Senate Bill No. 552

(By Senators Wagner and Bailey)

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[Introduced February 20, 1995; referred to the Committee
on Education; and then to the Committee on Finance.]
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A BILL to amend and reenact section thirty-nine, article five, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section eight-a, article two, chapter eighteen-a of said code; to amend and reenact section eight-a, article two of said chapter; to amend and reenact sections eight-g, fifteen and sixteen, article four of said chapter; and to further amend said article by adding thereto a new section, designated section eight-h, all relating to providing school personnel who work during summer be allow to benefits of regular service personnel; providing seniority must be the basis for a division not to relieve a probationary employee; accumulation of seniority status while acting as a substitute school service employee; resolving question of senority by drawing numbers at random; evaluation of school service personnel; improvement plans; limitation of number of school service personnel positions to be held by an employee; filling positions created by leave of absence; and providing that all school service personnel assignments are considered as regular positions or extra-duty assignments.

Be it enacted by the Legislature of West Virginia:
That section thirty-nine, article five, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended, that sections eight-a, article two, chapter eighteen-a of said code be amended and reenacted; that sections eight-g, fifteen and sixteen, article four of said chapter be amended and reenacted; and that said article be further amended by adding thereto a new section designated sections eight-h, all to read as follows:
ARTICLE 5. COUNTY BOARD OF EDUCATION.

§18-5-39. Establishment of summer school programs; tuition.

Inasmuch as the present county school facilities for the most part lie dormant and unused during the summer months, and inasmuch as there are many students who are in need of remedial instruction and others who desire accelerated instruction, it is the purpose of this section to provide for the establishment of a summer school program, which program is to be separate and apart from the full school term as established by each county.
The board of education of any county shall have authority to establish a summer school program utilizing the public school facilities and to charge tuition for students who attend such summer school, such tuition not to exceed in any case the actual cost of operation of such summer school program: Provided, That any deserving pupil whose parents, in the judgment of the board, are unable to pay such tuition, may attend at a reduced charge or without charge. The county board of education shall have the authority to determine the term and curriculum of such summer schools based upon the particular needs of the individual county. The curriculum may include, but is not limited to, remedial instruction, accelerated instruction, and the teaching of manual arts. The term of such summer school program may not be established in such a manner as to interfere with the regular school term.
The county boards may employ as teachers for this summer school program any certified teacher. Certified teachers employed by the county board to teach in the summer school program shall be paid an amount to be determined by the county board and shall enter into a contract of employment in such form as is prescribed by the county board: Provided, That teachers who teach summer courses of instruction which are offered for credit and which are taught during the regular school year shall be paid at the same daily rate such teacher would receive if paid in accordance with the then current minimum monthly salary in effect for teachers in that county.
Any funds accruing from such tuition shall be credited to and expended within the existing framework of the general current expense fund of the county board.
Notwithstanding any other provision of this code to the contrary, the board shall fill professional positions established pursuant to the provisions of this section on the basis of certification and length of time the professional has been employed in the county's summer school program. In the event that no employee who has been previously employed in the summer school program holds a valid certification or licensure, a board shall fill the position as a classroom teaching position in accordance with section eight-b, article four, chapter eighteen-a of this code.
Notwithstanding any other provision of the code to the contrary, the county board of education is authorized to employ school service personnel to perform any related duties outside the regular school term as defined in section eight, article four, chapter eighteen-a of this code. An employee who was employed in any service personnel job or position during the immediate previous summer shall have the option of retaining such job or position if such exists during any succeeding summer. If such employee is unavailable or if the position is newly created, the position shall be filled pursuant to section eight-b, article four, chapter eighteen-a of this code. When any summer employee who is employed in a summer position is granted a leave of absence for the summer months, the board shall give regular employment status to such employee for that summer position which shall be filled under the procedure set forth in section eight-b, article four, chapter eighteen-a of this code. The summer employee on leave of absence shall have the option of returning to that summer position if such exists the succeeding summer or whenever such position is reestablished if it were abolished. The salary of a summer employee shall be in accordance with the salary schedule of persons regularly employed in the same position in the county where employed and persons employed in such positions shall be entitled to all rights, privileges, and benefits provided in sections five-b, eight, eight a, ten and fourteen of article four, chapter eighteen-a: Provided, That such persons shall not be entitled to a minimum employment term of two-hundred days for their summer position.
If a county board reduces in force the number of employees to be employed in a particular summer program or classification from the number employed in such position in previous summers, such reductions in force and priority in reemployment to such summer positions shall be based upon the length of service time in the particular summer program or classification.
For the purpose of this section, summer employment for service personnel shall be defined, but not limited to, filling jobs and positions as defined in section eight, article four, chapter eighteen-a of this code and especially established for and which are to be predominantly performed during the summer months to meet the needs of a county board of education.
ARTICLE 2. SCHOOL PERSONNEL.

§18A-2-8a. Notice to probationary personnel of rehiring or

nonrehiring; hearing.


The superintendent at a meeting of the board on or before the first Monday in May of each year shall provide in writing to the board a list of all probationary teachers that he recommends to be rehired for the next ensuing school year. The board shall act upon the superintendent's recommendations at that meeting in accordance with section one of this article. The board at this same meeting shall also act upon the retention of other probationary employees as provided in sections four and section five of this article. Any such probationary teacher or other probationary employee who is not rehired by the board at that meeting to be recommended for rehiring shall be notified in writing, by certified mail, return receipt requested, to such persons' last-known addresses within ten days following said board meeting, of their not having been rehired or not having been recommended for rehiring on or before the first day of April of the intention of the superintendent not to recommend the rehiring of the employee.
Any probationary teacher or other probationary employee who receives notice that he has will not been recommended for rehiring or other probationary employee who has not been reemployed may within ten days after receiving the written notice request a statement of the reasons for not having been rehired and may request a hearing before the board. Such hearing shall be held at the next regularly scheduled board of education meeting or a special meeting of the board called within thirty days of the request for hearing. At the hearing, the reasons for the nonrehiring must be shown.
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.

§18A-4-8g. Determination of seniority for service personnel.

The seniority for service personnel shall be determined in the following manner:
Seniority accumulation for a regular school service employee shall begin on the date such employee enters upon regular employment duties pursuant to a contract as provided in section five, article two of this chapter and shall continue until the employee's employment as a regular employee is severed with the county board of education. Seniority shall not cease to accumulate when an employee is absent without pay as authorized by the county board or the absence is due to illness or other reasons over which the employee has no control as authorized by the county board. Seniority accumulation for a substitute employee shall begin upon the date the employee enters upon the duties of a substitute as provided in section fifteen, article four of this chapter, after executing with the board a contract of employment as provided in section five, article two of this chapter. The seniority of a substitute employee, once established, shall continue until such employee enters into the duties of a regular employment contract as provided in section five, article two of this chapter or employment as a substitute with the county board of education is severed. Seniority of a regular or substitute employee shall continue to accumulate except during the time when an employee is willfully absent from employment duties because of a concerted work stoppage or strike or is suspended without pay.
For all purposes including the filling of vacancies and reduction in force, seniority shall be accumulated within particular classification categories of employment as those classification categories are referred to in section eight-e of this article: Provided, That when implementing a reduction in force, an employee with the least seniority within a particular classification category shall be properly released and placed on the preferred recall list. The particular classification title held by an employee within the classification category shall not be taken into consideration when implementing a reduction in force.
On or before the first day of September and the fifteenth day of January of each school year, county boards of education shall post at each county school or working station the current seniority list or lists of each school service classification. Each list shall contain the name of each regularly employed school service personnel employed in each classification and the date that each employee began performing his assigned duties in each classification. Current seniority lists of substitute school service personnel shall be available to employees upon request at the county board of education office.
The seniority of an employee who transfers out of a class title or classification category of employment and subsequently returns to said class title or classification category of employment shall be calculated as follows:
The county board of education shall establish the number of calendar days between the date the employee left the class title or category of employment in question and the date of return to the class title or classification category of employment. This number of days shall be added to the employee's initial seniority date to establish a new beginning seniority date within the class title or classification category. The employee shall then be considered as having held uninterrupted service within the class title or classification category from the newly established seniority date. The seniority of an employee who has had a break in the accumulation of seniority as a result of being willfully absent from employment duties because of a concerted work stoppage or strike shall be calculated in a like manner.
A substitute school service employee shall acquire regular employment status and seniority if said employee receives a position pursuant to subsections (2) and (5), section fifteen, article four of this chapter: Provided, That a substitute employee who accumulates regular employee seniority while holding a position acquired pursuant to subsections two and five, section fifteen, article four, of this chapter shall simultaneously accumulate substitute seniority. County boards of education shall not be prohibited from providing any benefits of regular employment for substitute employees, but such benefits shall not include regular employee status and seniority.
If two or more employees accumulate identical seniority, the priority shall be determined by a random selection system established by the employees and approved by the county board.
A board of education shall conduct such random selection within thirty days upon said employees establishing an identical seniority date. All employees with an identical seniority date within the same class title or classification category shall participate in the random selection. As long as the affected employees hold identical seniority within the same classification category, the initial random selection conducted by the board of education shall be permanent for the duration of the employment within the same classification category of said employees by the board of education. This random selection priority shall apply to the filling of vacancies and to the reduction in force of school service personnel: Provided, That if another employee or employees subsequently acquire seniority identical to the employees involved in the original random selection, a second random selection shall be held within thirty days to determine the seniority ranking of the new employee or employees within the group. The priority between the employees who participated in the original random selection shall remain the same. The second random selection shall remain the same. The second random selection will be performed by placing numbered pieces of paper equal to the number of employees with identical seniority in a container. The employees who were not involved in the original random selection will draw a number from the container which will determine their seniority within the group as a whole. This process will be repeated if additional employees subsequently acquire identical seniority. The same process will be utilized if additional employees are subsequently discovered to have the same seniority as the original group of employees but who did not participate in the original random selection through oversight or mistake.
Service personnel who are employed in a classification category of employment at the time when a vacancy is posted in the same classification category of employment shall be given first opportunity to fill such vacancy.
Seniority acquired as a substitute and as a regular employee shall be calculated separately and shall not be combined for any purpose. Seniority acquired within different classification categories shall be calculated separately: Provided, That when a school service employee makes application for a position outside of the classification category currently held, if the vacancy is not filled by an applicant within the classification category of the vacancy, the applicant shall combine all regular employment seniority acquired for the purposes of bidding on the position.
School service personnel who hold multi-classification titles shall accrue seniority in each classification category of employment which said employee holds and shall be considered an employee of each classification category contained within his multi-classification title. Multi-classified employees shall be subject to reduction in force in any category of employment contained within their multi-classification title based upon the seniority accumulated within said category of employment: Provided, That if a multi-classified employee is reduced in force in one classification category, said employee shall retain employment in any of the other classification categories that he holds within his multi-classification title. In such a case, the county board of education shall delete the appropriate classification title or classification category from the contract of the multi-classified employee.
When applying to fill a vacancy outside the classification categories held by the multi-classified employee, seniority acquired simultaneously in different classification categories shall be calculated as if accrued in one classification category only.
The seniority conferred herein shall apply retroactively to all affected school service personnel, but the rights incidental thereto shall commence as of the effective date of this section.
§18A-4-8h. Evaluation of school personnel; improvement plans.
All school service personnel shall receive regular evaluations of the performance of their duties. Such evaluations shall be fair, honest and impartial. School service personnel who hold continuing contract status will receive at least one evaluation by their immediate supervisor each school year to be completed on or before the first day of June of the current school year. School service personnel who hold probationary contract status will receive at least two evaluations by their immediate supervisor each school year. The first evaluation must be completed on or before the fifteenth day of January of the current school year and the second to be completed on or before the first day of June of the current school. Substitute employees shall be evaluated on any assignment which exceeds fifteen working days.
The state department of education shall design and provide an evaluation document which shall be utilized by county boards of education on or before the first day of July, one thousand nine hundred ninety-five. The evaluation document designed by the state board of education shall be utilized by county boards of education. The evaluation document shall provide for:
(1) An overall designation of "performance acceptable" or "performance Unacceptable" and other areas of evaluation as it deems proper;
(2) A signature and date line for the immediate supervisor and the employee;
(3) Space for comments or suggestions for improvement by the immediate supervisor; and
(4) Space for the employee to indicate agreement or disagreement with the evaluation or parts thereof.
The state department of education may, at its discretion, design separate evaluation documents for various classification categories or titles of employment and substitute employees.
A copy of an employee's evaluation shall provide to all regular employees and shall be discussed with the employee when presented. A copy of the evaluations of substitute employees shall be mailed to their last known address within ten working days of completion and the substitute employee shall be notified of the opportunity to discuss the evaluation with the immediate supervisor and shall be given the opportunity to do so at a mutually agreeable time if the employee so requests. An employee may file a written response to any evaluation with the immediate supervisor within ten working days of receipt of the evaluation. This response shall be made a part of the employee's personnel file and shall be attached to the evaluation in question.
An employee who receives the designation of "performance unacceptable" shall be placed on a written improvement plan to cover a time period of no less than thirty working days. The immediate supervisor shall design the improvement plan and provide a copy of said improvement plan to the employee. The improvement plan shall designate the deficiencies to be corrected and suggested action to accomplish the designated goals. The purpose of such an improvement plan is to give the employee a fair opportunity to improve his performance.
After completion of the plan of improvement, the immediate supervisor shall prepare an evaluation of the employee. If the evaluation results in a designation of "performance unacceptable," the employee will be placed on a second plan of improvement of no less than thirty working days. This plan of improvement shall be prepared by an improvement team. The improvement team shall consist of an employee designated by the affected employee, an administrator designated by the county superintendent and an experienced employee in the same classification category designated by the county superintendent. The designated administrator may be the immediate supervisor unless the employee objects.
The improvement team shall conduct at least two observations of the employee and provide a written summary of those observations to the employee. After the completion of the second improvement plan, the improvement team shall evaluate the employee on the standard form, provide a copy of this evaluation of the employee and discuss the evaluation with the employee. The employee shall have the right to file a written response to said evaluation within ten working days with his immediate supervisor. Such response will be forwarded to members of the improvement team and shall be placed in the employee's personnel file and attached to the evaluation in question.
No employee may be terminated for unacceptable performance of his or her duties, incompetency or correctable misconduct as provided in section eight, article two, chapter eighteen-a of this code, unless the above procedure is utilized immediately before discharge of the employee. However, nothing contained herein shall be construed to limit an employer to utilization of only two plans of improvement for an employee nor to require an employer to discharge an employee when the circumstances do not warrant such action: Provided, That nothing herein shall abridge the right of an employee to utilize the grievance procedure as provided in article twenty-nine, chapter eighteen of this code, to seek the modification or removal of an evaluation, plan of improvement or disciplinary action based thereon on the grounds that the document or process was inaccurate or unfair or the designation of another evaluator or improvement team on the same grounds.
The state department of education is authorized to promulgate rules and regulations consistent with this section for implementation of the evaluation and improvement plan process.
§18A-4-81.

Limitation of number of school service personnel
positions to be held by an employee.

No school service personnel shall be permitted to hold more than one regular full-time position nor more than two one-half time positions at the same time: Provided, That nothing herein shall be construed to prohibit a school service personnel from holding an extracurricular assignment or assignments or summer position as provided in section thirty-nine, article five, chapter eighteen of this code, in addition to his or her regular position nor from performing extra-duty assignments as provided in section eight-b, article four, chapter eighteen of this code, in addition to his or her regular position.
§18A-4-15. Employment of service personnel substitutes.

The county board shall employ and the county superintendent, subject to the approval of the county board of education, shall assign substitute service personnel on the basis of seniority to perform any of the following duties:
(1) To fill the temporary absence of another service employee;
(2) To fill the position of a regular service employee on leave of absence: Provided, That if such leave of absence is to extend beyond thirty days, the board, within twenty working days from the commencement of the leave of absence, shall give regular employee status to a person hired to fill such position. The person employed on a regular basis shall be selected under the procedure set forth in section eight-b of this article. The substitute shall hold such position and regular employee status only until the regular employee shall be returned to such position and the substitute shall have and shall be accorded all rights, privileges and benefits pertaining to such position: Provided, That if a regular employee fills a vacancy created by a leave of absence as provided herein, upon termination of the leave of absence said employee shall be returned to his or her original position. The board of education shall temporarily fill the position of said employee with a substitute until the return of the employee;
(3) To perform the service of a service employee who is authorized to be absent from duties without loss of pay;
(4) To temporarily fill a vacancy in a permanent position caused by severance of employment by the resignation, transfer, retirement, permanent disability, dismissal pursuant to section eight, article two of this chapter, or death of the regular service employee who had been assigned to fill such position: Provided, That within twenty working days from the commencement of the vacancy, the board shall fill such vacancy under the procedures set out in section eight-b of this article and section five, article two of this chapter and such person hired to fill the vacancy shall have and shall be accorded all rights, privileges and benefits pertaining to such position;
(5) To fill the vacancy created by a regular employee's suspension: Provided, That if the suspension is for more than thirty working days the substitute service employee shall be assigned to fill the vacancy on a regular basis and shall have and be accorded all rights, privileges and benefits pertaining to such position until such termination by the county board of education becomes final. If the suspended employee is not returned to his job, the board shall fill the vacancy under the procedures set out in section eight-b of this article and section five, article two of this chapter; and
(6) To temporarily fill a vacancy in a newly created position prior to employment of a service personnel on a regular basis under the procedure set forth in section eight-b of this article.
Substitutes shall be assigned in the following manner: A substitute with the greatest length of service time, that is, from the date he began his assigned duties as a substitute in that particular category of employment, shall be given priority in accepting the assignment throughout the period of the regular employee's absence or until the vacancy is filled on a regular basis under the procedures set out in section eight-b of this article. All substitutes shall be employed on a rotating basis according to the length of their service time until each substitute has had an opportunity to perform similar assignments: Provided, That if there are regular service employees employed in the same building or working station as the absent employee and who are employed in the same classification category of employment, such regular employees shall be first offered the opportunity to fill the position of the absent employee on a rotating and seniority basis with the substitute then filling the regular employee's position. A regular employee assigned to fill the position of an absent employee shall be given the opportunity to hold that position throughout such absence.
The salary of a substitute service employee shall be based upon his years of employment as defined in section eight of this article and as provided in the state minimum pay scale set forth in section eight-a of this article and shall be in accordance with the salary schedule of persons regularly employed in the same position in the county in which he is employed.
Before any substitute service employee enters upon his duties, he shall execute with the county board of education a written contract as provided in section five, article two of this chapter.
To establish a uniform system of providing a fair and equitable opportunity for substitutes to enter upon their duties for the first time, the following method shall be used: The initial order of assigning newly employed substitutes shall be determined by a random selection system established by the affected substitute employees and approved by the county board. This initial priority order shall be in effect only until the substitute service personnel have entered upon their duties for the first time.
Substitute service employees who have worked thirty days for a school system shall have all rights pertaining to suspension, dismissal and contract renewal as is granted to regular service personnel in sections six, seven, eight and eight-a, article two of this chapter.
§18A-4-16. Extracurricular assignments.

(1) The assignment of teachers and service personnel to extracurricular assignments shall be made only by mutual agreement of the employee and the superintendent, or designated representative, subject to board approval. Extracurricular duties shall mean, but not be limited to, any activities that occur at times other than regularly scheduled working hours, which include the instructing, coaching, chaperoning, escorting, providing support services or caring for the needs of students, and which occur on a regularly scheduled basis: Provided, That all school service personnel assignments shall be considered extra-curricular assignments except such assignments as are considered either regular positions as provided by section eight, article four, chapter eighteen or extra-duty assignments as provided by section eight-b, article four, chapter eighteen-a.
(2) The employee and the superintendent, or a designated representative, subject to board approval, shall mutually agree upon the maximum number of hours of extracurricular assignment in each school year for each extracurricular assignment.
(3) The terms and conditions of the agreement between the employee and the board of education shall be in writing and signed by both parties.
(4) An employee's contract of employment shall be separate from the extracurricular assignment agreement provided for in this section and shall not be conditioned upon the employee's acceptance or continuance of any extracurricular assignment proposed by the superintendent, a designated representative, or the board.
(5) The board of education shall fill extracurricular and supplemental school service personnel assignments and vacancies in accordance with section eight-b, article four of this chapter: Provided, That an alternative procedure for making extracurricular and supplemental school service personnel assignments within a particular classification category of employment may be utilized if the alternative procedure is approved both by the county board of education and by an affirmative vote of two thirds of the employees within that classification category of employment.




NOTE: The purpose of this bill is to bestow upon summer service related employees the same entitlements to benefits as regular school service employees with the exception that they are not entitled to work for a minimum of two-hundred days. The bill also seeks to apply seniority rights to regular service personnel who work under the authority of the board of education and to bestow further employment related entitlements to this category of employees, akin to such entitlements already reserved for teachers.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

Sections eight-h and eight-i are new; therefore, strike-throughs and underscoring have been omitted.