BONNIE RUPPENKAMP,

      Grievant,

v.                                                            Docket No. 99-28-500

MINERAL COUNTY BOARD OF EDUCATION,

      Respondent.


DECISION

      On October 25, 1999, Bonnie Ruppenkamp (Grievant) initiated this grievance pursuant to W. Va. Code §§ 18-29-1, et seq., alleging that Respondent Mineral County Board of Education (MCBOE) violated W. Va. Code § 18A-4-7a when it selected another applicant to fill a ½ day teaching position at Burlington Primary School. The parties agreed to waive level one proceedings. Following a level two hearing (date unknown), the grievance was denied at that level on November 19, 1999. Level three consideration was waived, and Grievant appealed to level four on November 30, 1999. The parties agreed that a level four decision could be rendered based upon the record developed below, supplemented by written submissions. Grievant was represented by Harvey Bane of the West Virginia Education Association, and MCBOE was represented by Gregory Bailey, Esquire. This matter became mature for consideration upon receipt of the parties' fact/law proposals on March 22, 2000.
      The following findings of fact are made from a preponderance of the evidence of record.

Findings of Fact

      1.      Grievant has been employed by MCBOE as a substitute classroom teachersince 1987.
      2.      In September of 1999, MCBOE posted a vacancy for a ½ day teacher, grades 2 and 3, at Burlington Primary School (BPS). Qualifications listed in the posting were certification in early childhood, elementary education, or multi-subjects, and the criteria set forth in W. Va. Code § 18A-4-7a. The posting specified that, if no permanently employed personnel applied, and the “first set of factors” were utilized, qualifications considered in the “other measures or indicators” category would include:
      _      Seniority gained as a substitute teacher
      _      Knowledge of content areas in primary school education
      _      Knowledge of instructional methods in primary school education
      _       _       _
      3.      The same position had been posted and filled in August of 1999. Grievant and six other applicants had applied for the position at that time and were interviewed by Principal Garrett Carskadon. The position was awarded to Tammy Ashby, who later transferred out of the BPS position, just prior to the start of the 1999-2000 school year.
      4.      Pursuant to the reposting in September, the six remaining applicants from the first posting applied again, along with five new applicants. The original applicants who re-applied included Grievant and Kerri Staggers.
      5.      The new applicants were interviewed by Principal Carskadon, the assistant superintendent, and the assistant general education director.
      6.      The applications and interviews of the previous applicants were reviewedand considered by Principal Carskadon, but those individuals were not re-interviewed.
      7.      In a memorandum to Assistant Superintendent Robert Mason dated October 14, 1999, Principal Carskadon recommended Ms. Staggers for the position, stating as follows:

      8.      Based upon Principal Carskadon's recommendation, Ms. Staggers was awarded the BPS position.
      9.      None of the applicants for the position were regularly employed personnel.
      10.      Grievant holds a master's degree in elementary education, along with certifications in developmental reading and remedial reading.
      11.      Ms. Staggers holds a bachelor's degree in elementary education, and has been employed as a substitute for 1½ years.

Discussion

      As this grievance does not involve a disciplinary matter, Grievant has the burdenof proving each element of 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.
      "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). Filling vacancies for administrative positions and new classroom teachers is accomplished under the more flexible standards contained in the so-called "first set of factors" in W. Va. Code § 18A-4-7a:

      These provisions afford county boards of education considerable latitude in determining the weight to be given to each of the criteria in assessing candidates' qualifications, so long as they do not abuse their discretion. E.g., Saunders v. CabellCounty 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). Although the “arbitrary and capricious” standard requires a searching and careful inquiry into the facts, the undersigned may not substitute her judgment for that of a board of education. See generally, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982). Moreover, the Grievance Board cannot perform the role of a “super-interviewer” in matters relating to the selection of candidates for vacant positions, but merely analyze 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).
      Grievant argues that, because she undisputedly has more experience teaching and a higher degree level than Ms. Staggers, she was clearly more qualified for this position. She contends that MCBOE has abused its discretion by allowing Principal Carskadon to rely entirely upon the “other measures or indicators” category in recommending Ms. Staggers.
      In making his recommendation, the principal noted that Ms. Staggers had provided a portfolio substantiating her qualifications. Grievant contends that she likewise offered a portfolio at her interview, which the principal refused to review. However, Grievant's allegation is not borne out by the record in this case. When questioned regarding this issue at the level two hearing, Grievant testified as follows:

      Grievant:      No.

      Mr. Bane:      In detail.

      Grievant:      No. He had seen it before.

      The evidence reveals that, while Principal Carskadon did not review Grievant's portfolio at the time of her interview, he had seen it before and was familiar with her qualifications. Principal Carskadon testified to this himself, and it does not appear that Grievant disputes that he had, indeed, reviewed her portfolio previously. As Principal Carskadon explained, his decision was based upon Ms. Staggers' interview and his perception that she had the best general knowledge of the areas pertinent to the grade levels to be taught, not experience or education level.
      It also appears that Grievant takes issue with the fact that she did not receive a second interview when she applied for this position the second time. However, Ms. Staggers was also an original applicant who was not re-interviewed, so Grievant has not been prejudiced by this action.
      The evidence presented in this case demonstrates that each and every one of the criteria set forth in the pertinent portion of Code § 18A-4-7a was assessed and considered. If that had not been the case, then reconsideration of the applicants may be merited. See Baird/Hawley v. Kanawha County Bd. of Educ., Docket No. 95-20-445 (Sept. 16, 1996). In addition, there is no dispute that Grievant excelled over Ms. Staggers in some of the criteria, such as amount of experience, degree level, and specialized training. However, Code § 18A-4-7a “permits school boards to look beyond such factors as experience . . . when selecting applicants”, because they are allowed to consider “other measures or indicators upon which the relative qualifications of the applicant[s] may be fairly judged.” Villers v. Kanawha County Bd. of Educ., Docket No. 97-20-294 (Jan. 30, 1998). Most importantly, the statute does not prioritize the first set of criteria or mandate that any particular area be given specific significance. “A county board may objectively and/or subjectively assign different weight to the various aspects of the applicants' credentials.” Jenkinson v. Greenbrier County Bd. of Educ., Docket No. 95-13-503 (March 31, 1996); See Marsh v. Wyoming County Bd. of Educ., Docket No. 94-55-022 (Sept. 1, 1994).
      In determining whether a discretionary decision was "arbitrary and capricious" a reviewing body applies a narrow scope of review, limited to considering whether relevant factors were considered in reaching the decision, and whether there has been a clear error of judgment. Gruen v. Bd. of Directors, Docket No. 95-BOD-281 (Mar. 6, 1997). See 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); Hill v. Kanawha County Bd. of Educ., Docket No. 94-20-537 (Mar. 22, 1995), aff'd sub nom. Hill v. Raglin, Circuit Court of Kanawha County, No. 95-AA-106 (Mar. 22, 1995). Alternatively, it may be shown that the county board and school superintendent, in making their selection determination, "did not rely on factors that were intended to be considered, entirely ignored important aspects of the problem, explained its decision in a manner contrary to the evidence before it, orreached a decision that is so implausible that it cannot be ascribed to a difference of view." Bedford County Memorial Hosp. v. Health & Human Serv., 769 F.2d 1017 (4th Cir. 1985).
      Although another person might reasonably have selected Grievant for this position because she had more experience and education, the arbitrary and capricious standard of review does not permit an administrative law judge to simply 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 introduced no evidence to contradict Principal Carskadon's conclusions regarding Ms. Staggers' qualifications, nor did she attempt to demonstrate that she was superior to Ms. Staggers in those areas. Grievant failed to establish that her qualifications were so superior to Ms. Staggers' that MCBE's failure to select her for this position 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 findings and 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 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.      A county board of education must make decisions on the selection of professional personnel and new 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 criteria in W. Va. Code § 18A-4-7a, county boards have wide discretion in filling these positions. 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 she was more qualified than Kerri Staggers for the teaching 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, this Grievance is DENIED.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Mineral 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:      March 31, 2000                        ________________________________
                                                 DENISE M. SPATAFORE
                                                Administrative Law Judge