Judge too generous to reinstated teacher, Justices say

CHARLESTON -- Kanawha Circuit Judge Paul Zakaib compensated Nitro High School math teacher Robert Fulmer too generously for three years of teaching he missed due to false allegations of sexual abuse, the Supreme Court of Appeals has decided.

The Justices ruled on Nov. 10 that Zakaib improperly awarded the damages Fulmer requested, $259,566.99, without considering challenges from the county school board.

They declared Zakaib's decision deficient and inaccurate.

The board has admitted owing Fulmer $87,091.39, and has paid him that amount.

The Justices ordered Zakaib to refer the dispute to administrative law judge Paul Marteney for a hearing.

The board fired Fulmer in 2005 after student Megan McKown alleged abuse. Fulmer filed a grievance seeking reinstatement with back pay at 10 percent interest, plus benefits and attorney's fees.

McKown sued the board in circuit court in 2006, and her suit turned into a double blessing for Fulmer.

First, the board vindicated Fulmer by answering the suit with a verified denial that the acts took place. Then, McKown vindicated him by changing and retracting her statements.

Administrative law judges Janis Reynolds and Thomas Gillooly held a grievance hearing, and Marteney ordered reinstatement on Oct. 29, 2008.

Marteney found McKown lacked credibility.

The Department of Education renewed Fulmer's license on Dec. 5, 2008, and the county board reinstated him 10 days later.

Fulmer demanded payment from the board in 2009, and asked Marteney for a hearing. Marteney denied it, finding he lacked authority to reopen the case.

Fulmer petitioned in circuit court for $143,976 in salary, $80,834.87 in interest, lost pay for extra duties, recovery of pension funds and reimbursement of insurance premiums.

He sought $277,274.52 overall, but reduced it to $259,566.99 after the board showed he used the wrong salary schedule.

Zakaib held a hearing last year but excluded witnesses the board expected to call, ruling he would hear oral arguments only.

He said the board couldn't argue that Fulmer mitigated his damages because it hadn't made that argument at the grievance hearing.

He awarded $129,162 in salary, $59,356.40 in interest before judgment, $19,795.99 in interest after judgment, $23,660.20 for retirement, $18,550 in coaching wages, $7,642.40 for insurance, and $1,400 in cafeteria duty wages.

The board moved to alter or amend judgment, and Zakaib denied the motion.

On appeal, the board branded the ruling as "unjust to the taxpayers of this state whose monies would, in effect, be improperly used to pay an excessive judgment."

Billie Jo Streyle, of Bailey and Wyant in Charleston, wrote that the board didn't dispute that Fulmer was entitled to a position that made him whole.

"However, KCBOE strongly disputes that Respondent in entitled to be placed in a better position that he would have been had he not been terminated," she wrote.

The Justices read a transcript of the grievance hearing and found the board raised the issue of mitigation of damages.

"The administrative law judge's decision to delay the development of that issue is not tantamount to a Board of Education waiver of the mitigation issue," they wrote. "The final damages award will necessarily alter the calculation of pre-judgment and post-judgment interest and the effect upon the calculation of Mr. Fulmer's retirement benefits."

Chief Justice Margaret Workman disqualified herself from the case.

William Mundy and Rebecca Stepto, of Mundy and Nelson in Huntington, represented Fulmer.