WEST virginia legislature
2019 regular session
Senate Bill 632
Senators Maynard, Azinger, Blair, Boso, Cline, Roberts, Rucker, Smith, Sypolt, Tarr, Trump, and Jeffries, original sponsors
[Passed March 9, 2019; to take effect July 1, 2019]
AN ACT to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-5-48; to amend said code by adding thereto a new section, designated §18-20-11; and to amend and reenact §18A-2-8 of said code, all relating to improving student safety; requiring safety and security measures of each school facility be upgraded when necessary to ensure, to the best of the county board’s ability, the safety of students; creating Safe Schools Fund and providing for distribution of funds subject to appropriation; requiring video cameras capable of audio recording in certain public special education classrooms upon appropriation of funds; designating principal as the custodian; requiring written explanation if there is an interruption in the operation of the video camera; setting forth required capabilities of the video camera; prohibited monitoring in certain areas; allowing video camera to not be in operation when students not present; providing for notice of placement; setting forth video retention and access requirements; providing that immunity from liability not waived and liability not created; providing limitations on use of video; providing for protection of confidentiality and identity of students not involved in incident; allowing appeals to state board; permitting funding from Safe School Fund and gifts, grants, or donations; authorizing state board rule; adding to justifications for which a school employee may be suspended or dismissed; providing duty and authority to provide safe and secure environment; requiring reports on suspensions and dismissals of employees and database maintained by state superintendent of individuals suspended or dismissed for certain reasons.
Be it enacted by the Legislature of West Virginia:
CHAPTER 18. EDUCATION.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-48. Safety and security measures for school facilities; Safe Schools Fund created.
(a) Each county board of education and multicounty vocational center shall annually assess the safety and security of each of the school facilities within its boundaries. Safety and security measures of each facility shall be upgraded when necessary to ensure, to the best of the county board’s ability, the safety of the students within each facility. Each county board of education shall report annually the safety and security measures it has put in place, including upgrades thereto, to the State Department of Education. Annually, the State Department of Education shall compile the information from the county boards of education, and report the information to the Legislative Oversight Commission on Education Accountability.
(b) As used in this section, “safety and security measures” means action taken by a county board of education or multicounty vocational center that improves the security of a school facility and the safety of the students within such facility, including, but not limited to, hiring a school resource officer, installing weapon detection systems, upgrading facility doors or windows, etc.
(c) There is hereby created in the State Treasury a special revenue fund to be known as the Safe Schools Fund. The fund shall consist of all moneys received from legislative appropriations and other sources to further the purpose of this section: Provided, That annually, the West Virginia Department of Education shall request an appropriation based on the requests of the county boards of education. Subject to legislative appropriation, the funds appropriated annually to the School Safety Fund shall be distributed to the county boards of education and multicounty vocational centers, with the funding amount per school determined by dividing the total annual appropriation by the total number of public schools throughout the state. All moneys distributed from this fund shall be used to support the purpose and intent of this section and all moneys must be spent to support the school for which the funding was derived: Provided, however, That moneys distributed from this fund also may be used for the purposes of §18-20-11 of this code, relating to video cameras in certain special education classrooms. Any moneys remaining in the fund at the close of the fiscal year shall be carried forward for use in the next fiscal year. Fund balances shall be invested with the state’s Consolidated Investment Fund and any and all interest shall be used solely for the purposes that moneys deposited in the fund may be used pursuant to this article.
ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.
§18-20-11. Video cameras required in certain special education classrooms.
(a) Upon appropriation of funds by the Legislature, a county board of education shall ensure placement of video cameras in self-contained classrooms as defined in state board policy.
(b) As used in this section:
(1) “Incident” means a raised suspicion by a teacher, aide, parent, or guardian of a child, of bullying, abuse, or neglect of a child or of harm to an employee of a public school by:
(A) An employee of a public school or school district; or
(B) Another student;
(2) “Self-contained classroom” means a classroom at a public school in which a majority of the students in regular attendance are provided special education instruction and as further defined in state board policy; and
(3) “Special education” means the same as defined in §18-20-1 et seq. of this code.
(c) A county board of education shall provide a video camera to a public school for each self-contained classroom that is a part of that school which shall be used in every self-contained classroom. The principal of the school shall be the custodian of the video camera, all recordings generated by the video camera, and access to those recordings pursuant to this section.
(d)(1) Every public school that receives a video camera under this section shall operate and maintain the video camera in every self-contained classroom that is part of that school.
(2) If there is an interruption in the operation of the video camera for any reason, a written explanation should be submitted to the school principal and the county board explaining the reason and length for which there was no recording. The explanation shall be maintained at the county board office for at least one year.
(e)(1) A video camera placed in a self-contained classroom shall be capable of:
(A) Monitoring all areas of the self-contained classroom, including, without limitation, a room attached to the self-contained classroom and used for other purposes; and
(B) Recording audio from all areas of the self-contained classroom, including, without limitation, a room attached to the self-contained classroom and used for other purposes;
(2) A video camera placed in a self-contained classroom shall not monitor a restroom or any other area in the self-contained classroom where a student changes his or her clothes except for incidental monitoring of a minor portion of a restroom or other area where a student changes his or her clothes because of the layout of the self-contained classroom.
(3) A video camera placed in a self-contained classroom is not required to be in operation during the time in which students are not present in the self-contained classroom.
(f) Before a public school initially places a video camera in a self-contained classroom pursuant to this section, the public school shall provide written notice of the placement to:
(1) The parent or legal guardian of a student who is assigned to the self-contained classroom;
(2) The county board; and
(3) The school employee(s) who is assigned to work with one or more students in the self-contained classroom.
(g)(1) A public school shall retain video recorded from a camera placed under this section for at least three months after the date the video was recorded after which the recording shall be deleted or otherwise made unretrievable.
(2) If a person requests to view a recording under subsection (k) of this section, the public school shall retain the recording from the date of the request until:
(A)(i) Except as provided in §18-20-11(g)(2)(A)(ii) of this code, the person views the recording;
(ii) A person who requests to view a recording shall make himself or herself available for viewing the recording within 30 days after being notified by the public school that the person's request has been granted; and
(B) Any investigation and any administrative or legal proceedings that result from the recording have been completed, including, without limitation, the exhaustion of all appeals.
(h) This section does not:
(1) Waive any immunity from liability of a public school district or employee of a public school district; or
(2) Create any liability for a cause of action against a public school or school district or employee of a public school or school district.
(i) A public school or school district shall not:
(1) Allow regular, continuous, or continual monitoring of video recorded under this section; or
(2) Use video recorded under this section for:
(A) Teacher evaluations; or
(B) Any purpose other than the promotion of the health, well-being, and safety of students receiving special education and related services in a self-contained classroom.
(j) Except as provided under subsections (k) and (l) of this section, a video recording of a student made under this section is confidential and shall not be released or viewed.
(k) Within seven days of receiving a request, a public school or school district shall allow viewing of a video recording by:
(1) A public school or school district employee who is involved in an alleged incident that is documented by the video recording and has been reported to the public school or school district;
(2) A parent or legal guardian of a student who is involved in an alleged incident that is documented by the video recording and has been reported to the public school or school district;
(3) An employee of a public school or school district as part of an investigation into an alleged incident that is documented by the video recording and has been reported to the public school or school district;
(4) A law-enforcement officer as part of an investigation into an alleged incident that is documented by the video recording and has been reported to the law-enforcement agency; or
(5) The Department of Health and Human Resources as part of a child abuse and neglect investigation: Provided, That any access provided to the Department of Health and Human Resources pursuant to this subdivision shall comply with the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g.
(l) When a video is under review as part of the investigation of an alleged incident, and the video reveals a student violating a disciplinary code or rule of the school, which violation is not related to the alleged incident for which the review is occurring, and which violation is not already the subject of a disciplinary action against the student, the student is not subject to disciplinary action by the school for such unrelated violation unless it reveals a separate incident as described in §18-20-11(b)(1) of this code.
(m) It is not a violation of subsection (j) of this section if a contractor or other employee of a public school or school district incidentally views a video recording under this section if the contractor or employee of a public school or school district is performing job duties related to the:
(1) Installation, operation, or maintenance of video equipment; or
(2) Retention of video recordings.
(n) This section does not limit the access of a student's parent or legal guardian to a video recording regarding the student under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, or any other law.
(o) A public school or school district shall:
(1) Take necessary precautions to conceal the identity of a student who appears in a video recording but is not involved in the alleged incident documented by the video recording for which the public school allows viewing under subsection (j) of this section, including, without limitation, blurring the face of the uninvolved student; and
(2) Provide procedures to protect the confidentiality of student records contained in a video recording in accordance with the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, or any other law.
(p)(1) Any aggrieved person may appeal to the State Board of Education an action by a public school or school district that the person believes to be in violation of this section.
(2) The state board shall grant a hearing on an appeal under this subsection within 45 days of receiving the appeal.
(q)(1) A public school or school district may use funds distributed from the Safe Schools Fund created in §18-5-48 of this code to meet the requirements of this section.
(2) A public school or school district may accept gifts, grants, or donations to meet the requirements of this section.
(r) The state board may promulgate a rule in accordance with §29A-3B-1 et seq. of this code to clarify the requirements of this section and address any unforeseen issues that might arise relating to the implementation of the requirements of this section.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-8. Suspension and dismissal of school personnel by board; appeal.
(a) Notwithstanding any other provisions of law, a board may suspend or dismiss any person in its employment at any time for: Immorality, incompetency, cruelty, insubordination, intemperance, willful neglect of duty, unsatisfactory performance, a finding of abuse by the Department of Health and Human Resources in accordance with §49-1-1 et seq. of this code, the conviction of a misdemeanor or a guilty plea or a plea of nolo contendere to a misdemeanor charge that has a rational nexus between the conduct and performance of the employee’s job, the conviction of a felony or a guilty plea or a plea of nolo contendere to a felony charge.
(b) A charge of unsatisfactory performance shall not be made except as the result of an employee performance evaluation pursuant to §18A-2-12 of this code. The charges shall be stated in writing served upon the employee within two days of presentation of the charges to the board.
(c) The affected employee shall be given an opportunity, within five days of receiving the written notice, to request, in writing, a level three hearing and appeals pursuant to the provisions of §6C-2-1 et seq. of this code, except that dismissal for a finding of abuse or the conviction of a felony or guilty plea or plea of nolo contendere to a felony charge is not by itself a grounds for a grievance proceeding. An employee charged with the commission of a felony, a misdemeanor with a rational nexus between the conduct and performance of the employee’s job, or child abuse may be reassigned to duties which do not involve direct interaction with pupils pending final disposition of the charges.
(d) A county board of education has the duty and authority to provide a safe and secure environment in which students may learn and prosper; therefore, it may take necessary steps to suspend or dismiss any person in its employment at any time should the health, safety, and welfare of students be jeopardized or the learning environment of other students has been impacted.
(e) It shall be the duty of any county superintendent to report any employee suspended or dismissed in accordance with this section, including the rationale for the suspension or dismissal, to the state superintendent. The state superintendent shall maintain a database of all individuals suspended or dismissed for jeopardizing the health, safety, and welfare of students, or for impacting the learning environment of other students. The database shall also include the rationale for the suspension or dismissal. The database shall be confidential and shall only be accessible to county human resource directors, county superintendents, and the state superintendent.