Senate Bill No. 229
(By Senator Barnes)
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[Introduced January 16, 2008; referred to the Committee on
Education; and then to the Committee on Finance.]
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A BILL to amend and reenact §18A-1-1 of the Code of West Virginia,
1931, as amended; and to amend and reenact §18A-4-7a of said
code, all relating to defining "special program"; and creating
an exception for elementary special program, physical
education, music and art teachers from the seniority
requirements related to reductions.
Be it enacted by the Legislature of West Virginia:
That §18A-1-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §18A-4-7a of said code be
amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS.
§18A-1-1. Definitions.
The definitions contained in section one, article one, chapter
eighteen of this code apply to this chapter. In addition, the
following words used in this chapter and in any proceedings pursuant to this chapter have the meanings ascribed to them unless
the context clearly indicates a different meaning:
(a) "School personnel" means all personnel employed by a
county board whether employed on a regular full-time basis, an
hourly basis or otherwise. "School personnel" is comprised of two
categories: Professional personnel and service personnel;
(b) "Professional person" or "Professional personnel" means
those persons or employees who meet the certification requirements
of the state, licensing requirements of the state, or both, and
includes a professional educator and other professional employee;
(c) "Professional educator" has the same meaning as "teacher"
as defined in section one, article one, chapter eighteen of this
code. Professional educators are classified as follows:
(1) "Classroom teacher" means a professional educator who has
a direct instructional or counseling relationship with students and
who spends the majority of his or her time in this capacity;
(2) "Principal" means a professional educator who functions as
an agent of the county board and has responsibility for the
supervision, management and control of a school or schools within
the guidelines established by the county board. The principal's
major area of responsibility is the general supervision of all the
schools and all school activities involving students, teachers and
other school personnel;
(3) "Supervisor" means a professional educator who is responsible for working primarily in the field with professional
and other personnel in instructional and other school improvement.
This category includes other appropriate titles or positions with
duties that fit within this definition; and
(4) "Central office administrator" means a superintendent,
associate superintendent, assistant superintendent and other
professional educators who are charged with administering and
supervising the whole or some assigned part of the total program of
the countywide school system. This category includes other
appropriate titles or positions with duties that fit within this
definition;
(d) "Other professional employee" means a person from another
profession who is properly licensed and who is employed to serve
the public schools. This definition includes a registered
professional nurse, licensed by the West Virginia Board of
Examiners for Registered Professional Nurses, who is employed by a
county board and has completed either a two-year (sixty-four
semester hours) or a three-year (ninety-six semester hours) nursing
program;
(e) "Service person" or "service personnel", whether singular
or plural, means a nonteaching school employee who is not included
in the meaning of "teacher" as defined in section one, article one,
chapter eighteen of this code, and who serves the school or schools
as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch
and aides. Any reference to "service employee" or "service
employees" in this chapter or chapter eighteen of this Code means
service person or service personnel as defined in this section;
(f) "Principals Academy" or "Academy" means the Academy
created pursuant to section two-b, article three-a of this chapter;
(g) "Center for Professional Development" means the center
created pursuant to section one, article three-a of this chapter;
(h) "Job-sharing arrangement" means a formal, written
agreement voluntarily entered into by a county board with two or
more of its employees who wish to divide between them the duties
and responsibilities of one authorized full-time position;
(i) "Prospective employable professional person" whether
singular or plural, means a certified professional educator who:
(1) Has been recruited on a reserve list of a county board;
(2) Has been recruited at a job fair or as a result of contact
made at a job fair;
(3) Has not obtained regular employee status through the job
posting process provided for in section seven-a, article four of
this chapter; and
(4) Has obtained a baccalaureate degree from an accredited
institution of higher education within the past year;
(j) "Dangerous student" means a student who is substantially
likely to cause serious bodily injury to himself, herself or another individual within that student's educational environment,
which may include any alternative education environment, as
evidenced by a pattern or series of violent behavior exhibited by
the student, and documented in writing by the school, with the
documentation provided to the student and parent or guardian at the
time of any offense; and
(k) "Alternative education" means an authorized departure from
the regular school program designed to provide educational and
social development for students whose disruptive behavior places
them at risk of not succeeding in the traditional school structures
and in adult life without positive interventions.
(l) "Long-term substitute" means a substitute employee who
fills a vacant position:
(1) That the county superintendent expects to extend for at
least ninety consecutive days, and is either:
(A) Listed in the job posting as a long-term substitute
position of over ninety days; or
(B) Listed in a job posting as a regular, full-time position
and:
(i) Is not filled by a regular, full-time employee; and
(ii) Is filled by a substitute employee.
For the purposes of section two, article sixteen, chapter five
of this code, long-term substitute does not include a retired
employee hired to fill the vacant position.
(m) "Special Program" means IMC, Elementary Physical
Education, Head Start, Special Education, Title 1, federally funded
programs and multischool itinerant programs.
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-7a. Employment, promotion and transfer of professional
personnel; seniority.
(a) 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.
(b) The county board shall make decisions affecting the hiring
of new classroom teachers on the basis of the applicant with the
highest qualifications.
(c) In judging qualifications for hiring employees pursuant to
subsections (a) and (b) of this section, 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 subject area;
(3) The amount of course work, degree level or both in the
relevant field and degree level generally;
(4) Academic achievement;
(5) Relevant specialized training;
(6) Past performance evaluations conducted pursuant to section twelve, article two of this chapter; and
(7) Other measures or indicators upon which the relative
qualifications of the applicant may fairly be judged.
(d) 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 a decision affecting the filling of the
position on the basis of the following criteria:
(1) Appropriate certification, licensure or both;
(2) Total amount of teaching experience;
(3) The existence of teaching experience in the required
certification area;
(4) Degree level in the required certification area;
(5) Specialized training directly related to the performance
of the job as stated in the job description;
(6) Receiving an overall rating of satisfactory in the
previous two evaluations conducted pursuant to section twelve,
article two of this chapter; and
(7) Seniority.
(e) In filling positions pursuant to subsection (d) of this
section, 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.
(f) With the exception of guidance counselors, the seniority
of classroom teachers, as defined in section one, article one of
this chapter 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.
(g) 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.
(h) 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 the 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.
(i) 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.
(j) 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. The provisions of this subsection are 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) 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 employee's seniority is
greater than the seniority of any other employee in that area of
certification, licensure or both;
(3) If an employee subject to release holds certification,
licensure or both in more than one lateral area and if the
employee's seniority is greater than the seniority 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
in any of those areas of certification, licensure or both; and
(4) If, prior to the first day of August 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 higher
seniority, that person shall be placed in the position restored as
a result of the reduction in force being rescinded.
(k) 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 the 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 the report to the
Legislative Oversight commission on education accountability by the
thirty-first day of December, one thousand nine hundred
ninety-three, and by that date in any succeeding year in which any
county board submits a modification of its policy relating to
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; certification, licensure
or both; and days in the period of employment.
(l) After the fifth day prior to the beginning of the
instructional term, no person employed and assigned to a
professional position may transfer to another professional position in the county during that instructional term unless the person
holding that position does not have valid certification. The
provisions of this subsection are subject to the following:
(1) The person may apply for any posted, vacant positions with
the successful applicant assuming the position at the beginning of
the next instructional term;
(2) Professional personnel who have been on an approved leave
of absence may fill these vacancies upon their return from the
approved leave of absence; and
(3) The county board, upon recommendation of the
superintendent may fill a position before the next instructional
term when it is determined to be in the best interest of the
students: Provided, That the county superintendent shall notify
the state board of each transfer of a person employed in a
professional position to another professional position after the
fifth day prior to the beginning of the instructional term. The
Legislature finds that it is not in the best interest of the
students particularly in the elementary grades to have multiple
teachers for any one grade level or course during the instructional
term. It is the intent of the Legislature that the filling of
positions through transfers of personnel from one professional
position to another after the fifth day prior to the beginning of
the instructional term should be kept to a minimum.
(m) 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, licensure or both, the 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
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 which
shall be subject to the following:
(A) The notices shall be posted in conspicuous working places
for all professional personnel to observe for at least five working
days;
(B) The 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 shall be filled until after the five-day
minimum posting period;
(3) 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;
(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 shall 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 of education mutually agree
to the reassignment.
(q) Reductions in classroom teaching positions in elementary
schools shall be 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 basis of seniority with the least senior classroom
teacher being recommended for transfer: Provided, That the senior
employee or employees being retained are certified, licensed or
both to teach the grade level and subject being reduced: Provided
however, That if the least senior classroom teacher is a special
program, physical education, music or art teacher, he or she is
excluded from the requirements of the provision; and
(2) When a specified grade level needs to be reduced and the least 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, 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 transcripts.
(s) The county board shall compile, update annually on the
first day of July 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 seniority.
NOTE: The purpose of this bill is to create a definition
for"special programs" and to exclude elementary special programs,
physical education, music and art teachers from the seniority
requirements related to reductions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.