*1 499 S.E.2d 35 Virginia ex rel. of West

STATE MONK,

Judy Petitioner,

v. KNIGHT, David W.

Honorable County, of Mercer Court Circuit Dalton, Respondents.

Gregory

No. 24366.

Supreme Appeals Court of Virginia. 4, 1997.

Submitted Nov.

Decided Nov. Opinion of Work-

Dissenting Chief Justice

man 10, 1997.

Dec. *2 (Board)

County Board of Education to decide whether Monk or Dalton would be chosen to fill a vacant at PikeView High School. The Board chose Dalton based specialized training. on seeks hibit enforcement of this determination. We conclude the writ should be denied. During the summer months of posted Board a notice for a business teacher High PikeView School. The be filled accordance W.Va.Code § lSA-J-Ja.1 Monk and Dalton were both permanently employed person- instructional applied nel and both for the vacant A applicants committee interviewed the applied the criteria listed in W.Va.Code § 18A-4-7a in an effort to determine which applicant to hire. The committee recom- mended that Dalton be hired. The Board position Dalton, began awarded the and he teaching at PikeView School when opened August school 1994.

Monk filed a with the West Vir- Surmaitis, George Crandall, Pyles P. ginia & Employees Education and State Griev- Haviland, Charleston, (Grievance Board) and William B. McGin- ance pursuant Charleston, ley, 18-29-1, Petitioner. seq., et W.Va.Code Grievance Pro- cedure. The was denied at Level Kathryn Bayless, Bayless McFadden, R. & II, I. At Level examiner deter- Princeton, for Board of Edu- mined an error had been in calculating made cation. teaching experience. Monk’s total The cor- Wills, Sadler, Princeton, Mark E. Wills & rect calculation resulted in a tie between the for Dalton. applicants. two examiner di- principal rected the of the school to conduct a MAYNARD, Justice: reassessment of Dalton’s and Monk’s creden- Petitioner, Judy Monk, a writ of seeks tials. The reassessment resulted in a deter- prohibition against the Circuit Court of Mer- mination that Dalton was more County, cer the Mercer specialized training. the basis of Monk sub- Gregory asking sequently appealed alleging prohibit respondent we circuit court from reassessment was flawed. The ALJ deter- enforcing its order which reversed the deci- mined the matter should be remanded to (ALJ) sion of the Administrative Law event, Level I grievable because the reassessment, and remanded the case back to the Mercer was different from the assess- area; perti- required 18A-4-7a states in specialized certification train- part: nent ing directly performance related to the job job description; receiving as stated in the permanently If one or employed instruc- rating satisfactory an overall in evaluations personnel apply tional for a classroom teach- previous years; seniority. over the two ing position and meet the standards set forth in given Consideration shall to each posting, criterion board of education being given equal weight. with each criterion affecting shall make decisions applicant positions seniority If the such with the following on the is not basis of the Appropriate position, upon request criteria: sure; selected for the certification licen- and/or applicant experience; total amount a written statement of reasons teaching experience given existence of applicant suggestions in the re- shall be area; quired degree improving applicant’s certification level in the qualifications. original ment of credentials involved Dalton’s was denied at Levels I and II and waived at Level III. At Level IV, stating ALJ denied the processed according that: II, the ALJ’s order. It was denied at Level *3 18-29^(d)(2), § Under W.Va.Code deci- the Board declined to address the mat- Judges sions of Administrative Law at lev- again proceeded ter at Level III. The case upon parties el four are final and shall to Level IV. The ALJ reviewed the evi- court, be enforceable in circuit unless time- principal’s dence and found the reliance on ly appealed, by as authorized W.Va.Code specialized training improper the area of was § statutory provision 18-29-7. This clear particular because this factor was not con- provides authority undersigned no for the original job tained in posting. There- judge interpret, clari- fore, specialized training area of could fy or otherwise amend the decision of an- given not be consideration. The ALJ also other administrative law at Level IV. Indeed, notwithstanding noted that the error con- this Grievance Board has declined permit employees grieve sidering specialized training, private actions sec- directly which result from a board of edu- training by upon principal tor relied implementation grievance cation’s de- specialized training meaning within the adjudicated cision at the lower levels of the § of W.Va.Code 18A-4-7a.2 The deter- ALJ grievance procedure provided in W.Va. applicants mined the two were tied for the (citations 18-29-1, §§ Code seq. et omit- position. The Board was ordered to fill the ted). position by lottery vacant or random selec- correctly MCBE, As noted Grievant tion.3 making is a collateral attack on the Monk The random selection was conducted permitted decision. If Grievant is to chal- Daniels, Roger the Director of Human Re- lenge ruling proceeding, the Monk in this sources, in the Central Office Conference prevails, why Monk, and he should Ms. Room. Dalton drew numbers out who likewise failed to intervene in this matter, employee of a box. Both understood the not be allowed to make a collateral attack on this decision? The obvious an- drew the number would be awarded permit parties swer is that this would Dalton drew a “4” and Monk engage litigation. in endless rounds of Thus, drew a “5” from the box. Monk dis- placed Subsequent lottery Dalton. Dalton appealed the unfavorable decision drawing, grievance I, Dalton filed at Level court, pursuant to the circuit to W.Va.Code contending (1985).4 he should not have § been removed 18-29-7 The court issued a deci- job. ALJ, from his reversing stating: sion employed (1985) secretary 2. Monk had been provides: § as a church 4.W.Va.Code 18-29-7 employed had been Dalton as a clerk at an A hearing decision of examiner shall & P store. upon parties be final and shall be enforce- Provided, able in circuit court: That either right 3. Dalton did not exercise his to intervene in party may appeal to the circuit of the court grievance the Monk under W.Va.Code 18-29- county grievance 3(u) (1992), in which the occurred on the which states: grounds that the examiner's decision (u) Upon timely request, any employee (1) contrary lawfully adopted to law or shall be allowed to intervene and become a rule, regulation policy or written chief ato level when that board, (2) governing administrator or exceeded claims that the (3) statutory authority, examiner’s may substantially action affect deceit, (4) was the result of or property fraud was clear- his or her or and that his or her reliable, ly wrong probative adequately in view of the represented by interest is not board, (5) existing parties. substantial evidence on the whole though superintendent arbitrary capricious Even testified at the or characterized clearly that she believed Dalton was abuse of discretion or unwarranted ex- qualified applicant position, appeal the best ercise of discretion. Such be filed shall authority Board did not exercise its under W.Va. in the circuit of Kanawha or in appeal 18-29-7 the Level IV the circuit court of the in which the days thirty decision to circuit court. occurred within of re- contends the grievance board decision. She necessary this to consider It is permits Dalton to circumvent grievance of Monk v. Mer- court’s decision along griev- by pursuing Education 18-29-7 cer dispute equitable decision here. not based on a at a fair and ance arrive in refer- employees are “tied” based on a employer, two but is instead Where qualifications under the law ence to the board decision. position, a Board of Edu- professional overriding argues concern to exercise its should be allowed cation should vacant and choose the candidate its discretion qualifications. He contends there is the “tie” between in order to break choice choosing professional statutory Education applicants; the Board of two therefore, lottery; ALJ teachers *4 a decision on whether or should first make by directing be chosen erred in that teachers by doing the tie so. not it wishes to break result, lottery. a the circuit court was As chooses not to If the Board of Education reversing and correct in the ALJ’s decision by exercising its discretion in the tie break position the directing that the be awarded to manner, then should then candidate. procedure choice be used to some random job and that ran- issue, it,

decide who obtains as we see is whether job process for the at issue dom selection considering in the circuit court erred by be established here should grievance when Dalton did merits of Dalton’s ees, subject approval. to Board an Such in Monk’s not intervene process approved random selection was not any by or means claim one “Grievance” position place in the time the employees governing of the more affected awarded to Ms. Monk. education, board of boards of state holds that the decision of The Court education, education, county re- boards Law Brewer issued Administrative agencies gional educational service 29, 1996, clearly wrong light in July multi-county alleging vocational centers a reliable, probative of the and substantial violation, a misapplication a or misinter- the whole record and was arbi- evidence on statutes, rules, pretation policies, by trary, capricious and characterized an agreements regulations or written under clearly an abuse of discretion and work, any employees including which such exercise of discretion. unwarranted violation, misinterpreta- misapplication or decision, hours, regarding compensation, terms the Board informed tion Based on this employment, employment writing that and conditions of Monk in she must submit docu- discrimination; specialized training. Following any mentation of status or discriminato- criteria, ry aggrieved application Monk a or an evaluation of the received otherwise policies practices “the Board of Education unwritten or letter stated board; any specifically approve Superintendent’s recommen- identified incident did action, favoritism; dation to Mr. Dalton to the of harassment or or transfer practice constituting policy at PikeView School.” or a substantial with effective detriment to or interference contends the circuit court ex- now instruction, job performance or classroom jurisdiction and lawful as ceeded its safety of students or em- the health and this case involves a collateral attack on a ployees. grievance by using a who is 18-29-2(a) (1992). there grievance process as a vehicle to arrive at When misinterpretation misapplica- challenge previous been a or circuit court order to has may arguments require ceipt hearing examiner’s decision. The the court hear oral reverse, may not be decision of stayed, automatically, upon examiner shall vacate written briefs. The court filing of an modify the decision of the appeal, stay may granted by the cir- but may the chief ad- remand the upon separate cuit court motion therefor. ministrator of the institution for further ruling upon shall be the entire court's ceedings. examiner, made record before law, involving personnel, tion of a school note here statute We as a matter of by misinterpreta- affected policy, does not disfavor random selection duty misapplication tion or of the law has no proper by situation where it is to choose misinterpretation to file a until the lottery. Simply put, nothing there is inher- or misapplication occurs. Dalton could ently wrong deciding certain issues being have ALJ’s known Legislature random selection. The has stat- misapply rendered that ALJ would utorily provided for the random selection of law and to fill the vacant personnel. school service W.Va.Code 18A- Therefore, position by lottery. had part, 4-8b states in relevant “If two or duty grievance prior file a to that employees accumulate seniori- identical being announced. ty, priority shall be determined system random selection established

alsoWe believe Dalton had no rea employees approved by son to intervene in Monk’s because recently recognized board.” This Court also he did not know until her that W.Va.Code 8-5-15 authorizes the finally decided his would be adverse 18-29-3(u) breaking municipal of a ly tie election affected. W.Va.Code allows lot. In re Election Contest Between Moore intervention if one thinks the Powell, *5 335, 200 adversely case will W.Va. 489 492 affect his or her S.E.2d (1997). parties if one the existing thinks not will adequately represent his her interest. However, no such random selection duty Dalton no or obligation had to intervene provided by Legislature cess is for until a job, affected his Therefore, teaching positions. vacant absent is, that after until the Level IV had specific statutory authorization, a been in rendered Monk’s At that boards of education fill cannot vacant teach- point, could not appeal Dalton the outcome of ing positions by lottery random selection or Monk’s to the circuit court because qualified equally when two or more party. he Only was not a the Board could apply for ees the vacant W.Va. appeal, and the Board chose not to exercise § provides 18A-4-7a the criteria the right. Only that then was Dalton removed board education of must take into consider- teaching position. option from the The determining ation which candidate is

which was left to him to file was his own qualified. the most who is candidate grievance, which he did. qualified fill must chosen to be The other issue we believe we must bar, vacancy. In at the case de- equal address with quali is whether teachers termined Dalton better than apply teaching fications vacant who a vacancy High Monk fill the at PikeView position posi can chosen fill the vacant process School. The selection mandated County tion selection. of random boards Virginia fill the West Code was utilized to statutorily education are directed to make reason, vacancy. For that will re- Dalton decisions, process these and the selection teaching position. main in the § controlled W.Va.Code 18A-4-7a.5 The reasons, foregoing For the is de- the writ Virginia give au Code does not ALJs nied. thority pro the random selection of teachers, provide fessional cannot it. we Writ denied. puts This of of selection candidates boards position they education in where must use WORKMAN, Justice, concurring, in Chief qualifications their in rating discretion of part, part: dissenting, in However, applicants. this is the kind place majority discretion I with lower we elected board mem concur part deeply bers. but I find it correct1 held, supra Knight’s language Judge 5. See two em- note for the relevant "Where ployees qualifica- are 'tied' in reference to the this code section. position, the law tions under the Board special- majority opinion endorses Board considered each candidate’s troubling that the training. Board deci- Subsequently, collateral attacks Grievance filed ized Monk significant departure from sions. This is petition prohibition. majori- existing aspect of law and to this (“ALJ”) judge The administrative law ty opinion, strenuously I dissent. absolutely cor- claim was dismissed Dalton’s Ms. filed a after the teach- Monk holding are that collateral attacks rect ing position Mr. issue was awarded to Virginia Code impermissible. Under West grievance proceeded Dalton. Monk’s to Lev- (1994 29—4(d)(2) Supp.1997), & ALJ de- 18— that el IV examiner found where binding upon parties. final are cisions relying principal erred in on Dalton’s remedy under the statute is that specialized training it was includ- because (to grievance) may appeal to either Next, job posting. ed in the grounds the circuit court on the equally quali- to be found Monk erroneous examiner’s decision was fied, drawing to and he ordered a break the upon any of the five enumerated based position tie.2 was awarded the after grounds set forth in the statute. W.Va.Code drawing than A number Dalton. (1994). decision, In his the ALJ 18-29-7 later, days few Dalton filed a a 1995 administrative decision which read, cited disagreement “I am total (1994). Clay v. interpreted Jerry 18-29-7 In Wright’s Level IV decision and Mingo employee” Docket the November 1995 “random 1995), I (Aug. selection Schools. held No. 95-29-208 the ALJ in the feel that I should remain for an provides that the statute I was hired for at PikeView clarify, interpret, de- School.” Dalton’s or. amend the decision of another otherwise nied, “a *6 and the examiner held that at Level IV. Clear- grievant permitted not to attack collateral- ly, attack of a collateral Grievance ly involving decision is not under statute.3 allowed teaching position the same same respect silent with Because record is ees.” circuit reversed the Mr. Dalton learned of Ms. Monk’s the Monk and Dal- considered majority may well be correct together despite ton the fact that nei- cases in concluding Mr. Dalton had no other that party’s ther other intervened remedy losing ex- neglected grievance. The circuit court so, however, grievance. cept file a Even address the collateral attack issue. The low- employer’s prop- action would have er court held that the Board of Education subject griev- erly been the of second could break ties between candidates for Thereafter, ance, not of position using its another administra- discretion. judge.4 Dalton was awarded the after the tive law 222, of Educ., Education should be allowed to choose the can- Vestv. Board. 193 W.Va. 455 Pt. choice; (1995) (establishing guidelines didate of their the Board should first to be S.E.2d 781 they make a decision of whether or not wish to determining whether administrative utilized do Then and then ran- this. should some parameters falls either res within procedure dom choice be used decide who judicata estoppel). or collateral procedure be obtains the that should approved employees established the same 4.Even where second county, which was not done this case.” filed, properly potential there is issue is still conflicting legisla- administrative decisions. The regard 2. The record is silent with when Dalton any provided ture means for intervention Thus, grievance. first learned of the Monk this is employee who claims that knowledge the first time we know Dalton had grievance may substantially affect existing parties her do not his or where Miller, adequately represent rights. his or her W.Va. See State v. 194 W.Va. S.E.2d 114 Thus, (1994). 18-29-3(u) this stat- under (stating judica- doctrines res "[t]he ute, ongoing has notice an developed an estoppel ta and were well collateral may protect judicial may her proceedings, intervene to his or the context of but well”); is, however, applied Syl. rights. requirement to administrative actions as There complete Because we do have rec- us,

ord it cannot be determined before any

whether Dalton had actual or construc- grievance prior

tive notice of Monk’s By enacting permis-

Level IV decision.

sive intervention without statute notice

requirements, legislature has created Thus,

somewhat of a no man’s land.

legislature should revisit this statute to con- requiring mandatory

sider intervention and a

requirement employees to other notice

who would be affected deci- meantime, hope

sion. In the let us the ma- opinion

jority create does not confusion on right collaterally attack educational

grievance decisions.

499 S.E.2d 41 STUMP,

Elizabeth Ann James Leo Bur

ton, McClure, Ronnie Lee Joel Malcolm

McClure, Faye Adkins, Linda Barbara

Gay Pennington, McClure, Jr., Sesco McClure,

Richard Keith Daniel James

Burton, Marilyn Lovejoy, Mae Lena Sue

Burton, Appellants,

ASHLAND, INC., Wiley and Nowlan Ash Agents, Inc.,

land Oil and Sandra Tur

ner, Administrator of the of Er Estate Eugene Marcum, Appellees.

nest 23818, 23819, 23820, 23821, 23822,

Nos.

23823, 23824, 23825, 23826, 23827

and 23828.

Supreme Appeals Court Virginia. Sept.

Submitted 1997.

Decided Nov. any mandatory duty one such a situation receive notice of the nor to intervene.