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.
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:
The state board of education shall develop and cause to be made
available competency tests for all of the classification titles defined in section
eight [§ 8A-4-8] and listed in section eight-a [§ 18A-4-8a] of this article for
service personnel. Each classification title defined and listed shall be
considered a separate classification category of employment and shall have
a separate competency test, . . . .
The purpose of these tests shall be to provide county boards of
education a uniform means of determining whether school service personnel
employees who do not hold a classification title in a particular category of
employment can meet the definition of the classification title in another
category of employment as defined in section eight of this article.
Competency tests shall not be used to evaluate employees who hold the
classification title in the category of their employment.
The competency test shall consist of an objective written and/or
performance test: Provided, That applicants shall have the opportunity of
taking the written test orally if requested. Oral tests shall be recorded
mechanically and kept on file. Persons administering the oral test shall not
know the applicant personally. The performance test for all classifications
and categories other than Bus Operator shall be administered by a
vocational school which serves the county board of education. A standard
passing score shall be established by the state department of education for
each test and shall be used by county boards of education. The subject
matter of each competency test shall be commensurate with the require
ments of the definitions of the classification titles as provided in section eight
of this article. The subject matter of each competency test shall be designed
in such a manner that achieving a passing grade will not require knowledge
and skill in excess of the requirements of the definitions of the classification
titles. Achieving a passing score shall conclusively demonstrate the
qualification of an applicant for a classification title. Once an employee
passes the competency test of a classification title, said applicant shall be
fully qualified to fill vacancies in that classification category of employment
as provided in section eight-b [§ 18A-4-8b] of this article and shall not be
required to take the competency test again.
An applicant who fails to achieve a passing score shall be given other
opportunities to pass the competency test when making application for
another vacancy within the classification category.
Competency tests shall be administered to applicants in a uniform
manner under uniform testing conditions. County boards of education shall
be responsible for scheduling competency tests and shall not utilize a
competency test other than the test authorized by this section.
When scheduling of the competency test conflicts with the work
schedule of a school employee who has applied for a vacancy, said
employee must be excused from work to take said competency test without
loss of pay.
A minimum of one day of appropriate inservice training shall be
provided employees to assist them in preparing to take the competency
tests.
Competency tests shall be utilized to determine the qualification of
new applicants seeking initial employment in a particular classification title
as either a regular or substitute employee.
Notwithstanding any provision in this code to the contrary, once an
employee holds or has held a classification title in a category of employment,
that employee shall be deemed as qualified for said classification title even
though that employee no longer holds that classification.
The requirements of this section shall not be construed to alter the
definitions of class titles as provided in section eight of this article nor the
procedure and requirements of section eight-b of this article.
The testing procedures of this section shall be implemented effective
the first day of July, one thousand nine hundred ninety-one.
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