                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Christopher Bird,
Respondent Below, Petitioner                                                      FILED
                                                                              November 4, 2019
vs) No. 18-0870 (Kanawha County 17-AA-96)                                       EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Kanawha County Board of Education,
Petitioner Below, Respondent


                               MEMORANDUM DECISION


        Petitioner Christopher Bird, by counsel Everett Roush, appeals the Circuit Court of
Kanawha County’s September 12, 2018, order reversing the decision of the West Virginia Public
Employees Grievance Board (“grievance board”). Respondent the Kanawha County Board of
Education, by counsel Lindsay D.C. McIntosh, submitted a summary response in support of the
circuit court’s order.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

        Petitioner Christopher Bird is a custodian employed by the Kanawha County Board of
Education who previously worked as a bus operator for respondent. Respondent posted the
position of Electrician II in September of 2016, though the job description did not specifically
mention any qualification related to an applicant’s driving record. It did, however, set forth the
following duties/responsibilities: “Possess and maintains a valid West Virginia driver’s license;
Ability to perform duties in compliance with the county requirements and Board of Education
policies.” Respondent declined to offer petitioner the Electrician II position due to his recent
conviction for driving under the influence (“DUI”), and the position was awarded to the intervenor
below, Emmett G. Busse.1 Petitioner filed a grievance with the grievance board on January 17,
2017, and Mary Jo Swartz, the designee of the county superintendent, denied the grievance at


       1
          Without citing to the record, petitioner claims that he was “fully qualified” for the
Electrician II position, including holding a journeyman’s electrician license and the completion of
an electrician course at respondent’s technical school, Ben Franklin Career Center. He also
contends that he had good evaluations during his tenure with respondent and was the most senior
applicant for the position.



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Level I.2 Petitioner appealed to Level II, at which time Mr. Busse intervened. The parties
conducted an unsuccessful mediation in April of 2017, and petitioner appealed to Level III later
that month. Following an evidentiary hearing, the administrative law judge (“ALJ”) issued a
decision finding that petitioner should have been awarded the position. The grievance board
ordered that petitioner be instated to the position and awarded back pay, benefits, and interest.
Respondent appealed that decision to the Circuit Court of Kanawha County, which considered the
briefs and proposed orders submitted by the parties.

        On September 12, 2018, the circuit court entered its “Final Order Reversing Decision of
Grievance Board.” In that order, the circuit court made the following relevant findings of fact and
conclusions of law: All electricians employed by respondent are assigned a vehicle owned by
respondent for use while completing their job duties. Respondent’s Policy G68 provides that an
applicant for a position that involves driving a county vehicle will be “disqualified” for DUI,
though that policy does not contain a time limit for disqualification. However, respondent had an
unwritten practice of limiting DUI disqualifications to the preceding five-year period. None of
respondent’s employees who drive one of its vehicles as part of their jobs have a disqualifying
violation on their driving record. Petitioner was convicted of DUI, less than .15 blood alcohol
content, in 2015, but completed all aspects of his ignition lock program on or about September 10,
2016.3

        The circuit court concluded that it is neither arbitrary nor capricious for respondent to have
a policy prohibiting an individual with a recent DUI conviction from operating its vehicles.

       Public safety and potential liability on the part of [respondent] are reasonable
       considerations when determining if an individual may be permitted to operate one
       of [respondent’s] vehicles. The [ALJ] acted arbitrarily and capriciously when she
       substituted her judgment for the judgment of [respondent] in concluding that [its]
       fleet safety policy should not apply to [petitioner] in this instance.

The circuit court reversed the ALJ’s decision insofar as the ALJ determined that petitioner should
be instated to the position of Electrician II. Petitioner appeals from that order.

        As this Court has found, “[w]hen reviewing the appeal of a public employees’ grievance,
this Court reviews decisions of the circuit court under the same standard as that by which the circuit
court reviews the decision of the administrative law judge.” Syl. Pt. 1, Martin v. Barbour Cty. Bd.


       2
         West Virginia Code §§ 6C-2-1 through -8 (collectively known as the West Virginia
Public Employees Grievance Procedure (“grievance procedure”)) provides the resolution
procedure for grievances raised by public employees of the State of West Virginia. The grievance
procedure consists of three levels: Level I is a hearing with the entity’s chief grievance
administrator; Level II is voluntary mediation; and Level III is a hearing in front of an
administrative law judge. Either party may appeal a Level III decision to the Circuit Court of
Kanawha County.
       3
        According to the record, petitioner was arrested on December 13, 2014, and his conviction
date was August 18, 2015.
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of Educ., 228 W. Va. 238, 719 S.E.2d 406 (2011). Pursuant to West Virginia Code § 29A-5-4(g),

       [t]he [circuit] court may affirm the order or decision of the agency or remand the
       case for further proceedings. It shall reverse, vacate or modify the order or decision
       of the agency if the substantial rights of the petitioner or petitioners have been
       prejudiced because the administrative findings, inferences, conclusions, decision or
       order are:
       (1) In violation of constitutional or statutory provisions; or
       (2) In excess of the statutory authority or jurisdiction of the agency; or
       (3) Made upon unlawful procedures; or
       (4) Affected by other error of law; or
       (5) Clearly wrong in view of the reliable, probative and substantial evidence on the
       whole record; or
       (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion.

Further,

               [g]rievance rulings involve a combination of both deferential and plenary
       review. Since a reviewing court is obligated to give deference to factual findings
       rendered by an administrative law judge, a circuit court is not permitted to substitute
       its judgment for that of the hearing examiner with regard to factual determinations.
       Credibility determinations made by an administrative law judge are similarly
       entitled to deference. Plenary review is conducted as to the conclusions of law and
       application of law to the facts, which are reviewed de novo.

Syl. Pt. 1, Cahill v Mercer Cty. Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000). With these
standards in mind, we turn now to petitioner’s assignments of error.

        First, petitioner argues that the circuit court erred in concluding that Policy G68 was not
arbitrary and capricious; he contends that the policy was arbitrary and capricious because it does
not establish a ban or similar consequences for other driving violations. Citing West Virginia Code
§ 18A-4-8b,4 petitioner asserts that respondent’s policy would create an exception or deviation


       4
           West Virginia Code § 18A-4-8b provides, in relevant part, as follows:

       (a) A county board shall make decisions affecting promotions and the filling of any
       service personnel positions of employment or jobs occurring throughout the school
       year that are to be performed by service personnel as provided in section eight
       [§18A-4-8] of this article, on the basis of seniority, qualifications and evaluation of
       past service.
       (b) Qualifications means the applicant holds a classification title in his or her
       category of employment as provided in this section and is given first opportunity
       for promotion and filling vacancies. Other employees then shall be considered and
       shall qualify by meeting the definition of the job title that relates to the promotion


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from the normal statutory criteria for filling service personnel positions. Without citing to the
record, petitioner asserts that no applicant for the position possessed the classification title of
Electrician II or held preferred recall status with seniority in the electrician classification category.
Therefore, as a regular employee, petitioner held a place among the top priority group of
applicants, and in that group he was the most senior applicant qualified for the position. He further
asserts that he had “acceptable evaluations” so he was entitled to receive the position.

        Petitioner argues that Policy G68 is arbitrary and capricious because it creates a lifetime
ban on driving jobs for any applicant who has a DUI violation on his or her record, which petitioner
asserts is “clearly absurd.” He further argues that a ban on DUI with no impediment for speeding,
driving while using a cell phone, or other risky behavior behind the wheel is inexplicable so the
ban must be held to be arbitrary and capricious.

       This Court has held that “‘[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.’ Syllabus Point 3, In re


        or vacancy, as defined in section eight of this article. If requested by the employee,
        the county board shall show valid cause why a service person with the most
        seniority is not promoted or employed in the position for which he or she applies.
        Qualified applicants shall be considered in the following order:
        (1) Regularly employed service personnel who hold a classification title within the
        classification category of the vacancy;
        (2) Service personnel who have held a classification title within the classification
        category of the vacancy whose employment has been discontinued in accordance
        with this section;
        (3) Regularly employed service personnel who do not hold a classification title
        within the classification category of vacancy;
        (4) Service personnel who have not held a classification title within the
        classification category of the vacancy and whose employment has been
        discontinued in accordance with this section;
        (5) Substitute service personnel who hold a classification title within the
        classification category of the vacancy;
        (6) Substitute service personnel who do not hold a classification title within the
        classification category of the vacancy; and
        (7) New service personnel.
        ***
        (s) A county board failing to comply with the provisions of this article may be
        compelled to do so by mandamus and is liable to any party prevailing against the
        board for court costs and the prevailing party's reasonable attorney fee, as
        determined and established by the court.
        (1) A service person denied promotion or employment in violation of this section
        shall be awarded the job, pay and any applicable benefits retroactively to the date
        of the violation and shall be paid entirely from local funds.



                                                   4
Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996).” Syl. Pt. 5, Dale v. Oakland, 234 W. Va. 106, 763
S.E.2d 434 (2014). However, in the underlying case, the circuit court determined that it is neither
arbitrary nor capricious for respondent to have a policy prohibiting an individual with a recent DUI
conviction from operating its vehicles, specifically citing public safety and respondent’s potential
liability as reasonable considerations when determining if an individual may be permitted to
operate one of respondent’s vehicles. Petitioner does not dispute the fact that those in the position
of Electrician II operate vehicles owned by respondent or that he was convicted of a DUI in August
of 2015, approximately one year prior to respondent posting the Electrician II position at issue.

        West Virginia Code Chapter 17C, Article 5 is entitled “Serious Traffic Offenses,” and
numerous sections of that article address DUI. Further, DUI is treated more harshly than most
driving offenses, including a possible penalty of a term of incarceration up to six months and a
possible fine of up to $500. See W. Va. Code § 17C-5-2(e). In contrast to those DUI statutes, the
“[p]rohibited use of an electronic communications device driving without handheld features . . . .”
is included under “Miscellaneous Rules” and includes penalties of only fines. W. Va. Code § 17C-
14-15(e). Further, the article that addresses speed limitations is entitled “Speed Restrictions,” and
provides that a first offense violation of speed limits permits a maximum fine of $100. See W. Va.
Code § 17C-6-1(e). Thus, it is clear that West Virginia law does not treat all driving offenses the
same – in seriousness or penalties. A comparison of West Virginia statutes makes it abundantly
clear that the different treatment of various driving offenses is not arbitrary or capricious.
Therefore, we cannot find that the circuit court erred in concluding that respondent’s policy
providing differing treatment of various types of driving offenses, specifically DUI, was neither
arbitrary nor capricious.

        Petitioner’s second assignment of error is his contention that the circuit court erred in
concluding that respondent’s unwritten practice of a five-year ban for convictions for DUI for
applicants for service positions that required operating a vehicle was enforceable. Petitioner is
correct that West Virginia Code § 18A-2-12a(7) requires that “[a]ll official and enforceable
personnel policies of a county board must be written and made available to its employees[,]”
though that is a notice rule. In addition, respondent admits that “[w]hile the practice [of a five-year
lookback period] should have been made clear in the policy, it did not harm [p]etitioner to not
know about the five year lookback practice, as he would have believed upon reading the policy he
was under a lifetime ban . . . .” Petitioner applied for the position despite what he perceived as a
lifetime ban, so it is apparent that petitioner has not been harmed by the fact that he was unaware
of the “five year lookback” period. In addition, petitioner’s two-paragraph argument on this issue
fails to cite to the record to show this Court where he brought this issue to the circuit court’s
attention or even where the circuit court made a finding specific to this issue, as required by Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure. For these reasons, we decline to
address the merits of petitioner’s second assignment of error.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: November 4, 2019



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CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

DISQUALIFIED:

Justice Margaret L. Workman




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