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Below v. Jefferson County Board of Education

Supreme Court of West Virginia

June 16, 2017

E.R., Plaintiff Below, Petitioner
v.
Jefferson County Board of Education, Defendant Below, Respondent

         Jefferson County 16-C-163

          MEMORANDUM DECISION

         Petitioner E.R., [1] by counsel Sherman L. Lambert, Sr., appeals the Circuit Court of Jefferson County's August 18, 2016, "Order Denying Petition for Writ of Certiorari and Upholding Expulsion Decision" following a decision by the Jefferson County Board of Education that he possessed a handgun on school property in violation of the "Safe Schools Act, " resulting in his expulsion from school for a period of twelve months. Respondent Jefferson County Board of Education ("the Board"), by counsel Tracey B. Eberling, filed a response in support of the circuit court's order.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On May 6, 2016, E.R., a minor, was a student at Jefferson County High School. During class, E.R.'s teacher detected the faint smell of smoke and suspected that someone in the class was using a vape device (electronic cigarette). The teacher asked that the user come forward but no one did. Consequently, she announced that there would be a search of the students' book bags for the purpose of locating the vape device. It was at that time that E.R. was observed by the teacher and five other students walking with his book bag from one side of the room to the other, stopping in between two female students, and placing something into one of the female student's bags. E.R. then returned to his seat. The teacher asked the female student to bring to her the item that E.R. placed in her bag. Instead of bringing just the item, the student showed the teacher her bag, which contained a .38 caliber six shot revolver. The gun was not loaded and no ammunition was found. The female student denied that the gun belonged to her. E.R. claimed that he was looking for his "lotion" in the female student's bag.

         The female student and E.R. were escorted to the school office. When the parents of both students were contacted, they advised administrators that they wished to be present when their respective children were interviewed. Law enforcement was also called.

         The school principal and another administrator first met with the female student, her mother, and Sgt. Sell of the Jefferson County Sheriff's Department. The female student recounted that she observed E.R. place something in her bag and that when she looked in her bag, she saw the gun. According to the student, she held her bag open for students sitting near her to see.

         When E.R.'s father arrived at the school and initially met with school administrators, he advised that E.R. would not make any statement without his attorney present. Later that same day, school administrators and Sgt. Sell met with E.R., E.R.'s father, E.R's attorney, and (by telephone) the attorney for the Board. E.R, through his attorney, denied responsibility for the gun. Meanwhile, school administrators and Sgt. Sell interviewed and collected written statements from student witnesses, all of whom consistently reported that E.R. was observed placing something in the female student's bag and that a handgun was thereafter seen in the bag by other students.

         At the conclusion of the meeting, E.R, E.R's father, and E.R's attorney were advised that E.R. would be suspended for ten days pending a recommendation of expulsion. Written notice of the same was provided to E.R.'s father. It was thereafter agreed that the timelines within which to hold E.R.'s expulsion hearing would be extended so that the matter could be thoroughly investigated.[5]

         By letter of May 20, 2016, Bondy Shay Gibson, Superintendent of Jefferson County Schools, advised E.R.'s attorney that the allegation that E.R. possessed a handgun on school property is a Level 4 violation of state and local policies on Expected Behavior in Safe and Supportive Schools. She advised further that, at the Board's June 13, 2016, regular meeting, she would be recommending that E.R. be expelled for up to twelve consecutive months.[6] See W.Va. Code § 18A-5-1a(i), in relevant part (stating that "if a student is determined to have violated the provisions of subsection (a) of this section the student shall be expelled for a period of not less than twelve consecutive months . . . .").

         In a subsequent "Notice of Student Discipline Hearing" dated June 3, 2016, Superintendent Gibson advised E.R.'s father of the June 13, 2016, Board meeting and further advised him that E.R. was charged with violating West Virginia Code § 18A-5-1a(a) and § 61-7-11a(b)(1) for being in possession of a deadly weapon (handgun) on school property. The letter also advised that Superintendent Gibson recommended that E.R. be expelled for 365 days and further advised that E.R. may be represented by counsel and may call witnesses.

         At the June 13, 2016, Board meeting, the Board conducted a hearing on the Superintendent's recommendation that E.R. be expelled. E.R. and his parents were present at the hearing and E.R. was represented by counsel. The hearing transcript reveals that the Board proffered the evidence supporting the recommendation of expulsion (i.e., witness statements, investigation summaries, and E.R.'s school records) and that the Board provided this evidence to counsel for E.R. in advance of the hearing. The evidence included the above-referenced written statements of the student witnesses, and statements by the teacher in whose classroom the events herein transpired and the administrators who were present and involved on that day. The principal and Sgt. Sell were also present at the hearing to answer the questions of the Board and E.R.'s counsel.

         Counsel for E.R. called Sgt. Sell as a witness, who testified that there was no physical evidence directly linking E.R. to the handgun.[7] On cross-examination, Sgt. Sell testified that, based upon the circumstantial evidence described above, he concluded that E.R. was in possession of a handgun on school property. E.R. did not testify and did not call any other witnesses. Immediately following the hearing, the Board approved the recommended expulsion of E.R. by a vote of three to two.

         On July 6, 2016, E.R. and his parents filed a complaint in the Circuit Court of Jefferson County against the Board and its members seeking a preliminary injunction, a permanent injunction, and a temporary restraining order to preclude the Board and its members from expelling E.R. from school. On July 15, 2016, the Board and its members filed a motion to dismiss. E.R. and his parents filed a response to the motion. A hearing on the motion was conducted on July 25, 2015. The circuit court thereafter concluded that the attempt to challenge the Board's "expulsion decision solely through injunctive relief is an improper collateral attack in light of the availability of an adequate remedy at law." The court determined that it would treat the request for equitable relief as a timely appeal of the Board's decision to expel E.R. and directed E.R. and his parents "to submit a reformed pleading setting forth the basis on which they seek appellate review . . . ."

         E.R. and his parents thereafter filed an amended complaint for writ of certiorari to appeal the Board's decision to expel E.R. The Board filed a reply and oral argument was conducted on August 11, 2016. The petition for writ of ...


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