State ex rel. Wilson v. Truby

Miller, Justice,

dissenting:

I believe the majority has confused the facts and the law in this case in an attempt to give petitioner some chimerical relief. Petitioner only seeks to know the reason or reasons he was not accorded a personal interview in regard to his *191application for the position of Assistant State Superintendent of Schools, Bureau of Learning Systems (West Virginia Department of Education).

The majority fails to mention that in the State Superintendent’s letter of October 31, 1980, to petitioner, he was given the reason for his failure to be interviewed. In this letter, petitioner was informed of the process utilized by the screening committee in initially reviewing applications for the position. That process reduced the large pool of applicants to those the committee considered most qualified and they received a personal interview.

The essence of the selection process had each of the six-member screening committee, after review of the resumes submitted, list their opinion of the ten most qualified applicants. Any applicant who received only one vote or less was eliminated from further consideration and, therefore, received no personal interview.11 see no reason why this does not constitute a sufficient explanation to the petitioner of why he was not accorded a personal interview.

Aside from this critical factual error, the maj ority spends a considerable portion of its opinion discussing our cases decided under West Virginia Board of Education Policy No. 5300. It is clear to me that this policy does not apply to the Office of the West Virginia State Superintendent but is designed solely for local boards of education and the personnel hired by them. While the petitioner in his brief *192claims he was entitled to the benefit of Policy No. 5300, the majority does not assert that Policy No. 5300 is applicable. Our Policy No. 5300 cases are clearly confined to the actions of the county boards of education.2 Therefore, it is a mystery to me why these cases are even cited.

As the majority’s third Syllabus Point reveals, their holding is based on language in Part III of the West Virginia Department of Education Employee Handbook entitled, “Professional Staff.” This section provides in pertinent part:

“Applicants for professional positions will be interviewed and recommended by the appropriate Bureau Assistant Superintendent. Final decision regarding approvals will be made by the State Superintendent. Other assistant superintendents or appropriate professional personnel may be consulted. Professional appointments are confirmed by the State Board of Education, upon recommendation by the State Superintendent of Schools.” (Emphasis added)

The majority in effect holds that the first sentence of the foregoing paragraph requires that petitioner be granted an interview. The position for which the petitioner was applying — Assistant Superintendent of Schools, Bureau of Learning Systems — is the very position with which the regulation requires the interview to be held. With the interviewing office vacant, it is clear that the Handbook provision is not applicable. The respondent correctly points out that the foregoing regulation is applicable to positions under the level of Assistant Superintendent. Applicants for vacancies in these lower positions are customarily interviewed by the appropriate Bureau Assistant Superintendent. However, where, as here, the vacancy is for a Bureau Assistant Superintendent, interviews for the position are conducted by a special screening committee.

*193The majority glosses over this point in its Note 6 by asserting that because “the Employee Handbook ... provided for interviews of Department applicants for those professional positions subordinate to a bureau assistant superintendent, the West Virginia Board of Education must certainly have intended that interviews be conducted ... for the higher position, i.e. bureau assistant superintendent.” This statement completely ignores the rule of statutory construction that a regulation or statute which expressly mentions one class or subject matter impliedly excludes all others. Johnson v. Continental Casualty Company, 157 W. Va. 572, 201 S.E.2d 292 (1973); State ex rel. City of Charleston v. Hutchinson, 154 W. Va. 585, 176 S.E.2d 691 (1970).

The majority also misreads State ex rel. McLendon v. Morton, 162 W. Va. 431, 249 S.E.2d 919 (1978), which dealt with the right to a hearing on the failure to grant tenure to a teacher who had met all of the objective tenure requirements. Tenure is a completely different creature than an interview for a prospective employee. No court of which I am aware has ever held that there is some due process “entitlement” to a job interview. Today’s majority opinion will certainly spawn much confusion in our law and will place on school administrators the bewildering task of trying to determine what their responsibilities are in the routine administrative decision of selecting from a pool of candidates the person deemed most qualified for the job.

The pertinent portion of the October 31, 1980, letter sent by the State Superintendent to the petitioner is:

“Following a review of all applications, each committee member was to submit to the chairman his or her top 10 choices by the end of the work day on September 29, 1980. According to procedure adopted by the committee on September 26, 1980, the Chairman would then compile a listing of names submitted, omitting those persons who had not been named by a single member of the committee or who had been named only once. That listing was returned to committee members on October 6,1980 and indentified 14 candidates who had received two or more votes by committee members in the initial screening. Eight other candidates and yourself received only one vote in the initial screening and, therefore, were omitted from further consideration. The remaining candidates received no votes.”

The introductory statement to Policy No. 5300 confines its applicability to “the development of harmonious and cooperative relationships between county boards of education and school employees.”