WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court has ruled a circuit judge was correct in both upholding and restoring the original suspension given to an Upshur County school administrator for insubordination.

The Court on Feb. 11 affirmed Kanawha Circuit Judge Paul Zakaib, Jr.’s decision last year in Brenda Wells’ grievance against the Upshur County Board of Education. In a unanimous, two-page memorandum opinion, the court said Zakaib committed “no error” in upholding Wells’ 2009 suspension, which included reversing an administrative law judge’s decision reducing the number of days she was suspended.

Memorandum opinions are issued by the court in cases that would not be significantly aided by oral arguments, and present no new questions of law.

According to court records, Wells was principal at Buckhannon-Upshur High School during the 2008-2009 school year. The last official day for seniors was May 19, 2009.

On that day, among other things, a food fight started near the conclusion of the first lunch period. It ended after Wells heard the commotion, and made her way into the cafeteria and commons area where it took place.

Shortly thereafter, a crowd gathered on the other side of the commons area. Believing a fist fight was taking place, both Wells and an assistant principal went to investigate.

Instead of a fight, Wells found five or six male students piled on top of each other. After encountering it, Wells “jumped onto one side of the pile for no more than a couple of seconds."

According to court records, Wells jumping on the “dog pile” was captured on at least one student's cell phone camera. Among other things, the footage showed students joking with Wells “about her not being able to get her feet off the floor when she leaned on the pile.”

The video has since been posted on YouTube.

Following the dog pile, a student pretended to be a rock star and jumped off a cafeteria table into the arms of the other students who crowded around.

The next day, Wells was asked by Scott Lampien, the superintendant of schools, and Roy E. Pettit II, the assistant superintendant, to explain her actions. According to court records, Wells said she “thought [the pile] was funny” and leaning on it was “a way to diffuse the situation.”

Finding that her actions violated “safety, role model and the responsible citizen provisions of both the state Department of Education, and county Board’s Employee Code of Conduct, Lampien on June 5, 2009, suspended Wells for five days without pay.

Though the ALJ was correct in upholding the board’s suspension, Zakaib said he erred in reducing it from five days to one. In the face of well-established case law, the ALJ, Zakaib said, usurped his authority.

“There is no West Virginia authority which provides the right for an Administrative Law Judge to supplant the authority of county boards of education in determining the appropriate level of discipline to be imposed where a school employee has in fact committed one or more [state code] violations,” Zakaib said in his Jan. 12, 2012, order.

“Given the nature of her position as the principal of the school and the seriousness of the offense, no justification warranted the ALJ substituting his judgment for that of the Board in determining the appropriate level of discipline for insubordination in violations of [state code].”

In reaching its decision, the Court cited its previous opinions in the cases of Randolph County Board of Education v. Scalia and Alderman v. the Pocahontas County Board of Education. There, the court held “[a] final order of the hearing examiner for the West Virginia Educational Employees Grievance Board... should not be reversed unless clearly wrong.”

Thus, the court said Zakaib “did not improperly review the board’s decision nor did [he] err in reversing it.”

Wells, who was subsequently fired as BUHS principal and is currently employed as the career and technical education director at Braxton County High School, was represented by Charleston attorney Andrew J. Katz. Rebecca Tinder and Richard S. Boothby with Bowles, Rice, McDavid, Graff and Love defended the Upshur Board of Education.

Justice Margaret A. Workman recused herself from hearing the case. No reason is stated for her recusal.

West Virginia Supreme Court of Appeals, case number 12-0209

Kanawha Circuit Court, case numbers 11-AA-77 & 78