September 25, 2006

Susan L. Edwards
West Virginia Advocates
Litton Building, 4th Floor
1207 Quarrier Street
Charleston, WV 25301

Dear Ms. Litton:

I am in receipt of your request for an interpretation regarding West Virginia Board of Education Policy 7211, Appeals Procedure for Citizens (Policy 7211). Specifically, you ask "whether it is the responsibility of the citizen to be able to cite state law, policy, rule or regulation when filing a complaint under . . . Policy 7211." You also request clarification regarding whether or not there is any state law, policy, or regulation prohibiting the supervision of one County Board of Education employee by his or her spouse."

Policy 7211 specifically states, at section 2.1:

An "appeal" is a claim by one or more citizens of a violation of state law or the policies, rules and regulations of the West Virginia Board of Education. The written appeal will identify the specific state law or state board policy, rule or regulation which is claimed to be violated, and shall include as much information as possible to describe the alleged violation. Copies of the policies, rules and regulations of the West Virginia Board of Education are to be available for public review at each county board of education office.

This information is also present on each Citizens Appeal form.

It has been my experience that counties do not construe this provision strictly. Rather, if the appellant alleges events that are contrary to state law or policy, counties will process the appeal. However, if the alleged events clearly do not involve the application of state law or policy, then the Citizens Appeal process is not the proper venue for resolving the complaint and the county will not proceed with the steps outlined in Policy 7211. I believe this approach to be both reasonable and effective.

For example, if a parent files a Citizens Appeal alleging that a child was forced to recite the pledge of allegiance each day and that the teacher had refused to permit the child to refrain from citing the pledge, I believe that the county should process the appeal even if the parent fails to cite West Virginia Code 18-5-15b. However, if a parent files an appeal because no recess is provided for the children at her son's elementary school the appeal should not be processed because there is no state law or state policy requiring a recess period.

Further, counties should not process appeals under Policy 7211 where the county board of education is without authority to act or where the method of appeal is specifically established by law, as with appeals regarding the placement of exceptional children. Additionally, the term "appeal" shall not apply when a citizen has a personal complaint about a school employee. Each county board of education must establish its own specific procedures to handle complaints about school employees and for other citizen complaints which are not governed by this policy. When a county receives a Citizens Appeal pursuant to Policy 7211, it is proper for the county to examine the appeal to determine whether the appeal can be processed under Policy 7211 or whether the complaint should be resolved by other means. In any event, the county should communicate its decision to the appellant.

As to you second question, there is no state law, policy, or regulation generally prohibiting the supervision of one County Board of Education employee by his or her spouse. In one narrow instance, however, the West Virginia Supreme Court of Appeals has held that a county school superintendent's nomination of his wife for a central administrator's position violates West Virginia Code 61-10-15, which prohibits self-dealing and nepotism by public employees. West Va. Educ. Ass'n v. Preston County Bd. of Educ., 171 W. Va. 38, 297 S.E.2d 444 (1982). Further, per the ruling in Townshend v. Board of Educ., 183 W. Va. 418, 396 S.E.2d 185 (1990), a board of education policy that prohibits one spouse from supervising the other spouse within a county school system is a reasonable exercise of the board's supervisory authority to prevent favoritism, conflicts of interest or the appearance of either. Thus, while nepotism policies addressing the supervision of an employee by his or her spouse are not required, they are not prohibited.

Hoping that I have been of service, I am
Sincerely,

/s/

Steven L. Paine
State Superintendent of Schools