Maynard, Justice, dissenting:
I respectfully dissent from
the majority opinion because I believe that Professor Butts' willful refusal
to comply with a reasonable request from her supervisor constitutes insubordination.
“Insubordination”
is defined as “a refusal to obey an order that a superior officer is
authorized to give.” Black's Law Dictionary 802 (7th ed.1999). See
also Nelson v. Los
Angeles County, 362 U.S.
1, 7, 80 S. Ct. 527, 531, 4 L. Ed.2d 494, 499 (1960) (concluding,
in case where county social workers were terminated for refusing to answer
security questions put to them by congressional subcommittee, that the employees
were discharged based “solely on employee insubordination for failure
to give information which we have held that the State
has a legitimate interest in securing” (citations omitted)); Heath
v. Alabama State Tenure Commission, 401 So.2d 68, 70 (Ala.Civ.App. 1981)
(commenting that “[i]nsubordination has . . . been defined
as the refusal to obey some order which a superior officer is entitled to
give and entitled to have obeyed so long as such order is reasonably related
to the duties of the employee” (citations omitted)); Morris v. Clarksville-Montgomery
County Consol. Bd. of Educ., 867 S.W.2d 324, 327 (Tenn.Ct. App. 1993) (describing “insubordination”
as “disobedience to constituted authority; refusal to obey some order
which a superior officer is entitled to give and have obeyed” (citing
Black's Law Dictionary, fourth edition)).
In light of the foregoing definition,
it is clear that this case presents two simple questions: (1) whether Ethel
Cameron, the appellant's supervisor, was authorized to give the order; and (2)
whether the appellant refused to obey the order. There is no dispute that the
appellant refused to obey the order. Therefore, my discussion is directed only
to the first question, whether Ethel Cameron was authorized to request student
grades from her subordinates. Unlike the majority, I believe
Ms. Cameron was absolutely authorized to give the order. The 1999-2000 Shepherd
College Handbook clearly states that “[m]embers of the faculty may have
access to academic records and files for internal educational purposes.”
The majority does not question Ms. Cameron's reason for requesting copies
of student grades. In fact, the majority states that Ms. Cameron requested
the grades so she “could resolve various questions relating to the program.”
Instead, the majority finds that this unambiguous directive conflicts with
another provision in the policy specifying that only the registrar could release
grades and grade point averages without written permission from the students.
Finding that this conflict makes the faculty access policy ambiguous, the
majority then holds that the appellant's willful failure to comply with her
supervisor's directive is, therefore, not insubordination.
The holding in this case is
actually dependent upon what is meant by the phrase “releasing grades.”
The privacy policy in question in this case grants sole authority to the Registrar
to release grades and grade point averages. For ease of discussion, I
will refer to this provision as the “Registrar provision.” The college
explains that it has traditionally applied the Registrar provision only to the
release of grades to parents and other third persons such as employers and graduate
schools. It has not applied the provision to the internal sharing of
grades and grade point averages among its staff for educational purposes. When
grades are “released” externally, authenticity is achieved through
certification methods routinely exercised by the Registrar. Thus, the clear
purpose of the Registrar provision is simply to inform students that transmission
of their grades to third persons or agencies must come from the Registrar. It
is clearly not the purpose of the Registrar provision to inform members
of the faculty that they must obtain official transcripts of student grades
through the college Registrar in order to perform necessary functions such as
counseling students or determining program development.
(See footnote 1) Thus, the college's explanation
of its policy makes perfect sense to me. The majority, nonetheless, finds that
reasonable minds may differ over the meaning of the policy.
Furthermore, the college instituted
disciplinary sanctions by simply reprimanding the appellant. By so doing, it
appears that the college has laid the foundation for “progressive disciplinary
sanctions in an attempt to correct the teacher's insubordinate conduct”
as was previously prescribed by this Court in Syllabus Point 6 of Trimble
v. West Virginia Bd. of Directors, 209 W. Va. 420, 549 S.E.2d 294 (2001).
I also believe the disciplinary action taken in this case matched the infraction,
and, therefore, meets the requirement set forth in Syllabus Point 5 of Trimble.
Once again, the majority
insists on micromanaging higher education disciplinary decisions. Decisions
such as this make it nearly impossible for the people who run our higher institutions
of learning to do their jobs. I cannot say it better than Justice Neely said
it in his dissent to Beverlin v. Board of Ed. of Lewis County, 158
W. Va. 1067, 1076, 216 S.E.2d 554, 559 (1975). Therefore, I quote:
For the foregoing reasons, I
respectfully dissent and accordingly would affirm the order of the circuit court.
I am authorized to state that Chief Justice Davis joins me in this dissent.
The
majority's opinion is yet one more example of the increasing tendency of courts
to undermine the ability of those charged with responsibility to discharge
their duties in a competent manner. The increasing substitution of court judgment
for the judgments of all other decision-makers causes administration to become
increasingly chaotic because of paralysis prompted by a surplusage of procedural
and substantive due process which leads not to justice but to total incompetence
and inability to govern.
Footnote: 1
As stated above, there has been no challenge to Ms. Cameron's motives for seeking student grades.