CHARLESTON – Justices of the West Virginia Supreme Court of Appeals must decide whether the Pocahontas Board of Education can fire its toughest critic.

Board members claim they fired teacher Norman Alderman for insubordinate statements he made at a hearing, and he claims they violated his free speech rights.

Kanawha Circuit Judge Irene Berger agreed with Alderman. In 2007 she granted constitutional protection to his statements. She ordered his reinstatement, but the board stayed her order pending appeal.

At oral arguments in the Supreme Court on Jan. 14, Justice Margaret Workman asked school board attorney Gregory Bailey of Morgantown to define insubordination.

Bailey defined it as disrespect that undermines the authority of supervisors.

Alderman, representing himself, said, "All I wanted to do was have a fair hearing."

The board hired Alderman in 1980. In 2002, board members ejected him from a meeting. When he returned with a video camera they called police, who arrested him.

He sued in federal court and won. The board paid damages and legal fees, offered an apology, adopted rules for open meetings, and received First Amendment training.

He also successfully challenged the eligibility of two board members.

In 2006, the board decided to transfer him from a dual role as technology facilitator and homebound instructor to a classroom teaching position.

He requested a hearing on the transfer and posted protests on a website he maintained.

At the hearing, the board gave him 20 minutes and he spent it ripping board members and administrators. He ran out of time without discussing the transfer.

The board suspended him without pay and voted for termination two weeks later.

Alderman filed a grievance with the Education and State Employees Grievance Board.

Denise Spatafore, administrative law judge, held a hearing and denied the grievance.

Alderman sought review in circuit court, choosing Kanawha County because the grievance board operates in Charleston.

After Berger listened to a recording of the hearing, she made up her mind.

"The right of a public employee to comment on matters of public concern must be balanced against the interests of a government employer to efficiently perform its function," she wrote.

She ruled that the balance tipped in Alderman's favor.

First, she wrote, he raised legitimate issues.

"Second, the board has proffered no evidence indicating Mr. Alderman's comments disrupted its ability to carry out its duties," she wrote.

Comments he made in a hearing he requested wouldn't greatly impact the board in providing effective services to the public, she wrote.

Berger ruled that even if his speech was not protected, his termination violated the board's progressive discipline policy.

She awarded Alderman attorney fees, court costs and lost wages.

For the board, Bailey appealed.

"The First Amendment doesn't require a public employer to tolerate an embarrassing attack, simply because the employee speech bears the trappings of traditionally protected speech," he wrote.

At oral arguments, he said an administrative law judge's findings of fact are entitled to deference.

If a circuit judge decides that findings are wrong, he said, the circuit judge must explain why. He said Berger didn't explain why.

Justice Robin Davis asked about progressive discipline. Bailey said it prevents recurrence of behavior. He said Alderman never acknowledged contrition or set a different course for the future.

Workman asked if rude and abrasive behavior constituted insubordination.

Bailey said Alderman called the treasurer a cockroach and accused her of theft.

Alderman told the Justices a teacher had sexual intercourse with a student and the board let him retire.

"They didn't consider that insubordination," he said. "They were going to tear me up and destroy my career."

Senior status Justice Thomas McHugh said, "I may agree with some of what you say, but we have to follow the Legislature."

He said an administrative law judge can deal with more facts than a circuit judge. He said, "The issue is, can those findings be set aside?"

Alderman said, "There is a record. There is video and audio."

McHugh said, "We have heard the audio."

Alderman said, "Judge Irene Berger is a fantastic judge."

McHugh said, "We all agree she is an excellent judge, but this court must follow the law. I may agree with you that what happened at that hearing was protected speech."

Justice Menis Ketchum said Alderman spoke from the heart at a hearing that looked to him like a kangaroo court.

Ketchum said, "Is that insubordination as you defined it under the statute so he can be fired?" Bailey said yes.

Ketchum said, "He thought he was going to be kangarooed."

The Justices took it under advisement.

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