JAMES SAVILLA,

            Grievant,

v.                                                      Docket No. 00-40-058

PUTNAM COUNTY BOARD OF EDUCATION,

            Respondent,
and,

PATRICIA BURLINGAME,

            Intervenor.

                  

DECISION

      This grievance was initiated by Grievant James Savilla against Respondent Putnam County Board of Education, when he was not selected for the extracurricular position of Student Council Sponsor at Poca High School. Grievant believes he is more qualified than the successful applicant, and that the selection was made in an arbitrary and capricious manner. Grievant requested instatement into the position and back pay.   (See footnote 1)        The following Findings of Fact are made based upon the evidence presented at Level II.
Findings of Fact

      1.      Grievant has been employed by the Putnam County Board of Education ("PBOE") as a teacher at Poca High School for 29 years. He teaches social studies.
      2.      On August 25, 1999, PBOE posted an extracurricular position of Student Council Sponsor at Poca High School. Four teachers applied for the position, including Grievant. All applicants were PBOE employees at Poca High School.
      3.      It is PBOE's policy that the school principal make a recommendation for filling extracurricular assignments. John Cunningham, Principal at Poca High School, appointed a panel to conduct interviews, consisting of Assistant Principal Vic Donaldson, and two Faculty Senate officers, Charles McCormick and Rebecca Meadows. Principal Cunningham also participated in the interviews.
      4.      With the input of the panel members, Principal Cunningham developed five questions, and each applicant was asked these same questions. Each answer was rated by each panel member and Principal Cunningham on a scale of 1 to 10. The questions were:




      5.      The panel considered the seniority of the applicants. The most senior applicant, Grievant, was given a score of 10 in this category, the next most senior received a 9, the next most senior an 8, and the least senior, Ms. Burlingame, a 7.
      6.      After the interviews the panel met and tallied their individual ratings. Grievant received scores of 55, 53, 56, and 50, for a total of 214 points. The panel gave Patricia Burlingame the highest rating of the applicants, with scores of 56.7, 57, 55, and 55, for 223.7 total points. The other two applicants received 216.5 and 214.1 points, respectively. Principal Cunningham recommended that Ms. Burlingame be awarded the position. His recommendation was accepted by the Superintendent and PBOE.
      7.      Grievant was Student Council Sponsor and Co-sponsor for about 10 years, and also helped out as a volunteer for a number of years. Ms. Burlingame had no experience as Student Council Sponsor, although she did assist the previous Sponsor on a volunteer basis when she needed help.
      8.      Ms. Burlingame has been a teacher at Poca High School for six years and teaches math. She has experience in Girl Scout Council, as a church youth leader, as a director of summer church day camp, has held an office in Beta Sigma Phi sorority, and has participated in other volunteer activities. She was a member of Student Council in high school, and was Student Council Vice President in junior high school.
Discussion
      Grievant bears the burden of proving each element of his grievance by a preponderance of the evidence. Conner v. Mingo County Bd. of Educ., Docket No. 95-29- 476 (Mar. 28, 1996). The parties agreed that the posted position was an extracurricular assignment. Grievant argued he was the best qualified applicant for the position, and the decision to award the position to Ms. Burlingame was arbitrary and capricious. Grievant believed he was uniquely qualified because he had taught American government and had years of experience with Student Council. He believed he should have been awarded the position based upon his seniority, and had asked Principal Cunningham why interviews were necessary as he was the most senior applicant. PBOE and Intervenor denied that the action was arbitrary and capricious.
      “This Grievance Board has previously determined that the provisions of W. Va. Code § 18A-4-7a are not applicable in the selection of professional personnel for extracurricular assignments. Hall v. Mingo County Bd. of Educ. Docket No. 95-29-529 (Mar. 28, 1996); Foley v. Mineral County Bd. of Educ., Docket No. 93-28-255 (Oct. 29, 1993); Smith v. Logan County Bd. of Educ., Docket No. 91-23-040 (July 31, 1991). Thus, 'the appropriate standard of review for decisions concerning selection of professional personnel to fill [extracurricular] assignments is abuse of discretion.' McCoy v. Kanawha County Bd. of Educ., Docket No. 94-20-141 (Oct. 13, 1994), citing Pockl v. Ohio County Bd. of Educ., 185 W. Va. 256, 406 S.E.2d 687 (1991); Foley, supra; See Dillon v. Bd. of Educ., 177 W. Va. 145, 351 S.E.2d 58 (1986); Jackson v. Grant County Bd. of Educ., Docket No. 97-12-224 (Oct.16, 1997).” Lusher v. Putnam County Bd. of Educ., Docket No.99-40-061 (May 7, 1999). Contrary to Grievant's belief, seniority is not the determining factor in the selection of professional personnel for an extracurricular assignment.
      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 decision-maker 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).
      Principal Cunningham testified he had four quality applicants for the position, each of whom would have done an excellent job. He stated he felt the interview was necessary to determine who was best qualified. He selected three people to serve with him on the panel in an effort to remove personalities from the selection process.
      The job description for the position reads as follows:

Grievant suggested that the interview questions should have been developed from the job description. While that is certainly one way the questions could have been developed, the questions asked of the applicants were relevant to the job duties and important.
      Certainly Grievant was highly qualified for the position. However, he did not demonstrate that the selection could not be based primarily upon scores assigned in the interview, or that the scores he received were inappropriate. The interview questions were relevant, and the process used to select the successful applicant was reasonable. Grievant has not demonstrated PBOE acted in an arbitrary and capricious manner or otherwise abused its substantial discretion in selecting Ms. Burlingame for the position.       The following Conclusions of Law support the Decision reached.      
Conclusions of Law

      1.      Grievant bears the burden of proving each element of his grievance by a preponderance of the evidence. Conner v. Mingo County Bd. of Educ., Docket No. 95-29- 476 (Mar. 28, 1996).
      2.      County boards of education have substantial discretion in matters relating to the assignment of school personnel, so long as they act reasonably, in the best interests of the school, and in a manner which is not arbitrary and capricious. See Hyre v. Upshur County Bd. of Educ., 186 W. Va. 267, 412 S.E.2d 265 (1991).      3.      “The provisions of W. Va. Code § 18A-4-7a are not applicable in the selection of professional personnel for extracurricular assignments. Hall v. Mingo County Bd. of Educ. Docket No. 95-29-529 (Mar. 28, 1996); Foley v. Mineral County Bd. of Educ., Docket No. 93-28-255 (Oct. 29, 1993); Smith v. Logan County Bd. of Educ., Docket No. 91-23-040 (July 31, 1991).” Lusher v. Putnam County Bd. of Educ., Docket No. 99-40-061 (May 7, 1999).
      4.      "'The appropriate standard of review for decisions concerning selection of professional personnel to fill [extracurricular] assignments is abuse of discretion.' McCoy v. Kanawha County Bd. of Educ., Docket No. 94-20-141 (Oct. 13, 1994), citing Pockl v. Ohio County Bd. of Educ., 185 W. Va. 256, 406 S.E.2d 687 (1991); Foley, supra. See Dillon v. Bd. of Educ., 177 W. Va. 145, 351 S.E.2d 58 (1986); Jackson v. Grant County Bd. of Educ., Docket No. 97-12-224 (Oct.16, 1997).” Lusher, supra.
      5.      The use of a selection panel, with each member rating each relevant question on a scale of 1 to 10, then tallying the scores, including the seniority score, and selecting the applicant with the highest score, is a reasonable method of choosing the successful applicant for an extracurricular position such as this.
      6.      Grievant did not demonstrate he was entitled to the position at issue, or that PBOE acted in an arbitrary and capricious manner or otherwise abused its substantial discretion.

      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or to the Circuit Court of Putnam 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:      April 7, 2000


Footnote: 1
This grievance was filed on November 4, 1999, and was denied at Level I on November 16, 1999. Grievant appealed to Level II, where the grievance was denied on February 4, 2000, following a hearing held on January 12, 2000. Grievant appealed the Level II Decision to Level IV on February 10, 2000, waiving Level III. The parties agreed that this matter could be submitted based upon the record developed at Level II. Grievant was represented by Rosemary Jenkins, Respondent was represented by John A. Grafton, Esq., and Intervenor was represented by Jama Huffman. This grievance became mature for decision on March 28, 2000.