I. F. "FRANK" HUGHES,
            Grievant,

v.                                                       Docket No. 99-18-537

JACKSON COUNTY BOARD OF EDUCATION,
            Respondent.

D E C I S I O N

      Grievant Frank Hughes filed this grievance on July 29, 1999, alleging in his Statement of Grievance that the Jackson County Board of Education, ("JCBOE") had:

This grievance was denied at Levels I and II, and waived at Level III. Grievant appealed to Level IV on September 10, 1999. A hearing on this matter was held in the Grievance Board's Charleston, West Virginia, office on November 1, 1999, and this grievance became mature for decision on December 2, 1999, after receipt of Grievant's proposed findings of fact and conclusions of law.   (See footnote 1)  Grievant was pro se, and JCBOE was represented by Attorney Greg Bailey.
Issues and Arguments

      Grievant argues the posting was part of a continuing practice designed to exclude certain applicants and to pre-select the successful applicant for this counseling position. He maintained the special criteria and skills listed in the posting were excessive and couldbe learned on the job. He also appeared to argue that he was not given sufficient credit for his qualifications and past experience.   (See footnote 2) 
      Respondent's first argument is that this grievance is untimely filed. Respondent also asserted Grievant was not qualified for the position, as he did not meet the posted special criteria and skills requirements. Respondent maintains the requirements are essential to the efficient performance of the position, and are not irrelevant or pretextual. Respondent noted Grievant had prior experience as a counselor, but that experience had been some time ago, and it did not include some of the required skills for the position. Respondent asserted that in this situation, when they had someone who possessed the necessary job skills and Grievant did not, he was clearly not the most qualified candidate for the position.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.   (See footnote 3) 

Findings of Fact

      1.      Grievant is currently employed as a teacher with JCBOE.
      2.      On May 5, 1999, a position for a counselor at Ripley High School was posted. This posting listed the required special criteria and skills as the following:
      3.      The Ripley High School Principal, Blaine Hess, identified these skills as key requirements for the position. He was not told by anyone that these requirements should be included in the posting. After discussing the specifications with Dolores Ranson, the Assistant Superintendent of Personnel and Instruction, the position was posted with the above-stated requirements.       
      4.      Grievant worked as a counselor at Ravenswood High School in the 1970's and 1980's. During that period he worked with Financial Aid and NCAA issues.
      5.      Grievant also has children in college, and he worked with both Financial Aid and NCAA issues as they applied to them.
      6.      Grievant has no experience or training with WVEIS.
      7.      WVEIS is a computer information system which is utilized by all schools to develop student master schedules, produce student transcripts, and provide a record of student information.
      8.      When Grievant worked at Ravenswood High School, he worked with student scheduling and transcripts, but did not use the WVEIS system, as it was not yet in place.
      9.      The requirements of Financial Aid and the NCAA change on a regular basis.
      10.      Grievant was deemed as not meeting the requirements for the position.
      11.      The position was filled on June 3, 1999.       12.      Grievant initiated an initial discussion of a possible grievance on July 9, 1999, and the informal conference was held on July 19, 1999.
      13.      It is unclear from the record when the Level I conference was held, but the Level I decision was issued on August 10, 1999.
      14.      The Level I Decision listed one of the reasons for denial of the grievance as timeliness.
      15.      The Level II Decision listed one of the reasons for denial of the grievance as timeliness.
Discussion

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his 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.
      The first issue is whether this grievance was untimely filed. JCBOE contends this grievance is untimely as it was not initiated within the timelines contained in W. Va. Code § 18-29-4. Where an employer seeks to have a grievance dismissed on the basis it was not timely filed, the employer has the burden of demonstrating such untimely filing by a preponderance of the evidence. Once the employer has demonstrated a grievance has not been timely filed, the employee has the burden of demonstrating a proper basis to excuse his failure to file in a timely manner. Higginbotham v. W. Va. Dep't of Public Safety, Docket No. 97-DPS-018 (Mar. 31, 1997); Sayre v. Mason County Health Dep't,Docket No. 95-MCHD-435 (Dec. 29, 1995), aff'd, Circuit Court of Mason County, No. 96-C- 02 (June 17, 1996). See Ball v. Kanawha County Bd. of Educ., Docket No. 94-20-384 (Mar. 13, 1995); Woods v. Fairmont State College, Docket No. 93-BOD-157 (Jan. 31, 1994); Jack v. W. Va. Div. of Human Serv., Docket No. 90-DHS-524 (May 14, 1991).
      W. Va. Code §18-29-4(a) requires a grievance to be filed:
      The position in question was filled at the June 3, 1999 meeting of JCBOE. Grievant asked for a grievance form on or about July 9, 1999. Principal Hess does not remember Grievant offering any reason for his delay in filing. The timeliness issue was brought to Grievant's attention at Level II. Grievant did not offer any reason for his delay in filing other than telling Superintendent Dale Summitt, at Level II, that the rules should not be strictly interpreted during the summer, and his late filing should be disregarded.
      There is no precedent or basis for Grievant's desire to interpret W. Va. Code § 18- 29-2(b)during the summer months when he is not employed. The definition of “days”in this Code section specifically includes days “prior to or subsequent to” the employment term and only excludes weekends, holidays, and days which the institution is closed for emergency reasons. Although most on the time between the selection decision and Grievant's filing was not technically within Grievant's employment term, these days would certainly fall within the purview of days prior and subsequent to the actual term.
      Further, although this issue was argued by Respondent at Level IV, Grievant did not address this issue. Clearly, Grievant's filing is outside the statutory time frame offifteen days from the date the grievable event occurred. As such this grievance is untimely filed.
      However, in this instance, given the procedural defects identified in Hughes v. Jackson County Board of Education, Docket No. 99-18-378D (January 27, 2000), the undersigned Administrative Law Judge will also address the merits of the grievance.
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his 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 argued JCBOE did not have the discretion to require the above-stated special criteria and skills needed by the successful applicant. This argument must fail. It is well-recognized that county boards of education have substantial discretion in matters related to hiring, assignment, transfer, and promotion of school personnel. However, that discretion must be tempered in a manner that is reasonably exercised, in the best interest 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). Consistent with this principle, a county board of education has substantial discretion when establishing the qualifications for a position at the time of posting. See Cowen v. Harrison County Bd. of Educ., 196 W. Va. 377, 465 S.E.2d 648 (1995); Mounts v. Mingo County Bd. of Educ., Docket No. 96- 29-479 (June 27, 1997); Bailey v. Mingo County Bd. of Educ., Docket No. 95-29-346 (Feb.21, 1996); Spaulding v. Mingo County Bd. of Educ., Docket No. 95-29-357 (Jan. 31, 1996).
      In order for Grievant to prevail on his contention that JCBOE improperly stated the qualifications for the position, he must demonstrate that the school board's decision was either arbitrary and capricious, or an abuse of discretion. See Cowen, supra; Pockl v. Ohio County Bd. of Educ., 185 W. Va. 256, 406 S.E.2d 687 (1991); McCune v. Kanawha County Bd. of Educ., Docket No. 94-20-265 (Oct. 31, 1994). In applying an "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).
      Grievant failed to meet his burden of proof and establish JCBOE's determination was either arbitrary and capricious or an abuse of discretion. The required special criteria and skills are relevant and essential for a high school counselor. Grievant has failed to demonstrate the stated criteria was excessive and designed to exclude applicants. See Cowen, supra; Hill v. Kanawha County Bd. of Educ., Docket No. 94-20-537 (Mar. 22, 1995), aff'd sub nom. Hill v. Raglin, Cir. Ct. of Kanawha County, No. 95-AA-106 (Jan. 8, 1997).
      Consistent with the foregoing discussion, the following Conclusions of Law are appropriate in this matter.
CONCLUSIONS OF LAW
      1.      Where an employer seeks to have a grievance dismissed on the basis it was not timely filed, the employer has the burden of demonstrating such untimely filing by a preponderance of the evidence. Once the employer has demonstrated a grievance has not been timely filed, the employee has the burden of demonstrating a proper basis to excuse his failure to file in a timely manner. Higginbotham v. W. Va. Dept. of Public Safety, Docket No. 97-DPS-018 (Mar. 31, 1997); Sayre v. Mason County Health Dept., Docket No. 95-MCHD-435 (Dec. 29, 1995), aff'd, Circuit Court of Mason County, No. 96-C- 02 (June 17, 1996). See Ball v. Kanawha County Bd. of Educ., Docket No. 94-20-384 (Mar. 13, 1995); Woods v. Fairmont State College, Docket No. 93-BOD-157 (Jan. 31, 1994); Jack v. W. Va. Div. of Human Services, Docket No. 90-DHS-524 (May 14, 1991).
      2.      W. Va. Code §18-29-4(a) requires a grievance to be filed:

      3.      Respondent has proven that the filing of this grievance was unti4ely.
      4.      Grievant has failed to present evidence to excuse his late filing.

      5.      In a grievance which is not disciplinary in nature, the grievant has the burden of proving the allegations in his complaint by a preponderance of the evidence. W. Va. Educ. & State Employees Grievance Bd. Procedural Rule 4.19, 156 C.S.R. 1 (1996); Williams v. Lincoln County Bd. of Educ., Docket No. 93-22-386 (Mar. 7, 1994); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.       6.      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).
      7.      A county board of education has substantial discretion when establishing the qualifications for a position at the time of posting. See Cowen v. Harrison County Bd. of Educ., 196 W. Va. 377, 465 S.E.2d 648 (1995); Mounts v. Mingo County Bd. of Educ., Docket No. 96-29-479 (June 27, 1997); Bailey v. Mingo County Bd. of Educ., Docket No. 95-29-346 (Feb. 21, 1996); Spaulding v. Mingo County Bd. of Educ., Docket No. 95-29- 357 (Jan. 31, 1996).
      8.      In applying an "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).
      9.      Grievant failed to establish that JCBOE's decision to require the successful applicant to have the above-stated special criteria and skills was either arbitrary and capricious or an abuse of discretion as they are essential to the position. See Cowen, supra; Hill v. Kanawha County Bd. of Educ., Docket No. 94-20-537 (Mar. 22, 1995), aff'd sub nom. Hill v. Raglin, Cir. Ct. of Kanawha County, No. 95-AA-106 (Jan. 8, 1997).
      Accordingly, this grievance is DENIED.

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

                                     ___________________________________
                                                 JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: January 31, 2000


Footnote: 1
      A default hearing was also held on this same day and an Order Denying Default was issued on January 27, 2000. See Hughes v. Jackson County Bd. of Educ., Docket No. 99-18-387D (Jan. 27, 2000).
Footnote: 2
      Grievant did not argue that he was more qualified than the successful applicant, and he gave no information on the qualifications of the successful applicant.
Footnote: 3
      There was no verbatim transcript of the Level II hearing, only a summary of the key points. This was used for some information as Grievant agreed in his default hearing that the information was correct. Even though the undersigned Administrative Law Judge reminded Grievant that the record below was very sparse, Grievant still placed little evidence into the record at Level IV.