STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

CABELL COUNTY BOARD OF EDUCATION,
 

Petitioner FILED
 

June 15, 2016 

vs) No. 14-1213 (Kanawha County 12-AA-60) released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

LENNIE DALE ADKINS, OF WEST VIRGINIA 

Respondent 

MEMORANDUM DECISION 

Petitioner Cabell County Board of Education (“BOE”), by counsel, Howard E. 

Seufer and Joshua A. Cottle, appeals the October 21, 2014, order of the Circuit Court of 

Kanawha County that reversed an order of the West Virginia Public Employee Grievance 

Board (“Grievance Board”). The Grievance Board’s order indefinitely suspended 

respondent Lennie Dale Adkins without pay while felony child pornography charges 

were pending against him. Adkins appeared through his counsel, Dennis E. Kelley and 

Donald R. Jarrell. 

This Court has considered the parties’ briefs, oral arguments, and the appendix 

record on appeal. Under the limited circumstances presented in this case and because of 

the clear error committed below, we find a memorandum decision reversing the circuit 

court appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure. 

Adkins was employed by the BOE as a teacher/librarian.1 Law enforcement 

received credible information that Adkins solicited minor children through instant 

messaging services. As part of the investigation, law enforcement seized a number of 

computers and other electronic items from Adkins’s home in 2011. The West Virginia 

State Police Digital Forensic Lab analyzed these items, finding that in 2008, Adkins 

solicited pornographic pictures of a then 16-year-old student. The Forensic Lab also 

found six pornographic pictures of a 17-year-old student. 

The criminal complaints brought against Adkins alleged he had been using his 

computer to carry on inappropriate conversations with students, suggesting pornography 

websites, questioning their sexual orientation, and making homosexual suggestions. Eight 

complaints allege that Adkins distributed and exhibited material depicting minors 

1 The record is unclear on Adkins’ actual job title. In some instances he is 

referred to as a librarian; at other times he is identified as a teacher. 

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engaging in sexually explicit conduct in violation of W. Va. Code § 61-8C-3 (2014). One 

complaint alleged that Adkins used a minor to produce obscene material or assist in doing 

explicit conduct in violation of W. Va. Code § 61-8A-5 (2000). All of the criminal 

complaints alleged that Adkins solicited minors through his computer via instant 

messaging, engaging in inappropriate conversations, suggesting pornography sites, 

questioning their sexual orientation and making homosexual suggestions.2 

On May 26, 2011, Adkins spoke with the superintendent of Cabell County Schools 

about his impending arrest. Following their conversation, the superintendent placed 

Adkins on paid administrative leave until further notice. The superintendent made formal 

this action in a letter to Adkins dated May 26, 2011. Adkins was arrested the next day. 

On June 13, 2011, the superintendent met with Adkins regarding the criminal 

charges. By letter dated June 15, 2011, the superintendent advised Adkins that he 

intended to recommend to the BOE that Adkins be suspended with pay from May 26, 

2011, to June 6, 2011, and that the BOE terminate Adkins’s employment contract 

effective July 6, 2011. 

Approximately three weeks later, by letter dated July 8, 2011, the superintendent 

informed Adkins that he did not intend to ask the BOE to affirm his paid suspension or 

termination. Instead, the superintendent wrote that he was suspending Adkins without 

pay, effective the date of the letter. This same letter contained notice that the matter of 

Adkins’s suspension would be placed on the BOE meeting agenda for the July 18, 2011, 

meeting, at which time the superintendent would recommend that the BOE ratify these 

suspension actions and extend Adkins’s suspension without pay until the criminal 

charges were resolved. The letter requested that Adkins notify the superintendent in 

writing by July 15, 2011, if he wanted to appear at this hearing. The letter also advised 

Adkins that he had the right to be represented by counsel and to present evidence on his 

own behalf. The certified mail receipt indicated that this letter was received by Adkins 

on July 12, 2011. 

Neither Adkins nor his attorney appeared at the BOE meeting on July 18, 2011. 

During the meeting, the BOE ratified the superintendent’s actions, suspending Adkins 

with pay from May 28, 2011, to June 6, 2011, and suspending him without pay from July 

8, 2011, until the resolution of the criminal charges against him. By letter dated July 20, 

2011, the superintendent informed Adkins of the BOE’s decision 

2 In September of 2012, the State dropped all charges against Adkins after the 

circuit court suppressed the computer evidence seized by investigating authorities prior to 

his arrest. 

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Adkins filed a grievance with the Grievance Board challenging the BOE’s 

decision on July 22, 2011. He argued that the BOE should have placed him in a position 

without contact with students and that the BOE acted in excess of its authority because 

there had been no conviction on the charges against him. Adkins sought to be reinstated 

to his position with back pay for that time he was suspended without pay. 

A hearing was held before the Grievance Board on November 1, 2011. The facts 

were largely uncontested and exhibits included the various letters from the superintendent 

and BOE to Adkins, copies of the criminal complaints pending against Adkins, Adkins’s 

bail agreements, and other magistrate court documents. At the time of the grievance 

hearing, three of the criminal charges against Adkins had been dismissed and Adkins had 

not been indicted on these charges. The charges left pending included allegations of 

misconduct involving students at the schools where Adkins worked. 

The administrative law judge (“ALJ”) denied Adkins’s grievance, finding that the 

BOE had established the charges against Adkins by a preponderance of the evidence, 

pursuant to the BOE’s procedural rules. See W. Va. Code. R. § 156-1-3 (2008). 

Acknowledging that Adkins was presumed innocent of the charges, the ALJ relied upon 

previous decisions of the Grievance Board upholding the right of a board of education to 

indefinitely suspend an employee without pay while criminal proceedings are conducted 

so long as some particular event will eventually bring about a conclusion to the 

suspension. See Blaney v. Wood Cty. Bd. of Educ., Docket No. 03-54-169 (Jan. 16, 

2004); Hicks v. Monongalia Cty. Bd. of Educ., Docket No. 04-30-183 (Aug. 13, 2004); 

Dobbins v. Nicholas Cty. Bd. of Educ., Docket No. 03-34-396 (Mar. 9, 2005). The ALJ 

determined that it was immaterial whether Adkins had been indicted, and it concluded 

that his suspension was justified because there was a rational nexus between his alleged 

conduct and his employment. 

Adkins appealed the Grievance Board decision to the Circuit Court of Kanawha 

County. In an order entered October 21, 2014, the circuit court reversed the decision of 

the Grievance Board, concluding that the BOE was not empowered under W. Va. Code § 

18A-2-8 (2007) (quoted infra) to suspend Adkins on the basis of his arrest on felony 

charges. Specifically, the court determined that because Adkins had not been indicted on 

the felony charges and had not been convicted of or pled guilty or nolo contendere to any 

of the pending charges, the BOE had exceeded its statutory authority. The court noted 

that the BOE could have sought suspension under other provisions of the statute, such as 

immorality, but instead relied on a public policy argument that the BOE was obligated 

and responsible for protecting its students by maintaining a safe and secure environment. 

In its brief to the circuit court, the BOE explained that it opted not to suspend on the basis 

of immorality because it then would have had to present evidence that could conflict with 

or hamper potential criminal proceedings. 

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The BOE now appeals the circuit court’s October 21, 2014, order, arguing that the 

BOE did not exceed its statutory authority with regard to its disposition of Adkins’s case. 

This Court reviews decisions of the circuit court in grievance board proceedings as 

follows: “When reviewing the appeal of a public employees’ grievance, this Court 

reviews decisions of the circuit court under the same standard as that by which the circuit 

court reviews the decision of the administrative law judge.” Syl. pt. 1, Martin v. Barbour 

Cty. Bd. of Educ., 228 W. Va. 238, 719 S.E.2d 406 (2011). W. Va. Code § 29A-5-4(g) 

(1998) provides the standard to be applied by circuit courts in reviewing decisions of 

administrative law judges as follows: 

The court may affirm the order or decision of the agency or remand 

the case for further proceedings. It shall reverse, vacate or modify the order 

or decision of the agency if the substantial rights of the petitioner or 

petitioner have been prejudiced because the administrative findings, 

inferences, conclusions, decision or order are: 

(1) In violation of constitutional or statutory provisions; or 

(2) In excess of the statutory authority or jurisdiction of the 

agency; or 

(3) Made upon unlawful procedures; or 

(4) Affected by other error of law; or 

(5) Clearly wrong in view of the reliable, probative and 

substantial evidence on the whole record; or 

(6) Arbitrary or capricious or characterized by abuse of discretion 

or clearly unwarranted exercise of discretion. 

As well as the statutory grounds for review, this Court has held: 

Grievance rulings involve a combination of both deferential and 

plenary review. Since a reviewing court is obligated to give deference to 

factual findings rendered by an administrative law judge, a circuit court is 

not permitted to substitute its judgment for that of the hearing examiner 

with regard to factual determinations. Credibility determinations made by 

an administrative law judge are similarly entitled to deference. Plenary 

review is conducted as to the conclusions of law and application of law to 

the facts, which are reviewed de novo. 

Syl. pt. 1, Cahill v. Mercer Cty. Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000). 

At issue in this case is whether the BOE’s decision was contrary to law. In 

concluding that the Grievance Board’s decision required reversal, the circuit court relied 

on W. Va. Code § 18A-2-8(a), which provides that “[n]otwithstanding any other 

provision of law, a [BOE] may suspend or dismiss any person at any time for: 

Immorality, incompetency, cruelty, insubordination, intemperance, willful neglect of 

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duty, unsatisfactory performance, the conviction of a felony or plea of nolo contendere to 

a felony charge.” See also syl. pt. 3, Beverlin v. Bd. of Educ. of Lewis Cty., 158 W. Va. 

1067, 216 S.E.2d 554 (1975) (“The authority of a county board of education to dismiss a 

teacher under W. Va. Code 1931, 18A-2-8, as amended, must be based upon the just 

causes listed therein and must be exercised reasonably, not arbitrarily or capriciously.”). 

The circuit court determined that the superintendent and BOE did not have the statutory 

authority to suspend Adkins without pay because being charged with a crime is not 

named as a justification for suspension without pay in W. Va. Code § 18A-2-8(a). The 

BOE maintains that its decision was in accordance with its constitutionally mandated 

duty to provide a safe, secure, and suitable environment for students. 

In light of a related appeal decided by this Court, appeal no. 14-0628, we find 

disingenuous Adkins’s argument that the BOE’s failure to include immorality as a basis 

for his suspension violates W. Va. Code § 18A-2-8. That appeal arose from the BOE’s 

decision to terminate Adkins’s employment. Based on the same facts as those in the 

present case—that Adkins solicited sexually explicit photographs from underage 

students—the BOE terminated Adkins’s employment3 on the ground that Adkins’s 

conduct constituted immorality.4 Adkins filed a grievance, challenging the BOE’s 

decision. The Grievance Board denied the grievance,5 and on appeal to the circuit court, 

3 We note that in the separate grievance it was established that on September 17, 

2013, Adkins surrendered his teaching license. The State Superintendent of Schools 

revoked Adkins’s license to teach in West Virginia on September 19, 2013. 

4 We have stated: 

“Immorality is an imprecise word which means different things to 

different people, but in essence it also connotes conduct “not in conformity 

with accepted principles of right and wrong behavior; contrary to the moral 

code of the community; wicked; especially, not in conformity with the 

acceptable standards of proper sexual behavior.” Webster’s New Twentieth 

Century Dictionary Unabridged 910 (2d ed. 1979). 

Golden v. Bd. of Educ. of Harrison Cty., 169 W. Va. 63, 67, 285 S.E.2d 665, 668 (1981). 

5 The ALJ also found Adkins to be insubordinate because his “actions were 

sufficiently knowing and intentional as to represent a defiance of the established 

standards of expected conduct in the Code of Conduct for school personnel.” 

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the decision was affirmed. His appeal to this Court was dismissed for his failure to 

comply with the Rules of Appellate Procedure.6 

The two cases are intertwined; while the proceedings giving rise to the instant 

appeal involving Adkins’s suspension began before the proceedings in the related appeal 

involving Adkins’s termination, both cases are based on identical facts, involve the same 

parties, and implicate the same law. The termination case was fully litigated to finality 

between Adkins and the BOE, and the factual and legal determinations in that case are 

binding upon the parties herein. Thus, just as immorality was the basis of Adkins’s 

termination, immorality must also have been a basis for his suspension. 

The doctrine of collateral estoppel was explained by this Court in syllabus point 1 

of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995): 

Collateral estoppel will bar a claim if four conditions 

are met: (1) The issue previously decided is identical to the 

one presented in the action in question; (2) there is a final 

adjudication on the merits of the prior action; (3) the party 

against whom the doctrine is invoked was a party or in privity 

with a party to a prior action; and (4) the party against whom 

the doctrine is raised had a full and fair opportunity to litigate 

the issue in the prior action. 

Collateral estoppel, or issue preclusion, applies to the decisions of administrative 

agencies. See syl. pt. 2, Vest v. Bd. of Educ. of the Cty. of Nicholas, 193 W. Va. 222, 455 

S.E.2d 781 (1995) (“For issue or claim preclusion to attach to quasi-judicial 

determinations of administrative agencies, at least where there is no statutory authority 

directing otherwise, the prior decision must be rendered pursuant to the agency’s 

adjudicatory authority and the procedures employed by the agency must be substantially 

similar to those used in a court. In addition, the identicality of the issues litigated is a key 

component to the application of administrative res judicata or collateral estoppel.”). 

All requisite factors for collateral estoppel are present in this instant appeal. The 

parties are the same in both grievance proceedings; the facts upon which the BOE based 

its decisions are identical; and Adkins had a full opportunity to litigate the related appeal, 

although his actions led to the dismissal of the appeal. Applying our jurisprudence on 

issue preclusion, we conclude that the immoral actions of Adkins justifying his 

termination likewise justified his initial suspension. 

6 This Court’s dismissal order found that Adkins’s brief “appear[ed] to be merely a 

recycled version of what was filed in circuit court, with little to no attempt to set out how 

the circuit court erred.” 

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For these reasons, the order of the Circuit Court of Kanawha County entered on 

October 21, 2014, is reversed, and the suspension of Adkins without pay is affirmed. 

Reversed. 

ISSUED: June 15, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISQUALIFIED: 

Justice Margaret L. Workman 

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