W. Va. Code R. § 127-1-13

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 127-1-13 - Review Board

13.1. A WVSSAC Review Board is hereby established.

13.1.a. The Review Board shall consist of seven members to be appointed by the WVBE upon recommendation by the State Superintendent. No person, other than a county superintendent of schools, and a representative of the West Virginia Athletic Directors Association, shall be appointed or shall serve who is employed by the WVBE or any county board of education. All members of the Review Board shall be residents of the State of West Virginia.

13.1.b. Each of the following associations shall be requested to present three nominations to the State Superintendent for membership on the Review Board:

13.1.b.1. West Virginia Bar Association;

13.1.b.2. West Virginia Association of School Administrators;

13.1.b.3. West Virginia State Medical Association;

13.1.b.4. West Virginia Sportswriter Association;

13.1.b.5. West Virginia Athletic Directors Association;

13.1.b.6. West Virginia Association of Retired School Employees; and

13.1.b.7. State Superintendent's Designee.

13.1.c. Members of the Review Board need not be members of the association which submitted their names in nomination and shall be appointed for a term of five years. Prior to the expiration date of the term of each member of the Review Board, the respective association will nominate three representatives to the State Superintendent who shall subsequently recommend one to the WVBE.

13.1.d. The term of office of each member of the Review Board will begin upon the acceptance of the appointment and will expire on June 30 of the year in which the term expires.

13.1.e. The member with the shortest remaining tenure on the Review Board shall serve as its chairman. Each appointed member of the Review Board shall have equal voting privileges.

13.1.f. In the same manner as prescribed in §127-1-13.1.a through 13.1.c, the WVBE shall have power to fill any vacancy which occurs in the membership of the Review Board. Such appointments shall be made at the next regular or called meeting of the WVBE following the existence of a vacancy, and shall be for the unexpired term of the position vacated.

13.1.g. Members of the Review Board shall serve without pay but shall be reimbursed for actual expenses incident to the performances of their duties upon presentation to WVDE an itemized sworn statement thereof. Costs shall be taxed by the Review Board at its discretion, not to exceed the actual expenses incurred, against the party who fails to prevail and the Review Board may, in its discretion, if it so desires, require any appealing party to post security for costs with the State Superintendent in the sum of $200.

13.1.h. The Review Board will sit for hearings within a reasonable time after the aggrieved party having a matter for review files an appeal, but not longer than 30 days after such appeal is filed, and at such other times as the Review Board may determine, at the State Capitol in Charleston, or in such other place as the Chair of the Review Board may elect.

13.2. The WVDE shall make available adequate and competent secretarial services to record the proceedings and transactions of each meeting of the Review Board and to prepare the official written report, required in these regulations, on each decision rendered by the Review Board.

13.3. Any decision of the Board of Directors involving a penalty, protest, or interpretation of the rules and regulations of this Commission governing interscholastic athletic or band activities may be appealed to the Review Board in the manner hereinafter described. Such appeal may be made by any member of the aggrieved party directly affected by the decision of the Board of Directors and aggrieved by such decision of the Board of Directors.

13.3.a. Appeals must be filed with the State Superintendent within 15 days after any final decision of the Board of Directors of the WVSSAC.

13.3.b. Upon receipt of any appeal, the State Superintendent shall immediately notify each member of the Review Board of the appeal and the Chair of the Review Board shall set a date, time, and place for hearing and shall immediately notify all interested parties, in writing, of the same.

13.3.c. The filing of any appeal shall not stay enforcement nor act to supersede the prior ruling or decision of the Board of Directors. However, pending the hearing of any appeal, at its discretion, the Board of Directors may grant a stay of enforcement upon such terms as it deems proper.

13.4. Proceedings for review shall be instituted by filing a petition with the State Superintendent within 15 days after the date upon which such party received notice of the final order or decision of the Board of Directors. A copy of the petition shall be served upon the WVSSAC or its Executive Director and all other parties of record by registered or certified mail. The petition shall state whether the appeal is taken on questions of law or questions of fact, or both. No appeal bond shall be required to effect any such appeal.

13.4.a. Within 15 days after receipt of a copy of the petition by the WVSSAC, or its Executive Director, or within such further time as the Review Board may allow, the Commission or the Executive Director shall transmit to the Review Board, the original or a certified copy of the entire record of the proceedings under review, including a transcript of all testimony and all papers, motions, documents, evidence, and records as were before the Commission, all Commission staff memoranda submitted in connection with the case, and a statement of matters officially noted; but, by stipulation of all parties to the review proceedings, the record may be shortened. The expense of preparing such record shall be taxed as a part of the costs of the appeal. The appellant shall provide security for costs involved. Upon demand by any party to the appeal, the Commission shall furnish, at the cost of the party requesting same, a copy of such record. In the event the complete record is not filed with the Review Board within the time provided for in this section, the appellant may apply to the Review Board to have the case docketed, and the Review Board shall order such record filed. Failure of the Commission to file the record within the time stipulated shall automatically stay the enforcement of the order or decision of the Board of Directors, in that particular case, and such stay shall continue until such record is filed.

13.4.b. Appeals taken on questions of law, fact, or both, shall be heard upon assignment of error filed in the case or set out in the briefs of the appellant. Errors not argued by brief may be disregarded, but the Review Board may consider and decide errors which are not assigned or argued.

13.4.c. The review shall be conducted by the Review Board without a jury and shall be upon the records made before the Commission, except that in cases of alleged irregularities in procedure before the Commission not shown in the record, testimony thereon may be taken before the Review Board. The Review Board may hear oral arguments and require written briefs.

13.5. After hearing all evidence and arguments, the Review Board shall render a decision in one of three forms:

13.5.a. Sustaining the ruling of the Board of Directors;

13.5.b. Reversing the ruling of the Board of Directors; or

13.5.c. Remanding the matter to the Board of Directors for further action.

13.5.c.1. The Review Board shall reverse, vacate, or modify the order or decision of the Board of Directors if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions, or orders are:

13.5.c.1.A. In violation of constitutional or statutory provisions;

13.5.c.1.B. In excess of the statutory authority or jurisdiction of the Commission;

13.5.c.1.C. Made upon unlawful procedures;

13.5.c.1.D. Affected by other error of law;

13.5.c.1.E. Clearly wrong in view of the reliable probative and substantial evidence on the whole record; or

13.5.c.1.F. Arbitrary or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

13.5.c.2. Four members, present and eligible to vote, shall constitute a quorum for the Review Board to transact all business.

13.5.c.3. A majority vote of those members of the Review Board in attendance at any hearing shall be required to render a decision. Such decision shall be final and binding on all parties concerned.

13.5.c.4. Within 30 days from the date of any hearing, the Review Board shall make a written report of its decision, stating briefly therein its reasons for such a decision. Copies of the report shall be mailed to the State Superintendent, the Executive Director of the WVSSAC and, upon written request, to other interested parties.

13.6. Nothing in these regulations shall be construed to limit the Board of Directors in performing its regular duties as provided in the regulations of the WVSSAC; in making investigations and initiating proceedings against any member of the Commission; in making interpretations of the rules of eligibility of student athletes or band members; or in imposing penalties for the violations of any rules, regulations, or bylaws of the Commission.

13.6.a. §127-1-8.5, and Rule §127CSR6, section 3.2, infer or state that decisions of the Board of Directors are final and are hereby modified only to the extent that such final ruling of the Board of Directors may be appealed within the time limit in the manner prescribed elsewhere in these regulations and affirmed, reversed, or remanded by the Review Board.

W. Va. Code R. § 127-1-13