The West Virginia Record Jan. 11, 2013, 6:15am
By HOPPY KERCHEVAL
Former West Virginia School Superintendent Jorea Marple is suing the state Board of Education, claiming she was illegally fired last November. Marple wants her job back. She adds that she has “suffered humiliation and anguish as a direct proximate result of her termination.”
No doubt Marple has suffered. Getting fired will do that. But Marple and a majority on the state Board of Education differed on how to respond to the comprehensive audit of public education.
“Many (board) members found no sense of urgency in the Department (of Education) to address some of the issues that have been outlined,” said Board President Wade Linger. “Too often, we were told how things can’t change instead of being offered solutions.”
Marple was, like most top administrators, an at-will employee, and therefore not subject to civil service protection.
The at-will doctrine has been an important part of employment law since it was penned in the late 19th century by Horace Wood. His 1877 treatise reasoned that the relationship between an employer and an employee, unless otherwise specified, can be terminated at any time for any reason.
Many exceptions have been added over the years. For example, an at-will employee cannot be let go because of their skin color or because he/she refuses to do something illegal or as retaliation.
Barring any of the exceptions, however, at-will employees are subject to firing without cause.
That principle was upheld by the West Virginia Supreme Court last year when it sided with the state Division of Culture and History over its firing of Fred Armstrong, the long-time director of Archives and History.
The court ruled that “an at-will employee… may be terminated at any time, without reason, unless this termination violates some substantial public policy (such as any of the reasons mentioned above).”
The state Board of Education could copy and paste the Armstrong ruling in its response to Marple.
Marple’s lawyers may believe they have the advantage, however, because of an earlier state Supreme Court decision.
In the 1982 case “Martha Major v. George DeFrench and the City of Morgantown,” the court overturned the city’s firing of Major. The ruling – which coincidentally was written by then-Justice Darrell McGraw, who is Marple’s husband — expounded on the due process rights of employees and protection of the employee’s reputation.
So, how will this all end?
Marple, as an at-will employee, has a weak argument for getting her job back. Even if a sympathetic circuit judge sided with Marple, the state Supreme Court’s ruling in the Armstrong case shows the lean of the justices on such matters.
Additionally, it’s hard to imagine that Marple’s reputation has been damaged or that her ability to get another job is in peril. As the Charleston Daily Mail, which supported the Marple firing, opined, “She retains high regard even of the people who back the board’s action.”
The real issue here is not Marple’s hurt feelings, but rather the quality of public education in West Virginia, and that’s where the state Board of Education has turned its attention.
Kercheval is host of TalkLine, broadcast by the MetroNews Statewide Radio Network from 10 a.m. to noon Monday through Friday.