BERTHA KIRK,

            Grievant,

v.                                                      Docket No. 00-23-043

LOGAN COUNTY BOARD OF EDUCATION,

            Respondent.

D E C I S I O N

      Grievant, Bertha Kirk, a substitute Cook, filed this grievance against the Logan County Board of Education ("LBOE") in the fall of 1999, when she was not selected for a posted position. The statement of grievance reads:


As relief, Grievant “no longer seeks instatement into the Christian vacancy as she was subsequently reemployed as a regular school cook. However, Grievant seeks wages, benefits, regular seniority, and interest on all monetary sums retroactive to the date of the filling of the Christian vacancy.”   (See footnote 1) 
      The following Findings of Fact are made from the evidence presented at Level IV.
FINDINGS OF FACT

      1.      Grievant is employed by LBOE as a substitute Cook.
      2.      On October 5, 1999, LBOE posted a half-time Cook II position at Christian Elementary School. The posting dates were from October 5 through October 11, 1999.
      3.      On October 5, 1999, Grievant was employed in a long-term, temporary Cook position, which she held through Friday, October 8, 1999. Grievant had regular employee status while in this position. On Monday, October 11, 1999, Grievant did not hold regular employee status.
      4.      On October 11, 1999, Ronald Berry, also employed by LBOE as a substitute, was employed in a long-term temporary position, and held regular employee status.
      5.      Both Grievant and Mr. Berry applied for the Cook II position, by depositing their applications in a locked box set up for that purpose.
      6.      At 4:00 p.m. on October 11, 1999, Linda Adkins, a secretary in LBOE's personnel office, opened the application box and removed the applications. She made a list of applicants for the position, and determined what their employment status was as of October 11, 1999. It has been LBOE's practice for at least three years to look to the status of the applicants as of the closing date of the posting in determining which employee should be awarded a position.
      7.      Mr. Berry was awarded the position because he held regular employee status on October 11, 1999. Grievant has more regular seniority than Mr. Berry, and had the position been awarded based upon the status of the applicants on October 5, 1999, Grievant would have been awarded 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). Grievant argues that, pursuant to W. Va. Code § 18A-4-8g, it is the status of the applicants on the first day a position is posted which is determinative. Alternatively, Grievant argues the appropriate date for determining applicant status is the date the job became vacant, relying on the following language from Roberts v. Marshall County Board of Education, Docket No. 91-25-395 (Jan. 15, 1992): “[w]hen during a current employment term, a service vacancy is known and posted for a position which will be available during the following school year, all of the applicants must be viewed in the light of what their employment status will be when the job is actually available.” Respondent argued it made more sense to look at the status of the applicants on the closing date of the posting, and that has been its practice for a long time. The issue at hand is whether LBOE should have used October 5, October 11, or some other date as the key date for determining the status of the applicants.
      It is clear that Grievant and Mr. Berry, as substitute school service personnel, held regular employee status only while they were serving in long-term temporary positions which they received as a result of the posting and selection process. Meadows v. Logan County Bd. of Educ., Docket No. 98-23-112 (June 16, 1998); Messer v. Mingo County Bd. of Educ., Docket No. 93-29-497 (Aug. 1, 1994). W. Va. Code § 18A-4-15 provides, in pertinent part:

      W. Va. Code § 18A-4-8b provides that the selection of an employee to fill a posted position is to be made based upon seniority, qualifications and evaluation of past service. However, it also gives priority to groups of employees. The group with the highest priority is regular employees, and the status of the employee prevails over seniority.   (See footnote 2) 

Loss v. Marion County Bd. of Educ., Docket No. 97-24-413 (Jan. 30, 1998).
      While W. Va. Code § 18A-4-8b also prescribes how positions are to be posted, it does not address the issue at hand, providing:
      Grievant's reference to Roberts, supra, is not helpful here. That case involved the status of employees who had been reduced in force as of the end of the school year in June. The positions at issue were posted in May of that school year, but the successful applicants would not be placed in the positions until the following school year. Thus, in Roberts, the posting occurred months before the positions were available. Here, the position needed to be filled immediately. It is likely that the position was being filled by a substitute employee until it could be posted. Thus, the reasoning which led to the conclusions in Roberts are not present in this case. The exact date that the position became “available” is not in the record. One could further argue that the position was only “available” in this instance after the closing date of the posting.
      W. Va. Code § 18A-4-8g is the only statutory provision which speaks to the time when the employee's status is to be viewed. That Code Section provides, in pertinent part:

This statutory provision was enacted in 1993, thus it was not in effect when Roberts, supra, was written, and it appears to have effectively overruled that case. Even this provision, however, does not provide the answer to the query in the instant grievance. The statute states the key date is “the time when a vacancy is posted.” The vacancy was posted from October 5 through October 11.
      The undersigned finds that there is no statutory provision which addresses the issue presented. Accordingly, a county board of education decision on the appropriate date ofthe posting period for evaluating the status of the applicants should be upheld unless found to be arbitrary and capricious. The arbitrary and capricious standard of review requires a searching and careful inquiry into the facts; however, the scope of review is narrow, and the undersigned may not substitute her judgement for that of the decision- maker. See generally, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982). Generally, an action is arbitrary and capricious if the body taking the action 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, or reached a decision that is so implausible that it cannot be ascribed to a difference of view. Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985).
      LBOE had a good reason for looking to the status of the applicants on the last day of the posting. It had to pick a date, so it picked the closing date, the date when all the applications were in. It is just as reasonable to look at applicant status on the last day of the posting, as it is on the first day of the posting, and LBOE has consistently looked at the applicants' status on the last day of the posting for at least three years. Unfortunately, in this case Grievant was not the successful applicant, even though she had the most seniority. However, had she by chance been serving in the position Mr. Berry held, and he serving in hers, this method would have worked to her advantage. Had this been the case, and LBOE been using the method suggested by Grievant, the method she suggests would have worked against her. It is all a matter of chance, which is a result of the statutory scheme which gives substitutes regular employee status when they are serving in a long-term temporary position, and gives those with regular employee status priority in filling positions regardless of seniority. The date chosen by a board of education for determining the status of the applicants is of no importance, so long as the board of education is consistent and does not act in an arbitrary and capricious manner.
      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.      Grievant did not demonstrate that any statutory provision requires a board of education to look to the status of applicants for a posted position on the first day of the posting, or that LBOE acted in an arbitrary and capricious manner.

      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or to the Circuit Court of Logan 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:      July 10, 2000


Footnote: 1
       The record does not reflect when this grievance was filed, or what occurred at Level I. Grievant appealed to Level II, where a hearing was held. Due to a malfunction in the recording equipment, this hearing was not recorded. A Level II decision denying the grievance was issued on January 19, 1999. Grievant waived Level III, appealing to Level IV on January 26, 1999. A Level IV hearing was held on May 19, 2000. Grievant was represented by John Everett Roush, Esquire, and Respondent was represented by Brian Abraham, Esquire. This grievance became mature for decision on June 7, 2000, upon receipt of Grievant's written argument. Respondent declined to submit written argument.
Footnote: 2
       That Code Section provides, in pertinent part:
          A county board shall make decisions affecting promotions and the filling of any service personnel positions of employment or jobs occurring throughout the school year that are to be performed by service personnel as provided in section eight [§ 18A-4-8] of this article, on the basis of seniority, qualifications and evaluation of past service.

    Qualifications shall mean that the applicant holds a classification title in his category of employment as provided in this section and must be given first opportunity for promotion and filling vacancies. Other employees then must be considered and shall qualify by meeting the definition of the job title as defined in section eight of this article, that relates to the promotion or vacancy. If requested by the employee, the board must show valid cause why an employee with the most seniority is not promoted or employed in the position for which he or she applies. Applicants shall be considered in the following order:

    (1) Regularly employed service personnel;

    (2) Service personnel whose employment has been discontinued in accordance with this section;

    (3) Professional personnel who held temporary service personnel jobs or positions prior to the ninth day of June, one thousand nine hundred eighty-two, and who apply only for such temporary jobs or positions;

    (4) Substitute service personnel; and