DeVito v. Board of Education

HARSHBARGER, Justice:

Teresa M. DeVito, a school teacher, was dismissed for wilful neglect of duty by the Marion County Board of Education (the Board) because she distributed “Fritz the Cat” cartoons to an art class. The Circuit Court of Marion County affirmed the Board. On this second appeal of this case, we again reverse the circuit court.

The facts of this case are stated in DeVito v. Board of Education of Marion County, 169 W.Va. 53, 285 S.E.2d 411 (1981) (DeVito I). In DeVito I the Court relied upon syllabus point three of Beverlin v. Board of Education of Lewis County, 158 W.Va. 1067, 216 S.E.2d 554 (1975), which holds: “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.” See also Syllabus, DeVito v. Board of Education of Marion County, supra; Syllabus, Fox v. Board of Education of Doddridge County, 160 W.Va. 668, 236 S.E.2d 243 (1977).¹ We stated in DeVito I that: “It is important that the harsh remedy of dismissal of a teacher of eighteen years tenure not be exercised in the absence of a showing of just cause and dismissal must be exercised reasonably, not arbitrarily or capriciously.” 169 W.Va. at 54-55, 285 S.E.2d at 412.

In DeVito I we relied upon the trial court’s representations that “the proceedings before the School Board smacked of prejudgment against DeVito.” 169 W.Va. at 54, 285 S.E.2d at 412. We noted that “it is not clear from the record whether just cause to dismiss existed.” Id. We held that the record was insufficient to support a finding of wilful neglect of duty and that the harsh remedy of dismissal is an arbitrary and capricious exercise of authority in the absence of a finding that the appellant had intentionally distributed the objectionable materials. Accordingly, we remanded the case “for the purpose of hearing and determining whether DeVito’s action occasioning her dismissal was intentional or merely inadvertent or careless.” 169 W.Va. at 55, 285 S.E.2d at 412.

Upon remand, the Board declined to submit additional evidence on the issue of intent, instead chosing to submit the matter on the record which this Court had determined to be insufficient to support the appellant’s dismissal. The trial court held that the Board had “proved a prima facie case of intentional passing out of materials by virtue of the fact that they were passed out .... ” Additional evidence was presented on behalf of the appellant, all of which was exculpatory in nature and supported the appellant’s claim that her actions were not intentional.

In its memorandum opinion the lower court noted that the appellant has consistently denied that her actions were intentional, and that the appellant’s honesty and good character was vouched for by substantial and credible testimony. Nevertheless, the court, relying upon evidence other than that of a record developed upon remand, found the appellant’s actions to be intentional and ratified its previous ruling upholding the appellant’s dismissal.

The evidence which the judge recited in support of his finding was drawn from the record previously adjudged unclear by this Court in DeVito I. A second review of the record does not sustain the trial court’s finding on the issue of intent. The appellant offered a reasonable, rational, and credible explanation for her actions. She admitted that she had made a mistake, but steadfastly maintained that it was an unintentional mistake. The record establishes one incident of negligence appearing as a blemish on a record of eighteen years of satisfactory performance.

It appears from the record that the lower court was confused with respect to the law applicable to the Board’s action in dismissing the appellant. The trial court states in its memorandum opinion that even if the appellant had accidentally distributed the objectionable materials, dismissal would be an appropriate sanction. However, the Board in this case dismissed the appellant for wilful neglect of duty, not for simple negligence, which is not a just cause for dismissal contained in W.Va.Code § 18A-2-8.² It appears from the record that the proceedings below on remand represent but a pedestrian procedural compliance with our decision in DeVito v. Board of Education of Marion County, supra, and that the trial court improperly relied upon the dissenting opinion to Beverlin v. Board of Education of Lewis County, supra, as basis for its decision.

We hold that the Board exercised its authority arbitrarily and capriciously rather than reasonably when it dismissed the appellant. The record shows that the appellant has been a victim of prejudice. She has not received a just determination on the issue of intent because of the nature of the material she distributed. The evidence discloses that the appellant was negligent, but it does not support a finding of wilful neglect of duty. The authority of the Board to discipline a teacher for negligence in the performance of a teacher’s duties, pursuant to W.Va.Code § 18A-2-8, is not in dispute. The Board may not, however, discharge a teacher whose conduct is revealed by the record to lack the statutorily required element of willfulness for wilful neglect of duty.

Despite the inappropriateness of the sanction imposed in this case given the absence of intentional misconduct, the appellant’s failure to exercise reasonable care in the performance of her duties does warrant some disciplinary action. The appellant admitted that she generally reviewed all materials given to her students prior to their distribution. Because she decided to use the materials in question on the spur of the moment, however, she failed to follow her past practice. She conceded that this failure was a “stupid mistake;” that she was “shocked,” “ashamed,” and “very embarrassed” when she discovered the content of the materials distributed; and that “it shouldn’t have happened.” Therefore, some measure of discipline was appropriate.

We must therefore order the appellant’s reinstatement with back pay from March 6, 1980. We note that she was suspended without pay on June 6, 1979, and hold that a nine month suspension is an adequate disciplinary penalty for her negligence in failing to review materials distributed to her students.

Reversed and remanded for the entry of a proper order consistent with this opinion.

1 . W.Va. Code § 18A-2-8 (1977 Replacement Vol.) provides:

Notwithstanding any other provisions of law, a board may suspend or dismiss any person in its employment at any time for: Immorality, incompetency, cruelty, insubordination, intemperance or wilful neglect of duty, but the charges shall be stated in writing and the employee so affected shall be given an opportunity to be heard by the board upon not less than ten days’ written notice, which charges and notice shall be served upon the employee within five days of the presentation of the charges to the board. The hearing may be held at the next regular meeting of the board or at a special meeting called for that purpose; and in any case when the board is not unanimous in its decision to suspend or dismiss, the person so suspended or dismissed shall have the right of appeal to the state superintendent of schools.

2 . See note 1, supra.