                         STATE OF WEST VIRGINIA

                       SUPREME COURT OF APPEALS



CABELL COUNTY BOARD OF EDUCATION,

Petitioner                                                                 FILED

                                                                        June 15, 2016
vs) No. 14-1213 (Kanawha County 12-AA-60)                                 released at 3:00 p.m.
                                                                        RORY L. PERRY II, CLERK
                                                                      SUPREME COURT OF APPEALS
LENNIE DALE ADKINS,                                                        OF WEST VIRGINIA

Respondent


                          MEMORANDUM DECISION

       Petitioner Cabell County Board of Education (“BOE”), by counsel, Howard E.
Seufer and Joshua A. Cottle, appeals the October 21, 2014, order of the Circuit Court of
Kanawha County that reversed an order of the West Virginia Public Employee Grievance
Board (“Grievance Board”). The Grievance Board’s order indefinitely suspended
respondent Lennie Dale Adkins without pay while felony child pornography charges
were pending against him. Adkins appeared through his counsel, Dennis E. Kelley and
Donald R. Jarrell.

       This Court has considered the parties’ briefs, oral arguments, and the appendix
record on appeal. Under the limited circumstances presented in this case and because of
the clear error committed below, we find a memorandum decision reversing the circuit
court appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.

        Adkins was employed by the BOE as a teacher/librarian.1 Law enforcement
received credible information that Adkins solicited minor children through instant
messaging services. As part of the investigation, law enforcement seized a number of
computers and other electronic items from Adkins’s home in 2011. The West Virginia
State Police Digital Forensic Lab analyzed these items, finding that in 2008, Adkins
solicited pornographic pictures of a then 16-year-old student. The Forensic Lab also
found six pornographic pictures of a 17-year-old student.

      The criminal complaints brought against Adkins alleged he had been using his
computer to carry on inappropriate conversations with students, suggesting pornography
websites, questioning their sexual orientation, and making homosexual suggestions. Eight
complaints allege that Adkins distributed and exhibited material depicting minors
      1
           The record is unclear on Adkins’ actual job title. In some instances he is
referred to as a librarian; at other times he is identified as a teacher.
                                           1

engaging in sexually explicit conduct in violation of W. Va. Code § 61-8C-3 (2014). One
complaint alleged that Adkins used a minor to produce obscene material or assist in doing
explicit conduct in violation of W. Va. Code § 61-8A-5 (2000). All of the criminal
complaints alleged that Adkins solicited minors through his computer via instant
messaging, engaging in inappropriate conversations, suggesting pornography sites,
questioning their sexual orientation and making homosexual suggestions.2

        On May 26, 2011, Adkins spoke with the superintendent of Cabell County Schools
about his impending arrest. Following their conversation, the superintendent placed
Adkins on paid administrative leave until further notice. The superintendent made formal
this action in a letter to Adkins dated May 26, 2011. Adkins was arrested the next day.

       On June 13, 2011, the superintendent met with Adkins regarding the criminal
charges. By letter dated June 15, 2011, the superintendent advised Adkins that he
intended to recommend to the BOE that Adkins be suspended with pay from May 26,
2011, to June 6, 2011, and that the BOE terminate Adkins’s employment contract
effective July 6, 2011.

       Approximately three weeks later, by letter dated July 8, 2011, the superintendent
informed Adkins that he did not intend to ask the BOE to affirm his paid suspension or
termination. Instead, the superintendent wrote that he was suspending Adkins without
pay, effective the date of the letter. This same letter contained notice that the matter of
Adkins’s suspension would be placed on the BOE meeting agenda for the July 18, 2011,
meeting, at which time the superintendent would recommend that the BOE ratify these
suspension actions and extend Adkins’s suspension without pay until the criminal
charges were resolved. The letter requested that Adkins notify the superintendent in
writing by July 15, 2011, if he wanted to appear at this hearing. The letter also advised
Adkins that he had the right to be represented by counsel and to present evidence on his
own behalf. The certified mail receipt indicated that this letter was received by Adkins
on July 12, 2011.

       Neither Adkins nor his attorney appeared at the BOE meeting on July 18, 2011.
During the meeting, the BOE ratified the superintendent’s actions, suspending Adkins
with pay from May 28, 2011, to June 6, 2011, and suspending him without pay from July
8, 2011, until the resolution of the criminal charges against him. By letter dated July 20,
2011, the superintendent informed Adkins of the BOE’s decision



       2
          In September of 2012, the State dropped all charges against Adkins after the
circuit court suppressed the computer evidence seized by investigating authorities prior to
his arrest.

                                            2

        Adkins filed a grievance with the Grievance Board challenging the BOE’s
decision on July 22, 2011. He argued that the BOE should have placed him in a position
without contact with students and that the BOE acted in excess of its authority because
there had been no conviction on the charges against him. Adkins sought to be reinstated
to his position with back pay for that time he was suspended without pay.

       A hearing was held before the Grievance Board on November 1, 2011. The facts
were largely uncontested and exhibits included the various letters from the superintendent
and BOE to Adkins, copies of the criminal complaints pending against Adkins, Adkins’s
bail agreements, and other magistrate court documents. At the time of the grievance
hearing, three of the criminal charges against Adkins had been dismissed and Adkins had
not been indicted on these charges. The charges left pending included allegations of
misconduct involving students at the schools where Adkins worked.

       The administrative law judge (“ALJ”) denied Adkins’s grievance, finding that the
BOE had established the charges against Adkins by a preponderance of the evidence,
pursuant to the BOE’s procedural rules. See W. Va. Code. R. § 156-1-3 (2008).
Acknowledging that Adkins was presumed innocent of the charges, the ALJ relied upon
previous decisions of the Grievance Board upholding the right of a board of education to
indefinitely suspend an employee without pay while criminal proceedings are conducted
so long as some particular event will eventually bring about a conclusion to the
suspension. See Blaney v. Wood Cty. Bd. of Educ., Docket No. 03-54-169 (Jan. 16,
2004); Hicks v. Monongalia Cty. Bd. of Educ., Docket No. 04-30-183 (Aug. 13, 2004);
Dobbins v. Nicholas Cty. Bd. of Educ., Docket No. 03-34-396 (Mar. 9, 2005). The ALJ
determined that it was immaterial whether Adkins had been indicted, and it concluded
that his suspension was justified because there was a rational nexus between his alleged
conduct and his employment.

        Adkins appealed the Grievance Board decision to the Circuit Court of Kanawha
County. In an order entered October 21, 2014, the circuit court reversed the decision of
the Grievance Board, concluding that the BOE was not empowered under W. Va. Code §
18A-2-8 (2007) (quoted infra) to suspend Adkins on the basis of his arrest on felony
charges. Specifically, the court determined that because Adkins had not been indicted on
the felony charges and had not been convicted of or pled guilty or nolo contendere to any
of the pending charges, the BOE had exceeded its statutory authority. The court noted
that the BOE could have sought suspension under other provisions of the statute, such as
immorality, but instead relied on a public policy argument that the BOE was obligated
and responsible for protecting its students by maintaining a safe and secure environment.
In its brief to the circuit court, the BOE explained that it opted not to suspend on the basis
of immorality because it then would have had to present evidence that could conflict with
or hamper potential criminal proceedings.



                                              3

       The BOE now appeals the circuit court’s October 21, 2014, order, arguing that the
BOE did not exceed its statutory authority with regard to its disposition of Adkins’s case.
This Court reviews decisions of the circuit court in grievance board proceedings as
follows: “When 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. of Educ., 228 W. Va. 238, 719 S.E.2d 406 (2011). W. Va. Code § 29A-5-4(g)
(1998) provides the standard to be applied by circuit courts in reviewing decisions of
administrative law judges as follows:

              The 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
       petitioner 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.

As well as the statutory grounds for review, this Court has held:

              Grievance 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).

       At issue in this case is whether the BOE’s decision was contrary to law. In
concluding that the Grievance Board’s decision required reversal, the circuit court relied
on W. Va. Code § 18A-2-8(a), which provides that “[n]otwithstanding any other
provision of law, a [BOE] may suspend or dismiss any person at any time for:
Immorality, incompetency, cruelty, insubordination, intemperance, willful neglect of

                                             4

duty, unsatisfactory performance, the conviction of a felony or plea of nolo contendere to
a felony charge.” See also syl. pt. 3, Beverlin v. Bd. of Educ. of Lewis Cty., 158 W. Va.
1067, 216 S.E.2d 554 (1975) (“The authority of a county board of education to dismiss a
teacher under W. Va. Code 1931, 18A-2-8, as amended, must be based upon the just
causes listed therein and must be exercised reasonably, not arbitrarily or capriciously.”).
The circuit court determined that the superintendent and BOE did not have the statutory
authority to suspend Adkins without pay because being charged with a crime is not
named as a justification for suspension without pay in W. Va. Code § 18A-2-8(a). The
BOE maintains that its decision was in accordance with its constitutionally mandated
duty to provide a safe, secure, and suitable environment for students.

       In light of a related appeal decided by this Court, appeal no. 14-0628, we find
disingenuous Adkins’s argument that the BOE’s failure to include immorality as a basis
for his suspension violates W. Va. Code § 18A-2-8. That appeal arose from the BOE’s
decision to terminate Adkins’s employment. Based on the same facts as those in the
present case—that Adkins solicited sexually explicit photographs from underage
students—the BOE terminated Adkins’s employment3 on the ground that Adkins’s
conduct constituted immorality.4 Adkins filed a grievance, challenging the BOE’s
decision. The Grievance Board denied the grievance,5 and on appeal to the circuit court,




       3
         We note that in the separate grievance it was established that on September 17,
2013, Adkins surrendered his teaching license. The State Superintendent of Schools
revoked Adkins’s license to teach in West Virginia on September 19, 2013.
       4
           We have stated:

              “Immorality is an imprecise word which means different things to
       different people, but in essence it also connotes conduct “not in conformity
       with accepted principles of right and wrong behavior; contrary to the moral
       code of the community; wicked; especially, not in conformity with the
       acceptable standards of proper sexual behavior.” Webster’s New Twentieth
       Century Dictionary Unabridged 910 (2d ed. 1979).

Golden v. Bd. of Educ. of Harrison Cty., 169 W. Va. 63, 67, 285 S.E.2d 665, 668 (1981).
       5
           The ALJ also found Adkins to be insubordinate because his “actions were
sufficiently knowing and intentional as to represent a defiance of the established
standards of expected conduct in the Code of Conduct for school personnel.”

                                            5

the decision was affirmed. His appeal to this Court was dismissed for his failure to
comply with the Rules of Appellate Procedure.6

       The two cases are intertwined; while the proceedings giving rise to the instant
appeal involving Adkins’s suspension began before the proceedings in the related appeal
involving Adkins’s termination, both cases are based on identical facts, involve the same
parties, and implicate the same law. The termination case was fully litigated to finality
between Adkins and the BOE, and the factual and legal determinations in that case are
binding upon the parties herein. Thus, just as immorality was the basis of Adkins’s
termination, immorality must also have been a basis for his suspension.

       The doctrine of collateral estoppel was explained by this Court in syllabus point 1
of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995):

                      Collateral estoppel will bar a claim if four conditions
              are met: (1) The issue previously decided is identical to the
              one presented in the action in question; (2) there is a final
              adjudication on the merits of the prior action; (3) the party
              against whom the doctrine is invoked was a party or in privity
              with a party to a prior action; and (4) the party against whom
              the doctrine is raised had a full and fair opportunity to litigate
              the issue in the prior action.

Collateral estoppel, or issue preclusion, applies to the decisions of administrative
agencies. See syl. pt. 2, Vest v. Bd. of Educ. of the Cty. of Nicholas, 193 W. Va. 222, 455
S.E.2d 781 (1995) (“For issue or claim preclusion to attach to quasi-judicial
determinations of administrative agencies, at least where there is no statutory authority
directing otherwise, the prior decision must be rendered pursuant to the agency’s
adjudicatory authority and the procedures employed by the agency must be substantially
similar to those used in a court. In addition, the identicality of the issues litigated is a key
component to the application of administrative res judicata or collateral estoppel.”).

        All requisite factors for collateral estoppel are present in this instant appeal. The
parties are the same in both grievance proceedings; the facts upon which the BOE based
its decisions are identical; and Adkins had a full opportunity to litigate the related appeal,
although his actions led to the dismissal of the appeal. Applying our jurisprudence on
issue preclusion, we conclude that the immoral actions of Adkins justifying his
termination likewise justified his initial suspension.


       6
         This Court’s dismissal order found that Adkins’s brief “appear[ed] to be merely a
recycled version of what was filed in circuit court, with little to no attempt to set out how
the circuit court erred.”
                                               6

      For these reasons, the order of the Circuit Court of Kanawha County entered on
October 21, 2014, is reversed, and the suspension of Adkins without pay is affirmed.


                                                                          Reversed.




ISSUED: June 15, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISQUALIFIED:

Justice Margaret L. Workman




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