Clarke v. West Virginia Board of Regents

Paul A. Clarke Regents, Of West By Corporation A Statute, Created G. Hardway, President And Wendell College Fairmont Of State 14773) (No. April 1981.

Decided Gallagher Spencer R. F. appellant. and Samuel for Stone Chauncey Browning, Attorney General, Gregory H. Bailey, Attorney General, appellees. W. Assistant McGraw, Justice: upon appeal judgment

This case comes before us from a County of the Circuit Court of Kanawha which affirmed Regents Virginia decision of the upholding West Board of appellant, Clarke, the dismissal of the Paul A. from his teaching position College. tenured at Fairmont State Dr. president, college’s Clarke fired Wendell G. Hardway, May 29, A effective 1978. examiner’s completed report, year later, one almost confirmed the procedures Dr. dismissal. Clarke claims that the dismissal process. violated his constitutional to due His primary assignments of error are that the notice of his vague properly dismissal him was too to allow defend himself findings and that examiner’s were too general questions to allow for effective review. He also propriety post-deprivation hearing. aof Virginia

Denied Regents, relief the West Dr. petition Clarke filed for a writ of certiorari in the Circuit County against Court of Kanawha both Board and Hardway President to obtain a review of effecting employed reviewing his dismissal. After denied the relief procedures, the lower court dismissal upholding of the Board prayed the decision for and affirmed Hardway. adverse It is from this the actions of President appeal. this We find merit ruling that Dr. Clarke takes appellant’s and reverse contentions two of the ruling. the lower court tenured, full-time, professor

Dr. Clarke was taught College. He there for education Fairmont State tenure, teaching for years, gained and continued three 22, 1978, Hardway years. eight President more On March he would fired at the letter that informed semester, May The letter was sent end 1978. Policy Bulletin 36 of the West accordance with No. Bulletin], Regents The Bulletin [hereinafter Board of only or more provides that be effected for one dismissal can grounds specifically enumerated therein.1 President of five Employment Tenured Personnel Dismissal and Termination of of faculty a member with A. for The dismissal of Causes Dismissal: specified faculty period tenure, any of before the end of a or member only pursuant appointment, be to the of shall effected only any following provided policies, for the and of causes: these (1) incompetence dishonesty performance or in the Demonstrated professional of duties. (2) substantially impairs individual’s which the Personal conduct responsibilities. of fulfillment institutional (3) by legitimate by to reasonable Insubordination refusal abide Regents. of or the directions the administration (4) disability faculty making Physical the member or mental certainty by degree unable, medical and within a reasonable opinion, perform assigned reasonably duties. determined medical to (5) neglect duty. and manifest Substantial president the institution For Cause: The C. Notice Dismissal faculty by giving proceedings a the member written shall institute mail, by registered which dismissal notice notice or certified dismissal shall contain: (1) charge charges complete relied and statements the or Full upon, (2) regulations governing copy any pertinent the rules and a rights, faculty and member’s (3) faculty a statement the member has the to elect to hearing Hearing have the conducted either the a Committee or Hearing Examiner. days receipt D. Answer and Service: Within 30 from the date of the faculty may the dismissal notice the member file a written answer to charges. filing period may the The for the answer extended the good president request for cause. The answer shall also contain a for hearing by Hearing Hearing either a Committee or Examiner. If faculty timely answer, member fails to file a the notice of dismissal shall be final. Hearing s: impartial hearing, faculty In order to assure a fair and a dismissed member shall a receive written notice of as hereinafter provided may following avail himself of either one of the two hearing procedures: Hearing year faculty A. Committee: Each of each institution shall faculty representative elect thirteen members of the various ranks in Hearing who institution shall be known as the Panel. In event vacancy any faculty vacancy. of a for cause the fill shall request Hearing If the is for a before the Committee: (1) president faculty member, writing, The shall furnish the a list faculty Hearing of nine of the thirteen members of Panel as herein forth, set with instructions to strike four names and return the list to president working days. any faculty within five for If reason the strike, president working days member fails to shall within five strike a sufficient number to reduce the members five shall which Hearing constitute Committee. (2) president promptly notify, writing, The shall the five members Committee, Hearing of their selection as the and of their need select membership chairperson, designate from their a and shall a time and place meetings for their a make such selection and to date set for charge charges. or (3) chairperson give The shall notice certified mail to the parties place charge concerned time or days which time shall be not than ten less nor more than twenty days from the date of the notice thereof. request Hearing Hearing If B. Examiner: a is for before Examiner: (1) president notify Regents, so shall the Board of which shall duly appoint qualified attorney Hearing disinterested at law as Hearing Examiner and shall submit the name and address of such president Examiner to the the dismissed member. (2) Hearing place The Examiner shall determine the time and for a give by to be held and shall notice certified mail to the parties. days concerned Such date shall be not less than ten twenty days appointment nor more then from the date of of the Hearing Examiner.

Hardway’s for the dis- enumerated three causes letter support and listed fifteen reasons of Dr. Clarke missal support of the listed in the of the reasons causes. Some duplicitous apparently were included charges seem but charge. they to than one President because can relate more copy Hardway’s a of the Bulletin and letter also included days which he that he had 30 within informed Dr. Clarke charges. respond to the could Hearing shall be Conducted as Follows: C. (1) proof will such of facts as The Committee or the Examiner hear may proper investigation reasonable and make such be deemed and justify the and as the facts and enter such recommendations may require. circumstances (2) delay possible. little The will be conducted with as (3) right advisor, faculty an but The member shall have the have faculty person not than a member of the such advisor shall be a other by by institution, specifically permitted name the or of the unless staff or Examiner. Committee the (4) in the form will be examined under oath manner and Witnesses designated the the Committee or the Examiner. order (5) hearings. apply evidence shall not in such Formal court rules of (6) transcript Testimony recorded, a thereof shall be shall be prepared. (7) testimony together copy transcript copies of A the of the with member, charge, faculty no to the exhibits shall be furnished request. upon his (8) practical the Commitee or As soon as after president copy of the record of the Examiner shall deliver to the Committee or Examiner and with recommendation of the faculty provide copy of recommendation to the member. shall shall, twenty days receiving president after the record within faculty recommendation, writing issue a decision in member faculty mail, be final unless certified and such decision shall Regents appeal an the Board of under member institutes procedure set forth hereinafter. allegations pleadings are not D. Technical forms and Amendments: supplemental or statements to be amendments observed and may Hearing or filed discretion of the Committee be made and at the Hearing Examiner. Regents: Appeal to the Board of president appeal A. An as of from final decision by filing may university college taken member or Regents appeal within 10 notice intent with written president. days receiving final written decision of after by timely response charges either Dr. filed a to the Clarke by to state indicating that the failed denial or proper raised the grounds for dismissal and that time principal notice, issue which is one of his of defective requested hearing assignments before of error here. He a options hearing a in with the set out examiner accordance Bulletin, May 18, 1978, Regents in and on the Board of the appointed attorney hearing Dr. an to act as examiner. 1978, post May 29, less Clarke was dismissed from his hearing 7, than weeks his scheduled on June two before two-day hearing, testified, 1978. At sixteen witnesses the including parties represented Dr. Clarke. Both were evidentiary rules. counsel and made informal use The transcript hearing completed 324-page was until the not 9, 1978, by counsel, it was November and when reviewed By agree and noted. numerous errors inaccuracies were parties, ment the both counsel revised the record and retyped. hearing had It was to the examiner on it delivered 17, provided January also the 1979. Counsel summarizing their views of the examiner with memoranda evidence. 16, February 1979, filed

On the examiner seven-page found that President recommendation which Hardway pursuant the dismissed Dr. to Clarke for cause. Bulletin the dismissal was listed in the and impressive testimony faculty Citing only other the testifying support firing, of the members not factual basis his examiner did reveal designate charges which he recommendation nor did he petition days appeal, filing B. after of intent to Within 30 the notice Regents containing a statement shall be filed with Board of together why president with the final of the in error reasons decision proceedings. complete record of Regents days appeal, receipt C. after the Board Within may appeal take such submitted and shall consider the on the record proper in all circumstances and action it deems and as reasonable responsibilities under law. to all of its answer essence, D. in the event member fails Time is of the appeal appeal petition and the notice of intent file the section, provisions “A” this the decision of the and “B” of president final. shall be supported found were the evidence. Dr. Clarke contends specify the failure of the examiner his findings illusory on the record rendered his of review. 1979, Hardway, pursuant

On March President Bulletin, writing informed Clarke in was he adopting findings examiner affirming requested the dismissal. Dr. Clarke was granted appeal Regents. Board, an before the April 6, resolution dated affirmed President Hardway’s Clarke, finding dismissal Dr. that due was accorded Dr. and that dismissal not arbitrary capricious. reviewing or After record and case, pleadings in the the circuit court affirmed the Board Regents’ of resolution.

While this has never Court before had occasion to address question procedural safeguards by required the of what are process2 dismissing professor, due when a tenured we have 2 concerning concept process Some the of it observations due was as initially present conceived the that state of constitutional appropriate. early process, seem Our Court stated on that due III, provided constitution, for in Article Section 10 of state our meant condemns; proceeds upon enquiry “a law which it hears before which only judgment Kitzmiller, and renders after v. trial.” Peerce 19 W.Va. 564, (1882) citing Cooley, 352, quoting Constitutional Limitations very reading III, pays Daniel Webster. This literal Article of Section 10 proper language requires deference to the of that section which “due added.) process judgment peers.” (Emphasis of law and [one’s] the of years Peerce, however, opportunity A few after the had the to Court question provision really language the discuss of whether of that says. Relying English law, means what it of Court constructions language judgment peers” read “and the “or of to mean judgment added) peers” (emphasis of his and labeled the insertion the word “and” be “a instead word “or” to mere clerical error.” Jelly 267, 275 (1885). Dils, Jelly undoubtedly represents v. 27 W.Va. original Any equivocation. sin of constitutional taken construction English obviously any sensitivity from law is devoid to our owm (now revolutionary history. Harshbarger Justice) As Justice Chief so cogently really sanctity English observed: there “Is much as it law very people shooting Englishmen existed at the time we as a were way government denying we because were distressed their rights?” Markey Wachtel, 45, 437, civil v. us 164 Va. 264 449 W. S.E.2d (1979) dissent). (Harshbarger, dissenting; McGraw, joining J. J. in the importantly, justification resorting More is no there rational to a

709 procedural safeguards several occasions the discussed on deprive one of an interest when the state seeks to Morton, upon v. has him. State ex rel. McLendon it bestowed (1978); 431, v. 919 Civil Service W.Va. 249 S.E.2d Waite (1978); Snyder Commission, 154, 241 S.E.2d 164 161 W.Va. 762, Commission, 160 W.Va. 238 S.E.2d v. Civil Service Doddridge County, (1977); Fox v. Board Education (1977); v. West Va. 236 S.E.2d North W. Regents, Va. 160 W. 233 S.E.2d any inquiry into question

The a claim that threshold process denied due is an individual has been the individual rises whether the interest asserted “liberty” protected by “property” or interest level Waite, supra. III, Article 10 of our constitution. Section III, language This Court of Article Section 10. “construction” noted, construction, recently statutory while in the context of has may may “or” for “and” there be occasions when court substitute intent, necessary give legislative such a when effect to clear language provision is when the construction will not obtain (No. 10, 1981). City Wheeling, Cogan Feb. clear. analysis upshot The convoluted constitutional of this equivocations propounded process become so riddled with has contemporary definition of it is result-oriented courts that clear aimlessly Instead, through virtually impossible. ritual we meander balancing that, right, through approach this this recitations of one, predict against point that no man can interest concept rights has he of due been which is entitled. manipulated plain language of constitution so far afield from the deprive person liberty judgment without a of that we can now of upon Markey, supra. Jury peers. it is trials are frowned because Markey, empanel juries”, supra, (Harshbarger at 449 to “troublesome property dissenting) expansive of and and our notions J. because jury by liberty protected process are that “a trial interests due such virtually hearings if Article administrative would be in all supra III, literally.” Markey, 441. While we were at Section 10 taken interests, liberty freely property we take our citizens with endow protections safeguard away designed to those constitutional economy. judicial would not One wonders if we interests in the name of by following populace simply the constitution as it serve the better which, by applying interpretations words rather to was written than clear, themselves, terse statements foundations stand as Nevertheless, this case under our current freedom. we must evaluate standards.

710 question easily case, This is in decided the instant as both agree Regents Roth, sides that under Board v. 408 U.S. 564, 2701, 92 (1972); Perry S.Ct. 33 L.Ed.2d 548 v. Sinderman, 2694, 593, U.S. S.Ct. 33 L.Ed.2d 570 (1972); Morton, supra; rel. McLendon State ex v. Waite v. Commission, supra; Service Civil and North v. West Virginia Regents, supra, Board has both property liberty warranting process interests due protection. Having question the initial satisfied of Dr. process protection, Clarke’s inquiry entitlement to due our process constitutionally becomes what due required. Regents, supra, In North v. West we expelled

said before a student can be from a state-supported university, he is entitled to a “formal charges; opportunity written prepare notice of sufficient charges; opportunity to rebut to have retained counsel any hearings charges, accusers, to confront his present behalf; evidence on his own an unbiased hearing tribunal; adequate proceed and an record of the (in ings.” Syl. pt. part), criteria, 233 S.E.2d 411. The North however, rigid They represent only are not standards. adequacy touchstones which we procedures test particular field, case. Outside the criminal due process concept requires is a flexible which courts competing determining balance protection interests facing deprivation to be accorded rights. one Mathews Eldridge, 893, v. (1976); 424 U.S. S.Ct. L.Ed.2d 18 North, supra. McElroy, also See Workers Cafeteria 886, 81 U.S. S.Ct. 6 L.Ed.2d 1230 This court has effectively approach embraced an which serves to balance these interests. Waite, supra,

In we principles summarized some broad relating scope of that would given be made available cases.

“The process protection extent of due affordable property requires for a interest consideration first, three private distinct factors: interest action; second, that will be affected the official deprivation the risk of an property erroneous of a used, through interest and the value, any, probable if of additional or substitute finally, procedural safeguards; govern- interest, including ment’s the functions involved and the fiscal and administrative burdens that procedural requirement additional or substitute would entail.” 5, Waite,

Syl. pt. supra. also, Eldridge, supra; Mathews v. See Morton, supra. ex rel. State McLendon v. already

We have noted that the interests asserted Dr. property liberty subject Clarke are interests to due process protection. applying In the first factor enunciated Waite, apparent protectable it is that interests very Dr. asserted Clarke are of a substantial nature. Waite, temporary suspension Unlike which involved a of a employee, civil service classified the instant case involves acquired right. once It “[t]enure [which] substantial except that ensures the teacher cannot be dismissed for the defined reasons which are set out in the Bulletin and then process hearing not until a has been held”. ex State full added). Morton, supra, 926, (emphasis rel. McLendon v. Realizing that Dr. Clarke has what we have termed “a property interest”, McLendon, supra, substantial we must safeguards imposed if determine here were adequate protect that interest.

I appellant’s first contention is that he was denied due inadequate in that the notice of his dismissal was apprise fully against him him. He forcefully argues adequate notice is an essential any process. Relying element North standard of due Regents, supra, where we said at West syllabus point part, “the more valuable safeguards sought deprived, to be the more will be interposed”, rights contends that since the Clarke substantial, being deprived which he is are the notice to Although him meet must strict constitutional muster. appear notice of dismissal sent to Dr. contains what fairly which, specific allegations if to be of acts found true, justify provisions would removal under

Bulletin, he maintains the notice of dismissal lacked requisite specifics Snyder laid out in v. Civil Service Commission, (1977), 160 W. Va. 238 S.E.2d 842 to meet high standards property when a substantial question. syllabus interest is in points We said in 4 and 5 of Snyder, supra, that asserted, an

[w]here act of misconduct is in a notice dismissal, by date, it specific should be identified approximate, or unless the characteristics are so singular that there is no reasonable doubt when it If persons occured. an act of misconduct involves or property, these must be identified to the extent employee that the accused will have no reasonable identity. doubt as to their Snyder involved the employee dismissal of a civil service falsifying expense report. for a travel The notice to the employee did particular not indicate which expense travel report had been falsified. The notice was defective because alleged it an act identify of misconduct but failed to the act. Snyder, however, distinguishable is from the instant case alleged because the misconduct attributed to Dr. Clarke pertains continuing more to a conduct, and, course of such, susceptible is being expressly less detailed. For example, the letter of dismissal recites that Dr. Clarke spend refused “to a sufficient campus amount of time on responsibilities meet position.” of [his] Such an allegation hardly susceptible being is particularized, Hardway meticulously unless President clocks Dr. Clarke’s year. hours over the course of a letter, however, The dismissal allegations does contain specific acts which are not detailed dates or names. For example, charge one is that accept Dr. Clarke refused to revised teaching except 1977-78 protest schedule under that he also failed to familiarize himself with the course material teaching for the assignment. revised charge, This while it does not detail the course with which Dr. Clarke allegedly familiar, refused to become singular is so nature that there can activity be no doubt as to the question. question While there is no supplying that dates names, specific where misconduct, relevant acts of burdensome, alleged preferable and not where the acts is charge, singular are as to leave no doubt about so Snyder is satisfied.3 test

Moreover, protested that Dr. in his answer while Clarke vague, he set forth in the dimissal letter were every ground or dismissal either denial addressed testimony fairly reflects answer. The cold record of alleged which he in fact aware of the acts of misconduct was by any of gave surprised was not rise to his dismissal and charges. apply we the second and third factors When formula, say notice we the dismissal cannot Waite deny process of law. deficient as to Dr. Clarke due so particulars documenting in the notice all the burden period alleged would misconduct over of time case, and, greatly in this the administration at least burden It provide protection. no would increased appears knew the from the record charges against him what and that substance “[ultimately, Snyder, supra, requires. law As we stated sufficiency depends rote the on the the notice not standard, employee following on the of some but whether certainty precision of was with and informed reasonable the of his removal.” 238 S.E.2d 844. cause inadequate not find of dismissal so While we do the notice process, and as due do note that the format to violate we exemplary and clarity are far from of the dismissal letter meet it would failed to but for the facts this case have Ideally, process the standards. minimum sufficiency appear face. In this of the should on its notice dealing directed cases from other courts We have been to several case, In v. Buncombe with notice. one Weber the exactitude (1980), Education, N.C.App. County the S.E.2d quite similar to the letter held sufficient a letter of dismissal court made more that the notice was the instant case. While that case stated hearing process, specific through hold the court did not a bifurcated validity the bifurcated that of the notice turned on the existence of (5th 1980), Downing Williams, proceedings. 624 F.2d 612 Cir. In that deficient a letter of dismissal which stated court held being discharged employee The letter for insubordination. was Clearly specified particular Dr. notice to acts of misconduct. no Downing. notice in not deficient was the Clarke is exhaustively

close case we have been forced to review the transcript testimony prior on our notice in decisions part order to reach a Such a result. review of a court necessary. Compliance not should with the notice requirements course, of due should be a matter protracted litigation. not a matter of

II Dr. Clarke’s second substantial contention involves the hearing report. argues examiner’s He that his illusory by was review rendered virtue the failure of the hearing examiner to state the reasons for his recommen- upon and the hearing dations evidence which he The relied. seven-page report mostly examiner’s consists of a recita- procedure tion case, along facts and the with excerpts relevant page from the Bulletin. It until is not report begins an evaluation of the evidence and charges. analysis The substance Clarke discharged cause, upon was based “the evidence which came from other tenured members ... [which] particulary impressive.” There is no indication report examiner’s which as to against Dr. specific or were sustained evidence upon which the reaching examiner relied in justified. conclusion that Dr. Clarke’s dismissal was required by examiner is not statute to make findings law,4 written of fact conclusions of nor does the specifically require Bulletin him to state on the record the specify for his reasons decision or to the evidence which supports does, those however, reasons. The Bulletin require examiner “enter such recommen- justify as the may dations circumstances facts added). require.” (emphasis Clearly the Bulletin contem- plates examiner will make reasoned supported by determination which is the evidence adduced hearing. very least, hearing at the At the examiner findings should make some sort of on the record and 4Proceedings Regents exempt of the Board of are from the provisions § of our Administrative Act. Procedures W.Va. Code 29A-1-2 (1980 Vol.). Replacement supporting findings indicate evidence those order obligations demonstrate that he has fulfilled as a fact his arbitrarily capriciously finder and has not acted reaching his conclusions. decision maker should “[T]he state the for reasons his determination and indicate (citations omitted) on, though evidence he relied his opinion statements need not amount to a full or even Goldberg findings formal of fact and conclusions of law.” v. Kelly, 254, 271, 1011, 1022, U.S. S.Ct. 25 L.Ed.2d adequate hearing

The need an for statement of the examiner’s reasons for his determination evidence supporting reviewing them is obvious. Our function as a court is to review the record to determine if the evidence hearing supports findings hearing adduced at the of the examiner and whether his conclusions follow from those findings. rely logic upon We must on the facts and which the ruled, Branch, examiner 364 F.2d Johnson Cf. (4th 1966), 1003, 87 706, 17 cir. cert. denied 385 U.S. S.Ct. (1967), erroneously L.Ed.2d 542 and determine whether he applied reaching them in final If the his determination. proceeding record of the administrative below does not ruling reveal those facts which were determinative logic ruling, powerless or the behind the we are to review position the administrative are action. We thrust into judgment of a trier of fact and are asked to substitute our for that of the examiner. That we do. cannot Equally important placed is the burden on the individual seeking review of the administrative action. Where the adequate findings examiner to make fails conclusions, appellant support cannot record to grounds allege assert his for review. He cannot error with particularity he is to determine where the because unable Where, here, proceeding error was committed. ground dismissal, party involves more than one seeking review is unable to discuss which of those supported examiner found to evidence. The failure of the examiner to state on adequate the record reasons for his determination and the upon infringes upon evidence he relied 716 meaningful of the review

party to have an effective against of due him in violation administrative action taken 1209, Patterson, 605, 87 Specht process. v. 386 U.S. S.Ct. See Louisiana, 157, (1967); v. 368 U.S. L.Ed.2d 326 18 Gardner 207 82 S.Ct. 7 L.Ed.2d hearing only examiner here statement made that, “particularly in view of was his conclusion members, impressive” testimony of other pursuant to the for cause and Clarke’s dismissal was Regents. procedures This comment of the Board conclusory pronouncement nothing more than a question hearing the ultimate examiner’s decision on nor Dr. is informed before him. Neither this Court specific conclusion nor the evidence of the reasons for the proper examiner’s relied on. A statement which he indication of the evidence on reasons and clear myriad they especially important are relied is where testimony. report charges pages In the and hundreds of recommendations, findings examiner supported by specific charges found to be should list provide some evidence adduced at findings. supporting In to the evidence those reference above, we conclude that the failure view of our discussion record the examiner to state on the supported against which were found to be Dr. Clarke evidence constitutes reversible error. remedy

Logically, appropriate for reversible proceeding process procedural defects in an administrative appropriate with remand the case to the tribunal is to administrative institution directions to order Thomas, Ferguson remedy v. the defect. As stated (5th case, 1970), analogous an federal F.2d 852 Cir. if reviewing should first determine court appears, proper. “If a deficit followed were should, point, be remanded to the institution matter at that supplementary compliance minimum federal or for its with also, academically standards.” 430 F.2d 858. See created 1971). (5th Woodbury McKinnon, v. 447 F.2d 839 Cir. Remanding the conclu- the cause with directions supported with reasons sions of the examiner employed in other and evidence has been the relief findings by involving inadequate adminis circumstances employed agencies. in the context of trative It has been Monongahela utility rate-making proceedings. public See (No. Commission, 14852, Feb. Power Co. v. Public Service 10, 1981); Cooper Products v. Illinois Cerro Commerce (1979); Commission, Ill.App.3d 230, N.E.2d Telephone Indiana v. Public Service United Co. of Commission, 1980); (Ind.App. 402 N.E.2d 1013 Gas Service Corporation Commission, Kan.App.2d 623, 609 Co. State (1980); Telephone v. Public P.2d 1157 General Co. Utilities Commission, Op. 338, 285 30 Ohio 2d 59 Ohio N.E.2d St. (1972). involving procedure in 34 This has been used cases faculty, Bowing discharge v. Board of tenured Community College, Wash.App. 11 Trustees River Green (1974),modified, 300, 534 P.2d 85 P.2d 1365 521 220 Wash. (the (1975), body deciding read the evidence or must either in, parties proposed findings), and a submit to the student case, Bashful, F.Supp. expulsion French v. (E.D.La. 1969).

Accordingly court we remand the case to circuit with hearing examiner to state the directions to order the upon reasons for his recommendation and evidence purpose for the which he relied. The remand not hearing holding hearing. The in this case was a new hearing adequate. report examiner was not. The

III case,5 however, troubling aspect and one A more of this process alleges of due Dr. Clarke also several other violations only briefly He contends that he should be which we need discuss. hearing have hand in the selection of the the examiner. entitled to a having Policy provides Bulletin Dr. Clarke with the choice of faculty committee, from a list of which he selects before may faculty supplied him choose to have members or he available by hearing gives The Bulletin no indication his case heard examiner. any say will have in the selection of member nothing constitutionally improper about this examiner. We find unbiased, process procedure. long examiner is due As 1011, 25 Goldberg Kelly, 254, 90 L.Ed.2d v. 397 U.S. S.Ct. is satisfied. Regents, (1970); 160 W. Va. North v. Board West squarely confront, question

which we must involves the post-deprivation hearing whether the afforded Dr. Clarke adequate protect was his interests. He maintains that payroll college since he removed was from the some prior two weeks to the dismissal and some ten prior adoption months to the examiner’s Hardway, deprived recommendations President he was property liberty of substantial interests without due of law and contravention of the Board’s own policies.

We look first to Dr. Clarke’s assertion the Board policies affording violated its own in not him a before his dismissal became final. The set forth Regents in the Bulletin indicate that the Board of (1977). also, Long County Educatio6n, S.E.2d 411 See Owen 647, 266 245 Ga. S.E.2d 461 delays proceeding Clarke also contends that violated process. dismayed proceedings While we are to find that in this year, case took almost we are unable to find that Dr. prejudiced by delays. part, delays For the most were caused party largely no fault of either but were the result of the need for typing amending the record. complains adversary Dr. Clarke further nature of these particular proceedings process protection. Specifi violated his due cally, objects evidentiary he to the use of rules to President Hardway’s representation A counsel. review of the record reveals advantage opportunities that Dr. Clarke’s counsel took of several object testimony and, fact, extensively to certain exercised his comports to cross-examine witnesses. This with the standards for such hearings Goldberg Kelly, supra; North, supra. also, out in v. set and See Poe, 404, 257 (1979). App. Baxter v. 42 N.C. S.E.2d 71 We fail to see how prejudiced Hardway Dr. Clarke was because President retained light also, counsel in of the fact that Dr. Clarke also had counsel. See Trustees, (6th 1980) State, Frumkin v. Board Kent 626 F.2d 19 Cir. (the counsel). role of Another of Dr. Clarke’s contentions centers Hardway. around the role of President He contends that as President Hardway charges, party initiated the he should not be the act on the hearing situation, officer’s In a recommendations. similar the court in Kennedy, 134, 1633, (1974), Arnett v. 416 U.S. 94 S.Ct. 40 L.Ed.2d 15 procedure found no defect in such a and in the instant case we find no also, Memphis City defect. See Kendall v. Board Education (6th 1980) (where Schools, 627 F.2d 1 Cir. the court ruled that bringing findings administrator could not make the fact.)

719 faculty in contemplated dis- pre-deprivation a Bulletin, a According the dismissal of to the missal cases. procedures, faculty not final until all member does become Policy hearing, or waived. including the are exhausted § D;§ Bulletin, Appeal D. Yet Dr. Clarke was Dismissal college payroll two weeks before removed from the year nearly President a before dismissal adopted Hardway the recommendations fact, name, if was in not examiner. Dr. Clark’s dismissal only served final at that time and dismissal already opportunity had been permit him an to undo what done. involving case teacher transfers

We have held in a strictly regulations personnel and laws are to be “[s]chool Syl. pt. 1, Morgan employee.” v. in favor of the construed (1979). Pizzino, 454, 256 have also 163 W.Va. S.E.2d 592 We body must abide “[a]n held that administrative properly it to conduct establishes remedies 723, Syl. pt. 1, Brown, v. 160 W. Va. 238 its affairs.” Powell (1977). a The effective dismissal 220 S.E.2d contemplated prior member without a policies unquestionably error. reversible Board’s own process argument, we regard note to Dr. Clark’s due With Supreme in earlier the United States Court that while post-deprivation presumption against review cases found balancing approach, hearings test within the traditional 67, 1983, see, e.g., Shevin, 92 32 407 S.Ct. Fuentes v. U.S. Burson, 535, (1972); 91 Bell v. 402 U.S. S.Ct. L.Ed.2d 556 254, (1971); Goldberg Kelly, 1586, U.S. v. 397 29 L.Ed.2d 90 Family 1011, (1970); v. 287 S.Ct. L.Ed.2d Sniadach 337, 89 1820, 23 Corporation, L.Ed.2d Finance 395 U.S. S.Ct. effectively (1969), presumption was removed this Company, e.g., Mitchell v. W. T. Grant later cases. See (1974), 1895, Arnett v. 600, 94 S.Ct. L.Ed.2d 406 U.S. 1633, 40 L.Ed.2d 15 Kennedy, 416 U.S. S.Ct. presumption “due This Court has maintained deprivation generally given before the must public policy other compelling dictates unless occurs pt. part, Syl. North West wise.” recognized, however, Regents, supra. haveWe also 720 may justified forgoing

State in pre-deprivation a person presents when “continuing danger a persons property or ongoing or an disrupting threat of academic ..." North v. West Board of Regents, supra, 417, citing Lopez, 565, Goss 419 U.S. 582, 729, 740, S.Ct. 42 L.Ed.2d

The interests entitling asserted Dr. Clarke as him to predeprivation property are his interest in his salary liberty and his pursuing in occupation. interest his Regents The Board of compelling asserts the interest of the college protecting in its students from disruptive effects of Dr. alleged inability Clarke’s cooperate with performance administration and the in the of his duties. The strikingly situation here is similar to that in Regents Peacock v. Board University and State College Arizona, (9th Cir.), 510 F.2d 1324 cert. denied 422 (1975), U.S. 1049 appellant, where the a medical doctor involved in operation the administrative of the medical school, suspended from pre- his duties without deprivation hearing. Noting appellant that in that case would suffer no financial suspension, loss his the court potential held “that threat to the administration medical school and the disruption incidental threat of functioning University Hospital was sufficient outweigh appellant’s pre-suspension limited in interest hearing.” see, Salyers F.2d at 1329. But v. Board of Colleges Governors State Illinois, Universities Ill.App. 3d (1979), 387 N.E.2d (pre-suspension notice required.) not We think compelling college interest of the protecting the education outweighs any its students temporary deprivation liberty of Dr. Clarke’s interest pursuing occupation pending the outcome of proceeding.6 dismissal However, only it in the most 6By acknowledging propriety post-deprivation review, we are sanctioning not procedure. the indiscriminate use of such a government clearly must demonstrate on the record that it has a compelling suspension interest which warrants and it must follow suspension prompt comports with a which with due record, circumstances, clearly apparent on the compelling property may deprive of his before law one college’s process, and cannot sanction the providing due we any removing payroll Dr. Clarke from the before action whether his dismissal was final determination favoring pre- presumption justified. of our Mindful compelling deprivation but also mindful review students, preventing college in harm to the interest of the pay suspension Dr. with to think a of Clarke the we that him, pending entitles the outcome which tenure protection proceedings, provide the dismissal would best property competing interests. Dr. Clarke’s for these salary and, maintained at the same interest in his would be college’s of time, interest in the education its students the damage Dr. suffered protected. Clarke would be Whatever suspension been minimized as a result of a would have salary requiring prompt postsuspe- continuing his a therefore, hearing. conclude, removal of We nsion college payroll prior to dismissal from the process rights and contravened violated his due Bulletin. any pay of back is a matter which The amount award of remand, for have we circuit court will to determine necessary findings to here make the of fact are unable See, McNeel, question. Burks 164 W. a v. Va. resolve such 654, 264 In Board Trustees 651 Skehan v. S.E.2d of (3rd 1978), College, Bloomsburg F.2d 470 Cir. cert. State 590 (1979), held the lower denied 444 U.S. 832 the court suspended ordering professor a court was correct prior purposes of the a reinstated without teaching suspended from because “the relief payroll but presented equitable by the district court an afforded College and Dr. of both the accomodation the interests soverign 494. court did hold that 590 F.2d at The Skehan.” Pennsylvania immunity courts barred construed pay. justifiable courts award back Other an otherwise immunity sovereign an award bar have refused allow theory that states vest courts with pay back under requires showing, process requirements; a due Absent such pre-deprivation government review. individuals accord 722

jurisdiction involving faculty to review decisions tenured sovereign thereby immunity. waive In rel. State ex (Tenn. Chapdelaine Torrence, 1976), v. 532 S.W.2d 542 pay proper remedy court an ruled that award of back improper for an discharge. An pay award of back proper reinstatement was held Van Arsdel Texas A & (5th University, 1980), M 628 F.2d 344 Cir. where the court provisions found that tenure in a handbook created right. Any must, course, pay contract award of back mitigation damages. McNeel, take into account Burks v. supra. In University Soni v. Trustees (E.D. Tennessee, F.Supp. 1974), Tenn. 513 F.2d aff'd (1975), (1976), cert. denied U.S. the court held plaintiffs

that “as termination ... was without minimal process and, therefore, wrongful, plaintiff is entitled pay discharge] back [the from date of his ... until University completes complying with [due process]. F.Supp. Soni, coupled 293. rule in with pronouncements Burks, supra, our should control pay back issue this on case remand. opinion,

For the reasons set forth in this we conclude that appellant, Clarke, Dr. A. deprived Paul was liberty property substantial and interests without law virtue of the failure report adequate examiner state in his reasons for his determination that Dr. dismissed from his teaching position tenured College at Fairmont State for cause supported and to indicate the evidence which and college conclusions of the virtue failure of the prior him administration to afford to his Accordingly, judgment dismissal. we reverse County, Circuit Court Kanawha which affirmed the Regents, decision of the Board of and we remand the case to that proceedings court for further consistent with the principles enunciated herein.

Reversed and remanded with instructions. dissenting: Neely, Justice, two-day hearing firing

At the Dr. Paul A. Clarke sixteen witnesses testified. Fifteen witnesses testified against Clarke; self-serving testimony his own was the only dissent to the unanimous conclusion that he deserved fired. be hearing examiner, obviously persuaded by who was overwhelming against professor, evidence con- cluded that “the evidence from which came other tenured particularly impressive.” members... was As the opinion notes, majority examiner is not required by findings statute to make written of fact and law, conclusions nor should his statements “amount opinion findings a full or even formal of fact and Goldberg Kelly, conclusions of law.” 397 U.S. against Yet the face of the massive evidence

professor, our Court has examiner specific charges provide evidence, list reference hurdle demanded neither statute nor case law. heart, its proposition

At this case for the stands that a professor university tenured cannot fired unless regulations precedures a maze follows of technical single slip. system without a endless Our creation an “Simple May procedure I” Simon” “Mother has virtually college primary president’s removed the method ensuring competence among college professors: our power to fire.

Certainly protects professors against tenure narrow political firings, provide complete it not but intended to job security permits employee nothing an to do but everyday collect his check. At a time when we read public system, failures of our education the continued employment incompetent teachers should be eliminated. Undoubtedly today’s majority furtherdestroy will decision remaining among college professors morale profession educating teachers who are dedicated to the before, young. pointed As I have out the schools should for the be run students.

Case Details

Case Name: Clarke v. West Virginia Board of Regents

Court Name: West Virginia Supreme Court

Date Published: Apr 3, 1981

Citation: 279 S.E.2d 169

Docket Number: 14773

Court Abbreviation: W. Va.