ENGROSSED
Senate Bill No. 1013
(By Senator Tomblin (Mr. President))
(By Request of the Executive)
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[Introduced May 13, 2010;
referred to the Committee on Education.]
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A BILL
to amend and reenact §18-5A-5 of the Code of West Virginia,
1931, as amended; to amend and reenact §18A-2-1 of said code;
and to amend and reenact §18A-4-7a of said code, all relating
to hiring professional school personnel; revising criteria
when hiring a professional personnel; requiring the
consideration of criteria according to equal weighting in
certain circumstances; providing for hiring committees to
interview certain candidates and make a hiring recommendation
to the county superintendent; requiring the county
superintendent to communicate the recommendation to the county
board; and providing for hiring committee membership.
Be it enacted by the Legislature of West Virginia:
That §18-5A-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §18A-2-1 of said code be amended and reenacted; and that §18A-4-7a of said code be amended and
reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-5. Public school faculty senates established; election of
officers; powers and duties.
(a) There is established at every public school in this state
a faculty senate which is comprised of all permanent, full-time
professional educators employed at the school who shall all be
voting members. Professional educators, as used in this section,
means professional educators as defined in chapter eighteen-a of
this code. A quorum of more than one half of the voting members of
the faculty shall be present at any meeting of the faculty senate
at which official business is conducted. Prior to the beginning of
the instructional term each year, but within the employment term,
the principal shall convene a meeting of the faculty senate to
elect a chair, vice chair and secretary and discuss matters
relevant to the beginning of the school year. The vice chair shall
preside at meetings when the chair is absent. Meetings of the
faculty senate shall be held during the times provided in
accordance with subdivision (12), subsection (b) of this section as
determined by the faculty senate. Emergency meetings may be held
during noninstructional time at the call of the chair or a majority
of the voting members by petition submitted to the chair and vice chair. An agenda of matters to be considered at a scheduled
meeting of the faculty senate shall be available to the members at
least two employment days prior to the meeting. For emergency
meetings the agenda shall be available as soon as possible prior to
the meeting. The chair of the faculty senate may appoint such
committees as may be desirable to study and submit recommendations
to the full faculty senate, but the acts of the faculty senate
shall be voted upon by the full body.
(b) In addition to any other powers and duties conferred by
law, or authorized by policies adopted by the state or county board
of education or bylaws which may be adopted by the faculty senate
not inconsistent with law, the powers and duties listed in this
subsection are specifically reserved for the faculty senate. The
intent of these provisions is neither to restrict nor to require
the activities of every faculty senate to the enumerated items
except as otherwise stated. Each faculty senate shall organize its
activities as it deems most effective and efficient based on school
size, departmental structure and other relevant factors.
(1) Each faculty senate shall control funds allocated to the
school from legislative appropriations pursuant to section nine,
article nine-a of this chapter. From such funds, each classroom
teacher and librarian shall be allotted $50 for expenditure during
the instructional year for academic materials, supplies or
equipment which, in the judgment of the teacher or librarian, will
assist him or her in providing instruction in his or her assigned academic subjects or shall be returned to the faculty senate:
Provided, That nothing contained herein prohibits the funds from
being used for programs and materials that, in the opinion of the
teacher, enhance student behavior, increase academic achievement,
improve self-esteem and address the problems of students at-risk.
The remainder of funds shall be expended for academic materials,
supplies or equipment in accordance with a budget approved by the
faculty senate. Notwithstanding any other provisions of the law to
the contrary, funds not expended in one school year are available
for expenditure in the next school year:
Provided, however, That
the amount of county funds budgeted in a fiscal year may not be
reduced throughout the year as a result of the faculty
appropriations in the same fiscal year for such materials, supplies
and equipment. Accounts shall be maintained of the allocations and
expenditures of such funds for the purpose of financial audit.
Academic materials, supplies or equipment shall be interpreted
broadly, but does not include materials, supplies or equipment
which will be used in or connected with interscholastic athletic
events.
(2)
(A) A faculty senate may establish a process for faculty
members to
interview new prospective professional educators and
select the faculty senate member of the committee established in
subdivision (2), subsection (d), section seven-a, article four,
chapter eighteen-a of this code.
__(B) A faculty senate may establish a process for faculty members to interview new paraprofessional employees at the school
and submit recommendations regarding employment to the principal,
who may also make independent recommendations, for submission to
the county superintendent:
Provided, That such process shall be
chaired by the school principal and must permit the timely
employment of persons to perform necessary duties.
(3) A faculty senate may nominate teachers for recognition as
outstanding teachers under state and local teacher recognition
programs and other personnel at the school, including parents, for
recognition under other appropriate recognition programs and may
establish such programs for operation at the school.
(4) A faculty senate may submit recommendations to the
principal regarding the assignment scheduling of secretaries,
clerks, aides and paraprofessionals at the school.
(5) A faculty senate may submit recommendations to the
principal regarding establishment of the master curriculum schedule
for the next ensuing school year.
(6) A faculty senate may establish a process for the review
and comment on sabbatical leave requests submitted by employees at
the school pursuant to section eleven, article two of this chapter.
(7) Each faculty senate shall elect three faculty
representatives to the local school improvement council established
pursuant to section two of this article.
(8) Each faculty senate may nominate a member for election to
the county staff development council pursuant to section eight, article three, chapter eighteen-a of this code.
(9) Each faculty senate shall have an opportunity to make
recommendations on the selection of faculty to serve as mentors for
beginning teachers under beginning teacher internship programs at
the school.
(10) A faculty senate may solicit, accept and expend any
grants, gifts, bequests, donations and any other funds made
available to the faculty senate:
Provided, That the faculty senate
shall select a member who has the duty of maintaining a record of
all funds received and expended by the faculty senate, which record
shall be kept in the school office and is subject to normal
auditing procedures.
(11) Any faculty senate may review the evaluation procedure
as conducted in their school to ascertain whether the evaluations
were conducted in accordance with the written system required
pursuant to section twelve, article two, chapter eighteen-a of this
code and the general intent of this Legislature regarding
meaningful performance evaluations of school personnel. If a
majority of members of the faculty senate determine that such
evaluations were not so conducted, they shall submit a report in
writing to the State Board of Education:
Provided, That nothing
herein creates any new right of access to or review of any
individual's evaluations.
(12) A local board shall provide to each faculty senate a
two-hour block of time for a faculty senate meeting on a day scheduled for the opening of school prior to the beginning of the
instructional term, and a two-hour block of time on each
instructional support and enhancement day scheduled by the board
for instructional activities for students and professional
activities for teachers pursuant to section forty-five, article
five of this chapter. A faculty senate may meet for an unlimited
block of time per month during noninstructional days to discuss and
plan strategies to improve student instruction and to conduct other
faculty senate business. A faculty senate meeting scheduled on a
noninstructional day shall be considered as part of the purpose for
which the noninstructional day is scheduled. This time may be
utilized and determined at the local school level and includes, but
is not limited to, faculty senate meetings.
(13) Each faculty senate shall develop a strategic plan to
manage the integration of special needs students into the regular
classroom at their respective schools and submit the strategic plan
to the superintendent of the county board of education periodically
pursuant to guidelines developed by the State Department of
Education. Each faculty senate shall encourage the participation
of local school improvement councils, parents and the community at
large in developing the strategic plan for each school.
Each strategic plan developed by the faculty senate shall
include at least: (A) A mission statement; (B) goals; (C) needs;
(D) objectives and activities to implement plans relating to each
goal; (E) work in progress to implement the strategic plan; (F) guidelines for placing additional staff into integrated classrooms
to meet the needs of exceptional needs students without diminishing
the services rendered to the other students in integrated
classrooms; (G) guidelines for implementation of collaborative
planning and instruction; and (H) training for all regular
classroom teachers who serve students with exceptional needs in
integrated classrooms.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 2. SCHOOL PERSONNEL.
§
18A-2-1. Employment in general.
The employment of professional personnel shall be made by the
board only upon nomination and recommendation of the
superintendent:
Provided, That the superintendent shall provide
the
principal at the school at which the professional educator or
paraprofessional employee is to be employed an opportunity to
interview all committee established in section seven-a, article
four of this chapter the opportunity to interview the most
qualified applicants and make recommendations to the county
superintendent regarding their employment:
Provided,
however, That
nothing shall prohibit the timely employment of persons to perform
necessary duties. In case the board refuses to employ any or all
of the persons nominated, the superintendent shall nominate others
and submit the same to the board at such time as the board may
direct. All personnel so nominated and recommended for employment and for subsequent assignment shall meet the certification,
licensing, training and other eligibility classifications as may be
required by provisions of this chapter and by state board
regulation. In addition to any other information required, the
application for any certification or licensing shall include the
applicant's social security number. Professional personnel
employed as deputy, associate or assistant superintendents by the
board in offices, departments or divisions at locations other than
a school and who are directly answerable to the superintendent
shall serve at the will and pleasure of the superintendent and may
be removed by the superintendent upon approval of the board. Such
professional personnel shall retain seniority rights only in the
area or areas in which they hold valid certification or licensure.
ARTICLE FOUR. 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.
(b) In judging the qualifications for hiring professional
personnel, consideration shall be given to each of the following
criteria: Provided, That for classroom teachers, the criteria
shall be considered according to equal weighting:
__________(1) Amount of experience relevant to the position;
__________(2) The amount of course work and degree level relevant to the
position;
__________(3) Past performance evaluations relevant to the position;
__________(4) Academic and professional achievement;
__________(5) Specialized training relevant to the position;
__________(6) Seniority, except in the case of hiring administrators,
including a principal, assistant principal or central office
administrator, where only seniority based on the length of time a
person was employed as an administrator may be considered; and
__________(7) Other measures or indicators upon which the relative qualifications of the applicant may fairly be judged.
__________(c) In the event that no applicant holds the certification
required by the job posting, only those applicants who qualify for
a full-time permit or for an alternative program certificate in
accordance with section one-a, article three of this chapter, or an
applicant who is a prospective graduate of a teacher preparation
program who will obtain the required certification prior to the
commencement of his or her duties, may be considered for employment
by a county board of education. When selecting a candidate who
does not hold the certification required by the job posting, the
county board of education shall use the criteria listed in
subsection (b).
__________(d)(1) A hiring committee shall interview the most qualified
candidates based upon the application of the criteria listed in
subsection (b). The committee shall make a hiring recommendation
to the county superintendent, who shall communicate the
recommendation to the county board.
__________(2) To hire a classroom teacher, the hiring committee shall be
composed of a member of the school's faculty senate, selected in
accordance with section five, article five-a, chapter eighteen of
this code, a representative designated by the county superintendent
and the school principal or his or her designee, who shall serve as
chairperson of the committee.
__________(3) To hire professional personnel who are not classroom
teachers and are not will and pleasure personnel as defined in section one, article two of this chapter, the committee shall be
composed of at least a principal, a teacher and a representative
designated by and on behalf of the county superintendent. The
county board shall adopt a policy to determine the selection of
committee members and the chairperson of the committee.
__________(f) (e) 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) (f) 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) (g) 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 that 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) (h) 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) (i) 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 August 1 of the year a reduction in force is
approved, the reason for any particular reduction in force no
longer exists as determined by the county board in its sole and
exclusive judgment, the board shall rescind the reduction in force
or transfer and shall notify the released employee in writing of
his or her right to be restored to his or her position of
employment. Within five days of being so notified, the released
employee shall notify the board, in writing, of his or her intent
to resume his or her position of employment or the right to be
restored shall terminate. Notwithstanding any other provision of
this subdivision, if there is another employee on the preferred recall list with proper certification and higher seniority, that
person shall be placed in the position restored as a result of the
reduction in force being rescinded.
(k) (j) 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 October 31, 1993, 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
December 31, 1993, 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) (k) 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) (l) 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) (m) 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) (n) 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) (o) 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) (p) 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; 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) (q) 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) (r) The county board shall compile, update annually on
July 1 and make available by electronic or other means to all
employees a list of all professional personnel employed by the
county, their areas of certification and their seniority.