Mingo County Board of Education v. Mark Blackburn

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED

April 22, 2024

MINGO COUNTY BOARD OF EDUCATION,

ASHLEY N. DEEM, DEPUTY CLERK

Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA

v.) No. 23-ICA-151 (W. Va. Pub. Employees Grievance Bd. No. 2021-2450-CONS)

MARK BLACKBURN,

Grievant Below, Respondent

MEMORANDUM DECISION

Petitioner Mingo County Board of Education (“Mingo BOE”) appeals the March

16, 2023, decision of the West Virginia Public Employees Grievance Board (“Grievance

Board”). Respondent Mark Blackburn (“Dr. Blackburn”) timely filed a response.1 Mingo

BOE filed a reply. The issue on appeal is whether the Grievance Board erred in granting

Dr. Blackburn’s grievance and finding that Mingo BOE’s selection decision for the

principal position in Mingo County, West Virginia, was arbitrary and capricious.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the

applicable law, this Court finds that there is error in the Board’s decision but no substantial

question of law. This case satisfies the “limited circumstances” requirement of Rule 21(d)

of the Rules of Appellate Procedure for reversal in a memorandum decision. For the

reasons set forth below, the Board’s decision is reversed.

On September 16, 2020, the Mingo BOE posted a notice seeking applications for

the principal position at Lenore PK-8 school. Dr. Blackburn and Christopher Harris were

two of the candidates who applied for the position. Dr. Blackburn has been employed by

Mingo BOE as a classroom teacher since 2019. Before working for Mingo BOE, Dr.

Blackburn worked as a teacher and administrator in Kentucky for twenty-seven years, of

which he was principal and superintendent for twenty years. On September 16, 2020,

Mingo BOE posted a vacancy for the principal position at Lenore PK-8. Nine applicants

applied for the position, including Dr. Blackburn. One applicant subsequently withdrew

her name from consideration. The candidates considered for the position were Dr.

Blackburn, Christopher Harris, Marsha Deskins, Larry Maynard, Krystyn Noe, Aileen

Perry, Tammy Salmons, and Geoffrey Saunders.

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Mingo BOE is represented by Leslie K. Tyree, Esq. Dr. Blackburn is represented

by Andrew J. Katz, Esq.

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Mingo BOE created an interview committee to fill the position. The committee was

made up of Dr. Johnny Branch, Assistant Superintendent of Mingo BOE; Drema Dempsey,

Director of Student Services and Attendance; Janet Varney, Special Education Director;

Lesia Salmons, Coordinator of Counseling; and Sabrina Runyon, Director of Early

Learning. The interview committee considered the qualifications of each candidate and

interviewed all candidates. Each candidate was asked the same questions and given the

same essay question to complete.

Following the interviews, the interview committee evaluated the candidates’

qualifications using nine factors relevant to a principal position as set forth in West Virginia

Code § 18A-4-7a (2019) which included: (1) appropriate certification, licensure, or both;

(2) amount of experience relevant to the position; (3) the amount of course work, degree

level or both in the relevant field or degree level; (4) academic achievement; (5)

certification by the National Board for Professional Teaching Standards; (6) specialized

training relevant to performing the duties of the job; (7) past performance evaluations

conducted pursuant to West Virginia Code §§ 18A-2-12 and 18A-3C-2; (8) seniority; and

(9) other measures or indicators upon which the relevant qualifications may be fairly

judged.

The interview committee created a matrix and scored each candidate based on the

foregoing factors. The first eight factors were worth one point in the matrix, while the ninth

factor was made up of the interview process and was given more weight by the interview

committee. The committee assigned a maximum of one point to each of the eight interview

questions as well as the essay question, for a total of nine points. The interview committee

discussed how to score each candidate as a group and recorded their score on a single form.

For the first eight factors, there were eight points available. Before considering the

scores for factor nine, for factors one through eight, Tammy Salmons received a total of

six points; Dr. Blackburn, five points; Larry Maynard, four points; and Marsha Deskins,

Christopher Harris, Krystyn Noe, Aileen Perry, and Geoffrey Saunders each had three

points.

For the interview portion, there were nine points available. The final scores for the

interview portion were as follows: Mr. Harris, six points; Tammy Salmons, two points;

Krystyn Noe, four points; Dr. Blackburn, one point; Aileen Perry, two points; Geoffrey

Saunders, two points; Marsha Deskins, one point; and Larry Maynard, zero points.

After considering the factors in West Virginia Code § 18A-4-7a and scoring each

candidate, the interview committee selected Christopher Harris as the most qualified

candidate. The interview committee then submitted Mr. Harris’ name to the Mingo BOE’s

Superintendent Don Spence. Superintendent Spence evaluated the qualifications of Mr.

Harris as well as the other eight candidates and chose to accept the recommendation and

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submit Mr. Harris’ name to the Mingo BOE for approval. The Mingo BOE voted in favor

of Superintendent Spence’s recommendation, and Mr. Harris was awarded the position.

On October 6, 2020, Dr. Blackburn filed a grievance regarding the selection

decision. In his grievance, Dr. Blackburn sought placement in the position, as well as

related benefits and backpay. The Grievance was denied at level one of the grievance

process by decision dated December 4, 2020. On March 8, 2021, Dr. Blackburn appealed

the grievance to level two. A level two mediation was conducted on June 17, 2021, but was

unsuccessful. By order entered January 10, 2022, Mr. Harris was granted Intervenor status.2

On November 14, 2022, a level three hearing was conducted before the

administrative law judge (“ALJ”). Dr. Blackburn appeared in person and testified.

Members of the hiring committee John Preece, Sabrina Grace, Doug Ward, Drema

Dempsey, Janet Varney, Rocky Hall, and Johnny Branch testified as witnesses.

Superintendent Don Spence also testified as a witness. Dr. Blackburn testified that he

believed he should have been given a point for specialized experience, due to his

experience as an administrator. Further, he stated that he felt like an outsider during the

interview process. Mr. Preece testified that he had previously worked with Dr. Blackburn,

and that he believed that Dr. Blackburn should have been selected for the position. Ms.

Dempsey testified that Dr. Blackburn did not give specific answers to several of the

questions and gave an example of a question about the role that data makes in the decision-

making process of an administrator, in which he did not provide a specific answer that was

directed towards helping students, or the types of data that he would consider. Further, Ms.

Dempsey testified that no Board member had ever instructed her to pick a specific

candidate.

By decision dated March 16, 2023, the ALJ held that Dr. Blackburn had proven by

a preponderance of the evidence that the selection process was flawed, that Mr. Harris was

not the most qualified candidate, that the decision to select Mr. Harris was arbitrary and

capricious, and that the interview committee abused its discretion. However, the ALJ found

that Dr. Blackburn failed to prove by a preponderance of the evidence that he was the most

qualified candidate for the position. The ALJ granted the grievance in part, and denied in

part, concluding that the position should be reposted, and a new selection process

undertaken. It is from this decision that the Mingo BOE now appeals.

Our standard of review in appeals from the Grievance Board is as follows:

A party may appeal the decision of the administrative law judge on the

grounds that the decision:

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The Grievance Board granted Mr. Harris Intervenor status below, but he is not a

party to this appeal.

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(1) Is contrary to law or a lawfully adopted rule or written policy of the

employer;

(2) Exceeds the administrative law judge’s statutory authority;

(3) Is the result of fraud or deceit;

(4) Is clearly wrong in view of the reliable, probative and substantial

evidence on the whole record; or

(5) Is arbitrary or capricious or characterized by abuse of discretion or

clearly unwarranted exercise of discretion.

W. Va. Code § 6C-2-5(b) (2007); accord W. Va. Code § 29A-5-4(g) (2021) (specifying

the standard for appellate review of an administrative appeal).

Further, our Supreme Court of Appeals has established that “[a] final order of the

hearing examiner for the West Virginia [Public] Employees Grievance Board . . should not

be reversed unless clearly wrong.” Syl. Pt. 3, Martin v. Barbour Cnty. Bd. of Educ., 228

W. Va. 238, 719 S.E.2d 406 (2011) (citing Syl. Pt. 1, Randolph Cnty. Bd. of Educ. v. Scalia,

182 W. Va. 289, 387 S.E.2d 524 (1989)). Further, “[t]he ‘clearly wrong’ and the ‘arbitrary

and capricious’ standards of review are deferential ones which presume an agency’s actions

are valid as long as the decision is supported by substantial evidence or by a rational basis.”

Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996).

On appeal, Mingo BOE asserts a single assignment of error, in which they argue

that the ALJ misapplied West Virginia Code § 18A-4-7a and erroneously determined that

the selection process was flawed, that the decision to select the intervenor was arbitrary

and capricious, and that the interview committee abused its discretion in selecting Mr.

Harris. We agree.

West Virginia Code § 18A-4-7a(c) provides, in part, that “a county board is entitled

to determine the appropriate weight to apply to each of the criterion when assessing an

applicant’s qualifications.” Further, it is well established in West Virginia that “[c]ounty

boards of education have substantial discretion in matters relating to the hiring, assignment,

transfer, and promotion of school personnel.” Syl. Pt. 4, McCann v. Lincoln Cnty. Bd. of

Educ., 244 W. Va. 66, 851 S.E.2d 512 (2020) (citing Syl. Pt. 3, Dillon v. Bd. of Educ. of

Cnty. of Wyoming, 177 W. Va. 145, 351 S.E.2d 58 (1986) (superseded by statute on other

grounds)).

The record establishes that the interview committee considered all of the applicable

factors for a principal position as set forth in West Virginia Code § 18A-4-7a in making

their decision to select Mr. Harris. Further, the interview committee was entitled to

determine the appropriate weight to apply to each criterion and chose to accord more

weight to the interview portion of the selection process. The decision to recommend Mr.

Harris was approved by both the Superintendent and the Mingo BOE. Further, the record

establishes that Mr. Harris was awarded the most points because the interview committee

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determined that his responses showed his capability for the position based on his

educational background, experience, the interview process, and his essay response. We

find that the ALJ was clearly wrong in concluding that the interview committee’s selection

of Mr. Harris for the principal position was arbitrary and capricious. The substantial

evidence in the record indicates that the interview committee did not abuse its discretion

in selecting Mr. Harris and weighed the appropriate factors according to West Virginia

Code § 18A-4-7a.

Further, Dr. Blackburn did not establish that he was the candidate next in line for

the principal position. Thus, he lacks standing to challenge his non-selection for the

position. The record indicates that Ms. Salmons and Ms. Noe were the candidates with the

second and third highest scores, respectively. See Samples v. Kanawha Cnty. Bd. of Educ.,

No. 2008-1589-KanEd, 2010 WL 1723052, at *8 (Apr. 2, 2010) (Grievance Board decision

finding that in order for a grievant to demonstrate entitlement to a position or

compensation, it is necessary to establish he or she was “next in line”); see also Stephens

v. Wayne Cnty. Bd. of Educ., No. 11-0560, 2011 WL 8199946, at *11 (W. Va. Nov. 15,

2011) (memorandum decision) (incorporating a circuit court order applying the “next in

line” rule). Based on the foregoing, we conclude that Dr. Blackburn did not prove that he

was the most qualified candidate or next in line for the position.

Accordingly, we reverse the Grievance Board’s March 16, 2023, decision.

Reversed.

ISSUED: April 22, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr

Judge Charles O. Lorensen

Judge Daniel W. Greear

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