JAMES FOLTZ
v. Docket No. 94-15-203
HANCOCK COUNTY BOARD OF EDUCATION
D E C I S I O N
Grievant James Foltz, professionally employed by Respondent
Hancock County Board of Education (HCBE), was an applicant for a
position as a full-time assistant principal at Allison Elemen
tary School. When another candidate was selected to serve as a
half-time principal at the school, Grievant filed the within
complaint alleging a violation of W.Va. Code §18A-4-7a on HCBE's
part "with regard to the posting and subsequent hiring" for the
position. Grievant seeks "immediate placement in the position
with appropriate back pay and seniority."
(See footnote 1)
Based on all matters of record, the following findings are
made.
Findings of Fact
1. Grievant, a teacher holding approximately twenty-two
years' seniority, is currently assigned to Oak Glen High School.
Among other things, he possesses special education training and
the necessary certification to serve as an assistant principal.
2. During the 1993-94 school term, HCBE considered
creating the position of assistant principal to serve both
Allison Elementary School (Allison) and Oak Glen Middle School
(OGMS).
3. Throughout the fall and winter of the 1993-94 school
term, various administrative positions for Allison and OGMS were
posted; however, no assistant principal position was filled at
Allison until some time after the final posting in the series in
March 1994.
(See footnote 2)
4. During the period when the multiple postings appeared,
Allison's principal suffered a protracted illness and eventually
died. At the same time, input was forthcoming from staff,school councils, PTAs, and interested members of the community
as to how the administrative needs of the affected school and
others would be best served. It appears from the record that
both OGMS and Allison desired full-time assistant principals
with no loss in overall teacher or support staff.
5. At some point after the death of Allison's principal,
Linda Robinson, who had administered Allison during the former
principal's illness and absence, was employed as Allison's new
principal.
6. On March 2, 1994, HCBE posted an offering for a full-
time assistant principalship at Allison, posting No. 209.
Grievant and others applied. Neither this posting nor any
previous posting in the series ever set forth any requirement or
even a preference that the candidate possess special education
training, skills or experience.
7. According to Superintendent Daniel Curry, the appli
cants' qualifications, certifications and backgrounds were
reviewed by administration and staff. In addition, interviews
were conducted by Allison's principal and select staff in order
to make recommendations to Mr. Curry.
8. From this process, Grievant and three other applicants
were found to be qualified and properly certified to hold the
position as full-time assistant principal at Allison Elementary
School.
9. During the candidate review period, a question existed
in Mr. Curry's mind as to whether Allison needed a full-time
assistant principal's position. 10. Prior to making any final determinations about filling
the Allison job, Mr. Curry also conducted interviews. During
those interviews, Mr. Curry advised Grievant and the other
candidates of the distinct possibility that the posted position
of full-time assistant principal at Allison would be reduced to
a half-time assistant principal depending upon need.
11. By letter dated March 10, 1994, Ms. Robinson advised
Mr. Curry that she recommended Patty Bonnell for a half-time
position as assistant principal since Ms. Bonnell already taught
at Allison and no down-time would occur for travel if she
received the job. She recommended Grievant for a full-time
slot, primarily because she felt his experience in special
education would benefit the special education programs and need
for "the discipline of students with special needs" at Allison.
12. Although Mr. Curry considered Grievant and Ms. Bonnell
to be "the two finalists" for the job at Allison, T.24, he
concluded that Ms. Bonnell was the strongest candidate for
either a full-time or half-time assistant principal's position
at the school. T.23-24.
13. Eventually, an administrative decision was made that
Allison would require only a half-time assistant principal.
14. Based upon Mr. Curry's March 14, 1994 recommendation,
HCBE awarded a contract for the half-time assistant principal's
position to Ms. Bonnell.
The Parties' Positions
As support for his argument that he is entitled to a full-
time assistant principal's job at Allison, Grievant cites theposting requirements of W.Va. Code §18A-4-7a
(See footnote 3)
and holdings in
Smith v. McDowell County Bd. of Educ., Docket No. 89-33-588
(June 19, 1990), and Rogucki v. Gilmer County Bd. of Educ.,
Docket No. 11-87-260-3 (Feb. 17, 1988), that a board "must make
accurate and complete job postings and give due consideration to
the minimum qualifications listed therein." Grievant argues
that HCBE acted unreasonably when it ignored Allison's princi
pal's recommendation that he be hired for a full-time assistant
principal's job, especially in light of his experience in
special education. He further claims HCBE acted arbitrarily and
capriciously when it ignored "the law that mandates how vacan
cies must be posted and filled" and hired a half-time instead of
full-time assistant principal as posted.
HCBE denies any wrongdoing in this matter and claims
Grievant has not met his burden of proof. It avers that the
postings in question had to be altered due to changing circum
stances and need. As to its ultimate selection of a candidate
other than Grievant, HCBE urges that it followed the hiring
criteria of W.Va. Code §18A-4-7a and that the successful candi
date had more seniority than the Grievant, had more experience
at the elementary education level, and had projected a well-or
ganized interview including a portfolio of activities andadditional studies. Finally, HCBE argues that the relief sought
by Grievant, a full-time assistant principalship at Allison, is
not available to him because such a position does not exist at
Allison.
(See footnote 4)
Discussion
There is no doubt but that HCBE filled a position which
deviated in scope from that described in the posting, i.e, that
it employed a half-time instead of full-time assistant princi
pal. Mr. Curry admitted that interested parties wanted Allison
to have a full-time assistant principal and lobbied extensively
to that end. T.17.
(See footnote 5)
Mr. Curry stated that he posted such a
full-time position in error and without HCBE's authorization.
T.22. He did not dispute the fact that HCBE has no policy which
permits the awarding of a job in variance of the job described
on a posting. Finally, Mr. Curry agreed that once an adminis
trative decision had been made that only a half-time assistant
principal would be needed for Allison, posting No. 209 probably
should have been rescinded.
Nevertheless, while Grievant has established that HCBE
filled a position which deviated in scope from that described in
the posting, he has not demonstrated any entitlement to therelief he requests in this action. Mr. Curry's explanation as
to why the half-time job was filled at Allison without reposting
was reasonable. He testified that events over a long period at
Allison, such as the former principal's illness and death, had
left the school in dire need of some additional administrative
support. In Mr. Curry's and HCBE's view, once a final determi
nation about whether to hire a full-time or part-time assistant
principal had been made, a prompt resolution of the situation
would be the best way to proceed since candidates had already
been assessed. Certainly, that the job at Allison was eventu
ally filled as a half-time position came as no surprise to
Grievant for the multiple postings indicated indecision, and Mr.
Curry had explained to the candidates that the job might be
half-time instead of full-time.
In addition, Grievant failed to present any evidence that a
full-time assistant principal's position at Allison is legally
required or otherwise necessary. HCBE and Mr. Curry are the
proper parties to make that determination, not Grievant or even
Ms. Robinson, Allison's principal. Finally, the Grievance Board
has no legal basis upon which to order that county boards of
education establish and fill (full-time) positions deemed
unnecessary at Allison or any other school.
See Jones v.
Ritchie County Bd. of Educ., Docket No. 93-43-429 (May 20,
1994).
Grievant also misapprehended the role of Ms. Robinson in
other ways in this controversy. Ms. Robinson, as the newly-
seated principal of Allison, has absolutely no independentauthority to select the most qualified applicant for any vacancy
at her school unless that task has been expressly granted to her
by a higher authority.
(See footnote 6)
According to
W.Va. Code §18-4-10, Mr.
Curry is the only administrator who can nominate a candidate for
employment before the HCBE.
See Jones,
supra.
Although Grievant did not focus upon the qualifications
aspect of hiring school administrators, under
Code §18A-4-7a,
the filling of a professional position other than a classroom
teacher must be based upon the applicant with the highest
qualifications. In this case, Ms. Robinson had expressed a
preference for two candidates, Grievant and Ms. Bonnell, for
apparently two different reasons, but omitted any mention as to
which of them was the most qualified. In the end, after HCBE
finally decided that Allison required only a half-time assistant
principal, Ms. Robinson's suggestions were considered. Mr.
Curry, who made the final determinations as to which applicant
was the most qualified, selected the same candidate Ms. Robinson
had recommended for the assistant principal's slot in the event
the school could not have a full-time person.
In short, Grievant presented no compelling evidence that
HCBE acted unreasonably or contrary to Allison's or the school
system's interests when it decided to fill only a half-time
assistant principal's job at Allison. Grievant never alleged
any improprieties with respect to the actual selection process,
and none could be found in the record. Finally, Grievant failedto establish that he was the most qualified applicant for the
half-time and/or full-time assistant principal's position or
that he was entitled to either job as a matter of law.
In addition to the foregoing, the following conclusions of
law are appropriate.
Conclusions of Law
1. It is incumbent upon a grievant to prove all the
allegations constituting the grievance by a preponderance of the
evidence.
Rupich v. Ohio County Bd. of Educ., Docket No. 89-35-
719 (June 29, 1990);
Hanshaw v. McDowell County Bd. of Educ.,
Docket No. 33-88-130 (Aug. 19, 1988).
2. Decisions of a county board of education affecting the
filling of vacant professional positions other than a classroom
teacher must be based upon the applicant with the highest
qualifications.
W.Va. Code §18A-4-7a.
3. County boards of education have substantial discretion
in matters relating to the hiring and assignment of school
personnel, but the discretion must be exercised reasonably, in
the best interests of the school system and not in an arbitrary
or capricious manner.
State ex rel. Hawkins v. Tyler County Bd.
of Educ., 275 S.E.2d 908, 911 (W.Va. 1980).
4. Grievant failed to prove that HCBE abused its discre
tion or acted in an arbitrary, capricious or unreasonable
manner, contrary to the best interests of the school system,
when it determined an employment status and assignment for
Allison's assistant principal not in complete conformance with
the latest posting for said position. 5. Grievant provided no evidence that he was more quali
fied than the successful applicant for the assistant principal's
job at Allison; therefore, Grievant failed to establish a
violation of
Code §18A-4-7a with respect to the employment of a
candidate other than himself.
6. Grievant failed to prove under any theory of law that
he is entitled to a position as full-time assistant principal at
Allison.
Accordingly, the grievance is DENIED.
Any party may appeal this decision to the Circuit Court of
Kanawha County or to the Circuit Court of Hancock 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. Any appealing party must advise this office of
the appeal and provide the civil action number so that the
record can be prepared and transmitted to the appropriate Court.
____________________________
NEDRA KOVAL
Administrative Law Judge
Date: August 25, 1994
Footnote: 1 Adverse decisions were rendered at levels one and two on March 28 and April 26,
1994, respectively, and HCBE waived consideration on May 9, 1994. Grievant appealed
to level four on or about May 20, 1994 and initially asked for a hearing. The hearing, set
for June 8, 1994 was cancelled when Grievant subsequently requested a record decision.
Grievant tendered fact/law proposals on July 22, 1994. HCBE submitted a letter brief on
July 26, 1994, basically reaffirming the position taken at level two.
Footnote: 2 On November 17, 1993, posting No. 197 announced a "substitute" assistant
principal's position for half-time service at OGMS and half-time service at Allison, and
advised that the position could be terminated at the Superintendent's discretion. No one
was hired. On January 12, 1994, posting No. 203 announced the split appointment as
assistant principal for the two schools in question as an eleven month job. On February
15, 1994, posting No. 206 declared that No. 203 was voided and offered a half-time assis
tant principal/head teacher job at Allison for ten and one-half months. At the same time
a similar job was posted for OGMS. Thereafter, on March 2, 1994, posting No. 209
voided No. 206 and announced a full-time assistant principal's job for Allison. Grievant
focuses his claim on this last posting, No. 209. See Grievant's Exhibits, 1-5.
It is noted that this series of postings was the topic of another grievance, Brown v.
Hancock County Bd. of Educ. Docket No. 94-15-207 (Aug. 24, 1994).
Footnote: 3 W.Va. Code §18A-4-7a states in pertinent part:
Boards shall be required to post and date notices of all openings in established, existing
or newly created positions in conspicuous working places for all professional personnel
to observe for at least five working days. The notice shall be posted within twenty
working days of such position openings and shall include the job description. Any
special criteria or skills that are required by the position shall be specifically stated in the
job description and directly related to the performance of the job.
Footnote: 4 HCBE opined that, if anyone has reason to object to the change in the job
description from full-time to part-time assistant principal, it would be the successful
candidate rather than Grievant.
Footnote: 5 Grievant cited this portion of the level two transcript, i.e., to Mr. Curry's testimony
about the lobbying efforts, apparently as proof that HCBE "ignored what would be best
for Allison." Certainly, Grievant presented no independent evidence that Allison's
interests were in any way compromised by a decision to have a half-time rather than a
full-time assistant principal.
Footnote: 6 The record contains no evidence that Mr. Curry or HCBE delegated their authority
to Allison's principal to select the most qualified applicant for assistant principal.