WEST virginia Legislature
2018 regular session
Senate Bill 8
By Senators Gaunch and Trump
10, 2018; Referred
to the Committee on Education]
A BILL to amend and reenact §18A-4-7a of the Code of West Virginia, 1931, as amended, relating to permitting a county board of education to base its employment decisions, transfers, reassignments, reductions in number of professional personnel, reductions in classroom teaching positions and reductions in the workforce on an individual’s qualifications; and setting forth the factors to be considered when determining an individual’s qualifications.
Be it enacted by the Legislature of West Virginia:
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
promotion and transfer of professional personnel;
(a) A county board of education shall make decisions affecting the filling of vacancies, transfers, reassignments, reductions in classroom teaching positions and reductions in force in professional positions of employment on the basis of the applicant with the highest qualifications: Provided, That the county superintendent shall be hired under separate criteria pursuant to §18‑4‑2 of this code.
(b) In judging qualifications for the filling of vacancies, transfers, reassignments, reducing the number of professional personnel, reductions in classroom teaching positions and reductions in force of professional positions of employment, consideration shall be given to each of the following:
(1) Appropriate certification, licensure or both;
(2) Amount of experience relevant to the position or, in the case of a classroom teaching position, the amount of teaching experience in the required certification area;
(3) The amount of course work, degree level or both in the relevant field and degree level generally;
(4) Academic achievement;
(5) In the case of a principal or classroom teaching position, certification by the National Board for Professional Teaching Standards;
(6) Specialized training relevant to performing the duties of the job;
(7) Past performance evaluations conducted pursuant to §18A‑2‑12 and §18A‑3C‑2 of this code or, in the case of a classroom teacher, past evaluations of the applicant’s performance in the teaching profession;
(9) Other measures or indicators upon which the relative qualifications of the applicant may fairly be judged;
(10) In the case of a classroom teaching position, the recommendation of the principal of the school at which the applicant will be performing a majority of his or her duties; and
(11) In the case of a classroom teaching position, the recommendation, if any, resulting from the process established pursuant to the provisions of §18‑5A‑5 of this code by the faculty senate of the school at which the employee will be performing a majority of his or her duties.
(c) When filling of a vacancy pursuant to this section, a
county board is entitled to determine the appropriate weight to apply to each
of the criterion when assessing an applicant’s qualifications: Provided,
That if one or more permanently employed instructional personnel apply for a
classroom teaching position and meet the standards set forth in the job
posting, each criterion under subsection (b) of this section shall be given
equal weight except that the criterion in subdivisions (10) and (11) of
that subsection shall each be double weighted.
(d) For a classroom teaching position, if the principal and faculty senate recommend the same applicant pursuant to subdivisions (10) and (11), subsection (b) of this section, and the superintendent concurs with those recommendations, then the other provisions of subsections (b) and (c) of this section do not apply and the county board shall appoint that applicant notwithstanding any other provision of this code to the contrary.
(e) The state board shall promulgate a rule, including an
emergency rule if necessary, in accordance with
the provisions of §29A-3B‑1‑1
et seq. of this code to implement and interpret the provisions of
this section. The rule may provide for a classroom teacher who directly
participates in making recommendations pursuant to this section to be
compensated at the appropriate daily rate during periods of participation
beyond his or her individual contract.
(f) The recommendations of the principal and faculty senate made pursuant to subdivisions (10) and (11), subsection (b) of this section shall be based on a determination as to which applicant is the most highly qualified for the position: Provided, That nothing in this subsection may require principals or faculty senates to assign any amount of weight to any factor in making a recommendation.
(g) With the exception of guidance counselors, the seniority of classroom teachers, as defined in §18A‑1‑1 of this code, 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, licensed or both.
(h) Upon completion of one hundred thirty-three days of employment in any one school year, substitute teachers, except retired teachers and other retired professional educators employed as substitutes, 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.
(i) Guidance counselors and all other professional employees, as defined in §18A‑1‑1 of this code, 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 employee is employed in another professional area. For the purposes of accruing seniority under this subsection, employment as principal, supervisor or central office administrator, as defined in §18A‑1‑1 of this code, shall be considered one area of employment.
(j) Employment for a full employment term equals one year
of seniority, but an employee may not 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 county 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. All
decisions on reductions in force shall be based on qualifications as set
forth in subsection (b) of this section.
(k) Whenever a county board is required to reduce the
number of professional personnel in its employment, the employee
least amount of seniority who is least qualified, as set forth in
subsection (b) of this section, shall be properly notified and released
from employment pursuant to the provisions of §18A‑2‑2 of
this code. The provisions of this This subsection are is
subject to the following:
(1) 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;
(2) Notwithstanding any provision of this code to the contrary, for any vacancy in an established, existing or newly created position that, on or before March 1, is known to exist for the ensuing school year, upon recommendation of the superintendent, the board shall appoint the successful applicant from among all qualified applicants. All employees subject to release shall be considered applicants for the positions for which they are qualified and shall be considered before posting such vacancies for application by nonemployees;
(3) An employee subject to release shall be employed in
any other professional position where the employee is certified and was
previously employed or to any lateral area for which the employee is certified,
licensed or both:
if the employees seniority is greater than the seniority
of any other employee in that area of certification, licensure or both Provided,
That the employee is the most qualified person for that position;
(4) If an employee subject to release holds certification,
licensure or both in more than one lateral area and if the employees
is qualifications are greater than the seniority qualifications
of any other employee in one or more of those areas of certification, licensure
or both, the employee subject to release shall be employed in the professional
position held by the employee with the least seniority who is least
qualified in any of those areas of certification, licensure or both; and
(5) If, prior to August 1 of the year, a reduction in
force is approved, the reason for any particular reduction in force no longer
exists as determined by the county board in its sole and exclusive judgment,
the board shall rescind the reduction in force or transfer and shall notify the
released employee in writing of his or her right to be restored to his or her
position of employment. Within five days of being so notified, the released
employee shall notify the board, in writing, of his or her intent to resume his
or her position of employment or the right to be restored shall terminate.
Notwithstanding any other provision of this subdivision, if there is another
employee on the preferred recall list with proper certification and
seniority has greater qualifications, that person shall be placed in
the position restored as a result of the reduction in force being rescinded.
(l) For the purpose of this article, all positions which
meet the definition of “classroom teacher” as defined in §18A‑1‑1
of this code shall be lateral positions. For all other professional positions,
the county board of education shall adopt a policy by October 31, 1993, and may
modify the policy thereafter as necessary, which defines which positions shall
be lateral positions. In adopting the policy, the board shall give
consideration to the rank of each position in terms of title; nature of
responsibilities; salary level; and certification, licensure or both.
days in the period of employment.
(m) All professional personnel whose
qualifications, as determined by subsection (b) of this section, with the
county board is insufficient to allow their retention by the county board
during a reduction in workforce 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, licensure or both, the employee shall be recalled on the basis
of seniority qualifications if no regular, full-time professional
personnel, or those returning from leaves of absence with greater seniority are
qualified qualifications, apply for and accept the position.
(n) 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 the 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, licensure or both.
(o) Openings in established, existing or newly created positions shall be processed as follows:
(1) Boards shall be required to post and date notices of each opening at least once. At their discretion, boards may post an opening for a position other than classroom teacher more than once in order to attract more qualified applicants. At their discretion, boards may post an opening for a classroom teacher one additional time after the first posting in order to attract more qualified applicants only if fewer than three individuals apply during the first posting subject to the following:
(A) Each notice shall be posted in conspicuous working places for all professional personnel to observe for at least five working days;
(B) At least one notice shall be posted within twenty working days of the position openings and shall include the job description;
(C) 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;
(D) Postings for vacancies made pursuant to this section shall be written so as to ensure that the largest possible pool of qualified applicants may apply; and
(E) 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;
(2) No vacancy may be filled until after the five-day minimum posting period of the most recent posted notice of the vacancy;
(3) If one or more applicants under all the postings for a vacancy 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 first posting period;
(4) A position held by a teacher who is certified, licensed or both, 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; and
(5) Nothing provided herein may prevent the county board of education from eliminating a position due to lack of need.
(p) 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 mutually agree to the reassignment.
(q) Reductions in classroom teaching positions in elementary schools shall be determined pursuant to the considerations set forth in subsection (b) of this section and processed as follows:
(1) When the total number of classroom teaching positions
in an elementary school needs to be reduced, the reduction shall be made on the
seniority qualifications with the least senior qualified
classroom teacher being recommended for transfer; and
(2) When a specified grade level needs to be reduced and
senior qualified employee in the school is not in that
grade level, the senior most qualified classroom teacher in the
grade level that needs to be reduced shall be reassigned to the position made
vacant by the transfer of the senior most qualified classroom
teacher in the school without that position being posted: Provided, That
the employee is certified, licensed or both and agrees to the reassignment.
(r) 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
(s) The county board shall compile, update annually on
July 1 and make available by electronic or other means to all employees a list
of all professional personnel employed by the county, their areas of
certification and their
(t) Notwithstanding any other provision of this code to the contrary, upon recommendation of the principal and approval by the classroom teacher and county board, a classroom teacher assigned to the school may at any time be assigned to a new or existing classroom teacher position at the school without the position being posted.
NOTE: The purpose of this bill is to permit a county board of education to base its employment decisions, transfers, reassignments, reducing the number of professional personnel, reductions in classroom teaching positions and reductions in the workforce on an individual’s qualifications. The bill sets forth the factors to be considered when determining an individual’s qualifications.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.