655 S.E.2d 204
James M. Haviland
Darrell V. McGraw, Jr.
Pyles Haviland Turner & Mick, L.L.P. Attorney General
Charleston, West Virginia
Katherine A. Campbell
Counsel for the Appellant
Assistant Attorney General
Charleston, West Virginia
Counsel for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICES STARCHER and BENJAMIN concur and reserve the right to file concurring
opinions.
Per Curiam:
Petitioner below, Brian M. Powell (hereinafter referred to as “Appellant”),
appeals the May 26, 2006, order of the Circuit Court of Kanawha County affirming the
decision of the State Superintendent of Schools, Steven L. Paine (hereinafter referred to as
“Appellee”), to suspend Appellant's license to teach for four years. After thoroughly
examining the arguments of the parties in light of the record before us and the relevant law,
the order of the circuit court is reversed and the case is remanded for reinstatement of the
teaching certificates.
On September 26, 2004, Appellant's nine-year-old son, who attended
Moorefield Elementary School, showed his father a disciplinary note from the school. The
note related that the child received discipline for making inappropriate comments in front
of his class about an intimate encounter of two students in the class. When questioned by
his father about the matter, the son's response was, “I don't know.” Appellant picked up a
belt near him in the room where the confrontation occurred and repeatedly lashed his son
across the back with the belt until the son disclosed the nature of his classroom conduct.
The son went to school the next day and told several classmates that his father
had beaten him when he gave his father the disciplinary note. Eventually word of the
beating reached the teaching staff and the son was called to the principal's office where the
son showed the teachers the welt marks on his left shoulder and back from the beating.
Upon seeing the welts, a teacher and a guidance counselor called the West Virginia
Department of Health and Human Resources (hereinafter referred to as “DHHR”). As a
result, the son and two other children were removed from the Powell home. (See footnote 3)
The agency immediately filed an abuse and neglect action in the circuit court
while continuing its investigation. The parents moved for and were granted an improvement
period by the court. During the course of the improvement plan, (See footnote 4) the thirteen-year-old son
was returned to his home within seven days of his removal. The two younger children,
including the abused son, were returned to the home approximately two months after the
occurrence. As part of the improvement program, Appellant underwent psychiatric
evaluation and attended the prescribed counseling. The circuit court dismissed the child
abuse and neglect case upon the recommendation of DHHR by order entered on May 10,
2006.
At the same time that DHHR was responding to the school's report, a criminal
investigation was begun by the West Virginia State Police. The investigation resulted in
Appellant being charged with felony child abuse for beating his son. The prosecutor moved
to dismiss the felony charge and tendered a plea agreement to the court by which Appellant
pled guilty to one count of the misdemeanor offense of domestic battery. The court accepted
the agreement on October 21, 2004, and sentenced Appellant to thirty days of incarceration,
which the court allowed to be served on weekends and holidays, and a fine. The imposed
penalties have been completely satisfied.
Appellant immediately informed the county superintendent of schools and the principal of Moorefield High School of the beating incident and subsequent occurrences. The first action taken by the school system occurred after Appellant was charged with a felony offense of child abuse. Upon learning of the felony charge, the county superintendent suspended Appellant with pay on October 15, 2004, pending an investigation. After completing his investigation and learning that Appellant's plea agreement with the State had been accepted by the court, the superintendent suspended Appellant without pay on October 29, 2004. The superintendent then recommended to the Hardy County Board of Education (hereinafter referred to as “Board”) that Appellant be discharged pursuant to West Virginia Code § 18A-2-8. (See footnote 5) A hearing was held by the Board on November 16, 2004, at which evidence regarding the matter was adduced. During the hearing, the Board rejected the superintendent's recommendation of dismissal, but did “uphold the superintendent's suspension without pay until a satisfactory comprehensive evaluation by a psychiatrist of our choosing determines that he is not a danger to any Hardy County School students and that he will not return back to school before January 1st.”
Dr. Allan LaVoie, Ph.D., a practicing psychologist, was selected by the Board to perform the psychological evaluation. Dr. LaVoie's report contained the following with regard to Appellant's return to the classroom:
[T]o speak to the first question, is he safe to supervise and
educate children? It is my opinion, based on the information at
hand, that he does not pose a significant risk to the students at
Moorefield High School. He has amply demonstrated that he
is able to walk away from confrontations, and at school he has
in the past simply sent students to the principal's office rather
than taking matters personally. There is nothing in the material
I have gathered that suggests the school board need be unduly
concerned about Mr. Powell's behavior at school. I believe he
is at no greater risk of physically harming a student than any
other teacher would be.
Based on this report, the Board returned Appellant to his classroom duties on January 12,
2005, but without back pay. As required by West Virginia Code § 18A-3-6 (2004) (Repl.
Vol. 2007), the county superintendent notified the State Superintendent's Office of the
Board's action. Appellant continued to teach without incident until his license to teach was
suspended.
At the state level, Appellee generated a Notice of Proceeding Against
Certification to Appellant dated October 6, 2005, relating that an investigation by the West
Virginia Department of Education had been conducted regarding the incidents surrounding
Appellant's corporal punishment of his son. The Notice informed Appellant that
proceedings were being initiated to revoke or suspend his teaching certificates based on the
incidents surrounding the beating of his son. The Notice further apprised Appellant that a
hearing would be held on October 25, 2005, regarding the matter. The hearing was held
before the Professional Practices Panel (hereinafter referred to as “the PPP”). (See footnote 6)
After accepting documentary and testimonial evidence, the PPP concluded the
hearing by announcing its decision to recommend suspension of Appellant's license to teach
for four years. Appellee adopted the written recommendations of the PPP in their entirety
and signed an order entered on December 9, 2005, suspending Appellant's license for four
years. Pursuant to the provisions of West Virginia Code § 29A-5-4 (1998) (Repl. Vol.
2007), Appellant timely appealed the suspension order to the Circuit Court of Kanawha
County. After hearing oral arguments, the circuit court upheld the actions of the agency by
order dated May 26, 2006. This affirmance is the subject of the appeal now pending, which
review we accepted by order entered on February 28, 2007.
Legislatively prescribed prerequisites to the suspension or to revocation of teaching licenses and certificates are set forth in West Virginia Code § 18A-3-6. In relevant part, this statute states:
The state superintendent may, after ten days' notice and
upon proper evidence, revoke the certificates of any teacher for
any of the following causes: Intemperance; untruthfulness; cruelty; immorality; the conviction of a felony or a guilty plea
or a plea of no contest to a felony charge; the conviction, guilty
plea or plea of no contest to any charge involving sexual
misconduct with a minor or a student; or for using fraudulent,
unapproved or insufficient credit to obtain the certificates; Provided, That the certificates of a teacher may not be revoked
for any matter for which the teacher was disciplined, less than
dismissal, by the county board that employs the teacher, nor for
which the teacher is meeting or has met an improvement plan
determined by the county board, unless it can be proven by clear and convincing evidence that the teacher has committed
one of the offenses listed in this subsection and his or her
actions render him or her unfit to teach; Provided, however,
That in order for any conduct of a teacher involving
intemperance; cruelty; immorality; or using fraudulent,
unapproved or insufficient credit to obtain the certificates to
constitute grounds for the revocation of the certificates of the
teacher, there must be a rational nexus between the conduct of
the teacher and the performance of his or her job.
(emphasis added). Parsing the statute, it is clear under the first proviso, a teaching license
may be revoked or suspended even when a teacher is disciplined but not dismissed at the
county level or is meeting or has fulfilled the requirements of an improvement plan of the
county board if there is clear and convincing evidence of two things: (1) the teacher's
questionable conduct amounted to one of the enumerated “bad acts,” and (2) the actions
rendered the person unfit to teach. Additionally, the second statutory proviso requires that
when the alleged conduct specifically involves intemperance, cruelty, immorality, or
submission of improper proof to obtain teaching certificates there must be further
demonstration that a rational nexus exists between the conduct of the teacher and the
performance of that person's job before the license to teach may be revoked or suspended.
Appellant was disciplined by the county board by having his suspension from
employment extended until the next school year and by not being awarded back pay for the
period of suspension following his conviction of domestic battery. Thus revocation of
license proceedings could be initiated if there was clear and convincing evidence that
Appellant's misconduct both constituted one of the causes listed in the statute and rendered
him unfit to teach. No challenge is made to the finding of clear and convincing evidence of
cruelty (See footnote 8) in this case. The challenge is that the four-year suspension is not based on clear and
convincing evidence that Appellant is unfit to teach.
On an earlier occasion, we discussed disciplinary actions with regard to teacher
misconduct in Golden v. Board of Education of Harrison County, 169 W. Va. 63, 285
S.E.2d 665 (1981). Although Golden involved the disciplinary actions of a county board
of education under West Virginia Code § 18A-2-8, the discussion of the principles
underlying the need for proof of “fitness to teach” and “rational nexus” are equally relevant
here.
The teacher in Golden had been charged with felony shoplifting and pled no
contest to the misdemeanor offense of petty theft. Thus the discipline was for conduct
occurring outside of the school setting. We observed in Golden it would be an unwarranted
intrusion on a teacher's right to privacy to discipline a teacher solely on evidence that
statutorily delineated misconduct (See footnote 9) occurred outside of the school environment. To overcome
the privacy interest, a legitimate interest of the school board has to be at stake, that is, there
must be additional evidence of a resulting unfavorable impact on the teacher's fitness to
teach or upon the school community. Id. at 69, 285 S.E.2d at 669. We further observed that
dismissal based solely on the off-the-job misconduct of a teacher and not its effect on the
teacher's fitness to teach or upon the school community would result in a statute which
would be void for vagueness under substantive due process constitutional standards. Id. at
68-69, 285 S.E.2d at 669. This discussion resulted in our holding in syllabus point two of
Golden that “[i]n order to dismiss a school board employee for acts performed at a time and
place separate from employment, the Board must demonstrate a 'rational nexus' between the
conduct performed outside of the job and the duties the employee is to perform.” The 2004
amendments to West Virginia Code § 18A-3-6 impose the same requisite findings on the
Superintendent of the State Board of Education with regard to revocation and suspension
of the license to teach.
With respect to Appellant's fitness to teach, Appellee maintains that his order
of suspension reflects the requisite finding of unfitness by clear and convincing evidence.
He asserts that the Board of Education's Teacher Code of Conduct requires all West
Virginia teachers to be positive adult role models and a father beating his child does not
conform to those standards. Relying on the language of the PPP as part of the suspension
order, Appellee maintains that Appellant's unfitness to teach is proven by the statement of
the PPP that Appellant's conduct toward his son directly affects his performance of duties
as a teacher. Additionally, he maintains that the conclusions of law section of the revocation
order sets forth relevant portions of the Employee Code of Conduct for school personnel,
and the PPP expressly found Appellant's conduct with his son did not conform with the high
standards, self-control and moral and/or ethical behavior required by this Code of Conduct.
We fail to see from these conclusory statements what anticipated ill-effects Appellant's
corporal punishment of his child had or would have on Appellant's fitness to teach or upon
the school community. Nor do we see why suspending the teaching certificates for four
years will somehow change Appellant so as to be fit to teach. The unrefuted evidence in the
record, including the testimony of two counselors _ one of whom was providing family
counseling to the family at the time of the hearing _ and reports of two additional counselors
all supported the conclusion that Appellant posed no threat to children in his classroom or
other students. Additionally, our thorough and complete examination of the record did not
disclose that Appellant exhibited any cruel behavior or even display a mean disposition to
students or school personnel in any situation occurring on school grounds or at school
functions. (See footnote 10) All the job evaluations involving Appellant's teaching positions both inside and
outside the state in the record rated Appellant's performance as satisfactory and did not
reveal any deficiencies, reprimands, or mention of any hostile or other unacceptable
behavior. The statute is clear that a teaching license may not be revoked or suspended when
a county board has disciplined but not dismissed an employee for certain misconduct only if the misconduct is shown by clear and convincing evidence to render the person unfit to
teach. Accordingly since Appellee's findings as to Appellant's unfitness to teach are not
supported by the requisite level of clear and convincing evidence they can not be afforded
deferential treatment.
The second issue Appellant raises is that Appellee failed to explain the required rational nexus between his misconduct and the performance of the job. Appellee points us to the conclusions of law attached to the order of suspension regarding the nexus finding:
6. A rational nexus exists between a teacher's off-duty
conduct and his or [her] duties as a teacher in at least two
circumstances: (1) if the conduct directly affects the
performance of the occupational responsibilities of the teacher;
or (2) if, without contribution on the part of the school officials,
the conduct has become the subject of such notoriety as to
significantly and reasonably impair the capability of the
particular teacher to discharge the responsibilities of the
teaching position. Rogliano v. Fayette County Board of
Education, 347 S.E.2d 220 (W. Va. 1986) (per curiam).
7. State Board of Education Policy 5902, the Employee
Code of Conduct for school personnel, provides that teachers
must maintain a high standard of conduct, self-control and
moral/ethical behavior. 126 C.S.R. 162, § 4.2.6.
8. Mr. Powell's conduct with . . . [his son] does not meet
high standards, does not demonstrate self-control and does not
constitute moral and/or ethical behavior.
9. Therefore, we conclude that a rational nexus does
exist between Mr. Powell's conduct at home with his son . . .
and his responsibilities as a teacher.
While these findings relate the standards all teachers should meet, and rightly reflect that
Appellant's actions toward his son did not meet those standards, they do not satisfy the plain
meaning of the license revocation statute with regard to establishing a rational nexus.
Simply put, the findings do not state how Appellant's cruelty toward his son can, will or
even may be anticipated to affect Appellant's performance of his school job. In this case,
that performance would include his classroom responsibilities as well as his coaching duties.
Such specificity is woefully lacking in the findings submitted as support of the suspension
decision, leaving us with the definite and firm conviction that a mistake has been made in
suspending Appellant's certificates to teach.
There is no doubt that the physical punishment Appellant inflicted on his son
was egregious and indefensible conduct. Appellant's poor judgment and loss of self-control
in dealing with his youngest son's refusal to bend to his father's will has had lasting impact
not only on the father and his young, impressionable son but also on the family unit.
Perhaps no amount of remorsefulness on the father's part will return this family to where it
was before the incident occurred and Appellant has to live with this reality. Nonetheless,
Appellant has exhibited a great deal of commitment to his family. He has complied with
every request made by DHHR, including those involving various types of counseling and
anger management instruction, in order to have his family reunited. He testified that he
entered the plea agreement so that he could have all of the children returned to their home
as soon as possible since DHHR had informed him that the children would not be returned
to the home until the criminal charges were resolved. As a result of his cooperation, the
children were all returned to the family unit roughly within two months of the corporal
punishment incident. The commitment of both parents to the family unit is repeatedly
demonstrated in the record. In support of dismissal by the court of the abuse and neglect
action it filed after the beating incident, DHHR said that both parents took initiative to start
counseling even before the DHHR improvement plan was put into place. The agency report
also noted that the parents not only completed the services recommended, but they also
benefitted from the services. While Appellant's past behavior in being cruel to his young
son can not be condoned, Appellant has accepted his punishment, has attempted to work on
the issue to otherwise atone for his serious transgression and should be encouraged to
continue this course of rehabilitation and improvement for the sake of repairing the
relationship with the son he injured as well as with the entire family. Absent evidence of
any ill-effects on his ability to teach, Appellant has complied with the redemptive measures
established in our society to rehabilitate his behavior and we find no reason why Appellant
should not be permitted to resume his teaching career without further delay. (See footnote 11)
Admittedly, Appellant committed a serious act and is guilty of the crime to
which he pled, but the issue before us is limited to whether that act and that crime,
committed in the home, has ramifications _ proven by clear and convincing evidence _
which directly affect Appellant's teaching ability and performance in such a manner as to
warrant suspension of his license to teach. When we consider all of the evidence and the
remedial steps already taken by the county board, the DHHR, and the court under both its
criminal and abuse and neglect jurisdiction, this Court believes that the four-year suspension
in this case is not supported by clear and convincing evidence, is the result of a fundamental
misapplication of the law governing revocation and suspension of teaching licenses, is
clearly wrong in light of the “reliable, probative and substantial evidence” and represents the
unwarranted exercise of discretion of the State Superintendent of Schools. W.Va. Code §
29A-5-4(g). Accordingly, we find it necessary to reverse the circuit court's order affirming
the agency's action suspending the Appellant's certificates to teach.