Highly Qualified Teacher
Support
Federal Programs Fall Directors’ Conference
Embassy Suites, Charleston
October 13, 2011
Leaders of the Education Law
Group at Bowles Rice

Greg Bailey: Morgantown


Rick Boothby: Parkersburg


rboothby@bowlesrice.com
Howard Seufer: Charleston


gbailey@bowlesrice.com
hseufer@bowlesrice.com
Rebecca Tinder: Charleston

rtinder@bowlesrice.com
Caution!




These materials are presented with the understanding
that the information provided is not legal advice
Due to the rapidly changing nature of the law,
information contained in this presentation may become
outdated
Anyone using information contained in this presentation
should always research original sources of authority and
update this information to ensure accuracy when dealing
with a specific matter
No person should act or rely upon the information
contained in this presentation without seeking the advice
of an attorney
Today






Points to remember about West Virginia’s
school personnel laws
Posting practices
Hiring procedures
RIF and transfer procedures
Some special realignment issues
Your good questions
Points to remember about
West Virginia’s school
personnel laws


Under the personnel laws, school districts, as
employers, do not have the same prerogatives
and options as private employers in many
instances
A personnel practice that is perfectly lawful
when followed by a private employer may be
wholly illegal if implemented by a school
system



The requirements of the school personnel
laws must ordinarily be followed, no matter
how inconvenient, inefficient, outdated,
unreasonable, or irrelevant they may seem in
a particular situation
The same is true of State Board policies
Local school district policies have the force of
law and must be followed if they do not
violate state or federal law

In a school personnel law:



The word “shall” means “must”
The word “may” typically allows the exercise of
discretion in accordance with the law’s terms
If a “may” school personnel law does not give
guidance about how the school district should
exercise its discretion, the discretion must be
exercised reasonably and in the best interests of
the schools, and not arbitrarily or capriciously

The school personnel laws apply to all county
board employees, regardless of the source of
the funds from which the employees are paid

For example, just because the funds for a position
are traceable to the Federal Government does not
mean that the school district is excused from
following the usual school personnel laws in
filling the position and managing the employee
who is in the position

The school personnel laws are enforced by the
Grievance Board and the courts


Compliance is also monitored by OEPA and other
parties
Breaches may result in



Orders to undo, re-do, or implement a different
result
Awards of money, including attorney fees
Even more personnel headaches
Posting practices
Some issues that arise

Is it possible to post positions with
very specific qualifications that
may cause some existing staff to
not be qualified for the position?
Issues that arise



What procedures should be followed if
no qualified applicants apply?
Must an extracurricular assignment
funded by a grant for a specific school
be posted county-wide, or may it be
posted, instead, only in the affected
school?
Others?
The statute,
W. Va. Code § 18A-4-7a
Openings in established, existing or newly created
positions shall be processed as follows:

(1) Boards shall be required to post and date
notices which shall be subject to the following:


(A) The notices shall be posted in conspicuous
working places for all professional personnel to
observe for at least five working days;
(B) The notice shall be posted within twenty
working days of the position openings and shall
include the job description;


(C) Any special criteria or skills that are required
by the position shall be specifically stated in the
job description and directly related to the
performance of the job;
(D) Postings for vacancies made pursuant to this
section shall be written so as to ensure that the
largest possible pool of qualified applicants may
apply; and

(E) Job postings may not require criteria which are
not necessary for the successful performance of the
job and may not be written with the intent to favor a
specific applicant;
(2) No vacancy shall be filled until after the
five-day minimum posting period;


(3) If one or more applicants meets the
qualifications listed in the job posting, the
successful applicant to fill the vacancy shall
be selected by the board within thirty working
days of the end of the posting period”


(4) A position held by a teacher who is certified,
licensed or both, who has been issued a permit for fulltime employment and is working toward certification in
the permit area shall not be subject to posting if the
certificate is awarded within five years; and
(5) Nothing provided herein shall prevent the county
board of education from eliminating a position due to
lack of need.
Some issues that arise

Under those provisions of the
personnel laws, is it possible to post
positions with very specific
qualifications that may cause some
existing staff to not be qualified for
the position?

How could that happen?
What procedures may be followed if
no qualified applicants apply?
•
Hire the remaining
candidate who comes
closest to meeting the
posted qualifications?
•
•
Immediately re-post
the position with the
same posted
qualifications?
•
Deciding, upon
reflection, that the
position isn’t really
needed, don’t post it
again
Immediately re-post,
but this time with less
restrictive
qualifications?
Some issues that arise

Under those provisions of the personnel
laws, must an after-school or summer
assignment funded by a grant for a
specific school be posted county-wide,
or may it be posted, instead, only in the
affected school?
Other posting concerns:


Be careful to distinguish between “do or die”
qualifications and credentials that are merely
desirable.
If the position is a “classroom teaching”
position, the only appropriate desirable
qualifications may be specific specialized
trainings directly related to the performance
of the job as stated in the job description

If even one candidate meets the posted
qualifications, it is illegal to re-post in an
effort to attract additional (and perhaps more
qualified) applicants until every qualified
person who applied the first time has first
been offered the job
Hiring procedures
Selecting from among the
applicants


The factors that govern the choice of an applicant
to fill a posted professional vacancy depend in
part upon whether the vacant job is a “classroom
teaching position.”
A classroom teacher is “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”
The statute,
W. Va. Code § 18A-4-7a



For regular classroom teaching positions
where at least one permanent instructional
employee applies and meets the standards in
the posting, compare all qualified applicants
using seven mandated qualification criteria,
giving each of the seven factors equal weight
Consider nothing else
If the seven-factor comparison results in
candidates who are “tied,” the tie must be broken
based upon qualifications
The seven qualification criteria
1.
2.
3.
4.
5.
6.
7.
(classroom teaching position, at least one qualified regular
instructional employee applied)
Appropriate certification, licensure or both
Total amount of teaching experience
The existence of teaching experience in the required
certification area
Degree level in the required certification area
Specialized training directly related to the performance of the
job as stated in the job description
Receiving an overall rating of satisfactory in the previous two
evaluations conducted pursuant to § 18A-2-12
Seniority
Selecting from among the
applicants



For all other posted professional positions,
compare all qualified applicants using a
different set of seven qualification criteria
All seven of these factors must be considered,
but the school board has the discretion to
assign whatever weight it wishes to each
factor
If this seven-factor comparison results in
candidates who are “tied,” the tie must be
broken based upon qualifications
The “other” seven qualification criteria
1.
2.
3.
4.
5.
6.
7.
Appropriate certification and/or licensure
Amount of experience relevant to the position or, in the case
of a classroom teaching position, the amount of teaching
experience in the subject area
The amount of course work, degree level or both in the
relevant field and degree level generally
Academic achievement
Relevant specialized training
Past performance evaluations conducted pursuant to 18A-212
Other measures or indicators upon which the relative
qualifications of the applicant may fairly be judged
Some issues that arise


If a job is posted and there are no
qualified applicants, does the
district have to fill the position?
If there are no qualified applicants,
what are the options for placing a
person in the position?
Some issues that arise

Is it possible to specify in a contract,
that if the district has provided the
teacher tuition reimbursement, that
the individual must agree to remain
in the position for a specified
number of years?

Bland v. Monroe County BOE (1998)
RIF and transfer
procedures
Some issues that arise


Are RIF and transfer procedures
different for academic coaches and/or
school improvement specialists?
Is there a lawful way to protect the
academic coaches and school
improvement specialists from being
“bumped” from their positions?
Definitions

Transfer



Action by the county board to assign an employee to
a different position of employment, often as of the
beginning of the ensuing year
Generally a change in work site or place of
employment is a transfer
Includes displacing a teacher, totally or partially,
from the teacher’s currently-utilized area(s) of
teaching certification and assigning the teacher to
provide instruction in another area (even if the
teacher is certified in the other area)
Definitions

Termination of contract for lack of need

Action to terminate an employee’s continuing
contract at the end of the current school year and
place his or her name on the preferred recall list
because either



the employee’s job is to be eliminated, or
the employee is to be “bumped” from his or her job by
a more senior person
and the employee does not have seniority and
certification needed to retain a job for next year
Definitions

Non-renewal for lack of need

Action to end an employee’s probationary
contract at the end of the current school year and
place his or her name on the preferred recall list
because either



the employee’s job is to be eliminated, or
the employee is to be “bumped” from his or her job by
a more senior person
and the employee does not have seniority and
certification needed to retain a job for next year
Using Those Three
Processes to Eliminate a
Professional Position
(W. Va. Code § § 18A-2-2, 18A-2-7, 18A-2-8a, 18A-4-7a
Step One

Identify the person holding the position
to be eliminated

Determine that person’s certification
areas and seniorities
Step Two

If



the person is certified and/or licensed in multiple
lateral areas, and
the person’s seniority is greater than the seniority of
an employee assigned to a position in any of those
lateral areas,
Then

transfer the person to the lateral position held by the
employee with the least seniority in any of those areas
of certification
(Step Two, continued)

If the person is certified and/or licensed



then transfer the person to a professional position for
which he or she is certified and



in but one area, or
in multiple areas but cannot assume a position under the first
rule of this step,
was previously employed, or
is lateral to the person’s current position,
but only if the person has more seniority than the person
to be “bumped.”
Step Three

Lacking all of those alternatives,
terminate or non-renew the contract of
the displaced employee and place
his/her name on the preferred recall
list
Eliminating Professional Positions:
Bumping


A displaced professional employee who has
certification and seniority to retain a job for next
year is not allowed to select a “bumping”
destination from among the possible destinations
When displaced professionals bump into
positions that are “lateral” to their own


“classroom teacher positions,” by law, are lateral to
each other
for all other positions, the county’s own “laterality”
policy specifies which positions are lateral
Employees working under a permit


“All persons employed in a certification area
to be reduced who are employed under a
temporary permit shall be properly notified
and released before a fully certified employee
in such a position is subject to release”
Key: Persons employed under a permit in a
certification area to be reduced

If the certification area is not to be reduced,
permits are the same as certificates
Some issues that arise

Under the statutes, Are RIF and
transfer procedures different for
academic coaches and/or school
improvement specialists?
Some issues that arise

Under the statutes, is there a lawful
way to protect the academic coaches
and school improvement specialists
from being “bumped” from their
positions?
Other questions?
Thank you for the good work you
do to help ensure that our children
graduate from school ready for
college or career