ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2189
(By Delegates Caputo, Paxton, Perry, Fragale and M. Poling)
[Passed March 10, 2007; in effect ninety days from passage.]
AN ACT to amend and reenact §18-1-1 of the Code of West Virginia,
1931, as amended; to amend and reenact §18-5-13 of said code;
to amend and reenact §18-20-2 of said code; to amend and
reenact §18A-1-1 of said code; to amend and reenact §18A-4-8,
§18A-4-8b, §18A-4-8f, §18A-4-8g, §18A-4-10 and §18A-4-15 of
said code; to amend said code by adding thereto two new
sections, designated §18A-4-7c and §18A-4-10f; and to amend
and reenact §18A-5-8 of said code, all relating to public
schools and county boards of education; school service
personnel; personal leave and leave banks for school
personnel; authority of county boards of education; updating
definitions; expanding purposes for which schools may expend
funds; establishing certain vehicle and driver safety
requirements for transporting students to a school-sponsored
activity; expanding the purposes for which county boards may
lease school buses; giving preference to a currently employed professional educator for summer employment; establishing
service personnel classification title for licensed practical
nurse; adding posting and notice requirements for filling
service personnel positions; prohibiting displacement of aides
to create vacancy for licensed practical nurse; establishing
parameters for the workday and beginning work station for
certain service personnel; modifying process for determining
certain service personnel hiring priority in cases of school
merger or consolidation; authorizing transfer of personal
leave in certain circumstances; modifying employment benefits
accrued by substitute service personnel; requiring county
boards of education to make certain training available to all
regularly employed teachers' aides; prohibiting an autism
mentor or aide who works with autistic students from
transferring to another position after the fifth day prior to
the beginning of the instructional term under certain
conditions; deleting obsolete language; and making technical
corrections.
Be it enacted by the Legislature of West Virginia:
That §18-1-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §18-5-13 of said Code be amended and
reenacted; that §18-20-2 of said Code be amended and reenacted;
that §18A-1-1 of said Code be amended and reenacted; that §18A-4-8,
§18A-4-8b, §18A-4-8f, §18A-4-8g, §18A-4-10 and §18A-4-15 of said
Code be amended and reenacted; that said Code be amended by adding
thereto two new sections, designated §18A-4-7c and §18A-4-10f; and that §18A-5-8 of said Code be amended and reenacted, all to read as
follows:
CHAPTER 18. EDUCATION.
ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS FOR
EDUCATION.
§18-1-1. Definitions.
The following words used in this chapter and in any
proceedings pursuant thereto have the meanings ascribed to them
unless the context clearly indicates a different meaning:
(a) "School" means the students and teachers assembled in one
or more buildings, organized as a unit;
(b) "District" means county school district;
(c) "State board" means the West Virginia Board of Education;
(d) "County board" or "board" means a county board of
education;
(e) "State superintendent" means the State Superintendent of
Free Schools;
(f) "County superintendent" or "superintendent" means a county
superintendent of schools;
(g) "Teacher" means a teacher, supervisor, principal,
superintendent or public school librarian; registered professional
nurse, licensed by the West Virginia Board of Examiners for
Registered Professional Nurses and employed by a county board, who
has a baccalaureate degree; or any other person regularly employed
for instructional purposes in a public school in this state;
(h); "Service person" or "service personnel", whether singular
or plural, means any non-teaching school employee who is not
included in the meaning of "teacher" as defined in this section,
and who serves the school or schools as a whole, in a
nonprofessional capacity, including such areas as secretarial,
custodial, maintenance, transportation, school lunch and aides.
Any reference to "service employee" or "service employees" in this
chapter or chapter eighteen-a of this Code means service person or
service personnel as defined in this section;
(i) "Social worker" means a nonteaching school employee who,
at a minimum, possesses an undergraduate degree in social work from
an accredited institution of higher learning and who provides
various professional social work services, activities or methods as
defined by the State Board for the benefit of students;
(j) "Regular full-time employee" means any person employed by
a county board who has a regular position or job throughout his or
her employment term, without regard to hours or method of pay;
(k) "Career clusters" means broad groupings of related
occupations;
(l) "Work-based learning" means a structured activity that
correlates with and is mutually supportive of the school-based
learning of the student and includes specific objectives to be
learned by the student as a result of the activity;
(m) "School-age juvenile" means any individual who is entitled
to attend or who, if not placed in a residential facility, would be
entitled to attend public schools in accordance with: (1) Section five, article two of this chapter; (2) sections fifteen and
eighteen, article five of this chapter; or (3) section one, article
twenty of this chapter;
(n) "Student with a disability" means an exceptional child,
other than gifted, pursuant to section one, article twenty of this
chapter;
(o) "Low-density county" means a county whose ratio of student
population to square miles is less than or equal to the state
average ratio as computed by the State Department of Education;
(p) "High-density county" means a county whose ratio of
student population to square miles is greater than the state
average ratio as computed by the State Department of Education; and
(q) "Casual deficit" means a deficit of not more than three
percent of the approved levy estimate or a deficit that is
nonrecurring from year to year.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-13. Authority of boards generally.
Subject to the provisions of this chapter and the rules of the
State Board, each county board may:
(a) Control and manage all of the schools and school interests
for all school activities and upon all school property owned or
leased by the county, including:
(1) Requiring schools to keep records regarding funds
connected with the school or school interests, including all
receipts and disbursements of all funds collected or received by:
(A) Any principal, teacher, student or other person in connection with the schools and school interests;
(B) Any program, activity or other endeavor of any nature
operated or conducted by or in the name of the school; and
(C) Any organization or body directly connected with the
school;
(2) Allowing schools to expend funds for student, parent,
teacher and community recognition programs. A school may use only
funds it generates through a fund-raising or donation-soliciting
activity. Prior to commencing the activity, the school shall:
(A) Publicize the activity as intended for this purpose; and
(B) Designate for this purpose the funds generated;
(3) Auditing the records and conserving the funds, including
securing surety bonds by expending board moneys. The funds
described in this subsection are quasipublic funds, which means the
moneys were received for the benefit of the school system as a
result of curricular or noncurricular activities;
(b) Establish:
(1) Schools, from preschool through high school;
(2) Vocational schools; and
(3) Schools and programs for post-high school instruction,
subject to approval of the State Board;
(c) Close any school:
(1) Which is unnecessary and assign the students to other
schools. The closing shall occur pursuant to official action of
the county board. Except in emergency situations when the timing
and manner of notification are subject to approval by the state superintendent, the county board shall notify the affected teachers
and service personnel of the county board action not later than the
first Monday in April. The board shall provide notice in the same
manner as set forth in section four of this article; or
(2) Pursuant to the provisions of subsection (e) of this
section;
(d) Consolidate schools;
(e) Close any elementary school whose average daily attendance
falls below twenty students for two consecutive months. The county
board may assign the students 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;
(f) Provide transportation according to rules established by
the county board, as follows:
(1) To provide at public expense adequate means of
transportation:
(A) For all children of school age who live more than two
miles distance from school by the nearest available road;
(B) For school children participating in county board-approved
curricular and extracurricular activities;
(C) Across county lines for students transferred from one
district to another by mutual agreement of both county boards. The
agreement shall be recorded in the meeting minutes of each
participating county board and is subject to the provisions of
subsection (h) of this section; and
(D) Within available revenues, for students within two miles
distance of the school; and
(2) To provide transportation for participants in projects
operated, financed, sponsored or approved by the Bureau of Senior
Services. This transportation shall be provided at no cost to the
county board. All costs and expenses incident in any way to this
transportation shall be borne by the Bureau or the local or county
affiliate of the Bureau;
(3) Any school bus owned by the county board may be operated
only by a bus operator regularly employed by the county board;
(4) Pursuant to rules established by the State Board, the
county board may provide for professional employees to be certified
to drive county board-owned vehicles that have a seating capacity
of fewer than ten passengers. These employees may use the vehicles
to transport students for school-sponsored activities, but may not
use the vehicles to transport students between school and home.
Not more than one of these vehicles may be used for any
school-sponsored activity;
(5) Students may not be transported to a school-sponsored
activity in any county-owned or leased vehicle that does not meet
school bus or public transit ratings. This section does not
prohibit a parent from transporting ten or fewer students in a
privately-owned vehicle;
(6) Students may be transported to a school-sponsored activity
in a vehicle that has a seating capacity of sixteen or more
passengers which is not owned and operated by the county board only as follows:
(A) The State Board shall promulgate a rule to establish
requirements for:
(i) Automobile insurance coverage;
(ii) Vehicle safety specifications;
(iii) School bus or public transit ratings; and
(iv) Driver training, certification and criminal history
record check; and
(B) The vehicle owner shall provide to the county board proof
that the vehicle and driver satisfy the requirements of the State
Board rule; and
(7) Buses shall be used for extracurricular activities as
provided in this section only when the insurance coverage required
by this section is in effect;
(g) Lease school buses pursuant to rules established by the
county board.
(1) Leased buses may be operated only by bus operators
regularly employed by the county board.
(2) The lessee shall bear all costs and expenses incurred by,
or incidental to the use of, the bus.
(3) The county board may lease buses to:
(A) Public and private nonprofit organizations and private
corporations to transport school-age children for camps or
educational activities
(B) Any college, university or officially recognized campus
organization for transporting students, faculty and staff to and from the college or university. Only college and university
students, faculty and staff may be transported pursuant to this
paragraph. The lease shall include provisions for:
(i) Compensation for bus operators;
(ii) Consideration for insurance coverage, repairs and other
costs of service; and
(iii) Any rules concerning student behavior;
(C) Public and private nonprofit organizations, including
education employee organizations, for transportation associated
with fairs, festivals and other educational and cultural events.
The county board may charge fees in addition to those charges
otherwise required by this subsection.
(h) To provide at public expense for insurance coverage
against negligence of the drivers of school buses, trucks or other
vehicles operated by the county board. Any contractual agreement
for transportation of students shall require the vehicle owner to
maintain insurance coverage against negligence in an amount
specified by the county board;
(i) Provide for the full cost or any portion thereof for group
plan insurance benefits not provided or available under the West
Virginia Public Employees Insurance Act. Any of these benefits
shall be provided:
(1) Solely from county board funds; and
(2) For all regular full-time employees of the county board;
(j) Employ teacher aides; to provide in-service training for
the aides pursuant to rules established by the State Board; and, prior to assignment, to provide a four-clock-hour program of
training for a service person assigned duties as a teacher aide in
an exceptional children program. The four-clock-hour program shall
consist of training in areas specifically related to the education
of exceptional children;
(k) Establish and operate a self-supporting dormitory for:
(1) Students attending a high school or participating in a
post high school program; and
(2) Persons employed to teach in the high school or post high
school program;
(l) At the county board's discretion, employ, contract with or
otherwise engage legal counsel in lieu of using the services of the
prosecuting attorney to advise, attend to, bring, prosecute or
defend, as the case may be, any matters, actions, suits and
proceedings in which the county board is interested;
(m) Provide appropriate uniforms for school service personnel;
(n) Provide at public expense for payment of traveling
expenses incurred by any person invited to appear to be interviewed
concerning possible employment by the county board, subject to
rules established by the county board;
(o) Allow designated employees to use publicly provided
carriage to travel from their residences to their workplace and
return. The use:
(1) Is subject to the supervision of the county board; and
(2) Shall be directly connected with, required by and
essential to the performance of the employee's duties and responsibilities;
(p) Provide at public expense adequate public liability
insurance, including professional liability insurance, for county
board employees;
(q) Enter into cooperative agreements with other county boards
to provide improvements to the instructional needs of each
district. The cooperative agreements may be used to employ
specialists in a field of academic study or for support functions
or services for the field. The agreements are subject to approval
by the State Board;
(r) Provide information about vocational and higher education
opportunities to exceptional students. The county 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 institutions of higher education. The
information may include sources of available funding, including
grants, mentorships and loans for students who wish to attend
classes at institutions of higher education;
(s) Enter into agreements with other county boards for the
transfer and receipt of any funds determined to be fair when
students are permitted or required to attend school in a district
other than the district of their residence. These agreements are
subject to the approval of the State Board; and
(t) Enter into job-sharing arrangements, as defined in section
one, article one, chapter eighteen-a of this Code, with its
employees, subject to the following provisions:
(1) 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;
(2) Notwithstanding any contrary provision of this Code or
legislative rule and specifically the provisions of article
sixteen, chapter five of this Code, a county board that enters into
a job-sharing arrangement:
(A) Shall provide insurance coverage to the one employee
mutually agreed upon by the employees participating in that
arrangement; and
(B) May not provide insurance benefits of any type to more
than one of the job-sharing employees, including any group plan
available under the State Public Employees Insurance Act;
(3) Each job-sharing agreement shall be in writing on a form
prescribed and furnished by the county board. The agreement shall
designate specifically one employee only who is entitled to the
insurance coverage. Any employee who is not designated is not
eligible for state public employees insurance coverage regardless
of the number of hours he or she works;
(4) All employees involved in the job-sharing agreement shall
meet the requirements of subdivision (3), section two, article
sixteen, chapter five of this Code; and
(5) When entering into a job-sharing agreement, the county
board and the participating employees shall consider issues such as
retirement benefits, termination of the job-sharing agreement and
any other issue the parties consider appropriate. Any provision in the agreement relating to retirement benefits may not cause any
cost to be incurred by the retirement system that is more than the
cost that would be incurred if a single employee were filling the
position ; and
(u) Under rules it establishes for each child, expend 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.
ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.
§18-20-2. Providing suitable educational facilities, equipment and
services.
(a) Each county board shall provide suitable educational
facilities, special equipment and special services that are
necessary. Special services include provisions and procedures for
finding and enumerating exceptional children of each type,
diagnosis by appropriate specialists who will certify the child's
need and eligibility for special education and make recommendations
for treatment and prosthesis as may alleviate the disability,
special teaching by qualified and specially trained teachers,
transportation, lunches and remedial therapeutic services.
Qualifications of teachers and therapists shall be in accordance
with standards prescribed or approved by the State Board.
(b) A county board may provide for educating resident
exceptional children by contracting with other counties or other educational agencies which maintain special education facilities.
Fiscal matters shall follow policies approved by the State.
(c) The county board shall provide a four-clock-hour program
of training for any teacher aide employed to assist teachers in
providing services to exceptional children under this article prior
to the assignment. The program shall consist of training in areas
specifically related to the education of exceptional children,
pursuant to rules of the State Board. The training shall occur
during normal working hours and an opportunity to be trained shall
be provided to service person prior to filling a vacancy in
accordance with the provisions of section eight-b, article four,
chapter eighteen-a of this Code.
(d) The county board annually shall make available during
normal working hours to all regularly employed teachers' aides
twelve hours of training that satisfies the continuing education
requirements for the aides regarding:
(1) Providing services to children who have displayed violent
behavior or have demonstrated the potential for violent behavior;
and
(2) Providing services to children diagnosed as autistic or
with autism spectrum disorder. This training shall be structured
to permit the employee to qualify as an autism mentor after a
minimum of four years of training. The county board shall:
(A) Notify in writing all teachers' aides of the location,
date and time when training will be offered for qualification as an
autism mentor; and
(B) Reimburse any regularly employed or substitute teacher's
aide who elects to attend this training for one-half of the cost of
the tuition.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 1. GENERAL PROVISIONS.
§18A-1-1. Definitions.
The definitions contained in section one, article one, chapter
eighteen of this Code apply to this chapter. In addition, the
following words used in this chapter and in any proceedings
pursuant to this chapter have the meanings ascribed to them unless
the context clearly indicates a different meaning:
(a) "School personnel" means all personnel employed by a
county board whether employed on a regular full-time basis, an
hourly basis or otherwise. "School personnel" is comprised of two
categories: Professional personnel and service personnel;
(b) "Professional person" or "Professional personnel" means
those persons or employees who meet the certification requirements
of the state, licensing requirements of the state, or both, and
includes a professional educator and other professional employee;
(c) "Professional educator" has the same meaning as "teacher"
as defined in section one, article one, chapter eighteen of this
Code. Professional educators are classified as follows:
(1) "Classroom teacher" means a professional educator who has
a direct instructional or counseling relationship with students and
who spends the majority of his or her time in this capacity;
(2) "Principal" means a professional educator who functions as
an agent of the county board and has responsibility for the
supervision, management and control of a school or schools within
the guidelines established by the county board. The principal's
major area of responsibility is the general supervision of all the
schools and all school activities involving students, teachers and
other school personnel;
(3) "Supervisor" means a professional educator who is
responsible for working primarily in the field with professional
and other personnel in instructional and other school improvement.
This category includes other appropriate titles or positions with
duties that fit within this definition; and
(4) "Central office administrator" means a superintendent,
associate superintendent, assistant superintendent and other
professional educators who are charged with administering and
supervising the whole or some assigned part of the total program of
the countywide school system. This category includes other
appropriate titles or positions with duties that fit within this
definition;
(d) "Other professional employee" means a person from another
profession who is properly licensed and who is employed to serve
the public schools. This definition includes a registered
professional nurse, licensed by the West Virginia Board of
Examiners for Registered Professional Nurses, who is employed by a
county board and has completed either a two-year (sixty-four
semester hours) or a three-year (ninety-six semester hours) nursing program;
(e) "Service person" or "service personnel", whether singular
or plural, means a non-teaching school employee who is not included
in the meaning of "teacher" as defined in section one, article one,
chapter eighteen of this Code, and who serves the school or schools
as a whole, in a nonprofessional capacity, including such areas as
secretarial, custodial, maintenance, transportation, school lunch
and aides.
Any reference to "service employee" or "service
employees" in this chapter or chapter eighteen of this Code means
service person or service personnel as defined in this
section;
(f) "Principals Academy" or "Academy" means the Academy
created pursuant to section two-b, article three-a of this chapter;
(g) "Center for Professional Development" means the Center
created pursuant to section one, article three-a of this chapter;
(h) "Job-sharing arrangement" means a formal, written
agreement voluntarily entered into by a county board with two or
more of its employees who wish to divide between them the duties
and responsibilities of one authorized full-time position;
(i) "Prospective employable professional person" whether
singular or plural, means a certified professional educator who:
(1) Has been recruited on a reserve list of a county board;
(2) Has been recruited at a job fair or as a result of contact
made at a job fair;
(3) Has not obtained regular employee status through the job
posting process provided for in section seven-a, article four of
this chapter; and
(4) Has obtained a baccalaureate degree from an accredited
institution of higher education within the past year;
(j) "Dangerous student" means a student who is substantially
likely to cause serious bodily injury to himself, herself or
another individual within that student's educational environment,
which may include any alternative education environment, as
evidenced by a pattern or series of violent behavior exhibited by
the student, and documented in writing by the school, with the
documentation provided to the student and parent or guardian at the
time of any offense; and
(k) "Alternative education" means an authorized departure from
the regular school program designed to provide educational and
social development for students whose disruptive behavior places
them at risk of not succeeding in the traditional school structures
and in adult life without positive interventions.
(l) "Long-term substitute" means a substitute employee who
fills a vacant position:
(1) That the county superintendent expects to extend for at
least ninety consecutive days, and is either:
(A) Listed in the job posting as a long term substitute
position of over ninety days; or
(B) Listed in a job posting as a regular, full-time position
and:
(i) Is not filled by a regular, full-time employee; and
(ii) Is filled by a substitute employee.
For the purposes of section two, article sixteen, chapter five of this code, long-term substitute does not include a retired employee
hired to fill the vacant position.
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-7c. Summer employment of professional educators.
(a) A county board shall hire professional educators for
positions in summer school programs in accordance with section
thirty-nine, article five, chapter eighteen of this code or section
seven-a of this article, as applicable, except that a professional
educator who is currently employed by the county board shall be
given employment preference over applicants who are not current
employees.
§18A-4-8. Employment term and class titles of service personnel;
definitions.
(a) The purpose of this section is to establish an employment
term and class titles for service personnel. The employment term
for service personnel may not be less than ten months. A month is
defined as twenty employment days: Provided, That the county board
may contract with all or part of these service personnel for a
longer term. The beginning and closing dates of the ten-month
employment term may not exceed forty-three weeks.
(b) Service personnel employed on a yearly or twelve-month
basis may be employed by calendar months. Whenever there is a
change in job assignment during the school year, the minimum pay
scale and any county supplement are applicable.
(c) Service personnel employed in the same classification for more than the two hundred day minimum employment term shall be paid
for additional employment at a daily rate of not less than the
daily rate paid for the two hundred day minimum employment term.
(d) A service person may not be required to report for work
more than five days per week without his or her agreement, and no
part of any working day may be accumulated by the employer for
future work assignments, unless the employee agrees thereto.
(e) If a service person whose regular work week is scheduled
from Monday through Friday agrees to perform any work assignments
on a Saturday or Sunday, the service person shall be paid for at
least one-half day of work for each day he or she reports for work.
If the service person works more than three and one-half hours on
any Saturday or Sunday, he or she shall be paid for at least a full
day of work for each day.
(f) A, custodian, aide, maintenance, office and school lunch
service person required to work a daily work schedule that is
interrupted shall be paid additional compensation.
(1) A maintenance person is defined as a person who holds a
classification title other than in a custodial, aide, school lunch,
office or transportation category as provided in section one,
article one of this chapter.
(2) A service person's schedule is considered to be
interrupted if he or she does not work a continuous period in one
day. Aides are not regarded as working an interrupted schedule
when engaged exclusively in the duties of transporting students;
(3) The additional compensation provided for in this subsection:
(A) Is equal to at least one eighth of a service person's
total salary as provided by the state minimum pay scale and any
county pay supplement; and
(B) Is payable entirely from county board funds.
(g) When there is a change in classification or when a service
person meets the requirements of an advanced classification, his or
her salary shall be made to comply with the requirements of this
article and any county salary schedule in excess of the minimum
requirements of this article, based upon the service person's
advanced classification and allowable years of employment.
(h) A service person's, contract as provided in section five,
article two of this chapter, shall state the appropriate monthly
salary the employee is to be paid, based on the class title as
provided in this article and on any county salary schedule in
excess of the minimum requirements of this article.
(i) The column heads of the state minimum pay scale and class
titles, set forth in section eight-a of this article, are defined
as follows:
(1) "Pay grade" means the monthly salary applicable to class
titles of service personnel;
(2) "Years of employment" means the number of years which an
employee classified as a service person has been employed by a
county board in any position prior to or subsequent to the
effective date of this section and includes service in the armed
forces of the United States, if the employee was employed at the time of his or her induction. For the purpose of section eight-a
of this article, years of employment is limited to the number of
years shown and allowed under the state minimum pay scale as set
forth in section eight-a of this article;
(3) "Class title" means the name of the position or job held
by a service person;
(4) "Accountant I" means a person employed to maintain payroll
records and reports and perform one or more operations relating to
a phase of the total payroll;
(5) "Accountant II" means a person employed to maintain
accounting records and to be responsible for the accounting process
associated with billing, budgets, purchasing and related
operations;
(6) "Accountant III" means a person employed in the county
board office to manage and supervise accounts payable, payroll
procedures, or both;
(7) "Accounts payable supervisor" means a person employed in
the county board office who has primary responsibility for the
accounts payable function and who either has completed twelve
college hours of accounting courses from an accredited institution
of higher education or has at least eight years of experience
performing progressively difficult accounting tasks.
Responsibilities of this class title may include supervision of
other personnel;
(8) "Aide I" means a person selected and trained for a
teacher-aide classification such as monitor aide, clerical aide, classroom aide or general aide;
(9) "Aide II" means a service person referred to in the "Aide
I" classification who has completed a training program approved by
the State Board, or who holds a high school diploma or has received
a general educational development certificate. Only a person
classified in an Aide II class title may be employed as an aide in
any special education program;
(10) "Aide III" means a service person referred to in the
"Aide I" classification who holds a high school diploma or a
general educational development certificate; and
(A) Has completed six semester hours of college credit at an
institution of higher education; or
(B) Is employed as an aide in a special education program and
has one year's experience as an aide in special education;
(11) "Aide IV" means a service person referred to in the "Aide
I" classification who holds a high school diploma or a general
educational development certificate; and
(A) Has completed eighteen hours of State Board-approved
college credit at a regionally accredited institution of higher
education, or
(B) Has completed fifteen hours of State Board-approved
college credit at a regionally accredited institution of higher
education; and has successfully completed an in-service training
program determined by the State Board to be the equivalent of three
hours of college credit;
(12) "Audiovisual technician" means a person employed to perform minor maintenance on audiovisual equipment, films, and
supplies and who fills requests for equipment;
(13) "Auditor" means a person employed to examine and verify
accounts of individual schools and to assist schools and school
personnel in maintaining complete and accurate records of their
accounts;
(14) "Autism mentor" means a person who works with autistic
students and who meets standards and experience to be determined by
the State Board. A person who has held or holds an aide title and
becomes employed as an autism mentor shall hold a
multiclassification status that includes both aide and autism
mentor titles, in accordance with section eight-b of this article;
(15) "Braille or sign language specialist" means a person
employed to provide braille and/or sign language assistance to
students, A service person who has held or holds an aide title and
becomes employed as a braille or sign language specialist shall
hold a multiclassification status that includes both aide and
braille or sign language specialist title, in accordance with
section eight-b of this article;
(16) "Bus operator" means a person employed to operate school
buses and other school transportation vehicles as provided by the
State Board;
(17) "Buyer" means a person employed to review and write
specifications, negotiate purchase bids and recommend purchase
agreements for materials and services that meet predetermined
specifications at the lowest available costs;
(18) "Cabinetmaker" means a person employed to construct
cabinets, tables, bookcases and other furniture;
(19) "Cafeteria manager" means a person employed to direct the
operation of a food services program in a school, including
assigning duties to employees, approving requisitions for supplies
and repairs, keeping inventories, inspecting areas to maintain high
standards of sanitation, preparing financial reports and keeping
records pertinent to food services of a school;
(20) "Carpenter I" means a person classified as a carpenter's
helper;
(21) "Carpenter II" means a person classified as a journeyman
carpenter;
(22) "Chief mechanic" means a person employed to be
responsible for directing activities which ensure that student
transportation or other county board-owned vehicles are properly
and safely maintained;
(23) "Clerk I" means a person employed to perform clerical
tasks;
(24) "Clerk II" means a person employed to perform general
clerical tasks, prepare reports and tabulations and operate office
machines;
(25) "Computer operator" means a qualified person employed to
operate computers;
(26) "Cook I" means a person employed as a cook's helper;
(27) "Cook II" means a person employed to interpret menus and
to prepare and serve meals in a food service program of a school. This definition includes a service person who has been employed as
a "Cook I" for a period of four years;
(28) "Cook III" means a person employed to prepare and serve
meals, make reports, prepare requisitions for supplies, order
equipment and repairs for a food service program of a school
system;
(29) "Crew leader" means a person employed to organize the
work for a crew of maintenance employees to carry out assigned
projects;
(30) "Custodian I" means a person employed to keep buildings
clean and free of refuse;
(31) "Custodian II" means a person employed as a watchman or
groundsman;
(32) "Custodian III" means a person employed to keep buildings
clean and free of refuse, to operate the heating or cooling systems
and to make minor repairs;
(33) "Custodian IV" means a person employed as head
custodians. In addition to providing services as defined in
"custodian III," duties may include supervising other custodian
personnel;
(34) "Director or coordinator of services" means an employee
of a county board who is assigned to direct a department or
division.
(A) Nothing in this subdivision prohibits a professional
person or a professional educator from holding this class title;
(B) Professional personnel holding this class title may not be defined or classified as service personnel unless the professional
person held a service personnel title under this section prior to
holding the class title of "director or coordinator of services."
(C) The director or coordinator of services shall be
classified either as a professional person or a service person for
state aid formula funding purposes; and
(D) Funding for the position of director or coordinator of
services
is based upon the employment status of the director or
coordinator either as a professional person or a service person;
(35) "Draftsman" means a person employed to plan, design and
produce detailed architectural/engineering drawings;
(36) "Electrician I" means a person employed as an apprentice
electrician helper or one who holds an electrician helper license
issued by the state fire marshal;
(37) "Electrician II" means a person employed as an
electrician journeyman or one who holds a journeyman electrician
license issued by the state fire marshal;
(38) "Electronic technician I" means a person employed at the
apprentice level to repair and maintain electronic equipment;
(39) "Electronic technician II" means a person employed at the
journeyman level to repair and maintain electronic equipment;
(40) "Executive secretary" means a person employed as
secretary to the county school superintendent or as a secretary who
is assigned to a position characterized by significant
administrative duties;
(41) "Food services supervisor" means a qualified person who is not a professional person or professional educator as defined in
section one, article one of this chapter. The food services
supervisor is employed to manage and supervise a county school
system's food service program. The duties include preparing in-
service training programs for cooks and food service employees,
instructing personnel in the areas of quantity cooking with economy
and efficiency and keeping aggregate records and reports;
(42) "Foreman" means a skilled person employed to supervise
personnel who work in the areas of repair and maintenance of school
property and equipment;
(43) "General maintenance" means a person employed as a helper
to skilled maintenance employees and to perform minor repairs to
equipment and buildings of a county school system;
(44) "Glazier" means a person employed to replace glass or
other materials in windows and doors and to do minor carpentry
tasks;
(45) "Graphic artist" means a person employed to prepare
graphic illustrations;
(46) "Groundsman" means a person employed to perform duties
that relate to the appearance, repair and general care of school
grounds in a county school system. Additional assignments may
include the operation of a small heating plant and routine cleaning
duties in buildings;
(47) "Handyman" means a person employed to perform routine
manual tasks in any operation of the county school system;
(48) "Heating and air conditioning mechanic I" means a person employed at the apprentice level to install, repair and maintain
heating and air conditioning plants and related electrical
equipment;
(49) "Heating and air conditioning mechanic II" means a person
employed at the journeyman level to install, repair and maintain
heating and air conditioning plants and related electrical
equipment;
(50) "Heavy equipment operator" means a person employed to
operate heavy equipment;
(51) "Inventory supervisor" means a person employed to
supervise or maintain operations in the receipt, storage, inventory
and issuance of materials and supplies;
(52) "Key punch operator" means a qualified person employed to
operate key punch machines or verifying machines;
(53) "Licensed practical nurse" means a nurse, licensed by the
West Virginia Board of Examiners for Licensed Practical Nurses,
employed to work in a public school under the supervision of a
school nurse;
(54) "Locksmith" means a person employed to repair and
maintain locks and safes;
(55) "Lubrication man" means a person employed to lubricate
and service gasoline or diesel-powered equipment of a county school
system;
(56) "Machinist" means a person employed to perform machinist
tasks which include the ability to operate a lathe, planer, shaper,
threading machine and wheel press. A person holding this class title also should have the ability to work from blueprints and
drawings;
(57) "Mail clerk" means a person employed to receive, sort,
dispatch, deliver or otherwise handle letters, parcels and other
mail;
(58) "Maintenance clerk" means a person employed to maintain
and control a stocking facility to keep adequate tools and supplies
on hand for daily withdrawal for all school maintenance crafts;
(59) "Mason" means a person employed to perform tasks
connected with brick and block laying and carpentry tasks related
to these activities;
(60) "Mechanic" means a person employed to perform skilled
duties independently in the maintenance and repair of automobiles,
school buses and other mechanical and mobile equipment to use in a
county school system;
(61) "Mechanic assistant" means a person employed as a
mechanic apprentice and helper;
(62) "Multiclassification" means a person employed to perform
tasks that involve the combination of two or more class titles in
this section. In these instances the minimum salary scale shall be
the higher pay grade of the class titles involved;
(63) "Office equipment repairman I" means a person employed as
an office equipment repairman apprentice or helper;
(64) "Office equipment repairman II" means a person
responsible for servicing and repairing all office machines and
equipment. A person holding this class title is responsible for the purchase of parts necessary for the proper operation of a
program of continuous maintenance and repair;
(65) "Painter" means a person employed to perform duties
painting, finishing and decorating wood, metal and concrete
surfaces of buildings, other structures, equipment, machinery and
furnishings of a county school system;
(66) "Paraprofessional" means a person certified pursuant to
section two-a, article three of this chapter to perform duties in
a support capacity including, but not limited to, facilitating in
the instruction and direct or indirect supervision of students
under the direction of a principal, a teacher or another designated
professional educator.
(A) A person employed on the effective date of this section in
the position of an aide may not be subject to a reduction in force
or transferred to create a vacancy for the employment of a
paraprofessional;
(B) A person who has held or holds an aide title and becomes
employed as a paraprofessional shall hold a multiclassification
status that includes both aide and paraprofessional titles in
accordance with section eight-b of this article; and
(C) When a service person who holds an aide title becomes
certified as a paraprofessional and is required to perform duties
that may not be performed by an aide without paraprofessional
certification, he or she shall receive the paraprofessional title
pay grade;
(67) "Payroll supervisor" means a person employed in the county board office who has primary responsibility for the payroll
function and who either has completed twelve college hours of
accounting from an accredited institution of higher education or
has at least eight years of experience performing progressively
difficult accounting tasks. Responsibilities of this class title
may include supervision of other personnel;
(68) "Plumber I" means a person employed as an apprentice
plumber and helper;
(69) "Plumber II" means a person employed as a journeyman
plumber;
(70) "Printing operator" means a person employed to operate
duplication equipment, and to cut, collate, staple, bind and shelve
materials as required;
(71) "Printing supervisor" means a person employed to
supervise the operation of a print shop;
(72) "Programmer" means a person employed to design and
prepare programs for computer operation;
(73) "Roofing/sheet metal mechanic" means a person employed to
install, repair, fabricate and maintain roofs, gutters, flashing
and duct work for heating and ventilation;
(74) "Sanitation plant operator" means a person employed to
operate and maintain a water or sewage treatment plant to ensure
the safety of the plant's effluent for human consumption or
environmental protection;
(75) "School bus supervisor" means a qualified person employed
to assist in selecting school bus operators and routing and scheduling school buses, operate a bus when needed, relay
instructions to bus operators, plan emergency routing of buses and
promote good relationships with parents, students, bus operators
and other employees;
(76) "Secretary I" means a person employed to transcribe from
notes or mechanical equipment, receive callers, perform clerical
tasks, prepare reports and operate office machines;
(77) "Secretary II" means a person employed in any elementary,
secondary, kindergarten, nursery, special education, vocational or
any other school as a secretary. The duties may include performing
general clerical tasks; transcribing from notes, stenotype,
mechanical equipment or a sound-producing machine; preparing
reports; receiving callers and referring them to proper persons;
operating office machines; keeping records and handling routine
correspondence. Nothing in this subdivision prevents a service
person from holding or being elevated to a higher classification;
(78) "Secretary III" means a person assigned to the county
board office administrators in charge of various instructional,
maintenance, transportation, food services, operations and health
departments, federal programs or departments with particular
responsibilities in purchasing and financial control or any person
who has served for eight years in a position which meets the
definition of "secretary II" or "secretary III";;
(79) "Supervisor of maintenance" means a skilled person who is
not a professional person or professional educator as defined in
section one, article one of this chapter. The responsibilities include directing the upkeep of buildings and shops, and issuing
instructions to subordinates relating to cleaning, repairs and
maintenance of all structures and mechanical and electrical
equipment of a county board;
(80) "Supervisor of transportation" means a qualified person
employed to direct school transportation activities properly and
safely, and to supervise the maintenance and repair of vehicles,
buses and other mechanical and mobile equipment used by the county
school system;
(81) "Switchboard operator-receptionist" means a person
employed to refer incoming calls, to assume contact with the
public, to direct and to give instructions as necessary, to operate
switchboard equipment and to provide clerical assistance;
(82) "Truck driver" means a person employed to operate light
or heavy duty gasoline and diesel-powered vehicles;
(83) "Warehouse clerk" means a person employed to be
responsible for receiving, storing, packing and shipping goods;
(84) "Watchman" means a person employed to protect school
property against damage or theft. Additional assignments may
include operation of a small heating plant and routine cleaning
duties;
(85) "Welder" means a person employed to provide acetylene or
electric welding services for a school system; and
(86) "WVEIS data entry and administrative clerk" means a
person employed to work under the direction of a school principal
to assist the school counselor or counselors in the performance of administrative duties, to perform data entry tasks on the West
Virginia Education Information System, and to perform other
administrative duties assigned by the principal.
(j) Notwithstanding any provision in this Code to the
contrary, and in addition to the compensation provided for service
personnel in section eight-a of this article, each service person
is, entitled to all service personnel employee rights, privileges
and benefits provided under this or any other chapter of this Code
without regard to the employee's hours of employment or the methods
or sources of compensation.
(k) A service person whose years of employment exceeds the
number of years shown and provided for under the state minimum pay
scale set forth in section eight-a of this article may not be paid
less than the amount shown for the maximum years of employment
shown and provided for in the classification in which he or she is
employed.
(l) Each county board shall review each service person's job
classification annually and shall reclassify all service persons as
required by the job classifications. The state superintendent may
withhold state funds appropriated pursuant to this article for
salaries for service personnel who are improperly classified by the
county boards. Further, the state superintendent shall order a
county board to correct immediately any improper classification
matter and, with the assistance of the attorney general, shall take
any legal action necessary against any county board to enforce the
order.
(m) Without his or her written consent, a service person may
not be:
(1) Reclassified by class title; or
(2) Relegated to any condition of employment which would
result in a reduction of his or her salary, rate of pay,
compensation or benefits earned during the current fiscal year; or
for which he or she would qualify by continuing in the same job
position and classification held during that fiscal year and
subsequent years.
(n) Any county board failing to comply with the provisions of
this article may be compelled to do so by mandamus and is liable to
any party prevailing against the board for court costs and the
prevailing party's reasonable attorney fee, as determined and
established by the court.
(o) Notwithstanding any provision of this Code to the
contrary, a service person who holds a continuing contract in a
specific job classification and who is physically unable to perform
the job's duties as confirmed by a physician chosen by the
employee, shall be given priority status over any employee not
holding a continuing contract in filling other service personnel
job vacancies if the service person is qualified as provided in
section eight-e of this article.
(p) Any person employed in an aide position on the effective
date of this section may not be transferred or subject to a
reduction in force for the purpose of creating a vacancy for the
employment of a licensed practical nurse.
(q) Without the written consent of the service person, a
county board may not establish the beginning work station for a bus
operator or transportation aide at any site other than a county
board-owned facility with available parking. The workday of the
bus operator or transportation aide commences at the bus at the
designated beginning work station and ends when the employee is
able to leave the bus at the designated beginning work station,
unless he or she agrees otherwise in writing. The application or
acceptance of a posted position may not be construed as the written
consent referred to in this subsection.
§18A-4-8b. Seniority rights for school service personnel.
(a) A county board shall make decisions affecting promotions
and the filling of any service personnel positions of employment or
jobs occurring throughout the school year that are to be performed
by service personnel as provided in section eight of this article,
on the basis of seniority, qualifications and evaluation of past
service.
(b) Qualifications means that the applicant holds a
classification title in his or her category of employment as
provided in this section and shall be given first opportunity for
promotion and filling vacancies. Other employees then shall be
considered and shall qualify by meeting the definition of the job
title as defined in section eight of this article, that relates to
the promotion or vacancy. If requested by the employee, the county
board shall show valid cause why a service person with the most
seniority is not promoted or employed in the position for which he or she applies. Applicants shall be considered in the following
order:
(1) Regularly employed service personnel;
(2) Service personnel whose employment has been discontinued
in accordance with this section;
(3) Professional personnel who held temporary service
personnel jobs or positions prior to the ninth day of June, one
thousand nine hundred eighty-two, and who apply only for these
temporary jobs or positions;
(4) Substitute service personnel; and
(5) New service personnel.
(c) The county board may not prohibit a service person from
retaining or continuing his or her employment in any positions or
jobs held prior to the effective date of this section and
thereafter.
(d) A promotion is defined as any change in employment that
the service person considers to improve his or her working
circumstance within the classification category of employment.
(1) A promotion includes a transfer to another classification
category or place of employment if the position is not filled by an
employee who holds a title within that classification category of
employment.
(2) Each class title listed in section eight of this article
is considered a separate classification category of employment for
service personnel, except for those class titles having Roman
numeral designations, which shall be considered a single classification of employment:
(A) The cafeteria manager class title is included in the same
classification category as cooks;
(B) The executive secretary class title is included in the
same classification category as secretaries;
(C) Paraprofessional, autism mentor and braille or sign
language specialist class titles are included in the same
classification category as aides; and
(D) The mechanic assistant and chief mechanic class titles are
included in the same classification category as mechanics.
(e) For purposes of determining seniority under this section
an service person's seniority begins on the date that he or she
enters into the assigned duties.
(f) Extra-duty assignments.
(1) For the purpose of this section, "extra-duty assignments"
are defined as irregular jobs that occur periodically or
occasionally such as, but not limited to, field trips, athletic
events, proms, banquets and band festival trips.
(2) Notwithstanding any other provisions of this chapter to
the contrary, decisions affecting service personnel with respect to
extra-duty assignments shall be made in the following manner:
(A) A service person with the greatest length of service time
in a particular category of employment shall be given priority in
accepting extra duty assignments, followed by other fellow
employees on a rotating basis according to the length of their
service time until all such employees have had an opportunity to perform similar assignments. The cycle then shall be repeated.
(B) An alternative procedure for making extra-duty assignments
within a particular classification category of employment may be
used if the alternative procedure is approved both by the county
board and by an affirmative vote of two thirds of the employees
within that classification category of employment.
(g) County boards shall post and date notices of all job
vacancies of established existing or newly created positions in
conspicuous places for all school service personnel to observe for
at least five working days.
(1) Posting locations shall include any website maintained by
or available for the use of the county board.
(2) Notice of a job vacancy shall include the job description,
the period of employment, the amount of pay and any benefits and
other information that is helpful to prospective applicants to
understand the particulars of the job. Job 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. 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.
(3) After the five-day minimum posting period, all vacancies
shall be filled within twenty working days from the posting date
notice of any job vacancies of established existing or newly
created positions.
(4) The county board shall notify any person who has applied for a job posted pursuant to this section of the status of his or
her application as soon as possible after the county board makes a
hiring decision regarding the posted position.
(h) All decisions by county boards concerning reduction in
work force of service personnel shall be made on the basis of
seniority, as provided in this section.
(i) The seniority of any service person shall be determined on
the basis of the length of time the employee has been employed by
the county board within a particular job classification. For the
purpose of establishing seniority for a preferred recall list as
provided in this section, when a service person has been employed
in one or more classifications, the seniority accrued in each
previous classification is retained by the employee.
(j) If a county board is required to reduce the number of
service personnel within a particular job classification, the
following conditions apply:
(1) The employee with the least amount of seniority within
that classification or grades of classification shall be properly
released and employed in a different grade of that classification
if there is a job vacancy;
(2) If there is no job vacancy for employment within that
classification or grades of classification, the service person
shall be employed in any other job classification which he or she
previously held with the county board if there is a vacancy and
shall retain any seniority accrued in the job classification or
grade of classification.
(k) Prior to the first day of August after a reduction in
force or transfer is approved:
(1) If the county board in its sole and exclusive judgment
determines that the reason for any particular reduction in force or
transfer no longer exists, the board shall rescind the reduction in
force or transfer and notify the affected employee in writing of
the right to be restored to his or her former position of
employment.
(2) Within five days of being notified, the affected employee
shall notify the county board of his or her intent to return to the
former position of employment or the right of restoration to the
former position terminates:
(3) The county board shall not rescind the reduction in force
of an employee until all service personnel with more seniority in
the classification category on the preferred recall list have been
offered the opportunity for recall to regular employment as
provided in this section.
(4) If there are insufficient vacant positions to permit
reemployment of all more senior employees on the preferred recall
list within the classification category of the service person who
was subject to reduction in force, the position of the released
service person shall be posted and filled in accordance with this
section.
(l) If two or more service persons accumulate identical
seniority, the priority shall be determined by a random selection
system established by the employees and approved by the county board.
(m) All service 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 and shall be recalled to employment by the county board
on the basis of seniority.
(n) A service person placed upon the preferred list shall be
recalled to any position openings by the county board within the
classification(s) where he or she had previously been employed, or
to any lateral position for which the service person is qualified
or to a lateral area for which a service person has certification
and/or licensure.
(o) A service person on the preferred recall list shall not
forfeit the right to recall by the county board if compelling
reasons require him or her to refuse an offer of reemployment by
the county board.
(p) The county board shall notify all service personnel on the
preferred recall list of all position openings that exist from time
to time. The notice shall be sent by certified mail to the last
known address of the service person. Each service person shall
notify the county board of any change of address..
(q) No position openings may be filled by the county board,
whether temporary or permanent, until all service personnel on the
preferred recall list have been properly notified of existing
vacancies and have been given an opportunity to accept
reemployment.
(r) A service person released from employment for lack of need
as provided in sections six and eight-a, article two of this
chapter shall be accorded preferred recall status on the first day
of July of the succeeding school year if the he or she has not been
reemployed as a regular employee.
(s) A county board failing to comply with the provisions of
this article may be compelled to do so by mandamus and is liable to
any party prevailing against the board for court costs and the
prevailing party's reasonable attorney fee, as determined and
established by the court.
(1) A service person denied promotion or employment in
violation of this section shall be awarded the job, pay and any
applicable benefits retroactively to the date of the violation and
shall be paid entirely from local funds.
(2) The county board is liable to any party prevailing against
the board for any court reporter costs including copies of
transcripts.
§18A-4-8f. Seniority rights, school consolidation.
(a) Notwithstanding any provision of this article to the
contrary, when a majority of the classroom teachers or school
service personnel, who vote to do so, in accordance with procedures
established in this section, and who are employed by a county
board, the board shall give priority to classroom teachers or
school service personnel in any school or schools to be closed as
a result of a consolidation or merger when filling positions in the
new school created by consolidation or newly created positions in existing schools as a result of the merger.
(b) Each year a consolidation or merger is proposed, prior to
the implementation of that plan, the superintendent shall cause to
be prepared and distributed to all faculty senates and to all
schools or other work sites a ballot on which teachers and service
personnel may indicate whether or not they desire those affected by
school closings to be given priority status in filling new
positions. A secret ballot election shall be conducted:
(1) In each faculty senate for classroom teachers. The faculty
senate chair shall convey the results of the election to the
superintendent; and
(2) At each school or work site for school service personnel.
The service personnel supervisor at each school or work site shall
convey the results of the election to the superintendent.
(c) The superintendent shall tabulate and post all results
prior to the notice requirements for reduction in force and
transfer as outlined in sections two and seven, article two of this
chapter. The total number of votes shall be tabulated separately
for classroom teachers and for service personnel. The provisions of
this section also shall be implemented separately as follows:
(1) For classroom teachers only if a majority of the total
number of teachers who cast a ballot vote to do so; and
(2) For school service personnel only if a majority of the
total number of service personnel who cast a ballot vote to do so.
(d) If a majority approves, the teachers or school service
personnel in the school or schools to be closed have priority in filling new positions in the new or merged schools for which the
teachers are certified or for which the school service personnel
are qualified and meet the standards set forth in the job posting
on the basis of seniority within the county. A teacher or school
service person may receive priority for filling a position at a
school affected by a merger or consolidation only for the position
being created by the influx of students from a consolidated or
merged school into the school receiving students from their closed
school or grade level.
(1) The most senior teacher from the closed school or schools
shall be placed first, the second most senior shall be placed next
and so on until all the newly created positions are filled, or
until all the teachers in the closed school or schools who wish to
transfer into the newly created positions are placed.
(2) The most senior service person from the closed school or
schools has priority in filling any position within his or her
classification category. The second most senior service person
from the closed school or schools then has priority in filling
remaining vacancies and so on until all available positions are
filled.
(3) If there are fewer new positions in the newly created
school or merged school than there are classroom teachers or school
service personnel from the school or schools to be closed, the
teachers or school service personnel who were not placed in the new
positions retain the same rights as all other teachers or service
personnel with regard to seniority, transfer and reduction in force.
(4) This section does not grant any employee additional rights
or protections with regard to reduction in force.
(e) For the purposes of this section only:
(1) A consolidation means that one or more schools are closed,
or one or more grade levels are removed from one or more schools,
and the students who previously attended the closed schools or
grade levels are assigned to a new school.
(2) A merger means that one or more schools are closed or one
or more grade levels are removed from one or more schools and the
students who previously attended the closed schools or grade levels
are assigned to another existing school.
(f) The provisions of this section do not apply to positions
that are filled by a county board prior to the effective date of
this section, as reenacted during the regular session of the
Legislature, two thousand seven.
§18A-4-8g. Determination of seniority for service personnel.
(a) Seniority accumulation for a regular school service
person:
(1) Begins on the date the employee enters upon regular
employment duties pursuant to a contract as provided in section
five, article two of this chapter;
(2) Continues until the service person's employment as a
regular employee is severed with the county board; and
(3) Does not cease to accumulate when the county board has
authorized an absence whether without pay or due to illness or other reason over which the employee has no control.
(b) Seniority accumulation for a substitute service person:
(1) Begins on the date the employee enters upon the duties of
a substitute as provided in section fifteen of this article, after
executing with the county board a contract of employment as
provided in section five, article two of this chapter; and
(2) Continues until the 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 service person
with the county board is severed.
(c) Seniority of a regular or substitute service person does
not continue to accumulate under the following conditions:
(1) When a service person is willfully absent from employment
duties because of a concerted work stoppage or strike; or
(2) When a service person is suspended without pay.
(d) 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.
(e) When implementing a reduction in force, the service person
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 a service
person within the classification category may not be considered
when implementing a reduction in force.
(f) On or before the first day of September and the fifteenth
day of January of each school year, county boards shall post at
each county school or working station the current seniority list or
lists of each service personnel classification. Each list shall
contain the name of each regularly employed school service person
employed in each classification and the date that each employee
began performing his or her assigned duties in each classification.
Current seniority lists of substitute school service personnel
shall be available to employees upon request at the county board
office.
(g) The seniority of a service person who transfers out of a
class title or classification category of employment and
subsequently returns to that class title or classification category
of employment is calculated as follows:
(1) The county board shall establish the number of calendar
days between the date the service person left the class title or
category of employment in question and the date of return to the
class title or classification category of employment.
(2) This number of days shall be added to the service person's
initial seniority date to establish a new beginning seniority date
within the class title or classification category.
(3) The service person then shall 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 the same manner.
(h) Beginning on the first day of July, two thousand seven, a
substitute school service person shall acquire regular employment
status, but not regular employee job bidding rights or regular
seniority, if the employee receives a position pursuant to the
leave of absence or suspension provisions of subdivisions (2) and
(5), subsection (a), section fifteen of this article.
(1) A substitute service person shall accumulate substitute
employee seniority while holding a position acquired pursuant to
subsections (2) and (5).
(2) Upon termination of the regular service person's leave of
absence or suspension, the substitute service person shall return
to the status previously held.
(3) County boards are not prohibited from providing any
benefits of regular employment for substitute service personnel,
but the benefits may not include regular service personnel employee
status or seniority.
(i) If two or more service personnel accumulate identical
seniority, the priority shall be determined by a random selection
system established by the service personnel and approved by the
county board.
(1) A board shall conduct the random selection within thirty
days of the time the service personnel establish an identical
seniority date. All service personnel with an identical seniority
date within the same class title or classification category shall participate in the random selection.
(2) As long as the affected employees hold identical seniority
within the same classification category, the initial random
selection conducted by the board shall be permanent for the
duration of the employment within the same classification category
of the employees by the board. This random selection priority
applies to the filling of vacancies and to the reduction in force
of school service personnel.
(3) If any other service person subsequently acquires
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
within the group.
(A) The priority between the employees who participated in the
original random selection remains the same.
(B) The second random selection is performed by placing
numbered pieces of paper equal to the number of employees with
identical seniority in a container. Any service person who was
not involved in the original random selection shall draw a number
from the container which will determine his or her seniority within
the group as a whole.
(C) This process will be repeated if any additional service
person subsequently acquires identical seniority.
(D) The same process shall be used if any additional service
person is subsequently discovered to have the same seniority as the
original group of employees but who did not participate in the original random selection due to oversight or mistake.
(j) 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 the vacancy.
(k) Seniority acquired as a substitute service person and as
a regular service person shall be calculated separately and may not
be combined for any purpose. Seniority acquired within different
classification categories shall be calculated separately. If a
school service employee applies for a position outside of the
classification category he or she currently holds, and 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 purpose of bidding on the
position.
(l) A school service person who holds a multiclassification
title accrues seniority in each classification category of
employment that the employee holds and is considered an employee of
each classification category contained within his or her
multiclassification title. A multiclassified service person is
subject to reduction in force in any category of employment
contained within his or her multiclassification title, based upon
the seniority accumulated within that category of employment. If
a multiclassified service person is subject to a reduction in force
in one classification category, the service person retains
employment in any of the other classification categories that he or she holds within his or her multiclassification title. In that
case, the county board shall delete the appropriate classification
title or classification category from the contract of the
multiclassified employee.
(m) When applying to fill a vacancy outside the classification
categories held by a multiclassified service person, seniority
acquired simultaneously in different classification categories is
calculated as if accrued in one classification category only.
(n) The seniority conferred in this section applies
retroactively to all affected school service personnel, but the
rights incidental to the seniority commence as of the effective
date of this section.
§18A-4-10. Personal leave for illness and other causes; leave
banks; substitutes.
(a) Personal Leave.
(1) At the beginning of the employment term, any full-time
employee of a county board is entitled annually to at least one and
one-half days personal leave for each employment month or major
fraction thereof in the employee's employment term. Unused leave
shall be accumulative without limitation and is transferable within
the state. A change in job assignment during the school year does
not affect the employee's rights or benefits.
(2) A regular full-time employee who is absent from assigned
duties due to accident, sickness, death in the immediate family, or
life threatening illness of the employee's spouse, parents or
child, or other cause authorized or approved by the board, shall be paid the full salary from his or her regular budgeted salary
appropriation during the period which the employee is absent, but
not to exceed the total amount of leave to which the employee is
entitled.
(3) Each employee is permitted to use three days of leave
annually without regard to the cause for the absence. Personal
leave without cause may not be used on consecutive work days unless
authorized or approved by the employee's principal or immediate
supervisor, as appropriate. The employee shall give notice of
leave without cause to the principal or immediate supervisor at
least twenty-four hours in advance, except that in the case of
sudden and unexpected circumstances, notice shall be given as soon
as reasonably practicable. The principal or immediate supervisor
may deny use of the day if, at the time notice is given, either
fifteen percent of the employees or three employees, whichever is
greater, under the supervision of the principal or immediate
supervisor, have previously given notice of their intention to use
that day for leave. Personal leave may not be used in connection
with a concerted work stoppage or strike. Where the cause for
leave originated prior to the beginning of the employment term, the
employee shall be paid for time lost after the start of the
employment term. If an employee uses personal leave which the
employee has not yet accumulated on a monthly basis and
subsequently leaves the employment, the employee is required to
reimburse the board for the salary or wages paid for the
unaccumulated leave.
(4) The State Board shall maintain a rule to restrict the
payment of personal leave benefits and the charging of personal
leave time used to an employee receiving a workers' compensation
benefit from a claim filed against and billed to the county
board
by which the person is employed. If an employee is awarded this
benefit, the employee shall receive personal leave compensation
only to the extent the compensation is required, when added to the
workers' compensation benefit, to equal the amount of compensation
regularly paid the employee. If personal leave compensation equal
to the employee's regular pay is paid prior to the award of the
workers' compensation benefit, the amount which, when added to the
benefit, is in excess of the employee's regular pay shall be
deducted from the employee's subsequent pay. The employee's
accrued personal leave days shall be charged only for such days as
equal the amount of personal leave compensation required to
compensate the employee at the employee's regular rate of pay.
(5) The county board may establish reasonable rules for
reporting and verification of absences for cause. If any error in
reporting absences occurs, the county board may make necessary
salary adjustments:
(A) In the next pay after the employee has returned to duty;
or
(B) In the final pay if the absence occurs during the last
month of the employment term.
(b) Leave Banks.
(1) Each county board shall establish a personal leave bank that is available to all school personnel. The board may establish
joint or separate banks for professional personnel and school
service personnel. Each employee may contribute up to two days of
personal leave per school year.
An employee may not be coerced or
compelled to contribute to a personal leave bank.
(2) The personal leave bank shall be established and operated
pursuant to a rule adopted by the county board. The rule:
(A) May limit the maximum number of days used by an employee;
(B) Shall limit the use of leave bank days to an active
employee with fewer than five days accumulated personal leave who
is absent from work due to accident or illness of the employee; and
(C) Shall prohibit the use of
days to:
(i) Qualify for or add to service for any retirement system
administered by the state; or
(ii) Extend insurance coverage pursuant to section thirteen,
article sixteen, chapter five of this code.
(D) Shall require that each personal leave day contributed:
(i) Is deducted from the number of personal leave days to
which the donor employee is entitled by this section;
(ii) Is not deducted from the personal leave days without
cause to which a donor employee is entitled if sufficient general
personal leave days are otherwise available to the donor employee;
(iii) Is credited to the receiving employee as one full
personal leave day;
(iv) May not be credited for more or less than a full day by calculating the value of the leave according to the hourly wage of
each employee; and
(v) May be used only for an absence due to the purpose for
which the leave was transferred. Any transferred days remaining
when the catastrophic medical emergency ends revert back to the
leave bank.
(3) The administration, subject to county board approval, may
use its discretion as to the need for a substitute where limited
absence may prevail, when an allowable absence does not:
(i) Directly affect the instruction of the students; or
(ii) Require a substitute employee because of the nature of
the work and the duration of the cause for the absence.
(4) If funds in any fiscal year, including transfers, are
insufficient to pay the full cost of substitutes for meeting the
provisions of this section, the remainder shall be paid on or
before the thirty-first day of August from the budget of the next
fiscal year.
(5) A county board may supplement the leave provisions in any
manner it considers advisable in accordance with applicable rules
of the State Board and the provisions of this chapter and chapter
eighteen of this code.
§18A-4-10f. Leave donation program.
(a) Definitions.
For the purposes of this section and section ten of this
article, the following words have the meanings specified unless the
context clearly indicates a different meaning:
(1) "Catastrophic medical emergency" means a medical or
physical condition that:
(A) Incapacitates an employee or an immediate family member
for whom the employee will provide care;
(B) Is likely to require the prolonged absence of the employee
from duty; and
(C) Will result in a substantial loss of income to the
employee because the employee:
(i) Has exhausted all accrued personal leave; and
(ii) Is not eligible to receive personal leave or has
exhausted personal leave available from a leave bank established
pursuant to this article;
(2) "Employee" means a professional educator or school service
person who is employed by a county board and entitled to accrue
personal leave as a benefit of employment;
(3) "Donor employee" means a professional educator or school
service person employed by a county board who voluntarily
contributes personal leave to another designated employee; and
(4) "Receiving employee" means a professional educator or
school service person employed by a county board who receives
donated personal leave from another employee.
(b) Leave donation program.
(1) In addition to any personal leave bank established
pursuant to this article, a county board shall establish a leave
donation program pursuant to which a donor employee may transfer
accrued personal leave to the personal leave account of another designated employee.
(2) A county board:
(A) May not limit the number of personal leave days a donor
employee may transfer to a receiving employee who is his or her
spouse;
(B) May not limit the total number of personal leave days a
receiving employee receives; and
(C) May limit the number of days a donor employee transfers to
a receiving employee who is not his or her spouse.
(c) Rule.
(1) The county board shall adopt a rule to implement the
program.
(2) The rule shall set forth at least the following
conditions:
(A) The donor employee voluntarily agrees to the leave
transfer;
(B) The donor employee selects the employee designated to
receive the personal leave transferred; and
(C) The receiving employee requires additional personal leave
because of a catastrophic medical emergency;
(D) The donated leave may not be used to:
(i) Qualify for or add to service for any retirement system
administered by the state; or
(ii) Extend insurance coverage pursuant to section thirteen,
article sixteen, chapter five of this code;
(E) Each personal leave day contributed:
(i) Shall be deducted from the number of personal leave days
to which the donor employee is entitled by section ten of this
article;
(ii) Shall not be deducted from the number of personal leave
days without cause to which the donor employee is entitled if
sufficient general personal leave days are otherwise available to
the donor employee;
(iii) Shall be credited to the receiving employee as one full
personal leave day;
(iv) May not be credited for more or less than a full day by
calculating the value of the leave according to the hourly wage of
each employee; and
(v) May be used only for an absence due to the purpose for
which the leave was transferred. Any transferred days remaining
when the catastrophic medical emergency ends revert back to the
donor employee; and
(F) An employee may not be coerced or compelled to contribute
to a leave donation program.
§18A-4-15. Employment of service personnel substitutes.
(a) The county board shall employ and the county
superintendent, subject to the approval of the county board, 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 person as
follows:
(A) If the regular service person requests a leave of absence
from the county board in writing and is granted the leave in
writing by the county board; or
(B) If the regular service person is on workers' compensation
and absent.
(C) If an absence pursuant to paragraph (A) or (B) of this
subdivision is to extend beyond thirty working days, the county
board shall post the position of the absent employee under the
procedures set forth in section eight-b of this article. If a
substitute service person is employed to fill the position of the
absent employee and is employed in the position for twenty or more
working days, the substitute service person:
(i) Acquires regular employment status with the exception of
regular employee job bidding rights;
(ii) Does not accrue regular seniority; and
(iii) Is accorded all other rights, privileges and benefits
pertaining to the position until the regular employee returns to
the position or ceases to be employed by the county board;
(D) If a regular or substitute employee fills a vacancy that
is related in any manner to a leave of absence or the absence of an
employee on workers' compensation as provided in this section, upon
termination of the absence the employee shall be returned to his or
her original position or status;
(E) A service person may not be:
(i) Required to request or to take a leave of absence; or
(ii) Deprived of any right or privilege of regular employment status for refusal to request or failure to take a leave of
absence;
(3) To perform the service of a service person 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
person who had been assigned to the position. Within twenty
working days from the commencement of the vacancy, the county board
shall fill the vacancy under the procedures set forth in section
eight-b of this article and section five, article two of this
chapter. The person hired to fill the vacancy shall have and be
accorded all rights, privileges and benefits pertaining to the
position;
(5) To fill the vacancy created by a regular employee's
suspension.
(A) If the suspension is for more than thirty working days,
the county board shall post the position of the suspended employee
under the procedures set forth in section eight-b of this article.
(B) If a substitute service person is employed to fill the
suspended employee's position, the substitute service person:
(i) Acquires regular employment status with the exception of
regular employee job-bidding rights;
(ii) Does not accrue regular seniority; and
(iii) Is accorded all other rights, privileges and benefits pertaining to the position until the termination by the county
board becomes final or the suspended employee is returned to
employment.
(C) If the suspended employee is not returned to his or her
job, the county board shall fill the vacancy under the procedures
set forth in section eight-b of this article and section five,
article two of this chapter; and
(6) To fill temporarily a vacancy in a newly created position
prior to employing a service person on a regular basis pursuant to
section eight-b of this article.
(b) Service personnel substitutes shall be assigned in the
following manner:
(1) The substitute with the greatest length of service time in
the vacant category of employment has priority in accepting the
assignment throughout the period of the regular service person's
absence or until the vacancy is filled on a regular basis pursuant
to section eight-b of this article. Length of service time is
calculated from the date a substitute service person begins
assigned duties as a substitute in a particular category of
employment.
(2) All service personnel substitutes are employed on a
rotating basis according to their lengths of service time until
each substitute has had an opportunity to perform similar
assignments.
(3) Any regular service person employed in the same building
or working station and the same classification category of employment as the absent employee shall be given the first
opportunity to fill the position of the absent employee on a
rotating and seniority basis. In such case the regular service
person's position is filled by a substitute service person. A
regular service person assigned to fill the position of an absent
employee has the opportunity to hold that position throughout the
absence. For the purpose of this section only, all regularly
employed school bus operators are considered to be employed within
the same building or working station.
(c) The county board shall return a regular school service
person to the same position held prior to any approved leave of
absence or period of recovery from injury or illness. The school
service person:
(1) Retains all rights, privileges and benefits which had
accrued at the time of the absence or accrued under any other
provision of law during the absence; and
(2) Has all rights, privileges and benefits generally accorded
school service personnel at the time of return to work.
(d) The salary of a substitute service person is determined:
(1) Based upon his or her years of employment as defined in
section eight of this article;
(2) As provided in the state minimum pay scale set forth in
section eight-a of this article; and
(3) In accordance with the salary schedule of persons
regularly employed in the same position in the county in which he
or she is employed.
(e) A substitute service person shall execute a written
contract with the county board pursuant to section five, article
two of this chapter, prior to beginning assigned duties.
(f) The following method shall be used to establish a fair,
equitable and uniform system for assigning service personnel
substitutes to their duties for the first time:
(1) The initial order of assigning newly-employed substitutes
is determined by a random selection system established by the
affected substitute employees and approved by the county board; and
(2) The initial order is effective only until the substitute
service personnel have begun their duties for the first time.
(g) A substitute service person who has worked thirty days for
a school system has all rights pertaining to suspension, dismissal
and contract renewal as are granted to regular service personnel in
sections six, seven, eight and eight-a, article two of this
chapter.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-8. Authority of certain aides to exercise control over
students; compensation; transfers.
(a) Within the limitations provided in this section, any aide
who agrees to do so shall stand in the place of the parent or
guardian and shall exercise such authority and control over
students as is required of a teacher as provided in section one of
this article. The principal shall designate aides in the school
who agree to exercise that authority on the basis of seniority as an aide and shall enumerate the instances in which the authority
shall be exercised by an aide when requested by the principal,
assistant principal or professional employee to whom the aide is
assigned.
(b) The authority provided for in subsection (a) of this
section may not extend to suspending or expelling any student,
participating in the administration of corporal punishment or
performing instructional duties as a teacher or substitute teacher.
However, the authority extends to supervising students undergoing
in-school suspension if the instructional duties required by the
supervision are limited solely to handing out class work and
collecting class work. The authority to supervise students
undergoing in-school suspension may not include actual instruction.
(c) An aide designated by the principal under subsection (a)
of this section shall receive a salary not less than one pay grade
above the highest pay grade held by the service person under
section eight-a, article four of this chapter and any county salary
schedule in excess of the minimum requirements of this article.
(d) An aide may not be required by the operation of this
section to perform noninstructional duties for an amount of time
which exceeds that required under the aide's contract of employment
or that required of other aides in the same school unless the
assignment of the duties is mutually agreed upon by the aide and
the county superintendent, or the superintendent's designated
representative, subject to board approval.
(1) The terms and conditions of the agreement shall be in writing, signed by both parties, and may include additional
benefits.
(2) The agreement shall be uniform as to aides assigned
similar duties for similar amounts of time within the same school.
(3) Aides have the option of agreeing to supervise students
and of renewing related assignments annually. If an aide elects
not to renew the previous agreement to supervise students, the
minimum salary of the aide shall revert to the pay grade specified
in section eight-a, article four of this chapter for the
classification title held by the aide and any county salary
schedule in excess of the minimum requirements of this article.
(e) For the purposes of this section, aide means any aide
class title as defined in section eight, article four of this
chapter regardless of numeric classification.
(f) Subject to the limitations set forth in subsection (g) of
this section, an aide may transfer to another position of
employment one time only during any one half of a school term,
unless otherwise mutually agreed upon by the aide and the county
superintendent, or the superintendent's designee, subject to board
approval. During the first year of employment as an aide, an aide
may not transfer to another position of employment during the first
one-half school term of employment unless mutually agreed upon by
the aide and county superintendent, subject to board approval.
(g) Autism mentors
and aides providing services to children
diagnosed as autistic or with autism spectrum disorder
.
(1) Legislative findings and intent.
(A) The Legislature finds that it is not in the best interest
of students with autism to have multiple teachers, mentors, aides
or any combination thereof during the instructional term; and
(B) It is the intent of the Legislature that filling positions
for autism mentors and aides who work with autistic students
through transfers of personnel from one position to another after
the fifth day prior to the beginning of the instructional term be
kept to a minimum.
(2) Transfer limitations and conditions.
(A) After the fifth day prior to the beginning of the
instructional term, no service person employed and assigned as an
autism mentor or aide who works with autistic students may transfer
to another position in the county during that instructional term
unless the service person holding that position does not have valid
certification.
(B) The provisions of this subsection are subject to the
following conditions:
(i) The aide or autism mentor may apply for any posted, vacant
position with the successful applicant assuming the position at the
beginning of the next instructional term;
(ii) The county board, upon recommendation of the
superintendent, may fill a position before the beginning of the
next instructional term when it is determined to be in the best
interest of the students; and
(iii) The county superintendent shall notify the State Board
when a service person employed in a position as autism mentor or aide working with autistic students is transferred to another
position after the fifth day prior to the beginning of the
instructional term;
(h) Regular service personnel employed in a category of
employment other than aide who seek employment as an aide shall
hold a high school diploma or shall have received a general
educational development certificate and shall have the opportunity
to receive appropriate training pursuant to subsection (10),
section thirteen, article five, chapter eighteen of this code and
section two, article twenty of said chapter.