ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2073
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
[Passed March 11, 1995; in effect from passage.]
AN ACT to amend article two, chapter eighteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto a new section, designated section five-d; to
amend and reenact section twenty-six of said article; to amend
article five of said chapter by adding thereto three new
sections, designated sections fifteen-f, forty-two and forty-
three; to amend and reenact section two, article five-a of
said chapter; to amend and reenact sections one and one-a,
article five, chapter eighteen-a of said code; to amend
article two, chapter sixty-one of said code by adding thereto
two new sections, designated sections nine-b and fourteen-f;
and to amend and reenact section eleven-a, article seven of said chapter, all relating to education generally; the duty of
the state board to report guidelines for productive and safe
schools to the governor and the Legislature; requiring
regional educational service agencies to submit a monthly
report on turnaround time and be responsible for computer
installation, maintenance and repair; the duty of the parent
to affirm, upon registration, that their child is not
currently under suspension or expulsion; the creation of a
county-wide council on productive and safe schools; the duty
of the county board of education to report the county-wide
plans to the state board of education; the involvement of the
local school improvement councils in the productive and safe
school plans; the authority of teachers and other school
personnel to exclude students from the classroom or school
bus; the implementation of the responsible students program
and the peer mediation program by the county board of
education; the suspension and expulsion, discretionary and
mandatory, of pupils from the school or school bus; the due
process requirements for suspension and expulsion; the
authority of the county board of education to lessen mandatory periods of expulsion; the temporary removal of a disabled
child from the school; the re-enrollment of students who have
been expelled from school, whether such expulsion was in state
or out of state; the penalties for malicious assault of a
child near a school; the penalties for abduction of a child
near a school; the possession of firearms or deadly weapons on
premises of educational facilities.
Be it enacted by the Legislature of West Virginia:
That article two, chapter eighteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section five-d;
that section twenty-six of said article be amended and reenacted;
that article five of said chapter be amended by adding thereto
three new sections, designated sections fifteen-f, forty-two and
forty-three; that section two, article five-a of said chapter be
amended and reenacted; that sections one and one-a, article five,
chapter eighteen-a of said code be amended and reenacted; that
article two, chapter sixty-one of said code be amended by adding
thereto two new sections, designated sections nine-b and fourteen-
f; and that section eleven-a, article seven of said chapter be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-5d. Duty of board to report guidelines for productive and
safe schools.
On or before the first day of December, one thousand nine
hundred ninety-five, the board shall assess and report to the
governor and to the legislative oversight commission on education
accountability the guidelines adopted by the county boards of
education, as described in section forty-three, article five,
chapter eighteen of this code. The board shall report the
estimated costs associated for alternative instructional proposals
stated in such guidelines. The board shall further incorporate its
recommendations for the use of the peer mediation program in cases
involving school violence.
§18-2-26. Establishment of multicounty regional educational
service agencies; purposes; authority to implement regional
services.
(a) In order to consolidate and administer more effectively
existing educational programs and services so individual districts
will have more discretionary moneys for educational improvement and in order to equalize and extend educational opportunities, the
state board of education shall establish multicounty regional
educational service agencies for the purpose of providing high
quality, cost effective educational programs and services to the
county school systems, and shall make such rules as may be
necessary for the effective administration and operation of such
agencies: Provided, That the legislative oversight commission on
education accountability shall commission a comprehensive
feasibility study of the regional educational service agencies
which shall be completed and reported to the legislative oversight
commission on education accountability no later than the tenth day
of January, one thousand nine hundred ninety-five.
(b) In furtherance of these purposes, it is the duty of the
board of directors of each regional educational service agency to
continually explore possibilities for the delivery of services on
a regional basis which will facilitate equality in the educational
offerings among counties in its service area, permit the delivery
of high quality educational programs at a lower per student cost,
strengthen the cost effectiveness of education funding resources,
reduce administrative and/or operational costs, including the consolidation of administrative, coordinating and other county
level functions into region level functions, and promote the
efficient administration and operation of the public school systems
generally.
Technical, operational, programmatic or professional services
would be among the types of services appropriate for delivery on a
regional basis.
(c) In addition to performing the services and functions
required by the provisions of this or any other section of this
code, a regional educational service agency may implement regional
programs and services by a majority vote of its board of
directors. When said vote is not unanimous, the board of directors
shall file a plan for the service or program delivery with the
state board describing the program or service, the manner of
delivery and the projected savings and/or the improved quality of
the program or service. The state board shall promulgate rules
requiring a county board that declines to participate in such
programs or services to show just cause for not participating and
the estimated savings accruing to the county therefrom. If a
county board fails to show that savings will accrue to the county or that the quality of the program will be significantly and
positively affected as a result of its decision not to participate,
the state board shall withhold from the county's foundation
allowance for administrative cost the lesser of the amount of the
estimated savings or the allocation for the county's foundation
allowance for administrative cost.
(d) The state board, in conjunction with the various regional
educational service agencies, shall develop an effective model for
the regional delivery of instruction in subjects where there exists
low student enrollment or a shortage of certified teachers or where
such delivery method substantially improves the quality of an
instructional program. Such model shall incorporate an interactive
electronic classroom approach to instruction. To the extent funds
are appropriated or otherwise available, county boards or regional
educational service agencies may adopt and utilize the model for
the delivery of such instruction.
(e) Each regional educational service agency shall conduct a
study setting forth how the following services and functions may be
performed by the agency for public schools and school districts
within the region without terminating the employment of personnel employed by school districts prior to the effective date of this
subsection: Accounting, purchasing, food service, transportation,
delivery of high cost services to low incidence student
populations, audiovisual material distribution, facilities
planning, federal program coordination, personnel recruiting and an
integrated regional computer information system. On or before the
tenth day of January, one thousand nine hundred ninety, each
regional educational service agency shall submit the study to the
state board, to the standing committees on education and finance of
the West Virginia Senate and House of Delegates and to the
secretary of education and the arts: Provided, That in the event
such study is implemented those individuals employed prior to the
effective date thereof shall not have their employment terminated
as a result of the study.
(f) Each regional educational service agency shall commence
implementation of a uniform integrated regional computer
information system as recommended by the state board of education
on or before the first day of January, one thousand nine hundred
ninety-one. Each county board of education shall use the computer
information system for data collection and reporting to the state department of education beginning no later than the first day of
July, one thousand nine hundred ninety-four. County boards of
education shall bear the cost of and fully participate in the
implementation of the system by: (1) Acquiring necessary,
compatible equipment to participate in the regional computer
information system; or (2) following receipt of a waiver from the
state superintendent, operating a comparable management information
system at a lower cost which provides at least all uniform
integrated regional computer information system software modules
and allows on-line, interactive access for schools and the county
board of education office onto the statewide communications
network. All data formats shall be the same as for the uniform
integrated regional information system and will reside at the
regional computer. Any county granted a waiver shall receive
periodic notification of any incompatibility or deficiency in its
system. Continued inability of any county to meet the above
criteria shall, upon notification to the county no later than the
first day of April, one thousand nine hundred ninety-five, require
the county to use the uniform integrated regional computer
information system no later than the first day of July, one thousand nine hundred ninety-five. No county shall expand any
system either through the purchase of additional software or
hardware that does not advance the goals and implementation of the
uniform integrated regional computer information system as
recommended by the state board: Provided, That nothing contained
herein shall prevent the state superintendent from granting a one-
year extension to those counties projected to have budget deficits
for the school year beginning on the first day of July, one
thousand nine hundred ninety-four.
(g) Each regional educational service agency shall submit a
report and evaluation of the services provided and utilized by the
schools within each respective region. Furthermore, each school
shall submit an evaluation of the services provided by the regional
educational service agency, which shall include an evaluation of
the regional educational service agency program, suggestions as to
how to improve utilization and the individual school's plan as to
development of new programs and enhancement of existing programs.
The reports shall be due by the first day of January of each year
commencing with the year one thousand nine hundred ninety-one and
shall be made available to the state board of education, standing committees on education of the West Virginia Senate and House of
Delegates and to the secretary of education and the arts.
(h) A regional board shall be empowered to receive and
disburse funds from the state and federal governments, member
counties, gifts and grants.
(i) Notwithstanding any other provision of the code to the
contrary, employees of regional educational service agencies shall
be reimbursed for travel, meals and lodging at the same rate as
state employees under the travel management office of the
department of administration.
(j) Regional educational service agencies shall hold at least
one half of their regular meetings during hours other than those of
a regular school day.
(k) Regional educational service agencies shall serve as the
lead agency for computer installation, maintenance and repair for
the Basic Skills Computer Program. By the first day of October,
one thousand nine hundred ninety-five, and quarterly thereafter,
each regional educational service agency shall submit a status
report on turn around time for computer installation, maintenance
and repair to the state superintendent of schools who shall then submit a report to the legislative oversight commission on
education accountability. The above-mentioned status report for
turn around time for computer installation, maintenance and repair
shall be based on the following suggested time schedules:
Network File Servers............forty-eight hours
Local Area Networks.............forty-eight hours
West Virginia Education
Information System............twenty-four hours
Computer workstations..........three to five days
Printers.......................three to five days
Other peripherals..............three to five days
Regional educational service agencies shall also submit an audit
report to the legislative oversight commission on education
accountability each year.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-15f. Affirmation regarding the suspension of expulsion of
a pupil from school.
(a) Prior to the admission of a pupil to any public school in
West Virginia, the county superintendent shall require the pupil's
parent(s), guardian(s) or custodian(s) to provide, upon registration, a sworn statement or affirmation indicating whether
the student is, at the time, under suspension or expulsion from
attendance at a private or public school in West Virginia or
another state. Any person willfully making a materially false
statement or affirmation shall be guilty of a misdemeanor, and upon
conviction the penalty shall be the same as provided for "false
swearing" pursuant to section three, article five, chapter sixty-
one of this code.
(b) Notwithstanding any other provision of this code to the
contrary, any pupil who has been suspended or expelled from school
pursuant to section one-a, article five, chapter eighteen-a of this
code, or who has been suspended or expelled from a public or
private school in another state, due to actions described in
section one-a, article five, chapter eighteen-a of this code, may
not be admitted to any public school within the state of West
Virginia until the period of suspension or expulsion has expired.
§18-5-42. County-wide council on productive and safe schools.
(a) On or before the thirtieth day of April, one thousand nine
hundred ninety-five, each county shall develop a county-wide
council on productive and safe schools, which shall be comprised of the following members:
(1) The county superintendent, who shall serve as the chair of
the county-wide council on productive and safe schools;
(2) One representative from each local school improvement
council, to be elected by a majority vote of each local school
improvement council;
(3) The prosecuting attorney or his or her designee;
(4) A representative of the department of health and human
resources created pursuant to the provisions of section two,
article one, chapter five-f of this code, to be appointed in a
manner determined by the secretary of the department;
(5) A representative of the law-enforcement agencies situated
in the county in which the school is situated to be recommended by
the county sheriff;
(6) A representative of the county board of education for the
county in which the school is situated to be appointed by the
president of the county board of education;
(7) The county board of education's supervisor of
transportation; and
(8) A representative of the regional comprehensive behavioral health center as designated by the office of behavioral health
services in which the county school system is situated, to be
appointed by the executive director of the center.
(9) When the members listed in subdivisions (1) through (8) do
not include at least two classroom teachers, then the county
superintendent shall appoint additional members so that at least
two classroom teachers are members of the county-wide council.
(10) When the members listed in subdivisions (1) through (8)
do not include at least two school principals, then the county
superintendent shall appoint additional members so that at least
two school principals are members of the county-wide council.
(b) The county superintendent shall call an organizational
meeting of the council as soon as practicable after the effective
date of this section.
(c) On or before the first day of October, one thousand nine
hundred ninety-five, the council shall compile the local school
improvement council's guidelines developed pursuant to subsection
(f), section two, article five-a of this chapter and shall report
and deliver such guidelines to the county board of education, along
with the council's assessment and recommendations regarding the guidelines. The council also shall provide a report of the
estimated cost for any proposed alternative settings or programs.
(d) No meetings of the county-wide council shall be held
during instructional time.
§18-5-43. Duty of the county board of education to report the
county-wide productive and safe school plans to the
West
Virginia board of education.
On or before the first day of November, one thousand nine
hundred ninety-five, each county board of education shall deliver,
together with its assessment, the recommendations and guidelines
developed by the county-wide council on productive and safe schools
to the West Virginia board of education.
ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-2. Local school improvement councils; election.
(a) A local school improvement council shall be established at
every school consisting of the following:
(1) The principal, who shall serve as an ex officio member of
the council and be entitled to vote;
(2) Three teachers elected by the faculty senate of the
school;
(3) Two school service personnel elected by the school service
personnel employed at the school;
(4) Three parent(s), guardian(s) or custodian(s) of students
enrolled at the school elected by the parent(s), guardian(s) or
custodian(s) members of the school's parent teacher organization:
Provided, That if there is no parent teacher organization, the
parent(s), guardian(s) or custodian(s) members shall be elected by
the parent(s), guardian(s) or custodian(s) of students enrolled at
the school in such manner as may be determined by the principal;
(5) Two at-large members appointed by the principal, one of
whom resides in the school's attendance area and one of whom
represents business or industry, neither of whom is eligible for
membership under any of the other elected classes of members;
(6) In the case of vocational-technical schools, the
vocational director: Provided, That if there is no vocational
director, then the principal may appoint no more than two
additional representatives, one of whom represents business and one
of whom represents industry;
(7) In the case of a school with students in grade seven or
higher, the student body president or other student in grade seven or higher elected by the student body in those grades.
(b) The principal shall arrange for such elections to be held
prior to the fifteenth day of September of each school year to
elect a council and shall give notice of the elections at least one
week prior to the elections being held. To the extent practicable,
all elections to select council members shall be held within the
same week. Parent(s), guardian(s) or custodian(s), teachers and
service personnel elected to the council shall serve a two-year
term, and elections shall be arranged in such a manner that no more
than two teachers, no more than two parent(s), guardian(s) or
custodian(s), and no more than one service person are elected in a
given year. All other non-ex-officio members shall serve one-year
terms. Council members may only be replaced upon death,
resignation, failure to appear at three consecutive meetings of the
council for which notice was given, or a change in personal
circumstances so that the person is no longer representative of the
class of members from which appointed. In the case of replacement,
an election shall be held to elect another qualified person to
serve the unexpired term of the person being replaced.
(c) As soon as practicable after the election of council
members, and no later than the first day of October of each school
year, the principal shall convene an organizational meeting of the
school improvement council. The principal shall notify each member
in writing at least two employment days in advance of the
organizational meeting. At this meeting, the principal shall
provide each member with a copy of the current applicable section
of this code and any state board rule or regulation promulgated
pursuant to the operation of these councils. The council shall
elect from its membership a chair and two members to assist the
chair in setting the agenda for each council meeting. The chair
shall serve a term of one year and no person may serve as chair for
more than two consecutive terms. If the chair's position becomes
vacant for any reason, the principal shall call a meeting of the
council to elect another qualified person to serve the unexpired
term.
(d) Once elected, the chair is responsible for notifying each
member of the school improvement council in writing two employment
days in advance of any council meeting.
School improvement councils shall meet at least once every nine weeks or equivalent grading period at the call of the chair or
by three fourths of its members.
(e) School improvement councils shall be considered for the
receipt of school of excellence awards under section three of this
article and competitive grant awards under section twenty-nine,
article two of this chapter, and may receive and expend such grants
for the purposes provided in such section.
In any and all matters which may fall within the scope of both
the school improvement councils and the school curriculum teams
authorized in section five of this article, the school curriculum
teams shall be deemed to have jurisdiction.
In order to promote innovations and improvements in the
environment for teaching and learning at the school, a school
improvement council shall receive cooperation from the school in
implementing policies and programs it may adopt to:
(1) Encourage the involvement of parent(s), guardian(s) or
custodian(s) in their child's educational process and in the
school;
(2) Encourage businesses to provide time for their employees
who are parent(s), guardian(s) or custodian(s) to meet with teachers concerning their child's education;
(3) Encourage advice and suggestions from the business
community;
(4) Encourage school volunteer programs and mentorship
programs; and
(5) Foster utilization of the school facilities and grounds
for public community activities.
(f) On or before the eighth day of June, one thousand nine
hundred ninety-five, each local school improvement council shall
develop and deliver a report to the county-wide council on
productive and safe schools. The report shall include guidelines
for the instruction and rehabilitation of pupils who have been
excluded from the classroom, suspended from the school, or expelled
from the school, the description and recommendation of in-school
suspension programs, a description of possible alternative
settings, schedules for instruction, and alternative education
programs and an implementation schedule for such guidelines. The
guidelines shall include the following:
(1) A system to provide for effective communication and
coordination between school and local emergency services agencies;
(2) A preventive discipline program which may include the
responsible students program devised by the West Virginia board of
education as adopted by the county board of education, pursuant to
the provisions of subsection (e), section one, article five,
chapter eighteen-a of this code; and
(3) A student involvement program, which may include the peer
mediation program or programs devised by the West Virginia board of
education as adopted by the county board of education, pursuant to
the provisions of subsection (e), section one, article five,
chapter eighteen-a of this code.
(g) The council may include in its report to the county-wide
council on productive and safe schools provisions of the state
board of education policy 4373, Student Code of Conduct, or any
expansion of such policy which increases the safety of students in
schools in this state and is consistent with the policies and other
laws of this state.
(h) Councils may adopt their own guidelines established under
this section. In addition, the councils may adopt all or any part
of the guidelines proposed by other local school improvement
councils, as developed under this section, which are not inconsistent with the laws of this state, the policies of West
Virginia board of education or the policies of the county board of
education.
(i) The state board of education shall provide assistance to
a local school improvement council upon receipt of a reasonable
request for that assistance.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1. Authority of teachers and other school personnel;
exclusion of pupils having infectious diseases;
suspension or expulsion of disorderly pupils;
corporal punishment abolished.
(a) The teacher shall stand in the place of the parent(s),
guardian(s) or custodian(s) in exercising authority over the
school, and shall have control of all pupils enrolled in the school
from the time they reach the school until they have returned to
their respective homes, except that where transportation of pupils
is provided, the driver in charge of the school bus or other mode
of transportation shall exercise such authority and control over
the children while they are in transit to and from the school.
(b) Subject to the rules of the state board of education, the teacher shall exclude from the school any pupil or pupils known to
have or suspected of having any infectious disease, or any pupil or
pupils who have been exposed to such disease, and shall immediately
notify the proper health officer, or medical inspector, of such
exclusion. Any pupil so excluded shall not be readmitted to the
school until such pupil has complied with all the requirements of
the rules governing such cases, or has presented a certificate of
health signed by the medical inspector or other proper health
officer.
(c) The teacher shall have authority to exclude from his or
her classroom or school bus, any pupil who is guilty of disorderly
conduct; who in any manner interferes with an orderly educational
process; who threatens, abuses, or otherwise intimidates or
attempts to intimidate a school employee or a pupil; or who
willfully disobeys a school employee; or who uses abusive or
profane language directed at a school employee. Any pupil excluded
shall be placed under the control of the principal of the school or
a designee. The excluded pupil may be admitted to the classroom or
school bus only when the principal, or a designee, provides written
certification to the teacher that the pupil may be readmitted and specifies the specific type of disciplinary action, if any, which
was taken. If the principal finds that disciplinary action is
warranted, he shall provide written and, if possible, telephonic
notice of such action to the parent(s), guardian(s) or
custodian(s). When a teacher excludes the same pupil from his or
her classroom or from a school bus three times in one school year,
and after exhausting all reasonable methods of classroom discipline
provided in the school discipline plan, the pupil may be readmitted
to the teacher's classroom only after the principal, teacher and,
if possible, the parent(s), guardian(s) or custodian(s) of the
pupil have held a conference to discuss the pupil's disruptive
behavior patterns, and the teacher and the principal agree on a
course of discipline for the pupil and inform the parent(s),
guardian(s) or custodian(s) of the course of action. Thereafter,
if the pupil's disruptive behavior persists, upon the teacher's
request, the principal may, to the extent feasible, transfer the
pupil to another setting.
(d) Corporal punishment of any pupil by a school employee is
prohibited.
(e) The West Virginia board of education and county boards of education shall adopt policies consistent with the provisions of
this section encouraging the use of alternatives to corporal
punishment, providing for the training of school personnel in
alternatives to corporal punishment and for the involvement of
parent(s), guardian(s) or custodian(s) in the maintenance of school
discipline. The county boards of education shall provide for the
immediate incorporation and implementation in the schools of a
preventive discipline program, which may include the responsible
student program, and a student involvement program, which may
include the peer mediation program, devised by the West Virginia
board of education. Each board may modify such programs to meet the
particular needs of the county. The county boards shall provide in-
service training for teachers and principals relating to assertive
discipline procedures and conflict resolution. The county boards of
education may also establish cooperatives with private entities to
provide middle educational programs, which may include programs
focusing on developing individual coping skills, conflict
resolution, anger control, self-esteem issues, stress management,
and decision making for students and any other program related to
preventive discipline.
(f) For the purpose of this section: (1) "Pupil or student"
shall include any child, youth or adult who is enrolled in any
instructional program or activity conducted under board
authorization and within the facilities of or in connection with
any program under public school direction: Provided, That in the
case of adults the pupil-teacher relationship shall terminate when
the pupil leaves the school or other place of instruction or
activity; (2) "teacher" shall mean all professional educators as
defined in section one, article one of this chapter and shall
include the driver of a school bus or other mode of transportation.
(g) Teachers shall exercise such other authority and perform
such other duties as may be prescribed for them by law or by the
rules of the state board of education not inconsistent with the
provisions of this chapter and chapter eighteen of this code.
§18A-5-1a. Possessing deadly weapons on premises of educational
facilities; possessing a controlled substance on
premises of educational facilities; assaults and
batteries committed by pupils upon teachers or other
school personnel; temporary suspension, hearing;
procedure, notice and formal hearing; extended suspension; sale of narcotic; expulsion; exception.
(a) A principal shall suspend a pupil from school or from
transportation to or from the school on any school bus if the
pupil, in the determination of the principal, after an informal
hearing pursuant to subsection (d) of this section, has: (i)
Violated the provisions of subsection (b), section fifteen, article
two, chapter sixty-one of this code; (ii) violated the provisions
of subsection (b), section eleven-a, article seven, chapter sixty-
one of this code; or (iii) sold a narcotic drug, as defined in
section one hundred one, article one, chapter sixty-a of this code,
on the premises of an educational facility, at a school-sponsored
function or on a school bus. If a student has been suspended
pursuant to this subsection, the principal shall, within twenty-
four hours, request that the county superintendent recommend to the
county board of education that the student be expelled. Upon such
a request by a principal, the county superintendent shall recommend
to the county board of education that the student be expelled.
Upon such recommendation, the county board of education shall
conduct a hearing in accordance with subsections (e) and (f) of
this section to determine if the student committed the alleged violation. If the county board of education finds that the student
did commit the alleged violation, the county board of education
shall expel the student.
(b) A principal shall suspend a pupil from school, or from
transportation to or from the school on any school bus, if the
pupil, in the determination of the principal after an informal
hearing pursuant to subsection (d) of this section, has: (i)
Committed an act or engaged in conduct that would constitute a
felony under the laws of this state if committed by an adult; or
(ii) unlawfully possessed on the premises of an educational
facility or at a school-sponsored function a controlled substance
governed by the Uniform Controlled Substances Act as described in
chapter sixty-a of this code. If a student has been suspended
pursuant to this subsection, the principal may request that the
superintendent recommend to the county board of education that the
student be expelled. Upon such recommendation by the county
superintendent, the county school board may hold a hearing in
accordance with the provisions of subsections (e) and (f) of this
section to determine if the student committed the alleged
violation. If the county board of education finds that the student did commit the alleged violation, the county board of education may
expel the student.
(c) A principal may suspend a pupil from school, or
transportation to or from the school on any school bus, if the
pupil, in the determination of the principal after an informal
hearing pursuant to subsection (d) of this section: (i) Threatened
to injure, or in any manner injured, a pupil, teacher,
administrator or other school personnel; (ii) willfully disobeyed
a teacher; (iii) possessed alcohol in an educational facility, on
school grounds, a school bus, or at any school-sponsored function;
(iv) used profane language directed at a school employee or pupil;
(v) intentionally defaced any school property; (vi) participated in
any physical altercation with another person while under the
authority of school personnel; or (vii) habitually violated school
rules or policies. If a student has been suspended pursuant to
this subsection, the principal may request that the superintendent
recommend to the county board of education that the student be
expelled. Upon such recommendation by the county superintendent,
the county school board may hold a hearing in accordance with the
provisions of subsections (e) and (f) of this section to determine if the student committed the alleged violation. If the county
board of education finds that the student did commit the alleged
violation, the county board of education may expel the student.
(d) The actions of any pupil which may be grounds for his or
her suspension or expulsion under the provisions of this section
shall be reported immediately to the principal of the school in
which the pupil is enrolled. If the principal determines that the
alleged actions of the pupil would be grounds for suspension, he or
she shall conduct an informal hearing for the pupil immediately
after the alleged actions have occurred. The hearing shall be held
before the pupil is suspended unless the principal believes that
the continued presence of the pupil in the school poses a
continuing danger to persons or property or an ongoing threat of
disrupting the academic process, in which case the pupil shall be
suspended immediately and a hearing held as soon as practicable
after the suspension.
The pupil and his or her parent(s), guardian(s) or
custodian(s), as the case may be, shall be given telephonic notice,
if possible, of this informal hearing, which notice shall briefly
state the grounds for suspension.
At the commencement of the informal hearing, the principal
shall inquire of the pupil as to whether he or she admits or denies
the charges. If the pupil does not admit the charges, he or she
shall be given an explanation of the evidence possessed by the
principal and an opportunity to present his or her version of the
occurrence. At the conclusion of the hearing or upon the failure
of the noticed student to appear, the principal may suspend the
pupil for a maximum of ten school days, including the time prior to
the hearing, if any, for which the pupil has been excluded from
school.
The principal shall report any suspension the same day it has
been decided upon, in writing, to the parent(s), guardian(s) or
custodian(s) of the pupil by certified mail, return receipt
requested, to the county superintendent and to the faculty senate
of the school at the next meeting after the suspension.
(e) Prior to a hearing before the county board of education,
the county board of education shall cause a written notice, which
states the charges and the recommended disposition, to be served
upon the pupil and his or her parent(s), guardian(s) or
custodian(s), as the case may be. Such notice shall set forth a date and time at which such hearing shall be held, which date shall
be within the ten-day period of suspension imposed by the
principal.
(f) The board of education shall hold the scheduled hearing
to determine if the pupil should be reinstated or should, or under
the provisions of this section, must be expelled from school. At
this hearing the pupil may be represented by counsel, may call his
or her own witnesses to verify his or her version of the incident
and may confront and cross-examine witnesses supporting the charge
against him or her. The hearing shall be recorded by mechanical
means, unless recorded by a certified court reporter. The hearing
may be postponed for good cause shown by the pupil but he or she
shall remain under suspension until after the hearing. The state
board of education may adopt other supplementary rules of procedure
to be followed in these hearings. At the conclusion of the hearing
the county board of education either shall order the pupil
reinstated immediately or at the end of his or her initial
suspension or shall suspend the pupil for a further designated
number of days or shall expel the pupil from the public schools of
such county.
(g) Pupils may be expelled pursuant to the provisions of this
section for a period not to exceed one school year, except that if
a pupil is determined to have violated the provisions of subsection
(a) of this section the pupil shall be expelled for a period of not
less than twelve consecutive months: Provided, That the county
superintendent may lessen the mandatory period of twelve
consecutive months for the expulsion of the pupil if the
circumstances of the pupil's case demonstrably warrant. Upon the
reduction of the period of expulsion, the county superintendent
shall prepare a written statement setting forth the circumstances
of the pupil's case which warrant the reduction of the period of
expulsion. The county superintendent shall submit the statement to
the county board of education, the principal, the faculty senate
and the local school improvement council for the school from which
the pupil was expelled.
(h) Notwithstanding the preceding provisions of this section,
if a pupil has prior to the actions complained of being classified
as or is eligible to be classified as an exceptional child, other
than gifted, under the provisions of section one, article twenty,
chapter eighteen of this code, special consideration shall be given to such pupil as hereinafter provided.
An exceptional child may not be suspended or expelled for
conduct that is the proximate result of the child's disability:
Provided, That an exceptional child may be temporarily removed from
school for his own protection, the protection of school personnel,
or the protection of other pupils.
An exceptional child may be temporarily removed, suspended or
expelled for a period in excess of three consecutive school days or
ten cumulative school days only when such student has committed an
act involving the possession of a firearm, as defined in section
two, article seven, chapter sixty-one of this code. Such child may
be placed in an alternative educational setting by the
individualized education program committee, as described in section
one, article twenty, chapter eighteen of this code, for a period of
not more than forty-five days. During this time, the parent(s),
guardian(s) or custodian(s) may request a hearing to contest such
placement of the child. Said child shall remain in the alternative
placement until the hearing is held notwithstanding any provisions
of the code to the contrary.
For purposes of this section, exceptional child does not include gifted children.
(i) In all hearings under this section, facts shall be found
by a preponderance of the evidence.
(j) For purposes of this section, nothing herein shall be
construed to be in conflict with the federal provisions of the
Individuals with Disabilities Education Act of 1990 (PL 101-476).
(k) Principals may exercise any other authority and perform
any other duties to discipline pupils consistent with state and
federal law, including policies of the state board of education.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9b. Penalties for malicious or unlawful assault or assault
of a child near a school.
Any person who, under the provisions of section nine of this
article, maliciously assaults a child sixteen years of age or under
within one thousand feet of a school is guilty of a felony, and,
upon conviction, shall be punished by confinement in the
penitentiary not less than five nor more than fifteen years.
§61-2-14f. Penalties for abduction of a child near a school.
Any person who, under the provisions of section fourteen of this article, abducts a child sixteen years of age or under within
one thousand feet of a school is guilty of a felony, and, upon
conviction, shall be punished by confinement in the penitentiary
not less than five nor more than fifteen years.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-11a. Possessing deadly weapons on premises of educational
facilities; reports by school principals; suspension
of driver license; possessing deadly weapons on
premises housing courts of law and in offices of
family law master.
(a) The Legislature hereby finds that the safety and welfare
of the citizens of this state are inextricably dependent upon
assurances of safety for children attending, and the persons
employed by, schools in this state and for those persons employed
with the judicial department of this state. It is for the purpose
of providing such assurances of safety, therefore, that subsections
(b), (g) and (h) of this section are enacted as a reasonable
regulation of the manner in which citizens may exercise those
rights accorded to them pursuant to section twenty-two, article
three of the Constitution of the state of West Virginia.
(b) (1) It shall be unlawful for any person to possess any firearm or any other deadly weapon on any school bus as defined in
section one, article one, chapter seventeen-a of this code, or in
or on any public or private primary or secondary education
building, structure, facility or grounds thereof, including any
vocational education building, structure, facility or grounds
thereof where secondary vocational education programs are conducted
or at any school-sponsored function.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official
capacity;
(B) A person specifically authorized by the board of education
of the county or principal of the school where the property is
located to conduct programs with valid educational purposes;
(C) A person who, as otherwise permitted by the provisions of
this article, possesses an unloaded firearm or deadly weapon in a
motor vehicle, or leaves an unloaded firearm or deadly weapon in a
locked motor vehicle;
(D) Programs or raffles conducted with the approval of the
county board of education or school which include the display of
unloaded firearms; or
(E) The official mascot of West Virginia University, commonly
known as "The Mountaineer", acting in his or her official capacity.
(3) Any person violating this subsection shall be guilty of a
felony, and, upon conviction thereof, shall be imprisoned in the
penitentiary of this state for a definite term of years of not less
than two years nor more than ten years, or fined not more than five
thousand dollars, or both.
(c) It shall be the duty of the principal of each school
subject to the authority of the state board of education to report
any violation of subsection (b) of this section discovered by such
principal to the state superintendent of schools within seventy-two
hours after such violation occurs. The state board of education
shall keep and maintain such reports and may prescribe rules
establishing policy and procedures for the making and delivery of
the same as required by this subsection. In addition, it shall be
the duty of the principal of each school subject to the authority
of the state board of education to report any violation of
subsection (b) of this section discovered by such principal to the
appropriate local office of the division of public safety within
seventy-two hours after such violation occurs.
(d) In addition to the methods of disposition provided by
article five, chapter forty-nine of this code, any court which
adjudicates a person who is fourteen years of age or older as
delinquent for a violation of subsection (b) of this section may,
in its discretion, order the division of motor vehicles to suspend
any driver's license or instruction permit issued to such person
for such period of time as the court may deem appropriate, such
suspension, however, not to extend beyond such person's nineteenth
birthday; or, where such person has not been issued a driver's
license or instruction permit by this state, order the division of
motor vehicles to deny such person's application for the same for
such period of time as the court may deem appropriate, such denial,
however, not to extend beyond such person's nineteenth birthday.
Any suspension ordered by the court pursuant to this subsection
shall be effective upon the date of entry of such order. Where the
court orders the suspension of a driver's license or instruction
permit pursuant to this subsection, the court shall confiscate any
driver's license or instruction permit in the adjudicated person's
possession and forward the same to the division of motor vehicles.
(e) (1) If a person eighteen years of age or older is convicted of violating subsection (b) of this section, and if such
person does not act to appeal such conviction within the time
periods described in subdivision (2) of this subsection, such
person's license or privilege to operate a motor vehicle in this
state shall be revoked in accordance with the provisions of this
section.
(2) The clerk of the court in which the person is convicted as
described in subdivision (1) of this subsection shall forward to
the commissioner a transcript of the judgment of conviction. If
the conviction is the judgment of a magistrate court, the
magistrate court clerk shall forward such transcript when the
person convicted has not requested an appeal within twenty days of
the sentencing for such conviction. If the conviction is the
judgment of a circuit court, the circuit clerk shall forward such
transcript when the person convicted has not filed a notice of
intent to file a petition for appeal or writ of error within thirty
days after the judgment was entered.
(3) If, upon examination of the transcript of the judgment of
conviction, the commissioner shall determine that the person was
convicted as described in subdivision (1) of this subsection, the commissioner shall make and enter an order revoking such person's
license or privilege to operate a motor vehicle in this state for
a period of one year, or, in the event the person is a student
enrolled in a secondary school, for a period of one year or until
the person's twentieth birthday, whichever is the greater period.
The order shall contain the reasons for the revocation and the
revocation period. The order of suspension shall advise the person
that because of the receipt of the court's transcript, a
presumption exists that the person named in the order of suspension
is the same person named in the transcript. The commissioner may
grant an administrative hearing which substantially complies with
the requirements of the provisions of section two, article five-a,
chapter seventeen-c of this code upon a preliminary showing that a
possibility exists that the person named in the notice of
conviction is not the same person whose license is being suspended.
Such request for hearing shall be made within ten days after
receipt of a copy of the order of suspension. The sole purpose of
this hearing shall be for the person requesting the hearing to
present evidence that he or she is not the person named in the
notice. In the event the commissioner grants an administrative hearing, the commissioner shall stay the license suspension pending
the commissioner's order resulting from the hearing.
(4) For the purposes of this subsection, a person is convicted
when such person enters a plea of guilty or is found guilty by a
court or jury.
(f) (1) It shall be unlawful for any parent(s), guardian(s)
or custodian(s) of a person less than eighteen years of age who
knows that said person is in violation of subsection (b) of this
section, or who has reasonable cause to believe that said person's
violation of said subsection is imminent, to fail to immediately
report such knowledge or belief to the appropriate school or
law-enforcement officials.
(2) Any person violating this subsection shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not more
than one thousand dollars, or shall be confined in jail not more
than one year, or both.
(g) (1) It shall be unlawful for any person to possess any
firearm or any other deadly weapon on any premises which houses a
court of law or in the offices of a family law master.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official
capacity; and
(B) A person exempted from the provisions of this subsection
by order of record entered by a court with jurisdiction over such
premises or offices.
(3) Any person violating this subsection shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not more
than one thousand dollars, or shall be confined in jail not more
than one year, or both.
(h) (1) It shall be unlawful for any person to possess any
firearm or any other deadly weapon on any premises which houses a
court of law or in the offices of a family law master with the
intent to commit a crime.
(2) Any person violating this subsection shall be guilty of a
felony, and, upon conviction thereof, shall be imprisoned in the
penitentiary of this state for a definite term of years of not less
than two years nor more than ten years, or fined not more than five
thousand dollars, or both.
(i) Nothing in this section may be construed to be in conflict
with the provisions of federal law.