BRENDA BRUM and VIRGINIA LAW,
Grievants,
v.
DOCKET NO. 02-54-225
WOOD COUNTY BOARD OF EDUCATION,
Respondent,
and
CHERYL COTTRILL,
Intervenor.
D E C I S I O N
Grievants, Brenda Brum and Virginia Law, filed identical grievances against their
employer, the Wood County Board of Education (“Board”), on April 15 and 24, 2002,
respectively, as follows:
The grievant's rights to an unbiased hearing before the Board votes
upon placing them on the transfer list as guaranteed by West Virginia Code
18A-2-7 and the West Virginia Constitution were denied when the Board
voted to transfer the Grievants prior to their hearings.
Relief sought: Declare the transfer vote void and place grievants in the same
position held during the 2001-2002 school year.
(See footnote 1)
Grievants' principals responded at level one that they were without authority to grant
the grievances, which were appealed to level two. The grievances were consolidated atlevel two, and Cheryl Cottrill was permitted to intervene pursuant to
W. Va. Code § 18-29-
3(u). The level two hearing was held on June 14, 2002, and the level two decision denying
the grievance was rendered by the Superintendent's designee, George B. Summers, on
July 18, 2002. Grievants appealed to level four on July 25, 2002, and a level four hearing
was held in the Grievance Board's Charleston, West Virginia, office on September 12,
2002. This matter became mature for decision on October 14, 2002, the deadline for the
parties' proposed findings of fact and conclusions of law. Grievants were represented by
Bruce W. Boston, WVEA UniServ Consultant, the Board was represented by Dean Furner,
Esq., Spilman, Thomas & Battle, and Intervenor represented herself.
SUMMARY OF EVIDENCE
Level Two General Exhibits
Ex. 1 -
Brum grievance statement and attachments.
Ex. 2 -
April 30, 2002 letter from Daniel D. Curry to George B. Summers.
Ex. 3 -
Law grievance statement and attachments.
Ex. 4 -
April 29, 2002 letter from Daniel D. Curry to George B. Summers.
Ex. 5 -
Preston grievance statement and attachments.
Ex. 6 -
April 29, 2002 letter from Daniel D. Curry to George B. Summers.
Ex. 7 -
April 29, 2002 letter from Bruce W. Boston to Daniel Curry.
Ex. 8 -
May 2, 2002 letter from George B. Summers to William B. McGinley, with
attachments.
Ex. 9 -
May 17, 2002 letters from George B. Summers to Brenda Brum, Louise Law,
and Benjamin Preston.
Ex. 10 -
June 30, 2002 letter from Bruce Boston to George Summers.
Ex. 11 -
June 4, 2002 letter from George Summers to Benjamin Preston.
Ex. 12 -
May 31, 2002 letter from Bruce Boston to George Summers.
Ex. 13 -
June 4, 2002 letter from George Summers to Bruce Boston.
Level Two Agreed Exhibits
Ex. 1 -
March 26, 2002 Board Minutes.
Ex. 2 -
April 16, 2002 Board Minutes.
Ex. 3 -
March 6, 2002 letter from Daniel Curry to Louise Law.
Ex. 4 -
March 11, 2002 letter from V. Louise Law to Daniel Curry.
Ex. 5 -
March 13, 2002 Professional Transfer Request of Louise Law.
Ex. 6 -
March 14, 2002 letter from Daniel Curry to V. Louise Law.
Ex. 7 -
March 18, 2002 letter from V. Louise Law to Daniel Curry.
Ex. 8 -
March 27, 2002 letter from Daniel Curry to V. Louise Law.
Ex. 9 -
April 9, 2002 Board Minutes.
Ex. 10 -
Undated document entitled Reasons for Placing Louise Law on the Transfer
List.
Ex. 11 -
July 23, 2002 memorandum from Frank Bono to Terri Hammond re:
Response to Critique of Title I Plans for FY'02.
Ex. 12 -
May 23, 1996 memorandum from Bill Luff to County Superintendents,
Personnel Directors, and Title I Directors re: Reading Certification Update.
Ex. 13 -
June 14, 2001 memorandum from Terri Hammond to Frank Bono re: FY
2002 Title Plan.
Ex. 14 -
Waverly School Quartile Report 2001-2002.
Ex. 15 -
Summary of Reading and Mathematics SAT9 Quartile Distributions for Title
I schools 1997-2001.
Ex. 16 -
June 6, 2002 memorandum from Terri Hammond to Frank Bono re: FY 2003
Title Plan.
Ex. 17 -
Transcript from April 16, 2002 transfer hearings before the Board.
Ex. 18 -
Transcript from April 9, 2002 transfer hearings before the Board.
Ex. 19 -
Wood County Board of Education Policy 4119 - Realignment by
Administrative Transfer Policy - Non-Administrative Professional Employees.
Level Four Grievants' Exhibit
Ex. 1 -
Annual Financial Statements of the Board as of and for the Fiscal Year
Ended June 30, 2002; Notes to the Financial Statements.
Level Four Board Exhibits
Ex. 1 -
Final Computation Public School Support Program Professional Educators
Data for the 2002-03 Year.
Ex. 2 -
Final Computation Public School Support Program Professional Educators
Data for the 2001-02 Year.
Ex. 3 -
Portion of January 8, 2002 Board Minutes.
Testimony
Grievants testified in their own behalf, and presented the testimony of Thomas Little.
Based upon a review of the evidence and testimony of record, I find the following
facts have been proven by a preponderance of the evidence.
FINDINGS OF FACT
1. Grievant Brum was employed during the 2001-02 school year by the Board
as a Librarian at Parkersburg South High School.
2. Grievant Law was employed during the 2001-02 school year by the Board as
a Title I teacher at Waverly Elementary School.
3. Intervenor Cottrill was employed during the 2001-02 school year by the Board
as an English teacher at Parkersburg South High School.
Grievant Brenda Brum
4. By letter dated March 6, 2002, Grievant Brum was notified she was being
considered for transfer for the 2002-03 school year.
5. On March 12, 2002, Grievant Brum signed and filed with the Board a
voluntary Professional Transfer Request form requesting a transfer from the position of
Librarian to an English position at Parkersburg South High School. The Transfer Request
form indicates Grievant Brum was bumping Intervenor Cottrill from an English teaching
position.
6. By letter dated March 13, 2002, Grievant Brum, by counsel, requested a list
of reasons for the proposed transfer, and was provided a list on March 14, 2002, by
Superintendent Daniel Curry. 7. By letter dated March 18, 2002, Grievant Brum, by counsel, requested a
transfer hearing before the Board.
8. On March 26, 2002, the Board approved Grievant Brum's voluntary transfer
request to the English position at Parkersburg South High School, which had been held by
Intervenor Cottrill.
9. The only judgment made by the Board at the March 26, 2002 meeting was
the approval of Grievant Brum's voluntary request for a transfer to the English position. No
determination was made of the propriety of reducing the librarian position at Parkersburg
South or placing Grievant Brum on the transfer list.
10. On March 27, 2002, Superintendent Curry notified Grievant Brum her transfer
hearing was scheduled before the Board on April 16, 2002.
Grievant Louise Law
10. By letter dated March 6, 2002, Grievant Law was notified she was being
considered for transfer for the 2002-03 school year.
11. By letter dated March 11, 2002, Grievant Law requested a list of reasons for
the proposed transfer.
12. On March 13, 2002, Grievant Law signed and filed with the Board a voluntary
Professional Transfer Request form, requesting to be transferred from the Title I position
at Waverly Elementary School to a position at VanDevender Junior High School, which
was held by Kelly Boggess during the 2001-02 school year.
13. On March 14, 2002, Superintendent Curry supplied Grievant with a list of
reasons for her proposed transfer. Among those reasons is the fact that a comprehensive
needs assessment, based upon student performance at Waverly, indicated reading shouldbe the primary focus of the Title I program at that school. Grievant Law was reminded that
she was not certified as a reading specialist, and the administration believed the Title I
teacher at Waverly should be so certified.
14. By letter dated March 18, 2002, Grievant Law requested a transfer hearing
before the Board. Grievant Law was notified on March 27, 2002, that her transfer hearing
was scheduled on April 9, 2002.
15. On March 26, 2002, the Board approved Grievant Law's voluntary transfer
request to VanDevender Junior High School.
16. On that date there was no consideration by the Board regarding the propriety
of eliminating Grievant Law's position at Waverly Elementary School, but rather only
considered her voluntary request for transfer to VanDevender.
17. Grievant Law's transfer hearing was held on April 9, 2002.
Intervenor Cottrill
15. On the same day that Grievant Brum signed and filed her Professional
Transfer Request form requesting to be transferred to Intervenor Cottrill's English teaching
position, the Board sent notice to Intervenor Cottrill that she was being considered for
transfer for the 2002-03 school year.
16. By letter dated March 15, 2002, Intervenor Cottrill requested a list of reasons
for the proposed transfer.
17. By letter dated March 18, 2002, Superintendent Curry supplied her with a list
of reasons which stated, in a nutshell, that the reduction of one staff member at
Parkersburg South High School resulted in an overage of one teacher who had the choice
of being placed on the transfer list or transferring to another position within the school. Intervenor Cottrill was informed that, because she was the least senior person at
Parkersburg South within the overage person's fields of certification, she was subject to
being bumped by that teacher pursuant to Policy 4119.
18. Intervenor Cottrill was informed that a hearing regarding her proposed
transfer would be held on April 16, 2002, the same day as Grievant Brum's hearing.
19. Intervenor Cottrill and Grievant Brum agreed the evidence on their proposed
transfers could be heard together and applied to both cases.
20. By Board action on April 16, 2002, Intervenor Cottrill was approved to be
placed on the transfer list.
21. As Grievant Brum had already requested a voluntary transfer which had been
approved by the Board on March 26, 2002, Grievant Brum was not placed on the transfer
list.
DISCUSSION
Grievants have the burden of proving each element of their grievance by a
preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees
Grievance Bd. 156 C.S.R. 1 § 4.21 (2000);
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. Grievants allege the Board prejudged
them and thus denied them due process when it approved their transfers prior to their
respective transfer hearings. The Board maintains it approved Grievants' voluntary
transfer requests, which action does not mandate the due process procedures set forth in
the transfer statute,
W. Va. Code § 18A-2-7, and to the extent it followed those procedures,it did so in accordance with the statute, and finally, the reasons given for Grievants'
transfers were not arbitrary and capricious.
W. Va. Code § 18A-2-7 provides:
(a) The superintendent, subject only to approval of the board, shall
have authority to assign, transfer, promote, demote or suspend school
personnel and to recommend their dismissal pursuant to provisions of this
chapter. However, an employee shall be notified in writing by the
superintendent on or before the first Monday in April if he is being considered
for transfer or to be transferred. Only those employees whose consideration
for transfer or intended transfer is based upon known or expected
circumstances which will require the transfer of employees shall be
considered for transfer or intended for transfer and the notification shall be
limited to those employees. Any teacher or employee who desires to protest
such proposed transfer may request in writing a statement of the reasons for
the proposed transfer. Such statement of reasons shall be delivered to the
teacher or employee within ten days of the receipt of the request. Within ten
days of the receipt of the statement of the reasons, the teacher or employee
may make written demand upon the superintendent for a hearing on the
proposed transfer before the county board of education. The hearing on the
proposed transfer shall be held on or before the first Monday in May. At the
hearing, the reasons for the proposed transfer must be shown.
In addition,
W. Va. Code § 18-9A-4, Foundation allowance for professional
educators, provides as follows relating to reductions-in-force:
Every county shall utilize methods other than reductions in force, such as
attrition and early retirement, before implementing their reductions in force
policy to comply with the limitations of this section.
The Wood County Board of Education developed Policy 4119, Realignment by
Administrative Transfer Policy-Non-Administrative Professional Employees, in response
to
Code § 18-9A-4. Policy 4119 provides, in pertinent part:
The superintendent shall recommend to the board of education the staffing
goal for the school system. Upon the approval of the staffing goal by the
board of education, the superintendent and administrative staff, in
coordination with principals, shall review countywide programs, curricular
offerings and pupil teacher ratios and shall establish staff allocations for such
programs and schools.
Having determined the county school system non-administrative professional
employee staffing goals and allocations to county programs and schools, the
superintendent and administrative staff shall supervise the manner in which
school and county program staffs are reduced, increased, realigned or
reassigned in order to assure equitable or justifiable staffing of grade levels
and program areas. To this end, commonly accepted formulas and factors
shall be applied in making decisions and judgments related to staffing. For
example, the class size law and other ratios and factors established by state
regulations and North Central standards shall be used to help determine staff
allocations for programs. If curricular areas must be reduced, required
instruction shall have the highest priority.
Once it is determined there is a need for a reduction-in-force, the Policy sets forth
the procedure to be followed in accordance with
Code § 18A-2-7, but also provides a
“supplemental” benefit:
If applicable, the overage personnel shall have the choice of being placed on
the transfer work list or being rescheduled to another position within the
school of his/her present assignment. In order to remain assigned to his/her
present school, the overage person must accept the position, if any, held at
the school by the person with the least seniority in all of the overage person's
fields of certification. If it can be clearly demonstrated that such least senior
teacher has teaching responsibilities in another curricular area for which
he/she is licensed and which may not be absorbed by the remaining staff,
the classroom teacher within the area to be reduced will be reviewed under
the above criteria in order of reverse seniority.
The Board followed its Policy when it offered Grievants Brum and Law the option
of being placed on the transfer work list or being rescheduled to other positions. Grievants
chose to be placed in other positions, and completed the voluntary transfer forms to
accomplish the reassignment, which the Board approved on March 26, 2002.
Grievants maintain, however, that exercising the option for reassignment does not
waive their right under
Code § 18A-2-7 for a transfer hearing before the Board on their
original positions, and that by accepting their voluntary transfers before their transferhearings, the Board “prejudged” them. Grievants also allege the reasons given for their
transfers are not proven by the facts, and were arbitrary and capricious.
Frankly, the undersigned does not understand Grievants' position, and fails to see
how they were denied due process. They were notified they were being recommended for
placement on the transfer list. They were given the option of going forward on the
proposed transfer, or accepting reassignment within their schools, according to Board
Policy 4119, a benefit many county employees do not have. They chose reassignment and
completed voluntary transfer forms, which were accepted by the Board. Then,
notwithstanding the Board's acceptance of their voluntary requests for transfer, the Board
still afforded them a transfer hearing under
Code § 18A-2-7. That is all the due process
to which Grievants are entitled.
As for the reasons stated for the transfers, county boards of education have broad
discretion in personnel matters, including making job assignments and transfers, but must
exercise that discretion in a manner which is not arbitrary or capricious.
Dillon v. Wyoming
County Bd. of Educ., 177 W. Va. 145, 351 S.E.2d 58 (1986);
Conrad v. Nicholas County
Bd. of Educ., Docket No. 97-34-388 (Jan. 12, 1998);
Mullins v. Logan County Bd. of Educ.,
Docket No. 94-23-283 (Sept. 25, 1995);
Dodson v. McDowell County Bd. of Educ., Docket
No. 93-33-243 (Feb. 15, 1994).
Generally, an action is considered arbitrary and capricious if the agency did not rely
on criteria intended to be considered, explained or reached the decision in a manner
contrary to the evidence before it, or reached a decision that was so implausible that it
cannot be ascribed to a difference of opinion.
See Bedford County Memorial Hosp. v.
Health and Human Serv., 769 F.2d1017 (4th Cir. 1985);
Yokum v. W. Va. Schools for theDeaf and the Blind, Docket No. 96-DOE-081 (Oct. 16., 1996). While a searching inquiry
into the facts is required to determine if an action is arbitrary and capricious, the scope of
review is narrow, and an administrative law judge may not simply substitute her judgment
for that of the board of education.
See generally Harrison v. Ginsberg, 169 W. Va. 162,
286 S.E.2d 276 (1982).
Regarding Grievant Brum, the evidence shows the decision to reduce one librarian
position at Parkersburg South High School was reasonable due to declining enrollment.
The administration was required to ascertain which professional positions could be
eliminated in order to achieve the new staffing goals for the 2002-03 school year. These
staffing goals were discussed among administrators and principals of the high schools in
the County. Director of Secondary Education Mike Boyd and Parkersburg South Principal
Tom Eschbacher took several factors into consideration, including concerns with keeping
the student/teacher ratio as consistent as possible, and the desire to have the least amount
of negative impact on the required areas of instruction. With those factors in mind, Mr.
Eschbacher and Mr. Boyd concluded the most reasonable position to eliminate was one
of the two librarian positions. Superintendent Curry, and ultimately the Board, agreed with
that decision.
With regard to Grievant Law, the evidence shows that she was a Title I teacher
without a reading certification, and was the only Title I teacher assigned to Waverly
Elementary School. Based upon an evaluation of the needs of the school and the
students, it was determined that Waverly needed a Title I teacher with reading certification,
and placing Grievant on the transfer list was the best way to effectuate that staffing need. Finally, with respect to Intervenor Cottrill, she simply was the least senior teacher
at Parkersburg South High School within Grievant Brum's area of certification, and thus
was bumped in accordance with Policy 4119. Intervenor Cottrill, then being identified as
the “overage person” at Parkersburg South, was given the same choice as Grievants Brum
and Law. Intervenor Cottrill was afforded a transfer hearing and subsequently approved
to the transfer list.
The above discussion is supplemented by the following conclusions of law.
CONCLUSIONS OF LAW
1. Grievants have the burden of proving each element of their grievance by a
preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees
Grievance Bd. 156 C.S.R. 1 § 4.21 (2000);
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.
2.
W. Va. Code § 18A-2-7 provides, in pertinent part:
(a) The superintendent, subject only to approval of the board, shall
have authority to assign, transfer, promote, demote or suspend school
personnel and to recommend their dismissal pursuant to provisions of this
chapter. However, an employee shall be notified in writing by the
superintendent on or before the first Monday in April if he is being considered
for transfer or to be transferred. Only those employees whose consideration
for transfer or intended transfer is based upon known or expected
circumstances which will require the transfer of employees shall be
considered for transfer or intended for transfer and the notification shall be
limited to those employees. Any teacher or employee who desires to protest
such proposed transfer may request in writing a statement of the reasons for
the proposed transfer. Such statement of reasons shall be delivered to the
teacher or employee within ten days of the receipt of the request. Within ten
days of the receipt of the statement of the reasons, the teacher or employee
may make written demand upon the superintendent for a hearing on the
proposed transfer before the county board of education. The hearing on theproposed transfer shall be held on or before the first Monday in May. At the
hearing, the reasons for the proposed transfer must be shown.
3. County boards of education have broad discretion in personnel matters,
including making job assignments and transfers, but must exercise that discretion in a
manner which is not arbitrary or capricious.
Dillon v. Wyoming County Bd. of Educ., 351
S.E.2d 58 (W. Va. 1986);
Conrad v. Nicholas County Bd. of Educ., Docket No. 97-34-388
(Jan. 12, 1998);
Mullins v. Logan County Bd. of Educ., Docket No. 94-23-283 (Sept. 25,
1995);
Dodson v. McDowell County Bd. of Educ., Docket No. 93-33-243 (Feb. 15, 1994).
4. An agency must abide by the procedures it properly establishes to conduct
its affairs.
Powell v. Brown, 160 W. Va. 723, 238 S.E.2d 220 (1977);
Morris v. Kanawha
County Bd. of Educ., Docket No. 99-20-200 (July 27, 1999).
5. Wood County Board of Education Policy 4119, II.B. states in pertinent part:
The superintendent shall recommend to the board of education the staffing
goal for the school system. Upon the approval of the staffing goal by the
board of education, the superintendent and administrative staff, in
coordination with principals, shall review countywide programs, curricular
offerings and pupil teacher ratios and shall establish staff allocations for such
programs and schools.
Having determined the county school system non-administrative professional
employee staffing goals and allocations to county programs and schools, the
superintendent and administrative staff shall supervise the manner in which
school and county program staffs are reduced, increased, realigned or
reassigned in order to assure equitable or justifiable staffing of grade levels
and program areas. To this end, commonly accepted formulas and factors
shall be applied in making decisions and judgments related to staffing. For
example, the class size law and other ratios and factors established by state
regulations and North Central standards shall be used to help determine staff
allocations for programs. If curricular areas must be reduced, required
instruction shall have the highest priority.
6. Grievants have failed to establish by a preponderance of the evidence any
violation of statute, rule, law, or policy regarding their proposed transfers for the 2002-03
school year.
Accordingly, this grievance is DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Wood 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.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: November 18, 2002
Footnote: 1