H. B. 4063
(By Delegates Damron, Hubbard, Beach,
Underwood, Jenkins, Johnson and Heck)
[Introduced January 23, 1998; referred to the
Committee on Education then the Judiciary.]
A BILL 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 thirty- two; to amend and reenact section thirteen, article five of
said chapter; and to further amend said article by adding
thereto a new section, designated section forty-four, all
relating to requiring drug abuse offenders employed by
county boards of education to be reported to the state board
of education.
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
thirty-two; that section thirteen, article five of said chapter
be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section
forty-four, all to read as follows:
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-32. Authority to require county boards to conduct drug
testing of employees in safety sensitive jobs;
requirement to maintain two year registry of
employees testing positive for controlled
substances.
The state board of education is authorized and empowered to
require the county boards to conduct mandatory drug testing of
school personnel engaged in safety sensitive work, as such term
is defined by section forty-four, article five of this chapter:
Provided, That the board shall propose legislative rules designed
to specifically identify service personnel, as enumerated by
section eight, article four, chapter eighteen-a of this code, who
work in safety-sensitive jobs. The board shall also propose
legislative rules designed to provide a framework for semiannual
and random drug testing to be conducted by county boards of
education, which shall provide for such testing to be by blood or
urine sample, at the option of the employee being tested. The
board shall propose such other and additional rules necessary for
the implementation of the mandatory drug testing program as
required by this section and by section forty-four, article five, chapter eighteen of this code.
The board shall initiate and maintain a registry of names,
addresses, dates of birth and social security numbers of school
personnel in safety sensitive jobs who have been tested
positively for controlled substances:
Provided, That no such
school employee's name shall be taken or maintained who provides
proof of a lawful medical prescription for any controlled
substance detected by any test provided for hereunder. Upon
being provided with the name, address, social security number,
date of birth and any other necessary identifying information by
a county board relative to an applicant for employment in a
safety sensitive job, the state board shall check the name and
accompanying information in order to ascertain if such applicant
has, within two years, been terminated from employment on the
basis of being positively tested for the presence of controlled
substances for which such person had no lawful medical
prescription. In the event any such applicant within two years
was terminated pursuant to the mandatory drug testing program,
the state board shall immediately advise the county board of this
fact, and such individual may not be hired by the county board.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-13. Authority of boards generally.
The boards, subject to the provisions of this chapter and the rules of the state board, has authority:
(1) To control and manage all of the schools and school
interests for all school activities and upon all school property,
whether owned or leased by the county, including the authority to
require that records be kept of all receipts and disbursements of
all funds collected or received by any principal, teacher,
student or other person in connection with the schools and school
interests, any programs, activities or other endeavors of any
nature operated or carried on by or in the name of the school, or
any organization or body directly connected with the school, to
audit the records and to conserve the funds, which shall be
considered quasi-public moneys, including securing surety bonds
by expenditure of board moneys;
(2) To establish schools, from preschool through high school,
inclusive of vocational schools; and to establish schools and
programs, or both, for post high school instruction, subject to
approval of the state board of education;
(3) To close any school which is unnecessary and to assign the
pupils of the school to other schools:
Provided, That the
closing shall be officially acted upon and teachers and service
personnel involved notified on or before the first Monday in
April, in the same manner as provided in section four of this
article, except in an emergency, subject to the approval of the state superintendent, or under subdivision (5) of this section;
(4) To consolidate schools;
(5) To close any elementary school whose average daily
attendance falls below twenty pupils for two months in succession
and send the pupils to other schools in the district or to
schools in adjoining districts. If the teachers in the closed
school are not transferred or reassigned to other schools, they
shall receive one month's salary;
(6) (a) To provide at public expense adequate means of
transportation, including transportation across county lines, for
all children of school age who live more than two miles distance
from school by the nearest available road; to provide at public
expense and according to such rules as the board may establish,
adequate means of transportation for school children
participating in board-approved curricular and extracurricular
activities; and to provide in addition thereto at public expense,
by rules and within the available revenues, transportation for
those within two miles distance; to provide in addition thereto,
at no cost to the board and according to rules established by the
board, transportation for participants in projects operated,
financed, sponsored or approved by the commission on aging:
Provided, That all costs and expenses incident in any way to
transportation for projects connected with the commission on aging shall be borne by the commission, or the local or county
chapter of the commission:
Provided, however, That in all cases
the school buses owned by the board of education shall be driven
or operated only by drivers regularly employed by the board of
education:
Provided further, That the county board may provide,
under rules established by the state board, for the certification
of professional employees as drivers of board-owned vehicles with
a seating capacity of less than ten passengers used for the
transportation of pupils for school-sponsored activities other
than transporting students between school and home:
And provided
further, That the use of the vehicles shall be limited to one
for each school-sponsored activity:
And provided further, That
buses shall be used for extracurricular activities as provided in
this section only when the insurance provided for by this section
is in effect;
(b) To enter into agreements with one another to provide, on
a cooperative basis, adequate means of transportation across
county lines for children of school age subject to the conditions
and restrictions of subdivisions (6) and (8) of this section;
(7) (a) To lease school buses operated only by drivers
regularly employed by the board to public and private nonprofit
organizations or private corporations to transport school-age
children to and from camps or educational activities in accordance with rules established by the board. All costs and
expenses incurred by or incidental to the transportation of the
children shall be borne by the lessee;
(b) To contract with any college or university or officially
recognized campus organizations to provide transportation for
college or university students, faculty or staff to and from the
college or university:
Provided, That only college and
university students, faculty and staff are being transported.
The contract shall include consideration and compensation for bus
operators, repairs and other costs of service, insurance and any
rules concerning student behavior;
(8) To provide at public expense for insurance against the
negligence of the drivers of school buses, trucks or other
vehicles operated by the board; and if the transportation of
pupils is contracted, then the contract for the transportation
shall provide that the contractor shall carry insurance against
negligence in an amount specified by the board;
(9) To provide solely from county funds for all regular
full-time employees of the board all or any part of the cost of
a group plan or plans of insurance coverage not provided or
available under the West Virginia public employees insurance act;
(10) To employ teacher aides, to provide in-service training
for teacher aides, the training to be in accordance with rules of the state board and, in the case of service personnel assuming
duties as teacher aides in exceptional children programs, to
provide a four-clock-hour program of training prior to the
assignment which shall, in accordance with rules of the state
board, consist of training in areas specifically related to the
education of exceptional children;
(11) To establish and conduct a self-supporting dormitory for
the accommodation of the pupils attending a high school or
participating in a post high school program and of persons
employed to teach in the high school or post high school program;
(12) To employ legal counsel;
(13) To provide appropriate uniforms for school service
personnel;
(14) To provide at public expense and under rules as
established by any county board of education for the payment of
traveling expenses incurred by any person invited to appear to be
interviewed concerning possible employment by the county board of
education;
(15) To allow or disallow their designated employees to use
publicly provided carriage to travel from their residences to
their workplace and return:
Provided, That the usage is subject
to the supervision of the board and is directly connected with
and required by the nature and in the performance of the employee's duties and responsibilities;
(16) To provide, at public expense, adequate public liability
insurance, including professional liability insurance for board
employees;
(17) To enter into agreements with one another to provide, on
a cooperative basis, improvements to the instructional needs of
each county. The cooperative agreements may be used to employ
specialists in a field of academic study or support functions or
services, for the academic study. The agreements are subject to
approval by the state board of education;
(18) To implement and maintain the mandatory drug testing
program for employees in safety-sensitive areas of employment
within the school system managed by a board;
(18) (19) To provide information about vocational or higher
education opportunities to students with handicapping conditions.
The board shall provide in writing to the students and their
parents or guardians information relating to programs of
vocational education and to programs available at state funded
institutions of higher education. The information may include
sources of available funding, including grants, mentor ships and
loans for students who wish to attend classes at institutions of
higher education;
and
(19) (20) To enter into agreements with one another, with the approval of the state board, for the transfer and receipt of any
and all funds determined to be fair when students are permitted
or required to attend school in a county other than the county of
their residence;
and
(20) (21) To enter into job-sharing arrangements, as defined
in section one, article one, chapter eighteen-a of this code,
with its professional employees:
Provided, That a job sharing
arrangement shall meet all the requirements relating to posting,
qualifications and seniority, as provided for in article four,
chapter eighteen-a of this code:
Provided, however, That,
notwithstanding any provisions of this code to the contrary, a
county board which enters into a job-sharing arrangement wherein
two or more professional employees voluntarily share an
authorized full-time position shall provide the mutually agreed
upon employee coverage but shall not offer insurance coverage to
more than one of the job-sharing employees, including any group
plan or group plans available under the state public employees
insurance act:
Provided further, That all employees involved in
the job-sharing agreement meet the requirements of subdivision
four (4), section two, article sixteen, chapter five of this
code.
"Quasi-public funds" as used in this section means any money
received by any principal, teacher, student or other person for the benefit of the school system as a result of curricular or
noncurricular activities.
The board of each county shall expend under rules it
establishes for each child an amount not to exceed the proportion
of all school funds of the district that each child would be
entitled to receive if all the funds were distributed equally
among all the children of school age in the district upon a per
capita basis.
§18-5-44. Program for mandatory drug testing of school personnel
in safety sensitive jobs.
Beginning the first day July, one thousand nine hundred
ninety seven, all school personnel in safety sensitive jobs shall
be tested for the presence of controlled substances. Such tests
shall be conducted by obtaining a sample of the employee's blood
or urine, at the option of the employee:
Provided, That for the
purpose of this section, "safety sensitive" job means a job
wherein an employee's full mental faculties are required in order
to maximally safeguard against the possibility of physical harm
occurring to children, students, fellow employees or the public
at large, due to the nature of the particular employee's
job-related responsibilities.
Testing shall be conducted on a semiannual basis. Boards
shall additionally make provision for random testing of school personnel pursuant to guidelines proposed by legislative rule by
the state board, as provided in section thirty-two, article two
of this chapter.
In the event an employee opts to be tested by having his or
her blood drawn, the board shall provide a qualified nurse or
physician for this purpose.
In the event an employee tests positive, he or she shall
forthwith be terminated from employment, and shall be ineligible
from being rehired by any county board of education for a period,
not less than two years. Upon receiving a conclusive positive
test result, the board shall immediately report to the state
board of education the employee's name, address, social security
number, date of birth and any other necessary identifying
information, as well as the particular aspects of the positive
test result, and the date such employee was terminated from
employment:
Provided, That no person shall be terminated from
employment who submits sufficient proof that they possess a
lawful medical prescription for any controlled substance for
which such person tests positive.
No county board of education may hire any person to a safety
sensitive job without first providing the name, address and
social security number of the person applying for such job to the
state board in order to enable the state board to determine if such person tested positive for controlled substances pursuant to
the requirements of this section within two years from the
application of employment. Neither may a county board hire any
person to a safety sensitive job without first testing such
person for controlled substances, as provided for herein.
NOTE: This bill provides that persons in safety sensitive
jobs who test positive for illegal drugs are to be terminated
from their employment and may not be rehired for a period of two
years. It requires the names of all drug abuse offenders
employed by county boards of education to be reported to the
state board of education. The appropriate county board of
education, upon hiring persons in safety sensitive positions, is
to send those names to the state board to see if they have tested
positive for illegal drug use.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§18-2-32 and §18-5-44 are new; therefore, strike-throughs
and underscoring have been omitted.
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