KATHY HUDSON,

            Grievant,

v.                                                      Docket No. 00-20-234

KANAWHA COUNTY BOARD OF EDUCATION,

            Respondent.

D E C I S I O N

      Grievant, Kathy Hudson, filed this grievance when the Kanawha County Board of Education ("KBOE") placed her on transfer. The statement of grievance reads:


As relief Grievant seeks to be returned to her former assignment.
      The following Findings of Fact are made from the evidence presented at Levels II and IV.
FINDINGS OF FACT

      1.      During the 1999-2000 school year, Grievant was employed by KBOE as an itinerant special education aide. Grievant was placed in this position after she bid on theposition. There were 17.5 such positions available in the posting. The posting, dated September 22, 1999, stated, “[t]hese are full-time itinerant regular positions which will be eliminated at the end of the 1999-2000 school year.” Only one regular employee applied for these positions. Grievant was employed as a substitute when she bid on the position.
      2.      On October 25,1999, Grievant was assigned to work with an autistic student at Point Harmony Elementary School. She has the training necessary to be an autism mentor.
      3.      By letter dated March 21, 2000, Grievant was notified that, pursuant to W. Va. Code § 18A-2-7, she was being considered for transfer and subsequent reassignment. The letter stated that the reason for the proposed transfer was, “[t]he itinerant multi-school position to which you are assigned will be eliminated at the end of the current school year.”
      4.      Grievant requested a hearing before KBOE. That hearing was held on April 5, 2000. KBOE placed Grievant on the transfer list.
      5.      The child Grievant was assisting at Point Harmony Elementary School will be attending that school in the coming year, and continues to need the assistance of an aide.
      6.      On May 23, 2000, Grievant's former position was posted as an Itinerant Autism Mentor, 200 days, full day, Point Harmony Elementary. Grievant applied for the position. As of the date of the Level II hearing, that position had not been filled, but more senior employees had applied for the position.
DISCUSSION

      Grievant bears the burden of proving the elements of her grievance by a preponderance of the evidence. Tibbs v. Mercer County Bd. of Educ., Docket No. 96-27- 074 (Oct. 31, 1996). In this case, Grievant must demonstrate that her transfer was an abuse of discretion or arbitrary and capricious.
      "County boards of education have broad discretion in personnel matters, including transfers, but must exercise that discretion in a manner which is not arbitrary or capricious." Dodson v. McDowell County Bd. of Educ., Docket No. 93-33-243 (Feb. 15, 1994). Transfer decisions "are based on the needs of the school, as decided in good faith by the superintendent and the board. [State ex rel.] Hawkins v. Tyler County Bd. of Educ., 166 W. Va. 363, 275 S.E.2d [908 (1980)], and Post [v. Harrison County Bd. of Educ., Docket No. 89-17-355 (Feb. 20, 1990)]. See Jochum v. Ohio County Bd. of Educ., Docket No. 91-35-396 (Jan. 31, 1992)." Stewart, et al., v. Kanawha County Bd. of Educ., Docket No. 96-20-370 (Jan. 31, 1997). “No statutory limitations have been placed on the superintendent's authority to transfer school personnel. The power to transfer employees must be exercised reasonably and in the best interests of school systems and may not be exercised arbitrarily or capriciously. State ex. rel. Hawkins [supra]; see also, Wellman v. Mercer County Bd. of Educ., Docket No. 95-27-327/300 (Nov. 30, 1995).” Eckenrode v. Kanawha County Bd. of Educ., Docket No. 96-20-302 (Jan. 22, 1997). “An employee . . . has no vested right to any particular assignment within the county school system. State ex rel. Hawkins [supra]; Cawthon [v. Lewis County Bd. of Educ., Docket No 21-87-244-2 (Feb. 16, 1988)].” Gunnells v. Mingo County Bd. of Educ., Docket No. 97-29-398 (Dec. 10, 1997).
      The evaluation of a personnel decision under the arbitrary and capricious standard entails close examination of the process used to make the decision. Considerable deference must be afforded the professional judgment of those who made the decision. Cowen v. Harrison County Bd. of Educ., 195 W. Va. 377, 465 S.E.2d 648 (1995). Baird v. Kanawha County Bd. of Educ., Docket No. 95-20-445 (Sept. 16, 1996). "In applying the 'arbitrary and capricious' standard, a reviewing body applies a narrow scope of review, limited to determining whether relevant factors were considered in reaching that decision and whether there has been a clear error of judgment. Bowman Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982). Moreover, a decision of less than ideal clarity may be upheld if the agency's path in reaching that conclusion may reasonably be discerned. Bowman, supra, at 286." Hill and Cyrus v. Kanawha County Bd. of Educ., Docket No. 96-20-362 (Jan. 30, 1997).
      Grievant argued KBOE's action was arbitrary and capricious because she had sufficient seniority in the aide classification to continue to be employed by KBOE as a regular employee, the position continues to exist, and the autistic student was doing well with Grievant as the aide.
      KBOE believes that Grievant has done a fine job as an autism mentor, the parents were pleased with her, and readily admits that the position is still needed, and has in fact been posted again. KBOE simply believes that the position had to be posted because the original posting stated that the position was for one year only. KBOE felt that this limitation in the first posting may have prevented some employees from bidding on the position, and in fairness to the other employees, the position should be reposted. Grievant responded that the one year limitation in the posting was unimportant because no employee is guaranteed employment beyond one year.
      The undersigned is not convinced that employees view their employment to be so temporary when deciding whether to bid upon a posted position. The position held by Grievant was clearly posted as a one year position, and she was on notice from the very beginning that her employment in this position would end after one year. Grievant had noproblem with the terms of the posting when she received the position, even though she was then working as a substitute, and had little to no regular seniority. It should have come as no surprise to Grievant that she was placed on transfer, and the position posted at the end of the school year. Karen Williams, Coordinator of Human Resources for Kanawha County Schools, testified that 10 to 15 employees called to inquire about the 17.5 itinerant special education aide positions, and when they were told the positions were for a period of one year only, they did not apply.
      Not only was KBOE's decision to place Grievant on transfer and repost the position reasonable, once KBOE posted the position as a one year position, “it was bound by that condition, or bound to repost the [position] correctly so that other school service personnel would not be misled, and could make an informed decision as to whether to bid on [this position].” Conley/Farley v. Logan County Bd. of Educ., Docket No. 98-23-425 (Feb. 3, 1999). See Underwood v. Marion County Bd. of Educ., Docket No. 94-24-535 (Jan. 30, 1995).
      The following Conclusions of Law support the Decision reached.
CONCLUSIONS OF LAW

      1.      The burden of proof is upon Grievant to prove the elements of her grievance by a preponderance of the evidence. Tibbs v. Mercer County Bd. of Educ., Docket No. 96- 27-074 (Oct. 31, 1996).
      2.      “An employee . . . has no vested right to any particular assignment within the county school system. State ex rel. Hawkins v. Tyler County Bd. of Educ., [166 W. Va. 363], 275 S.E.2d 908 (W. Va. 1980); Cawthon [v. Lewis County Bd. of Educ., Docket No 21-87-244-2 (Feb. 16, 1988)].” Gunnells v. Mingo County Bd. of Educ., Docket No. 97-29- 398 (Dec. 10, 1997).
      3.      "County boards of education have broad discretion in personnel matters, including transfers, but must exercise that discretion in a manner which is not arbitrary orcapricious." Dodson v. McDowell County Bd. of Educ., Docket No. 93-33-243 (Feb. 15, 1994). Transfer decisions "are based on the needs of the school, as decided in good faith by the superintendent and the board. [State ex rel.] Hawkins,[supra], and Post [v. Harrison County Bd. of Educ., Docket No. 89-17-355 (Feb. 20, 1990)]. See Jochum v. Ohio County Bd. of Educ., Docket No. 91-35-396 (Jan. 31, 1992)." Stewart, et al., v. Kanawha County Bd. of Educ., Docket No. 96-20-370 (Jan. 31, 1997). “No statutory limitations have been placed on the superintendent's authority to transfer school personnel. The power to transfer employees must be exercised reasonably and in the best interests of school systems and may not be exercised arbitrarily or capriciously. State ex. rel. Hawkins[, supra]; see also, Wellman v. Mercer County Bd. of Educ., Docket No. 95-27-327/300 (Nov. 30, 1995).” Eckenrode v. Kanawha County Bd. of Educ., Docket No. 96-20-302 (Jan. 22, 1997).
      4.      The evaluation of a personnel decision under the arbitrary and capricious standard entails close examination of the process used to make the decision. Considerable deference must be afforded the professional judgment of those who made the decision. Cowen v. Harrison County Bd. of Educ., 195 W. Va. 377, 465 S.E.2d 648 (1995). Baird v. Kanawha County Bd. of Educ., Docket No. 95-20-445 (Sept. 16, 1996). "In applying the 'arbitrary and capricious' standard, a reviewing body applies a narrow scope of review, limited to determining whether relevant factors were considered in reaching that decision and whether there has been a clear error of judgment. Bowman Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982). Moreover, a decision of less than ideal clarity may be upheld if the agency's path in reaching that conclusion may reasonably be discerned. Bowman, supra, at 286." Hill and Cyrus v. Kanawha County Bd. of Educ., Docket No. 96-20-362 (Jan. 30, 1997).
      5.      Once KBOE posted the position held by Grievant as a one year position,“itwas bound by that condition, or bound to repost the [position] correctly so that other school service personnel would not be misled, and could make an informed decision as to whether to bid on [this position].” Conley/Farley v. Logan County Bd. of Educ., Docket No. 98-23-425 (Feb. 3, 1999). See Underwood v. Marion County Bd. of Educ., Docket No. 94- 24-535 (Jan. 30, 1995).
      6.      KBOE did not abuse its discretion or act in an arbitrary and capricious manner in placing Grievant on transfer.

      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the Circuit Court of Kanawha 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 Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.

                                                                                                       BRENDA L. GOULD
                                                 Administrative Law Judge

Dated:      September 27, 2000


Footnote: 1
This grievance was filed on or about May 16, 2000. The record does not reflect what occurred at Level I. Grievant appealed to Level II, where a hearing was held on June 27, 2000, and a decision denying the grievance was issued on July 12, 2000. Grievant waived Level III, appealing to Level IV on July 17, 2000. The parties agreed to submit this grievance for decision based upon the record developed at Level II, supplemented by two letters, one dated June 20, 2000, and the other dated June 21, 2000, written by Sasidharan Taravath, M.D., and Carl J.F. Green, respectively. Those letters have been marked as Grievant's Exhibit Number 1, and are admitted into evidence. Grievant was represented by John Roush, Esquire, and Respondent was represented by James W. Withrow, Esquire. This matter became mature for decision on September 20, 2000, upon receipt of documents which had been missing from Grievant's Level II Exhibit Number 1.