Rupert, David Roach, and Carolyn Lopez.

FINDINGS OF FACT

      The material facts of this grievance are not in dispute, and are set forth in the following findings.
      1.      Grievants were employed by the Board as Secretaries at Huntington High School during the 1999-2000 school year.      2.      Grievants received notice of the intent of the Board's superintendent to recommend they be placed on the transfer/unassigned list for the 2000-2001 school year. Grievants requested a hearing before the Board on their proposed transfer.
      3.      The Board conducted the statutory transfer hearing on the morning of May 1, 2000. Initially only four of the five Board members were present at this hearing. Shortly before the hearing finished, Board member George D. (“Danny”) Clark arrived.   (See footnote 2) 
      4.      At the end of the hearing, the Board President was under the impression that the Board would vote immediately whether to transfer the secretaries, including Grievants, who had requested the hearing. Mr. Clark was under the same impression. Stating that Mr. Clark had not been present for the entire hearing, the Board President asked Mr. Clark whether he intended to participate in the decision on the transfer of Grievants. Mr. Clark responded he would abstain.
      5.      As it turned out, the Board decided to reconvene that evening to vote on the proposed transfers.
      6.      Therefore, Immediately following the hearing, Superintendent David Roach asked the court reporter, Carolyn Lopez, if Mr. Clark could listen to the tape of the hearing so that he could vote on the proposed transfers later that evening. Ms. Lopez gave Superintendent Roach the tape of the hearing, and he in turn asked a Mr. Webb to make a copy of the tape.       7.      Mr. Webb copied the tape, returned to the hearing room, and gave the original tape back to Ms. Lopez. He gave the copy to Superintendent Roach, who gave it to Mr. Clark.
      8.      Mr. Clark listened to the tape prior to the Board reconvening the evening of May 1, 2000.
      9.      Mr. Clark voted that evening with the Board to place Grievants on the transfer/unassigned list. The vote was 3-2. Had Mr. Clark abstained, the vote would have been 2-2 and the recommendation to place Grievants on the transfer/unassigned list would not have been approved.
      10.      Grievant Beaty was ultimately able to return to her position at Huntington High School through the posting and bidding procedure of W. Va. Code § 18A-4-8b. Grievant Thompson was not able to return to her position and is currently assigned to a position at another location.
DISCUSSION

      As the placement of Grievants' names on the transfer list does not involve a disciplinary matter, Grievants have the burden of proving the allegations of their complaints by a preponderance of the evidence. West Virginia Education and State Grievance Board Procedural Rule 4.19, 156 C.S.R. 1. Grievants have not met that burden in this case.
      First, inasmuch as Grievant Beaty now holds the same assignment she held in 1999-2000 before she was placed on the transfer list, her claim for relief is moot and will not be further considered. Ruling upon a moot issue would constitute an advisory opinion, and the Grievance Board does not render advisory opinions. Procedural Rules of the W.Va. Education and State Employees Grievance Bd., 156 C.S.R. 1 § 4.20 (1996). See Bryant v. Fayette County Bd. of Educ., Docket No. 91-13-198 (Mar. 13, 1992); Lewis v. Greenbrier County Bd. of Educ., Docket No. 91-13-198 (June 12, 1991).
      Grievant Thompson claims she was denied due process or otherwise harmed by Board member Clark's decision to listen to the tape of the transfer hearing and, having done so, to vote on the Superintendent's transfer recommendation. The Board denies any violation of Grievant Thompson's due process rights.
      Employees are entitled to due process in all matters affecting their employment including transfer. Implicit in the concept of due process is the right of employees to a meaningful hearing. West Virginia Board of Education Policy No. 5300 (2.7). Strict compliance with the provisions for notice and hearing is required prior to final action being taken regarding the transfer or reassignment of an education employee. Morgan v. Pizzino, 163 W. Va. 454, 256 S.E.2d 592 (1979). Prior to placement on the transfer list employees are entitled to a hearing before the board of education at which the employee is entitled to hear the reasons for the transfer and present evidence in opposition to such recommendation of placement on the transfer/unassigned list. W. Va. Code § 18A-2-7.
      Clearly, had Mr. Clark not listened to the tape recording of the hearing, and then proceeded to vote on the transfers, Grievant's argument would be more appealing. See Morgan v. United States, 298 U.S. 468 (1936)(invalidating Secretary of Agriculture's rate order because the Secretary had neither heard nor read any of the evidence). However, Mr. Clark did listen to the tape, insuring that his judgment was informed when he cast his vote.       It is generally held that an administrative decision is not invalid because a member who participated in a decision was not present when the evidence was taken, provided he considers and acts upon the evidence taken at the hearing. Kanawha County Transp. Co. v. Public Serv. Comm'n, 159 W. Va. 88, 219 S.E.2d 332 (1975). See, Coleman v. Sopher, 201 W. Va. 588, 499 S.E.2d 592 (1977); Tennant v. Marion Health Care Found., 194 W. Va. 97, 459 S.E.2d 475 (1995). See also Walters v. W. Va. Dept. of Motor Vehicles, Docket No. 99-DMV-411 (Oct. 31, 2000).
      Grievant's argument that Mr. Clark was unable to judge the credibility of the witnesses at the transfer hearing because of his absence would be stronger were there any evidence that credibility was a factor in making the decision. No such evidence was presented. Further, Grievant has presented no evidence that she would have presented her argument to the Board in any different manner had Mr. Clark been present the whole time.
CONCLUSIONS OF LAW

      1.      Grievants have the burden of proving each element of their 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.      It is generally held that an administrative decision is not invalid because a member who participated in a decision was not present when the evidence was taken, provided he considers and acts upon the evidence taken at the hearing. Kanawha CountyTransp. Co. v. Public Serv. Comm'n, 159 W. Va. 88, 219 S.E.2d 332 (1975). See, Coleman v. Sopher, 201 W. Va. 588, 499 S.E.2d 592 (1977); Tennant v. Marion Health Care Found., 194 W. Va. 97, 459 S.E.2d 475 (1995). See also Walters v. W. Va. Dept. of Motor Vehicles, Docket No. 99-DMV-411 (Oct. 31, 2000).
      3.      Grievants have failed to establish any violation or misinterpretation of any statute, rule, law, or procedure regarding their transfer hearing or Mr. Clark's vote on their recommended placement on the transfer/unassigned list on May 1, 2000.

      Accordingly, this grievance is DENIED.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Cabell County. Any 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.

                                           __________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: December 12, 2000


Footnote: 1
      Since the filing of this grievance, Grievant Beaty has been returned to her position at Huntington High School.
Footnote: 2
      Estimates as to how much of the hearing Mr. Clark sat through vary. However, it is clear that the vast majority of the hearing was conducted prior to his arrival.