D E C I S I O N
Michael Clemont had been professionally employed by Re
spondent Ohio County Board of Education (OCBE) for seventeen
years prior to his dismissal effective August 14, 1990. On that
date OCBE issued written charges against Grievant, reproduced
here, in material part:
Pursuant to the provisions of [W.Va. Code §18A-2-8]
[OCBE] hereby notifies you of your dismissal from its
employment upon the grounds of immorality and incom
petence. . . ..
Specific charges which support the basis of the
conclusion that you have engaged in immoral conduct
and have acted incompetently are as follows:
INCOMPETENCY
1. Repeated failure to follow procedures in the
establishment and maintenance of student records and
files as documented by supervisors and evaluations.
2. Repeated failure to maintain records of student
transcripts as documented by supervisors, colleagues
and clerical staff.
3. Repeated incidents of losing and misplacing of
student files as documented by supervisors, colleagues
and clerical staff.4. Repeated incidents of providing inaccurate advice
concerning required subjects for graduation as docu
mented by supervisors, colleagues and clerical staff.
5. Repeated failure to post test scores to student
records as documented by supervisors, colleagues and
clerical staff.
6. Inability to properly schedule and administer
CTBS testing program, including written directions,
disorganization and lack of required testing materi
als.
7. Repeated incidents of providing students incor
rect information regarding college registration, time
line and deadlines.
8. Repeated incidents of not following procedures in
the placement of students in the Bridges program
housed at the YMCA.
9. Repeated use of students for clerical tasks for
student records maintenance in violation of confiden
tiality provisions and specific directions to the
contrary.
10. Repeated removal of student records and files
from the school premises despite specific directions
to the contrary.
11. Grossly inappropriate behavior at a neighboring
state high school while purporting to represent
Wheeling Park High School.
IMMORALITY
1. Repeated incidents of uttering sexually explicit
comments to female students.
2. The sexual solicitation of a female high school
student at a college party on September 30, 1989,
during which you and underaged students consumed
alcohol.
3. Inappropriate touching of female students by
having them sit on your lap in your office and at an
after prom party from which you were told to leave.
Grievant filed a grievance directly to level four where hearing
was held September 24 and 26, 1990. Grievant and OCBE filedsupportive briefs on December 14 and December 17, 1990, respec
tively.
OCBE's counsel opened the level four proceedings with the
following statement, T. 7-9, in pertinent part:
[OCBE,] following a series of events which in. .
.[its] opinion. . .reached proportions of which were
of a nature that they no longer could be ignored, felt
compelled to dismiss [Grievant] as a guidance coun
selor. . .pursuant to [W.Va. Code §18A-2-8][.] [The
grounds] were that [he] discharged his duties as a
guidance counselor in an incompetent manner, and he
was guilty of committing acts of immorality. . .. I
think at the inception I should direct the hearing
examiner's attention to the opinion of the West
Virginia Supreme Court in Rovello v. Lewis County Bd.
of Educ., 381 S.E.2d 237 [1989]. In the Rovello case
the board of education of Lewis County attempted to
dismiss a teacher on the grounds that he had misused
school funds which was under §18A-2-8 considered an
act of immorality. The teacher in that case raised a
very interesting point that the board had to follow
the mandates of Policy 5300 in terms of a plan of
assistance, a period of improvement, that type of
thing. That was not done in this case nor was it done
in the Rovello case, and. . .[OCBE] takes the position
on the strength of Rovello that if the only grounds
for the dismissal were that [Grievant] acted in an
incompetent manner the strong argument certainly could
be made that he was entitled to a plan of assistance.
However, I believe, as the testimony will develop
here, [Grievant] was given, not necessarily a formal
plan of assistance, but numerous opportunities to a)
be aware of the areas of incompetence and b) a rea
sonable opportunity to correct any of the deficien
cies. However, beyond that we have three alleged acts
of immorality, which, according to Rovello, and [OCBE]
would urge here, cannot be corrected and are not
subject to a plan of assistance and a reasonable
opportunity to correct the deficiencies.
Eleven witnesses appeared on OCBE's behalf: Wheeling Park
High School (WPH) Principal George Krelis and Assistant Princi
pals William Carman and Eric Carder; WPH's present guidance
counselors, including Ronald DiLorenzo who had been named
department chairman in August 1989, Dennis Regele, LelandSteiner and substitute Patricia Hershey, and a guidance depart
mental clerk, Nancy Hartzell; OCBE member Mary Dolan; OCBE's
Director of Student Services Dr. Bonnie Pollock; and a principal
from a neighboring high school in the State of Ohio, Robert
McNabb.
(See footnote 1)
Grievant testified on his own behalf, as did his
father, Herbert Clemont, and his attending psychiatrist, Dr.
David Hill.
I.
The facts in this case, gleaned from the parties' proposals
and the total record, are basically presented in chronological
order to most-clearly depict the sequence of events which led to
Grievant's dismissal:
1. Grievant is certified in secondary math and guidance
counseling. He had been assigned as a junior-high counselor
since the 1974-75 school year. Beginning the 1986-87 academic
year, he became one of the four guidance counselors at WPH.
2. Some primary functions of a WPH guidance counselor are
to update and maintain various records, most of them of a
sensitive nature, for approximately 370 students; to administer,
record and interpret relevant testing; and to establish a
rapport between his or her assignees in order to guide and to
schedule them for classes which best meet their academic,
vocational and personal needs. Student records should be
handled in a manner so as to ensure confidentiality and must bestored, at all times, in the counselor's office, either on his
or her desk or in a filing cabinet.
3. Grievant suffers from a mental illness known as bi-
polar disorder, commonly referred to as manic-depressive
psychosis. This malady can be controlled by the life-long
administration of Lithium and, when needed for depression, the
tranquilizer Haldol.
4. Grievant had been taking Lithium since 1974 when his
mental illness was first diagnosed during a hospital stay. He
was hospitalized again in 1980 during an acute stage of his
illness, but had been stabilized with Lithium therapy until he
voluntarily discontinued it in Fall 1988.
5. During the 1986-87 school year, specifically Spring
1987, Ms. Hartzell overheard Grievant ask a male student, who
apparently attended a coed party and had hoped to encounter a
certain female, the following: "Was she there? Did you make
out?"
6. Grievant's evaluation for the 1986-87 school year
reflected that he had been observed on an "on-going, monthly"
basis, met all thirty-eight performance indicators and, overall,
exceeded performance standards. Mr. Krelis, then an assistant
principal, generally lauded Grievant's performance and only
recommended that he "continue to learn intricacies of [WPH and
its] guidance program" and to "pay stricter attention to cleri
cal details needed to operate program effectively." The evalu
ation contained no mention of the comment Grievant made to the
male student which OCBE later alleged was an immoral act. 7. During the 1987-88 school year Grievant was disorgan
ized in October when he administered a student achievement test,
and in Spring 1988 Grievant had not completed student informa
tion on his guidance cards. Also in 1988, Mr. DiLorenzo ob
served some of Grievant's students in his office using the
telephone or doing clerical work while Grievant was not present
and guidance cards were on his desk.
8. In February 1988, during a scheduling session for
sophomore students in WPH's media center, a female student spoke
out to Grievant, "What are you doing?" Grievant replied, "I'm
playing with myself, what do you think." The session halted
momentarily but then continued and was not otherwise disrupted.
Mr. DiLorenzo, who had observed the incident, did not confront
Grievant about it until he became the department head in 1989.
At the time it occurred he had reported it to then-WPH head
principal Phyllis Beneke, and he was "shocked" that Grievant had
not come to him to apologize. T.126-128. In Spring 1988, Ms.
Hartzell, who had been passing by Grievant's office, noticed
through the wide-open door that a female student was seated on
Grievant's knee.
9. On April 20, 1988, Grievant received his evaluation
for the 1987-88 school year which again reflected that he had
been observed on an "on-going" basis and had exceeded perfor
mance standards, e.g., he met thirty-six out of thirty-nine
indicators. Mr. Krelis noted that Grievant had "created an
excellent rapport with students," but also recommended, however,
that Grievant "learn more effective the totality of the operation of the Guidance Department. By learning and implementing
facts more effective use of time will occur." He also counseled
Grievant that "[w]hile it is admirable, even desirable to have
students want to spend time with their counselor, too many
students spend too much time in your office. I recommend
strongly that you develop a system or structure that stops
students from spending idle time in the office." The evaluation
did not mention the comment Grievant made to the female student
during sophomore scheduling in February 1988 or the incident of
the female student sitting on Grievant's lap which OCBE later
alleged were immoral acts.
10. In Fall during the 1988-89 school year, Grievant
failed to keep records up to date, left guidance cards on his
desk while he was not present and lost or misplaced files. In
Spring 1989 Mr. Steiner found test booklets and completed answer
sheets unattended in a room where he and Grievant had co-
proctored a scholarship test. Mr. Steiner, who, in essence,
conceded that Grievant may have been in the restroom,
immediately placed the test data in a briefcase he thought to be
Grievant's and returned it to the guidance office.
11. In Spring 1989 during an after-prom party, Grievant
was observed relaxing in a lounge chair with his legs spread
open; thereafter, a female student approached him and sat in the
space on the seat between his legs. Students, parents, WPH
staffers and OCBE member Mary Dolan were present on that occa
sion.
12. There was conflicting testimony about the incident. Ms. Dolan related that, while she could not recall Grievant's
attire, he had not stood up or otherwise disengaged himself and
that the young lady remained on the chair conversing with him
for approximately five minutes. Under cross-examination, T.103,
Ms. Dolan said people were busy coming and going and she could
not recall whether anyone besides her even noticed the incident.
13. Mr. Regele, who had also seen the event, testified
that Grievant had changed from his formal attire and had been
wearing tight "spandex" biking shorts. He said the student
remained on Grievant's lap for about a minute.
14. Ms. Dolan had felt that Grievant's behavior was
inappropriate, and she related her feelings about it to high-
ranking OCBE administrators. She had first told OCBE's soon-to-
depart Superintendent Henry Marockie and Assistant Superin
tendent Frank Dumas. She then told OCBE's newly-appointed
superintendent, Dr. Larry Jones, of the incident and that she
did not approve of Grievant's behavior. However, there was no
corroboration from any party that Grievant had been told to
leave the after-prom party as was stated in OCBE's dismissal
letter.
15. On May 9, 1989, Grievant received his evaluation for
the 1988-89 school year. According to it, Grievant had been
observed on an ongoing basis, attained twenty-four of thirty-
eight indicators and met overall performance standards, well
within the 18 to 32 point range. Mr. Krelis, who had become
head principal in Fall 1988 following Ms. Beneke's untimely
death, noted that improvement was needed in the following areas:(1) A stronger organizational structure for delivery
of services is needed. Organization by area, respon
sibility, time-line, etc. need to be accomplished.
Files need to be labeled for access, cumulative
folders need appropriate daily filing, new entry data
needs to be updated, and all confidential files should
be out of view.
(2) Student counseling must be kept at an academic
level at all times. The office should be available at
all times for students needing assistance, not a place
to congregate.
(3) Operation and involvement with Hi-Y must be
directed as secondary to counseling responsibilities.
Students should not be permitted at any time to use
office as a place for leisure activity or meeting.
(4) With 16 years experience as a teacher and coun
selor and 3 years as a counselor at Wheeling Park High
School, the many daily errors in operation must be
eliminated. A proactive approach must be developed.
There was no mention of the after-prom party incident which OCBE
later claimed was an immoral act on Grievant's part.
16. During the 1989-90 school year, Grievant had been
disorganized in October 1989 when he had administered a test and
had not fully cooperated with Mr. Regele in administering a
scholarship; he also had not entered student test data into
student files, and he had not maintained student transcripts.
17. Also in October 1989, Mr. Krelis and Mr. Carder
confronted Grievant with a complaint from a student's father
that Grievant had told his daughter words to the effect, "Come
with me now or you'll be laid today." This incident occurred
during a pre-game, college "block party" in Morgantown, West
Virginia, a beer party separately attended by Grievant and the
WPH student, who was visiting her sister, a college student. At
a meeting concerning this event, Grievant did not explicitly
deny that the statement was made, but said he had been joking. 18. By letter dated October 20, 1989, Mr. Krelis presented
Grievant the following findings and recommendation about the
incident:
First, I must emphasize that the alleged incident
was formally presented to me by a student and her
parent in concern for their [sic] daughter as it
reflects upon her personal ability to deal with you as
a counselor. With that in mind, both parent and
student presented to me their concerns of what a
professional educator projected to their [sic] daugh
ter. Second, while you were indeed on you own per
sonal time and actions during that time are your own,
the image that you presented created questions in the
minds of the student and parents. Third, the state
ment allegedly made to the young lady, whether in
tended as a humorous discussion or an inadvertent
statement, brought a negative reaction from the young
lady. Her parent brought the reaction to me and I to
you. Finally, your presence at the party and your
personal decision to drink while in attendance, while
not projecting an acceptable image to the young lady
or her parents, is a decision you personally must
make.
With all the information presented and the fact
that you were not an official representative of [WPH]
or the [school system], no recommendation regarding
official action will be presented to the Superinten
dent. However, I strongly urge you to introspectively
view your role as a counselor, the image you project
to our community in general, and, most importantly, to
our students and their parents. Ultimately, you must
determine how you can eliminate the concerns expressed
and maintain your task assignment as Counselor at
[WPH].
19. On November 1, 1989, Grievant visited a high school in
a neighboring state and acted in a "bizarre" fashion. He had
sought a student's files and initially had been angry, discour
teous and demanding. However, after a time Grievant had sud
denly become courteous and departed. Sometime shortly thereaf
ter, Grievant was involuntarily hospitalized for his mental
illness which was in an acute stage due to lack of Lithium.
20. After Grievant's hospitalization WPH's counselingstaff discovered that a number of Grievant's student files had
been removed from the school premises. These files, possibly
100, were returned to the school by Grievant's father.
21. Ms. Hershey, the substitute guidance counselor who
replaced Grievant at WPH, testified that she had numerous
problems locating files and correcting Grievant's errors and
omissions. Her difficulties with the files were not all reme
died, even into the 1990-91 school year, according to her.
However, Ms. Hershey admitted that she had never served as a
guidance counselor before and that her only teaching experience,
in another state, had been with elementary students.
22. When Grievant was able to resume work in January 1990,
he was not returned to WPH but was assigned to instruct students
in OCBE's new off-campus "Bridges" program. Bridges is a high-
school program for students who are "at-risk" academically due
to one or more factors, e.g., deficient intellectual abilities,
substance abuse or family problems.
23. Dr. Pollock had been responsible for overseeing
Grievant's work, but she had not conducted a formal observation
of his Bridges classes. However, she once counseled Grievant
about complaints she had heard about discipline in his classes,
and the situation improved. Dr. Pollock also had to initially
assist Grievant in preparing students' "modified educational
plans," something of which he had had no previous experience,
and he thereafter completed the plans.
24. On June 21, 1990, Mr. Carman issued Grievant's per
formance evaluation for the 1989-90 school year. Mr. Carmannoted that Grievant had been observed "Ongoing 1st Semester."
The evaluation reflected that Grievant had met only fifteen
indicators and failed to meet overall performance standards.
Mr. Carman added the following remarks to the evaluation:
[Grievant] left [his counseling] position at the
end of the first semester. His replacement found that
the student records assigned to him were incomplete
and in disarray. Several seniors were found to not be
scheduled for the courses necessary for graduation.
Mr. Clemont's performance as a counselor of high
school students was unacceptable, and continuation at
that level of placement is questionable.
During his second semester placement [(Bridges)]
the following concerns regarding and suggestions for
improving Mr. Clemont's performance were noted:
For one, OCBE's charge of immorality is not borne out by
the record. In Golden at 668, the Court apparently adopted the
definition of immorality as "conduct 'not in conformity with
accepted principles of right and wrong behavior, which is
contrary to the moral code of the community, which is wicked,
and which, especially, is not in conformity with acceptablestandards of proper sexual behavior.'" The undersigned finds it
difficult to view the immorality charges seriously since OCBE
and its administrators obviously did not when the complained-of
incidents occurred.
For example, if WPH's administration believed Grievant's
remarks to the male student were improper, it had a duty to
inform him of such at the time. Ms. Beneke had apparently
considered the sophomore-scheduling incident, duly reported to
her by Mr. DiLorenzo, as being insignificant because it was not
documented or otherwise even officially brought to Grievant's
attention as to the propriety of his comment. In addition, the
two incidents of Grievant's permitting a female student to sit
on his lap are, without doubt, indicative of poor judgment on
his part. However, the occurrences were widely-separated in
time and, as such, do not give rise to even a hint that Grievant
made a practice of such things. Further, OCBE presented no
evidence that Grievant's conduct on those two occasions was in
any way provocative, lewd or lecherous or that he engaged in any
improper touching or sexually-suggestive behavior. Moreover,
there was no testimony that Grievant overtly or covertly initi
ated, encouraged or prolonged the contact; rather, it appears
that he simply failed to terminate it. These events also were
not documented or officially brought to Grievant's attention as
examples of misconduct on his part at the time they occurred.
Finally, while the Morgantown incident was another example
of inappropriate behavior on Grievant's part, whether his
conduct on that occasion could be labeled immoral or whether itbears on his occupational responsibilities
(See footnote 6)
is highly question
able. Although OCBE may have had cause to discipline Grievant
in October or November 1989 about his behavior at the beer party
with the WPH student, OCBE apparently did not regard the conduct
immoral at that time because its administrators advised Grievant
that no disciplinary action would be taken on the complaint
voiced by the student's father. Hence, OCBE's administrators
dismissed the incident when it occurred and completely ignored
it on Grievant's 1989-90 evaluation which covered the time-frame
in question. For OCBE to resurrect this specific incident and
indeed all of the other past but now complained-of incidents, as
examples of conduct for which to base a dismissal on grounds of
immorality, is capricious and unreasonable.
Moreover, OCBE's post-hearing argument, see OCBE's Brief at
9, that Grievant's "performance as a guidance counselor consti
tuted willful neglect of duty" must also be rejected. OCBE
states that "there can be no serious challenge" to its "proof"
of Grievant's willful neglect of duty. However, under the
circumstances of OCBE's late-breaking reversal of its stated
charge against him, Grievant did not have an opportunity to
challenge that specific allegation. Irrespective of this, in
the final analysis, the record does not support a determinationthat Grievant willfully neglected his duties. Tellingly, OCBE
did not even attempt to define willful neglect of duty.
In the 1990 West Virginia Supreme Court of Appeals case of
Chaddock v. Board of Educ., 398 S.E.2d 120, 122, the Court noted
that it had not previously defined willful neglect of duty, but
then cited its statement in Fox v. Board of Educ., 260 S.E.2d
243 (1977), that the "term 'willful' ordinarily imports a
knowing and intentional act, as distinguished from a negligent
act." Obviously, given Grievant's mental ailment, his subpar
counseling performance during the initial part of the 1989-90
school year cannot be attributed to intentional acts per
Chaddock and Fox. The proper "label" for Grievant's shortcom
ings as a counselor in the early months of the 1989-90 school
year, as determined by WPH's trained administrator via a proper
evaluation instrument, is incompetence.
In a case such as this, the difference between specific
charges of incompetency and willful neglect of duty, two dis
tinct types of conduct, as bases for discharge have far-reaching
consequences:
Failure by any board of education to follow the
evaluation procedure in West Virginia Board of Educa
tion Policy No. 5300(6)(a) prohibits such board from
discharging, demoting or transferring an employee for
reasons having to do with prior misconduct or incom
petency that has not been called to the attention of
the employee through evaluation and which is correct
able.
Syl. pt. 3, Trimboli v. Board of Educ., 254 S.E.2d 561 (W.Va.
1979).
(See footnote 7)
As Grievant correctly argued, Policy No. 5300(6)(a)requires that an employee who does not meet standards must be
afforded an improvement period, while such is not required for
uncorrectable conduct amounting to willful neglect of duty.
Despite some testimony elicited from WPH's present coun
seling staffers about their perceptions of Grievant's shortcom
ings over the years, the evaluations rendered by OCBE's school
officials are the best evidence that Grievant had no significant
performance problems until the 1988-89 school year. In fact,
Mr. Krelis testified that Grievant had performed very well for a
beginning counselor at WPH. Even after the 1988-89 school year,
according to Grievant's evaluation rendered in Spring 1989, he
still met overall performance standards, well within the nine
teen to thirty-two point spread, and was not issued a formal
plan of assistance or given time lines for remediation in areas
deemed deficient.
(See footnote 8)
In short, the undersigned finds it extremely
difficult to determine just why OCBE decided to terminate
Grievant instead of permitting him an opportunity to improve per
the Plan formulated for the 1990-91 school year; this record
simply does not justify the dismissal action in August 1990.
Notwithstanding the fact that Grievant will prevail in thismatter to the extent that he must reinstated and provided an
improvement period, his request for reinstatement in light of
his mental handicap is also persuasive. In Coffman the Court
held that "under the West Virginia Human Rights Act and the
accompanying regulations, 'reasonable accommodation' requires
only that an employer make reasonable modifications or adjust
ments designed as attempts to enable a handicapped employee to
remain in the position for which he was hired." Id at 6. In
this case, Grievant's request for reasonable accommodation is
quite simple: He does not ask for light duty, less responsi
bility or any physical alteration of his workplace; rather, he
asks only for the opportunity to resume his position under the
Plan, prepared in anticipation of his continued employment,
albeit a trial period, now that his condition has been stabi
lized by therapy.
The factual and legal determinations contained in the
foregoing discussion and analysis are incorporated in and made a
part of the following formal conclusions of law.
Conclusions of Law
1. "'The authority of a board of education to dismiss a
teacher under. . .[W.Va. Code §18A-2-8] must be based upon the
just causes listed therein and must be exercised reasonably, not
arbitrarily or capriciously.' Syllabus point 3, Beverlin v.
Board of Education of Lewis County, 158 W.Va. 1067, 216 S.E.2d
554 (1975)." Syllabus, Rovello v. Lewis County Bd. of Educ.,
381 S.E.2d 237 (W.Va. 1989).
2. Failure by any board of education to follow theevaluation procedure in West Virginia Board of Education Policy
No. 5300(6)(a) prohibits such board from discharging, demoting
or transferring an employee for reasons having to do with prior
misconduct or incompetency that has not been called to the
attention of the employee through evaluation and which is
correctable. Syl. pt. 3, Trimboli v. Board of Educ., 254 S.E.2d
561 (W.Va. 1979).
3. OCBE failed to meet its burden of proof that five
cited incidents of Grievant's conduct were considered by it to
be immoral acts at the time each one occurred or to otherwise
demonstrate that such conduct, while inappropriate and perhaps
unprofessional, constituted immorality.
4. OCBE's failure to provide Grievant an opportunity to
improve his counseling performance prior to dismissal was
contrary to the requirements of Policy No. 5300(6)(a) that an
employee be offered an improvement period for incompetency or
correctable misconduct. Mason County Bd. of Educ. v. State
Supt. of Schools, 274 S.E.2d 435 (W.Va. 1980).
Accordingly, the grievance is GRANTED and Ohio County Board
of Education is ordered to reinstate Grievant under an improve
ment plan and pay him appropriate back wages less any set off
for interim earnings.
Either party may appeal this decision to the Circuit Court
of Kanawha County or to the Circuit Court of Ohio
County and such appeal must be filed within thirty (30) days ofreceipt of this decision. W.Va. Code §18-29-7. Neither the
West Virginia Education and State Employees Grievance Board nor
any of its Hearing Examiners is a party to such appeal, and
should not be so named. Please advise this office of any intent
to appeal so that the record can be prepared and transmitted to
the appropriate court.
DATE: April 30, 1991 ____________________________
NEDRA KOVAL
Hearing Examiner