H. B. 2578
(By Delegates Susman, Poling,
Fletcher and Stephens)
[Introduced
February 28, 2001
; referred to the
Committee on Education then Finance.]
A BILL to amend and reenact sections seven-a and eight-b, article
four, chapter eighteen-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating to
the posting of vacancies in professional and service personnel
positions in public schools.
Be it enacted by the Legislature of West Virginia:
That sections seven-a and eight-b, article four, chapter
eighteen-a of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-7a. Employment, promotion and transfer of professional
personnel; seniority.
A county board of education shall make decisions affecting the
hiring of professional personnel other than classroom teachers on
the basis of the applicant with the highest qualifications.
Further, the county board shall make decisions affecting the hiring
of new classroom teachers on the basis of the applicant with the
highest qualifications. In judging qualifications, consideration
shall be given to each of the following: Appropriate certification
and/or licensure; amount of experience relevant to the position
or, in the case of a classroom teaching position, the amount of
teaching experience in the subject area; the amount of course work
and/or degree level in the relevant field and degree level
generally; academic achievement; relevant specialized training;
past performance evaluations conducted pursuant to section twelve,
article two of this chapter; and other measures or indicators upon
which the relative qualifications of the applicant may fairly be
judged. If one or more permanently employed instructional
personnel apply for a classroom teaching position and meet the
standards set forth in the job posting, the county board of
education shall make decisions affecting the filling of such
positions on the basis of the following criteria: Appropriate
certification and/or licensure; total amount of teaching experience; the existence of teaching experience in the required
certification area; degree level in the required certification
area; specialized training directly related to the performance of
the job as stated in the job description; receiving an overall
rating of satisfactory in evaluations over the previous two years;
and seniority. Consideration shall be given to each criterion with
each criterion being given equal weight. If the applicant with the
most seniority is not selected for the position, upon the request
of the applicant a written statement of reasons shall be given to
the applicant with suggestions for improving the applicant's
qualifications.
The seniority of classroom teachers as defined in section one,
article one of this chapter with the exception of guidance
counselors shall be determined on the basis of the length of time
the employee has been employed as a regular full-time certified
and/or licensed professional educator by the county board of
education and shall be granted in all areas that the employee is
certified and/or licensed.
Upon completion of one hundred thirty-three days of employment
in any one school year, substitute teachers shall accrue seniority
exclusively for the purpose of applying for employment as a permanent, full-time professional employee. One hundred
thirty-three days or more of said employment shall be prorated and
shall vest as a fraction of the school year worked by the
permanent, full-time teacher.
Guidance counselors and all other professional employees, as
defined in section one, article one of this chapter, except
classroom teachers, shall gain seniority in their nonteaching area
of professional employment on the basis of the length of time the
employee has been employed by the county board of education in that
area:
Provided, That if an employee is certified as a classroom
teacher, the employee accrues classroom teaching seniority for the
time that that employee is employed in another professional area.
For the purposes of accruing seniority under this paragraph,
employment as principal, supervisor or central office
administrator, as defined in section one, article one of this
chapter, shall be considered one area of employment.
Employment for a full employment term shall equal one year of
seniority, but no employee may accrue more than one year of
seniority during any given fiscal year. Employment for less than
the full employment term shall be prorated. A random selection
system established by the employees and approved by the board shall be used to determine the priority if two or more employees
accumulate identical seniority:
Provided, That when two or more
principals have accumulated identical seniority, decisions on
reductions in force shall be based on qualifications.
Whenever a county board is required to reduce the number of
professional personnel in its employment, the employee with the
least amount of seniority shall be properly notified and released
from employment pursuant to the provisions of section two, article
two of this chapter:
Provided, That all persons employed in a
certification area to be reduced who are employed under a temporary
permit shall be properly notified and released before a fully
certified employee in such a position is subject to release:
Provided, however, That an employee subject to release shall be
employed in any other professional position where such employee is
certified and was previously employed or to any lateral area for
which such employee is certified and/or licensed, if such
employee's seniority is greater than the seniority of any other
employee in that area of certification and/or licensure:
Provided
further, That if an employee subject to release holds certification
and/or licensure in more than one lateral area and if such
employee's seniority is greater than the seniority of any other employee in one or more of those areas of certification and/or
licensure, the employee subject to release shall be employed in the
professional position held by the employee with the least seniority
in any of those areas of certification and/or licensure.
For the purpose of this article, all positions which meet the
definition of classroom teacher as defined in section one, article
one of this chapter, shall be lateral positions. For all other
professional positions the county board of education shall adopt a
policy by the thirty-first day of October, one thousand nine
hundred ninety-three, and may modify said policy thereafter as
necessary, which defines which positions shall be lateral
positions. The board shall submit a copy of its policy to the
state board within thirty days of adoption or any modification, and
the state board shall compile a report and submit same to the
legislative oversight commission on education accountability by the
thirty-first day of December, one thousand nine hundred
ninety-three, and by such date in any succeeding year in which any
county board submits a modification of its policy relating to
lateral positions. In adopting such a policy, the board shall give
consideration to the rank of each position in terms of title,
nature of responsibilities, salary level, certification and/or licensure, and days in the period of employment.
After the fifth day prior to the beginning of the
instructional term, or after the first day of the second half of
the instructional term, no person employed and assigned to a
professional position may transfer to another professional position
in the county during that half of the instructional term:
Provided, That such person may apply for any posted, vacant
positions with the successful applicant assuming the position at
the beginning of the next half of the instructional term:
Provided, however, That professional personnel who have been on an
approved leave of absence may fill these vacancies prior to the
next semester. The superintendent may fill a position before the
next instructional term when it is determined to be in the best
interest of the students.
All professional personnel whose seniority with the county
board is insufficient to allow their retention by the county board
during a reduction in work force shall be placed upon a preferred
recall list. As to any professional position opening within the
area where they had previously been employed or to any lateral area
for which they have certification and/or licensure, such employee
shall be recalled on the basis of seniority if no regular, full-time professional personnel, or those returning from leaves of
absence with greater seniority, are qualified, apply for and accept
such position. Before position openings that are known or expected
to extend for twenty consecutive employment days or longer for
professional personnel may be filled by the board, the board shall
be required to notify all qualified professional personnel on the
preferred list and give them an opportunity to apply, but failure
to apply shall not cause such employee to forfeit any right to
recall. The notice shall be sent by certified mail to the last
known address of the employee, and it shall be the duty of each
professional personnel to notify the board of continued
availability annually of any change in address or of any change in
certification and/or licensure.
Boards shall be required to post and date notices of all
openings in established, existing or newly created positions in
conspicuous working places for all professional personnel to
observe for at least five working days. The notice shall be posted
within twenty working days of such position openings and shall
include the job description. Any special criteria or skills that
are required by the position shall be specifically stated in the
job description and directly related to the performance of the job.
Postings for vacancies made pursuant to this section shall be
written so as to insure that the largest possible pool of qualified
applicants may apply. Job postings may not require criteria which
are not necessary for the successful performance of the job and may
not be written with the intent to favor a specific applicant. No
vacancy shall be filled until after the five-day minimum posting
period. If one or more applicants meets the qualifications listed
in the job posting, the successful applicant to fill the vacancy
shall be selected by the board within thirty working days of the
end of the posting period.
The board may not change the job
description or posting and repost the position to avoid filling the
position with one of the qualified applicants: Provided, That a
position held by a certified and/or licensed teacher who has been
issued a permit for full-time employment and is working toward
certification in the permit area shall not be subject to posting if
the certificate is awarded within five years. Nothing provided
herein shall prevent the county board of education from eliminating
a position due to lack of need.
Notwithstanding any other provision of the code to the
contrary, where the total number of classroom teaching positions in
an elementary school does not increase from one school year to the next, but there exists in that school a need to realign the number
of teachers in one or more grade levels, kindergarten through six,
teachers at the school may be reassigned to grade levels for which
they are certified without that position being posted:
Provided,
That the employee and the county board of education mutually agree
to the reassignment.
When the total number of classroom teaching positions in an
elementary school needs to be reduced, such reduction shall be made
on the basis of seniority with the least senior classroom teacher
being recommended for transfer:
Provided, That a specified grade
level needs to be reduced and the lest senior employee in the
school is not in that grade level, the least senior classroom
teacher in the grade level that needs to be reduced shall be
reassigned to the position made vacant by the transfer of the least
senior classroom teacher in the school without that position being
posted:
Provided, however, That the employee is certified and/or
licensed and agrees to the reassignment.
Any board failing to comply with the provisions of this
article may be compelled to do so by mandamus and shall be liable
to any party prevailing against the board for court costs and
reasonable attorney fees as determined and established by the court. Further, employees denied promotion or employment in
violation of this section shall be awarded the job, pay and any
applicable benefits retroactive to the date of the violation and
payable entirely from local funds. Further, the board shall be
liable to any party prevailing against the board for any court
reporter costs including copies of transcripts.
§18A-4-8b. Seniority rights for school service personnel.
A county board shall make decisions affecting promotions and
the filling of any service personnel positions of employment or
jobs occurring throughout the school year that are to be performed
by service personnel as provided in section eight of this article,
on the basis of seniority, qualifications and evaluation of past
service.
Qualifications shall mean that the applicant holds a
classification title in his category of employment as provided in
this section and must be given first opportunity for promotion and
filling vacancies. Other employees then must be considered and
shall qualify by meeting the definition of the job title as defined
in section eight of this article, that relates to the promotion or
vacancy. If requested by the employee, the board must show valid
cause why an employee with the most seniority is not promoted or employed in the position for which he or she applies. Applicants
shall be considered in the following order:
(1) Regularly employed service personnel;
(2) Service personnel whose employment has been discontinued
in accordance with this section;
(3) Professional personnel who held temporary service
personnel jobs or positions prior to the ninth day of June, one
thousand nine hundred eighty-two, and who apply only for such
temporary jobs or positions;
(4) Substitute service personnel; and
(5) New service personnel.
The county board may not prohibit a service employee from
retaining or continuing his employment in any positions or jobs
held prior to the effective date of this section and thereafter.
A promotion shall be defined as any change in his
or her
employment that the employee
deems considers to improve his
or her
working circumstance within his classification category of
employment and shall include a transfer to another classification
category or place of employment if the position is not filled by an
employee who holds a title within that classification category of
employment. Each class title listed in section eight of this article shall be considered a separate classification category of
employment for service personnel, except for those class titles
having Roman numeral designations, which shall be considered a
single classification of employment. The cafeteria manager class
title shall be included in the same classification category as
cooks. The executive secretary class title shall be included in
the same classification category as secretaries. Paraprofessional,
autism mentor and braille or sign language specialist class titles
shall be included in the same classification category as aides.
For purposes of determining seniority under this section an
employee's seniority begins on the date that he or she enters into
his or her
assigned duties.
Notwithstanding any other provisions of this chapter to the
contrary, decisions affecting service personnel with respect to
extra-duty assignments shall be made in the following manner: An
employee with the greatest length of service time in a particular
category of employment shall be given priority in accepting
extra-duty assignments, followed by other fellow employees on a
rotating basis according to the length of their service time until
all such employees have had an opportunity to perform similar
assignments. The cycle then shall be repeated: Provided, That an alternative procedure for making extra-duty assignments within a
particular classification category of employment may be utilized if
the alternative procedure is approved both by the county board and
by an affirmative vote of two thirds of the employees within that
classification category of employment. For the purpose of this
section, "extra-duty assignments" are defined as irregular jobs
that occur periodically or occasionally such as, but not limited
to, field trips, athletic events, proms, banquets and band festival
trips.
Boards shall be required to post and date notices of all job
vacancies of established existing or newly-created positions in
conspicuous working places for all school service employees to
observe for at least five working days. The notice of the job
vacancies shall include the job description, the period of
employment, the amount of pay and any benefits and other
information that is helpful to the employees to understand the
particulars of the job. No criteria may be required for the
position which is not necessary for the successful performance of
the job and no posting may be written with the intent to favor a
particular applicant. After the five-day minimum posting period
all vacancies shall be filled within twenty working days from the posting date notice of any job vacancies of established existing or
newly created positions.
All decisions by county boards concerning reduction in work
force of service personnel shall be made on the basis of seniority,
as provided in this section.
The seniority of any service personnel shall be determined on
the basis of the length of time the employee has been employed by
the county board within a particular job classification. For the
purpose of establishing seniority for a preferred recall list as
provided in this section, when an employee has been employed in one
or more classifications, the seniority accrued in each previous
classification shall be retained by the employee.
If a county board is required to reduce the number of
employees within a particular job classification, the employee with
the least amount of seniority within that classification or grades
of classification shall be properly released and employed in a
different grade of that classification if there is a job vacancy:
Provided, That if there is no job vacancy for employment within the
classification or grades of classification, he or she shall be
employed in any other job classification which he or she previously
held with the county board if there is a vacancy and shall retain any seniority accrued in the job classification or grade of
classification.
If two or more employees accumulate identical seniority, the
priority shall be determined by a random selection system
established by the employees and approved by the county board.
All employees whose seniority with the county board is
insufficient to allow their retention by the county board during a
reduction in work force shall be placed upon a preferred recall
list and shall be recalled to employment by the county board on the
basis of seniority.
Employees placed upon the preferred list shall be recalled to
any position openings by the county board within the
classification(s), where they had previously been employed, or to
any lateral position for which the employee is qualified or to a
lateral area for which an employee has certification and/or
licensure.
Employees on the preferred recall list shall not forfeit their
right to recall by the county board if compelling reasons require
an employee to refuse an offer of reemployment by the county board.
The county board shall notify all employees on the preferred
recall list of all position openings that from time to time exist. The notice shall be sent by certified mail to the last known
address of the employee; it is the duty of each such employee to
notify the county board of any change in the address of the
employee.
No position openings may be filled by the county board,
whether temporary or permanent, until all employees on the
preferred recall list have been properly notified of existing
vacancies and have been given an opportunity to accept
reemployment.
Any board failing to comply with the provisions of this
article may be compelled to do so by mandamus and is liable to any
party prevailing against the board for court costs and the
prevailing party's reasonable attorney fee, as determined and
established by the court. Further, employees denied promotion or
employment in violation of this section shall be awarded the job,
pay and any applicable benefits retroactively to the date of the
violation and shall be paid entirely from local funds. Further,
the board is liable to any party prevailing against the board for
any court reporter costs including copies of transcripts.
NOTE: The purpose of this bill is to ensure that all jobs in
public schools are posted fairly and in a manner intended to
attract qualified applicants to the positions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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