concurring:
While I concur in the result reached, I am of the view that a major part of the problem lies in the legislature’s unwillingness to provide a comprehensive administrative hearing procedure for school personnel who claim to be aggrieved by discharges, demotions, transfers, or other disciplinary measures imposed by local boards of education.
The primary statute is W.Va.Code, 18A-2-8, which deals with dismissals or suspensions of school personnel for cause and provides for a hearing before the local board of education. The statute then states “when the board is not unanimous in its decision ... the person so suspended or dismissed shall have the right of appeal to the state superintendent of schools.” We held in State ex rel. Board of Education v. Martin, 112 W.Va. 174, 163 S.E. 850 (1932), that such appeal was not the exclusive remedy and that an employee was not foreclosed from proceeding directly into the circuit court on a writ of certiorari.
A different type of remedy was permitted in both Neal v. Board of Education, 116 W.Va. 435, 181 S.E. 541 (1935), and White v. Board of Education, 117 W.Va. 114, 184 S.E. 264 (1936), where we granted original petitions in mandamus to teachers who claimed they had been arbitrarily transferred. Upon finding their allegations to be true, we awarded relief.
In Smith v. Siders, 155 W.Va. 193, 183 S.E.2d 433 (1971), we held that where a school employee decides to appeal to the State Superintendent under the provisions of W.Va.Code, 18A-2-8, the county board of education must be made a party to the proceedings before the State Superintendent. Then, in Mason County Board of Education v. State Superintendent of Schools, 160 W.Va. 348, 234 S.E.2d 321 (1977), we concluded that if the county board of education is aggrieved by a decision of the State Superintendent, it could obtain judicial review by a writ of certiora-ri. In Mason County, we stated “in enacting the Administrative Procedure Act, W.Va.Code, 29A-1-1, et seq., the Legislature expressly exempted the State Board of Education from its purview ... [and] [t]he State Superintendent of Schools ... is not subject to the ... Act, nor is a county board of education, not being a State agency. W.Va.Code, 29A-1-1(a).” 160 W.Va. at 349, 234 S.E.2d at 322.
We also noted in Mason County that “the Legislature has not prescribed a comprehensive administrative procedure in dismissal or suspension of school personnel,” and that “[b]ecause of the absence of statutory guidelines, this Court has fashioned procedures for the review of quasi-judicial administrative actions involving school boards.” 160 W.Va. at 350, 234 S.E.2d at *344322-23. In Mason County, the writ of certiorari was sought in Kanawha County against the State Superintendent of Schools.
Thus, it may be seen that from our earliest decisions, we have permitted a variety of different procedural vehicles to enable school personnel to obtain review of adverse school board decisions, all as a result of the lack of any comprehensive statutory guidelines.
In Morgan v. Pizzino, 163 W.Va. 454, 458, 256 S.E.2d 592, 595 (1979), we sought to discourage the use of an original mandamus in this Court by stating: “However, in the future we will not ordinarily accept petitions alleging irregularities in personnel matters except as appeals after all administrative and circuit court remedies have been pursued.”
We stressed the primary administrative role of the State School Superintendent to hear school personnel grievances arising out of Statewide grievance procedures adopted by the State Board of Education in Jones v. Board of Education, 170 W.Va. 310, 294 S.E.2d 113 (1982). In referring to the powers given to the State Superintendent under the Statewide grievance procedure, we said in Jones: “It gave the Superintendent authority and provided for hearings, subpoenas, taking evidence, briefs, oral arguments, and written decisions.” 170 W.Va. at 312, 294 S.E.2d at 115. (Footnote omitted).
The problem that Leef v. Via, 170 W.Va. 245, 293 S.E.2d 442 (1982), failed to recognize is that there are a number of occasions when the record is either supplemented or made before the State Superintendent and it is his decisions and regulations that are being challenged. In such situations, he is a real party in interest and to force him to answer in a court proceeding in the county where the local school board resides runs counter to the venue protection afforded State officials by W.Va.Code, 14-2-2. This statute prescribes generally that suits against State officials should be brought in Kanawha County.
Again, I emphasize the lack of a comprehensive statutory administrative procedure in this area has forced this Court to fashion over the years on an ad hoc basis procedural remedies. In the past when grievances and other procedural rights were not readily afforded school personnel, the lack of a comprehensive administrative hearing procedure was not critical. This is no longer the case.