Golden v. Board of Education of the County of Harrison Court Opinion

    ,2d SERIES

Itry of the otder in this case and

t a dispute over the TaYlor C'oun-

ibrary, a Project in which the

ne was directlY involved and ad'

ino .n interest. The Petitionert
m-that the circuit judge had an

L the outcome of this action or

[o cases were s() closely connected

,fercnce of Prejudice could arise'

rcne spPears to be no relation

between the two cases' except

ounty Commission was a PartY to

nB. We cannot hold, as the Peti'
parently ask us to do, that onoe a

uses himself from hearing a case

rund that he has an intercst in the

ia forcver disqualified from acting

orelated case involving the same

ith resPect to the remarks alleged

been made bY the circuit judge

g the courhtom facilities, theY aP

i"r" made on jury selection daYs

concerned with the inadequacY of

it courtroom facilities when com-

Lh the facilities of the County Com-

The Petitioners do not sPecifY in

,nn", th"* rcmarks were "deroga-

, tt u CountY Commission and

no evidence or argument which

rat the circuit judge's dissatisfac'

,tt tttu courtroom facilities biased

iist the CountY Commission to the

i", fr" was unable to act on the

es€nted her€. As there is no show-

,t"iraio" or bias, we eonclude that

;;; errcr in the circuit court's

f the motion to recuse'

,he rcasons stst€d herein' we oon'

,"i Ct"pt", 112 of the 19?8 Acts of

"i Vi*ini" kgislature, purporting

,r, "it"t 
and modifY the TaYlor

Coriioion and to crcatc a tribunal

ti"t-"f is unconstitutional and void'

i"i tf the Circuit Court of TaYlor

*,hich a*atded a writ of mandamus

oel the Board of Ballot Commission-

it"""- rtt" names of all candidates for

ice of county oommlssloner on all of

ifotr of TaYlor CountY used !1 lhe
i-"Ltion held November 4, 1980' has

GOIDEN v. BOARD OF ED. oF COUNTY OF HARRISON W. Va. 065
cl&raW.V..,2t5s.E2d a0s

been affirmed and the writ of prohibition
prayed for has been denied.

Judgment affirmed; writ denied.

Arlene GOLDEN

v.

BOARD OF EDUCATION OF the
COT'NTY OF HARRISON.

No. l52ll.

Suprcme Court of Appeals of
West Virginia.

Dec. 18, 1981.

Dissenting Opinion Jan. 7, 1982.

Couneelor appealed fipm order of the
Circuit Court, Ilarrison County, Robert B.
Ziegle4J., which upheld her dismissal. The
Suprcme Crcurt of Appeals, McGraw, J.,
held that: (1) when rcviewing orders of
county board8 of education, circuit court
should make findingr of fact and conclu-
sions of law; (2) dismissal on the basis of
immorality could be upheld only upon a
ehowing of a rational nexus between the
conduct and the teacher's ability to perform
duties; and (8) evidence that counselor had
pld nolo contenderc to miademeanor
charge of rhoplifting did not show the rcq-
uisite nexug.

Revemed and rcmanded.

Neely, J., filed a diasenting opinion.

t. Schools elll(i)
Wherc rchool board'a initial attempts to

dismiss oounrelor werc not conrect but the
bosrd did aubsequently compensate the
counselor and conducted required hearing
and wherc the oounselor agreed to that, the
eu@uent digmisssl of the teacher would
not be rcverred on the basis of the failure

of the board to initially follow the proper
prnocedure.

2. Criminal Law e:o75
Magistrate was without jurisdiction to

accept a plea of nolo contendere to a charge
and to enter a misdemeanor conviction.
Code,50-2-8.

3. Triel e388(r)
Purpose of rule requiring courts, in all

actions tried upon the facts without a jury,
to find the facts especially and state aepa-
rately its conclusions of law thercon is to
better enable the rcviewing court to apply
the law to the facts; rule is mandatory and,
when not complied with, remand is re-
quired. Rules Civ.Proc., Rule 52{a).

4. Schools el8(7)
When circuit eourts are reviewing the

decisions of county boards of education and
other administrative tribunals, they must
submit findings of fact and conclusions of
law with the order. Rules Civ.Proc., Rule
54a).

5. Schools elll(1)
Term "immorality" as used in statute

authorizing dismissal of employee of county
board of education for immorality refens to
conduct which is not in conformity with
accepted principles of right and wrong be-

havior, which is contrary to the moral code
of the community, which is wicked, and
which, especially, is not in conformity with
acceptable standards of prcper sexual be-

havior. Code, l8A-2-8.
See publication Words and Phrases

for other ludicial constructions snd
definltlons.

6. Schools e,l{l(4)
lVhen confionted with issue of whether

conduct of teacher involves immorality, and
thus warrants dismissal or suspension, court
must seek to determine if a rational nexus
exists between the conduct complained of
and the duties to be performed; conduct of
a state or public employee outside the job
may be examined but disciplinary action
against the employee based on that conduct
io proper only wherc there ie a pnoven ra-
tional nexus between the conduct and the
duties.



666 W.Va. 285 SOUTH EASTERN REPORTER,2d SERIES

7. Schoole c=l{f(4)
Statc may legitimately look into a

teacher's conduct outside the classroom but
the conduct must indicate unfitness to teach
beforc it may provide a basis for dismissal;
no abstrsct characterization of the conduct
per se as immoral is sufficient. Code, 18A-
24.
8. Constltutlonel Law e278.5(3)

To examine only the conduct of a
teacher and not its effect on the teacher's
fitness to teach or upon the school commu-
nity before determining if it is immoral and
warrants dismissal would result in a statute
which would be void for vagueness under
substantive due process constitutional stan-
dards. Code, 18A-H.

9. Tortg €E.5(4)
To allow dismissal of a teacher merely

upon a showing of some immoral conduct
without a showing of rnesulting impact on
the teacher's fitness to teach or upon the
school community would constitute an un-
warranted intrusion into the teacher's right
of privacy. Code, 18A-2-8.

10. Schools Fl4l(4)
Conduct of a tcacher ceases to be a

privatc matter and may justify dismissal if
the conduct directly affects the perform-
ance of the occupational responsibilities of
the teacher or if, without contribution on
the part of the school officials, the conduct
has become the subject of such notoriety as

to significantly and rrcasonably impair the
capability of the particular teacher to dis-
charge the responsibilities of the teaching
position. Code, 18A-2-8.

ll. Schools crl4f(5)
Evidence that counselor pled nolo con-

tendem to charye of shoplifting did not
show any nexus between the asserted act of
immorality and the counselor's fitness to
perform her duties and thus did not sustain
dismiEssl on the basis of immorality.

Syllabus by the Court

l. When the circuit court sits in re-
view of the decicions of county boards of
education and other administrative tribu-

nals it shall record findings of fact and
conclusions of law along with the judicial
orders which it issues.

2. In order to dismiss a school board
employee for acts performed at a time and
place separate fiom employment, the Board
must demonstrate a "rational nexus" be-

tween the conduct performed outside of the
job and the duties the employee is to per-
form.

Jacqueline A. Kinnaman, Charleston, for
appellant.

Irene M. Keeley, Herbert G. Underwood,
Steptoe & Johnson, Clarksburg, for appel-
lee.

McGRAW, Justice:

On March n, 1980, the Circuit Court of
Harrison County entered an order affirm-
ing the action of the Harrison County
Board of Fxlucation (hereinafter cited as

Board of Education or Board) wherein, pur-
suant to W.Va.Code S l8A-2-8 (f97? R€-
placcment Vol.), it dismissed the appellant,
Arlene Golden, fiom her position as high
school guidance counselor.

The appellant was employed by the Board
of Education as a high school guidance
counselor beginning in 1974. On December
11, 1978, she was arrested at Watson's De-

partment Store in the Middletown Mall for
felony shoplifting. On December 20, 1978,

she pled nolo contenderc in a magistrate
court and was fined $100 for the misde-
meanor of petty theft. News of this was

published in the local newspaper.

By letter dated January 18, l9?9, the
Board informed Crolden that it considered
the shoplifting incident and the resulting
fine to be a "serious act of immorality"
under W.Va.Code S 18A-2-8 (197? Replace
ment Vol.), and dismissed her effective Jan'
uary 19, 1979, pending her right to request
a hearing before the Boatd on the matter.
On January 23, l9?9, Golden requestcd that
a hearing be scheduled before the Boand.

The Board, meanwhile, was advised bY

counsel that its handling of the mstt€r
might not be in comptiance with the provi'

cOtDEN v. BOA

sions of the Code. On Febru
a special meeting, the Boan
dismhssl of C'olden, grantinl
fiom January 19, 19?9, thrcu
1919, and voted to suspen(

their determination as to tht
charge of immorality. On

1919, a hearing was held at
was prcsent along with her
Erlucation Association (WVE
tives. At the hearing of Feb
en elucidated the incident u

Board h8d based its action.
that she had been "totally r

cause she was going to have
ington, D.C., to place her
mother, a mugging victim,
home and because subeequen
at the mall she had talked
with her sixt€en year old
hysterically related that
wnecked the family car. Wt
some monograming to be
picked up several items anr
vertently out of the store. !

she had walked 50 feet or so
when she realized that the
her pune and stopped in
arcund rnd go bach to the s

apprehended at this time by
tive.

At the hearing, evidence
by Mra. Golden, other teach
administrators, ell of which r

her professional competency
ing the next day, the Bocrt
session and, based on dl the
able to it, concluded thst Gr

ment chould be terminatpd
aPpealed t}is decirion to th
of Harrison County, which
action of the Boad. It i! t
nent thst she appeala

l. Thb Courr ttndr thrt whllG r
attrmpo to dlrmlr Gol&n u
donG. ttc Bo.d dd anb,rcqur
Goldto rnd coodua tho rlqul
tlrtcd to tilr. Fc thb rcrlor
ba dlrlrlr.cd. Scc Kcracr v.
210 S.E2d tto (lfrt!); Jrmrn
hrct ri c4. a crl.3d 3?0, s (



Id SERIES

-necotd 
findings of faet sn6i law atong with the juAi"iai

it issues.

ler to dismiss a school boar6
acts performed at a time and
frum employrnent, the Board

;rate a "rational nexus,' [g.
luct performed outside of the
uties the employee is to per.

GOIJEN v. BOARD OF ED. OF COUNTY OF HARRISON lV. Va. ffi|
Clrc eq W.Vr.,2tE S.E2d 085

r. Kinnaman, Charleston, fq1

eley, Herbert G. Underwood,,
nson, Clarksburg, for appel-

rstice:

; 1980, the Circuit Court ofy entered an order affirm-
of the Harrison County

ation (hereinafter cited as
t]o1or Board) whercin, pur-
Code g l8A-2-8 (r9?? Re_
, 
^it 

dismissed the appellant,
firm her position as high
counselor.

was employed by the Board
s a high school guidance
Ling in 1974. On December
s arrested at Watson's De-
in the Middletown Mall for
S. On December N, lg7g,
ntcnderc in a magistrate
lined 9100 for the misde-
theft. News of this was

local newspaper.

d January 18, 19?g, the
Crolden that it considered
rcident and the resulting
rrious act of immorality;'
S l8A-2-8 (19?? Reptacq
smissed her effective Jan-
ding her right to rcquest
the Board on the matter.
?9, Golden rcquested that
duled before the Board.
nwhile, was advised by
handling of the matter
mpliance with the provi-

,

*
df
:
:t
-i

*

rions of the Code. On February 8, 1979, at
s special meeting, the Board rescinded its
dismissal of Golden, granting her back pay

fiom January 19, 19?9, through February 8,

1979, and votcd to suspend her pending

their det€rmination as to the merits of the

charge of immorality. On February Zl,
1979, a hearing was held at which Golden

was present along with her West Virginia
Erlucation Association (WVEA) rcprcsenta-

tives. At the hearing of February 27, Gold-

en elucidated the incident upon which the

Bosrd had based its action. She testified
that she had been "totally distrsught" be-

cause the was going to have to go to Wash-

ington, D.C., to place her aged, crippled
mother, a mugging victim, into a nursing
home and because aubsequent to her arrival
at the mall ehe had talked by telephone

with her sixt€en year old daughter who
hysterically rclatcd that she had just
wrecked the family car. While waiting for
some monograming to be completcd she

picked up eeveral items and walked inad-
vertently out of the store. She stat€d that
she had walked 80 feet or so fitm the store,
when ehe realiznd that the items werc in
her purse and stopped in order to turn
arcund and go back to the stot!. She was

apprehended at thie time by a stor€ detec-
tive.

At the hearing, evidence was pesentcd
by Mm. Golden, other teachers, and school

administrators, all of which went to support
her profeesional competency. At the hear-
ing the next day, the Board met in cloeed

session and, based on all the evidence avail-
able to it, concluded that Golden'a employ-
ment should be terminatcd. Mrg C'olden
appealed this deci8ion to the Circuit Court
of Harrison County, which affirmed the
action of the Bo8rd. It is ftom that judg-
ment that ehe appeals.

l. ThL Coun tindr thrt whlle the Board's lnltld
sttcmpt! to dlmrl$ Golden wcre not corractly
done, thc Borrd dld rubrcqucntly compcnr te
Goldcn end conduct the rcqulrcd hcarlng. Shc
rSrccd to thlr. For thle rcalon thlr ground wlll
bc dhodrlc4 *t Kcsncr v. Thntoa, W.Va..
216 S.E d 880 (1075); Jlmlnez v. Scars Roc
Duct & Co., 4 Cd.3d 370, 93 C.t.Rptr. 769, 482

tU Golden lists two neasone for the rc-
versal of the cirrcuit court'8 judgment.
Fint, that the Board en'ed in failing to
notify her of the charge against her and of
her right to a hearing prior to her dismiss.
al; I and second, because a misdemeanor
conviction does not by itself constitute "im-
morality." 2 This Court finds the second

argument to be persuasive and it does
therefore order the rcversal of the cirrcuit
@urt's affirmance of the Board's action and
the rcinstatement of Mrs. Golden with full
back pay for the period of her dismissal.

l2l Prior to examining thie ground for
revemal, the Court first considercd several
issues which, although not raised by either
party, constitute additional grounds for rc-
versal. Magistrate coutts in this State are
established by Chapter 50 of the State
Code. W.Va.Code S 50-2-3 (1981 Cum.
Supp.) provides that magistrate courts shall
have jurisdiction "of all misdemeanor of-
fenses committed in the county and to con-
duct preliminary examinations on warrants
charging felonies." A study of the record
submitt€d with this case rcveals that the
magistrate court acted beyond its jurisdic-
tion. It issued a warrant for Mrs. Golden'e
arrest for what would appear to be the
felony of shoplifting merchandise of a value
in excess of $50. W.Va.Code S 6f+A-2
(1977 Replacement Vol.). Some nine daye
later another magistrate took a plea of nolo
qnlcnderc to the charge and entercd a
misdemeanor conviction in his record. The
magistrate was acting without jurisdiction.
His lawful authority is to conduct a prelimi-
nary hearing and, upon a finding of ploba-
ble cause, to bind the case over to the
circuit court grand jury. It is fundamental
to say that if the magistrate court finds no
probable cause that the defendant commit
ted the felony crime charged, the court is
under a duty to dismiss the warant. The
magistrate ourt's order which shows that

P.2d 681 (l97ll:' Gilfiean v. SDaw,4ll Pa.305,
272 A.2d {62 (1971).

l. Thc rcader le rcfcrred to F. G. Dclott, Letld
Conwls on Taclpr Conduct: Teacha Dt*t-
pllne (NOLPE leD ior r thorough trcaUncnt
of thls lcsue.



668 W. Va. 2s5 SOUTH EASTERN REP0RTE& 2d SERIES

the defendant ia guilty of a misdemeanor
upon a nolo ontcnderc plea to a felony
charge is void.

t3, ll It should also be noted that the
record of this ease rcached this Court in an
incomplete format, a format which makes
rcview very difficulL Bule 52{a) of the
lVest Virginia Rules of Civil Procedure re-
quires that "[i]n all actions tried upon the
facts, without a jury ... the court should
find the facts especially and state separate-
ly its conclusions of law thereon." The
purpose of this rule is to better enable the
rrviewing court to apply the law to the
facts. hmmonwealth Tire Co. v. Tri-State
Tirc b., 156 W.Va. 351, 193 S.E.Zi 5,t4
(1972). This rule is mandatory and, when

not complied with a rcmand to the trial
court is required. Paples Bank v. Piecl

Piper futrcat, Ine,l4I.Va., 209 S.E.2d 573
(1974). This Court has not prcviously
placed this requirement on circuit courts
when they are rcviewing the decisions of
county boards of education and other ad-
ministrative tribunals. We do so now and
requine that in this case on rcmand and in
futurc cases the circuit court submit find-
ings of fact and conclusions of law with the
orders in thes€ caseg.t

Turning to the second ground argued by
the petitioner, W.Va.Code S 18A-2-8 (197?

Replacement Vol.) authorizes a county
board of education to suspend or dismiss
any of its employees at any time for
"[i]mmorality, incompetency, cruelty, insub'
ordination, intemperance, or willful neglect
of duty." The st8tute does not define im-
morality and this Court has not been re.
fenrcd to, nor has it located, any case decid-
ed in trIest Virginia which constnres the
meaning of the term "immor8lity" within
the context of thig Code section.

t5l lmmorality is an imprccise word
which means different things to different
people, but in eaEence it also oonnot€s con-
duct "not in conformity with accepted prin-
ciples of right and wrong behavior; con-
trary to the moral code of the community;

& Thc lew rcqulncr thlr of thc boud of educa-
tlon u wcll. Bttrltc v, McNel, W.Vr", 2Ol

wicked; especially, not in conformity with
the acceptable standatds of pmper sexual
behavior." Webster's New Twentieth C*n-
tury Dictionary Unabridged 910 (2d ed.

1979).

16l When confronted with this problem

courts seek to determine if a "rational nex-
us" exists between the conduct complained
of and the duties to be performed. In
Thurmond v. Steele, W.Va., n5 S.E.fut 210
(1976), which involved the dismissal of a

civil service employee who was chalged
with driving while intoxieated, failurrc to
obey an officer, driving rccklessly, and leav-

ing the scene of an accident in which he had

been involved, the Court reversed the Civil
Service Commission's dismissal on the
ground that the charges wele "based on

conduct which had no rational nexus with
the duties to be performed or the rights and

interest of the public" Id. at 213. Thus,
the primary principle to be gleaned frtm
Thurmond is that conduct of a state or
public employee outside the job may be

examined, but disciplinary action against
the employee based upon that conduct is

prcper only wherc there is a pnoven "ration-
al nexus" between the conduct and the
duties to be performed.

t?l There is a corullary to this principle.
Although it is undisput€d that a teacher
holds a strategic position in the shaping of
young minds, and although the State may

legitimately look into a teacher's conduct
outside the classrcom, Beilan v. Bculd of
Public F,tlucation, 35? U.S. 399, 78 S.CL

1317, 2 L.Ed.zd l4f4 (1958) a,nd Adler v.

Bou,xl of Eduation,:!4z U.S. 485, 498,72
S.Ct 880,385,96 LEd. 5U (1952), nonethe'
less, tlte conduct in question must indicate
unfitness to teach. No abstract charactct-
ization of the conducl per se as "immoral'
is sufficient. In the words of the leading
case in this area "[n]o person ean be denied
government employment because of factors
unconnected with the responsibilities of
that employmenL" Morrison v. St:ti

s.E.2d 651 (r9E0).

GOIDEN v. BO/

futd of fuluation,l Cal.i
Cal.Rptr. 1?5, 191,461 P.zd
Thus, the coufiE look first to
immoral behavior and then
behavior has in some w8y m
unfit to carry out his or her
or if it has impeired or threr
farc of the schml communit
snn v. St:,te Board of Ei
Erb v. Iowa Sttte Board of
tion,216 N.W.2d ilil9 (Iowa I
v. Board of Trustm, High
No. I, 171 MonL 360, 558 [

t8] One rcason for rcqui
that the alleged immoral
resulting impact upon the 0
to teach or upon the gchool

that to examine only the
would result in a ststut€ tha
for vagueness under substsr
ess constitutional stsndsrd*

Srithout such a neasonr

tion the terms [immoral,
and the likel would be sr

brrad an application as pc
to discipline virtualty eveq
stst€. In the opinion o:

laziness, gluttony, vanity,
erice, and cowardice, coru
conduct . ...

A morc constrict€d in
"immotal", "unprofeosiont
turpitude" . .. enabl[es] t
of Mucation to utilize i
educational matters rsth(
to act "as the prrphet t
vealed the stat€s of moral
of the common congcious.'

lf,onisrn v. Stzta furd o
Cal.8d at bn,82 Cal.Rptr
P2d at SS2-S4.

t9, fOI Anotler rcason I
rhowing that the elleged ir
har a rcculting impoct upo
litnes to t€ach or upon the
nity is ttrat to allow dismissr
rhowing of somo immoral
comtitut€ an unwartzntcd
the teacher'r rigtrt of privac:
Privacy, while not abcolutc
utced agairut the legitimatr



SERIES

rlly, not in conformity witfi
standards of prcper sexual
bcter'e New Twentieth Cen-
y Unabridged 9f0 (2d ed.

rnfionted with this problem
letermine if a "rational nex-
een the conduct complained
rties to be performed. t1
aeele, W.Va., 25 S.E.ZJ 2lO
nvolved the dismissal of a
mployee who was charged
rhile intoxicated, failure to
driving recklessly, and leav-
an accident in which he had

[he Court rcversed the Civil
ission's dismissal on the
re charges wert "based on
had no rational nexus with
performed or the rights and
public" Id. at 218. Thus,
inciple to be gleaned fmm
hat onduct of a state or
e outside the job may be

disciplinary action against
nsed upon that conduct is
rrp therc is a prcven "ration-
rreen the conduct and the
formed.

a corollary to this principle.
undisputed that a teacher
e position in the shaping of
nd although the State may
k into a teacher's conduct
lsroom, Beilan v. Burd of
,n, #7 U.S. $)9, 78 S.Ct.
i 1{f4 (f958) and Adler v.

ttion, ilZ U.S. 485, 493,72
6 LEd. 5f? (f952), nonethe
t in question must indicate
ch. No abstmct character-
rnduct per se 8s "immor8l"
n tle words of the leading
, "[nJo per.son can be denied
rloyrnent because of factors
ith the responsibilities of
,nL" Moniso\ v. Stite

D.

GoIDEN v. BoARD 
S jt,:XIHH oF HARRISoN 1{' va' 669

Bud of Piuation,l Cal.3d 214, ?f}5, 82 schml board' The conduct of a teacher

cal.Rph. 1?5, 191, 46r P.zl 8?5, 391 (1969). ceases to be private in at least two circum-

iir", tfr" courts look fi;t; the quesiion of etances: (f) if the conduct directly affects

im.or8t behavior and then to B€e if that the performance of the occupational respon-

behavior has in eome way made the teacher sibilities of the teacher; or (2) if, without

,riit t" carry out his orier responsibilities contribution on the part of the school offi-

or if it tras impairea or threatened the wel- cials, the conduct has become the subject of

fare of ttre scircol community' *e Morri' such notoriety as to significantly and rca-

i, t. Stata fuurt of &tiution' supra; sonably impair the capability of the particu-
-fl'b 

v. Iowa State Boad of Public Instruc' lar teacher to discharge the responsibilities-

tion,2l6N.w.2d 889 (Iowa 1974); Linitge'D of the teaching position' Jerry v' B*ry of

". 
norra of Ttrrtstcr*y,, High *hool District Nucation of City School District of Syra'

No. I, 1?1 Mont' 860, sse p'2d 468 (19?6)' cuse, &5 N'Y'zd 534' 364 N'Y'S'2d uo' 324

t8] One rcason for requiring a showing N'E'zd 106' 111 (1974)'

that the alleged immoral conduct has a

resulting impact upon the teacher's fitness tlll In the caae 
-now 

before this Court'

to t€ash or upon the school community is the only evidence submitted to the Board to

that to examine only the conduct itself "ppoti 
the charge of immorality were the

would regult in a statut€ that would be void t"*tot of the magistrate indicating the ar-

for vagueness under aubstantive due proc- rest on the aforestated charge and Mrs'

ess constitutional gtandards. Golden's plea of nolo antnnderc thercto'

f,iithout such a rcasonabre interpreta- m", 3#,,;l'ff;tl'r$""H":1""ffi
tion the terms [immoral, unprofessional, ;; ;" se immoral conduct within the

;*i'"",1fi1#:ll1lf ffi,',l[::fr :ilX1fi lI',*l[:*i}t"1"ffi ;:^ffi [
to discipline virtually every teacher in the 

believed that her ect was inconsist€nt with

i3ff;il,,'Ii;','li:?,;'ryilffi "f:XI#i*I;;:g,f :,f f H.iiXlti,l:
erie, and cowatdice, constitutc immoral 

and Morr'son v. Statc mra of iilue*iin,
-f'irt"; 

constricted intfrnretation or ";:; i::;';mr';yf":;:#n
"immoral", "unprofeasional", and t'moral

turyitude" . . . enabl[es] the State Board the contrary'

of Elucation t" ,iifir. its expertise in The only evidence in the record before

educational matters rather than having the Board relating to fitness to teach was

to Ect ,as the proptrei to which is re-- the favorable testimony of Mrs' c'olden's

vealed the stst€s or'ioJ, of the people fellow teacherg and of the principal and

of the common @ngcioug." assistant principal at her high school'

Monisnv.SgltcBoadoffulucation,lFrtmthisevidence'theCrcurtconcludes
Cal.Sdatnbn,tPcal.Rptr.atg82-84,46lthattheBoardwaspresentedwithnoevi-
P2d at 88P-€4. 

rr'rlvut ' ov wa "-' -v- 
dence from which it could conclude that the

[e,ro] Anot]er neason for requiring a ::litji::H[Hit# ffii,'i'm'*:
rhowing that th9 alleged immoral conduct 

cluded the opposite.
has a tuulting impoct upon the teacher'e

fitnees to tcach or upon tire achool @mmu- For the neasons s€t forth above the otder

nity is that to allow dismissal merely upon I of the circuit court of Harrison c'ounty

rhowing of some immoral conduci woutd affirming the decision of the board of edu'

conetihrte an unwsrrantBd intrueion upon cation oithat oounty is hereby rcvereed and

the teacher'e;gfrt of pJvacy. ifti. righi of this action is remanded to that court with

privacy, while not 
"ilotot", 

must be bal- instructions to direct the board of education

anoed againrt trre hgitimste interest of the to reinstst€ Arlene c'olden with reetoration



670 W.Va. 285 SOUTH EASTERN BEPORTER,2d SEBIES

of the pay she lost as a rcsult of her dis-
missal.

Reversed and remanded.

N EELY, Justice, dissenting:

I dissent for reasons which must be so

obvious that exhaustive discussion is hardly
nesessary. In West Virginia school attend-
ance is compulsory-all children between
the ages of six and sixteen must be under
the supervision of the county boards of
education regardless of whether they are
enrolled in the public schools, private
schools, or privately tutored. W.Va.Code,

f8-&1 [1951]; State v. Riddle, W.Va., 285

s.E.zd 859 (1981).

It is a denial of certain sacred parrcntal
rights to rcquire that parents relinquish
their children to the pernicioug influence of
confessed misdemeanants, particularly
when the misdemeanor is a crime of moral
turpitude. Morally there is no difference
between one who commits grand larlceny

and petit larceny.

The appellant was employed as a high
school guidance coururclor. What type of
example does a confess€d shoplifter set for
impressionable teenagers? Since juvenile
crime is smong this society's most pressing
social problems, is it not reasonable that we
should forbear teaching crime or exalting
its commission in the public schools? I can
hear the dialogue now in the guidance of-
fice of this particular oounselor: "Excuse
me teach, but is this the right size boosting
drawers for a girl my height?" or, "Say,
Miss Colden, do you know a good fence for
some clean, hot jewelry?"

Furthermorc, I quarrel with the majori-
ty's expession: "Immorslity is an impte,
cise word which meane diffenent things to
differcnt people... ." Therp are few rea-
sonable people who do not consider steal-
ing--+xcept possibly for suryivsl-as im-
moral. Oertainly a rpasonable permn is
jurtified in experiencing outrage when his
child is involuntarily subjectcd to the influ-
ence of an authority figrrrc and role model
who.advocatec, at least by example, crime
as a legitimate way of supplementing her
income. It ia thir type of situation that

justifies the low regard in which many per-

sons hold the public schools. Yet in this
case the schools used every effort to elimi-
nate the problem only to be confounded by
the courts.

The result in this case is absurd and

works a great injustice on the Harrison
County Board of Fxlucation. The Board
went to a great deal of expense and trcuble
to rid its school system of the appellanL
The people who suffer most from this
Court's Iargess, as always, are the children
and parents. Children and parcnts must
work not only against the pernicious influ-
ences of drug dealers, other children al-
ready engaged in crime, and the host of
underworld characters who profit from ju-
venile vice, but also they must now work
against the example of the public schools

themselves.

Grat WEST, et al.

%

NATIONAL MINES CORP., et aI.

No. 14916.

Supreme Court of Appeals of
West Virginia.

Dec. 18, 1981.

House ownerc sued coal lessee and con'

tract coal haulerc on ground of nuisance

caused by dust settling on plaintiffs' house

and sunpunding property as rcsult of coal

trucks traveling on public road. Plaintiffs
sought preliminary and permanent injunc'
tive relief and damages. The Circuit Coutq
lilyoming County, A. R Kingdon, J., denied
plaintiffs' motion for preliminary injunction
and grantcd defendants' motion to dismis
and plaintiffs appealed. The Suprcme
Court of Appeals, McGraw, J., held that:

w

(l) complaint stated claim
since it was obvious that c

sharcd community of interr
ant haulers in haulage of i
leasehold to its preparation

ry judgment for defendantr
by fact issues 8s to whether
amountcd to unrcasonable a
of public roadway, whether
able and unlawful use mat
plaintiffs' use and enjoymen
and whether defendant less(
believe that haulage of coal
would result in cneation of r

(3) evidence prcduccd at ha
for preliminary injunction
tiffs to preliminary manda
requiring defendants to aba

Reversed and rcmanded

l. Prctrld kocedutt o6E
On motion to dismis8

state claim upon which relie
ed, only matters contained ir
be consider€d- Rules C
qbx6).

2. Judgment €183
If matters outside

Prcsented to court and are r
it' motion to dismiEs for f
claim upon which relief cr
ahould be tr€st€d as one for
ment and dispoeed of as pr
rclating to summary judgmr
ttoc., Rulec lqbx6), 86.

& Jud3mcnt ol83
Since trial court'g mling

motion to dismiss war mad
evidence at hearing on propr
naty injunctioq Supreme Co
would trcat triat court,r dirl
tion as a ruling under sumr
ftle. Ruler Civ.h.oc., Ruk

I Nrdcnco c-i(f)
Any duot which subltrnl

rvith comfortable enjolrmen
DFemise! conrtitutes a nuirar