Preparing for Personnel Season
Personnel Season 101
West Virginia County Boards of Education
WVASA
Oct. 29, 2015
© 2011 DINSMORE & SHOHL | LEGAL COUNSEL
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Presenters
Jason S. Long, Esq.
Lewisburg ^ 304.276.7778
jason.long@dinsmore.com
Denise M. Spatafore, Esq.
Morgantown ^ 304.225.1445
denise.spatafore@dinsmore.com
© 2011 DINSMORE & SHOHL | LEGAL COUNSEL
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Jason Long is a Partner in the firm’s Lewisburg office and is the Chair of the West
Virginia Education Law Practice Group. Jason's practice concentrates on education related
issues and develops from his pre-lawyer days as an educator as well as growing up as the son
of a county school superintendent. Jason focuses on representation of numerous county boards
of education in the firm’s Educational Law Practice Group, providing a wide range of services,
including, but not limited to, guidance on personnel matters (both service and professional
personnel), student and employee discipline matters, and due process hearings. He often
provides in-service training to school personnel on issues such as student rights, student
discipline, employee discipline, employee evaluations, and updates on the ever changing
educational laws.
Jason.Long@dinsmore.com
304-276-7778
Denise Spatafore is a native of southern West Virginia, Denise is uniquely experienced in the
education law area. For many years, she served as an administrative law judge for the Public
Employees Grievance Board, authoring hundreds of administrative decisions that are still
recognized precedent in the field of West Virginia school personnel law. Most recently before
joining the firm, Denise was the personnel director for Harrison County Schools in Clarksburg,
West Virginia, providing both legal services and human resources management for a large
school system. Because of her background in the very specialized field of West Virginia school
law and her experience as a central office administrator, Denise has a unique understanding of
the issues facing our board of education clients. She is an of counsel member of the Labor and
Employment Department, focusing on education law practice.
Denise.Spatafore@dinsmore.com
304- 225-1445
© 2011 DINSMORE & SHOHL | LEGAL COUNSEL
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Education Law
Attorneys in Dinsmore & Shohl's Education Law Practice Group possess significant experience representing
public and private school districts and professional associations throughout the region. Our law firm has the depth
and resources you are looking for in addressing the ever growing complicated legal issues facing educational
institutions. Our services are far reaching and unsurpassed and include personnel, ADA, FMLA, immigration,
student rights, special education, Title VII, Title IX, HIPAA, bond finance, tax, litigation, real estate, environmental,
media and public relations and the like. We offer proactive training and consultation to assist our clients in
minimizing and avoiding expensive litigation to the fullest extent possible. Our Education Law Practice Group
includes current Board members, who have a unique 1st hand insight into the issues, and practical solutions to the
problems confronted by our education law clients. We treasure our clients and treat their matters personally.
Client Relationships
We highly value the relationships we have with our clients and work to instill in them a sense that they can depend
on us for quality legal advice and representation with a results-oriented focus. The success of this relationship
comes from teamwork and a risk management focus.
Education Law Issues
The firm advises and represents school districts concerning all matters impacting the educational law arena. We
take great pride in our responsiveness and resourcefulness to address our clients' needs.
Training
The firm provides counseling and workshops for training in a wide range of topics. These workshops include
administrative workshops, coaching workshops, teacher workshops, counseling workshops, special education
workshops, on topics such as employee code of conduct, reporting suspected child abuse, ethical issues for
counselors, overview of employee suspension, board-employee relations, drug-free workplace; anti-harassment,
confidentiality of student information, student related policies, the evaluation process, avoiding liability in
education issues, complying with the Americans With Disabilities Act (ADA) and the Family and Medical Leave Act
(FMLA) and handling EEO/sexual harassment issues. Our attorneys are frequent speakers on all aspects of
Education Law and write numerous articles on practical education law tips for many news publications.
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RIF and Transfer Deadlines
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Pop Quiz
When is the statutory deadline for the board of education to vote
on the recommendation to terminate a Service Personnel
employee contract for next school year (2016-17)?
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Deadline: Termination of Service Personnel
Reduction-in-Force (“RIF”) of service personnel employees:
 Board approval before March 1, 2016. Keep in mind that notice and
a hearing (if requested) must occur prior to March 1, 2016, per W.
Va. Code 18A-2-6.
 “Written notice, stating cause or causes . . .”.
© 2011 DINSMORE & SHOHL | LEGAL COUNSEL
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Pop Quiz
When is the statutory deadline for the board of education to vote
on the recommendation to terminate a Professional Personnel
employee contract for next school year (2016-17)?
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Deadline: Termination of Professional Personnel
RIF of Professional Employees:
 Board approval on or before March 1, 2016 (one day beyond the
deadline for service personnel). Keep in mind that notice and
hearing must occur prior to the March 1 deadline per W. Va. Code
18A-2-2(c).
 “Written notice, served upon the teacher, return receipt
requested, stating cause or causes and an opportunity to be heard
at a meeting of the board prior to the board’s action”.
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Pop Quiz
When is the statutory deadline for the board of education to vote
on the recommendation to transfer a Service Employee and
Professional Personnel employee for next school year (201617)?
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Deadline: Transfer of Professional & Service
Personnel
Transfer of employees:
 Notified in writing by the Superintendent on
or before March 1, 2016.
 If a hearing is requested on the proposed transfer, it
shall be held on or before April 15, 2016.
 The Superintendent at a meeting of the board on or
before April 15, 2016, shall furnish in writing to the board
a list of teachers and other employees to be considered
for transfer and subsequent assignment for the 2016-17
school year pursuant to W. Va. Code 18A-2-7.
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Pop Quiz
When is the statutory deadline for the board of education to vote
on the recommendation to non-renew the contract of a
probationary Service Employee and Professional Personnel for
next school year (2016-17)?
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Deadline: Non-Renewal of Probationary
Employees
Non-renewal of teachers and service employees with
probationary status (less than three full years):
 The Superintendent at a meeting of the board on or before
April 15, 2016, shall provide in writing to the board a list of all
probationary personnel that s/he recommends to be rehired
for the next ensuing school year. The board shall act upon
the superintendent’s recommendations at that meeting per
W. Va. Code 18A-2-8a.
 Within ten days after the board meeting, the Superintendent
must notify, by certified mail, return receipt requested, any
probationary employee who was not on the list of renewed
contracts.
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Non-renewal of probationary employees
(cont’d)
 Any probationary employee who receives notice that
s/he has not been recommended for rehiring may, within
ten days after receiving the written notice, request a
statement of the reasons for not having been rehired and
may request a hearing before the board. The hearing
shall be held at the next regular scheduled board of
education meeting or a special meeting of the board
called within thirty days of the request for hearing.
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Pop Quiz
When is the statutory deadline for the board of education to vote
rescind the RIF or transfer employee if administration becomes
aware that the need for the prior personnel action no longer
exists?
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Deadline: Rescission of RIFs and Transfers
If prior to the first day of August of 2016, the
reason for the particular employee’s RIF or
transfer no longer exists, the board must rescind
the action. W. Va. Code 18A-4-7a. and W. Va.
Code 18A-4-8b(k).
This provision is MANDATORY – regardless of
interim events, the employee is entitled by law to
be restored to his/her previous position.
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Pop Quiz
Employee “A” was RIFd as a cook at James Madison Middle
School (3 cooks at the school) for next school year. However,
prior to the end of the current school year a custodian position
became available for next school year. S/he applied and got the
job, and will start in August. On July 24th, administration
became aware that in fact 3 cooks would be needed. Does “A”
get to return to cook position?
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But she took another job, why rescind the RIF?
Facts:
 Employee “A” was given notice that her full- time position would be
reduced.
 During the school year, “A” bid on another position that would
provide her with full-time employment the next year
 The need for “A’s” reduction went away, BOE didn’t rescind her RIF.
Reason: She took another job.
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Harris v. Lincoln County BOE,
Docket No. 06-22-132
 “If the reason for any particular reduction in force or
transfer no longer exists prior to the first day of August,
a county board of education shall rescind the reduction
in force or transfer, and shall notify the affected
employee of her right to be restored to her former
position of employment.”
 “Under the circumstances of this case, the transfer was
only requested due to an impending reduction in force.
Since that reduction did not occur, rescission of the
transfer is consistent with W. Va. Code § 18A-4-8b(k).
 Advice: Get written statement as to whether the
employee would want the prior position if the action
were to be rescinded.
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Pop Quiz
What happens if the personnel office fails to provide written notice
of a RIF or Transfer? OOPS!! For example, notice was not sent
to John Smith that his extracurricular run for the 2016-17
school year would no longer be needed.
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Shoot!! Forgot that RIF Letter
Facts:
 Employee “A” had an extracurricular run during the
2015-16 school year
 BOE made a mistake and failed to provide “A” with
notice that the run would not be needed for the 2016-17
school year
 “A” wants $$ for 2016-17
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Hess v. Monongalia County BOE,
Docket No. 07-30-108
 As we all know, the BOE must utilize the notice and
hearing procedures of W. Va. Code 18A-2-8 or 18A-2-7
to terminate an extracurricular contract.
 Employee “A” did not receive notice.
 Employee “A” was awarded back pay, plus interest, for
2014-15 school year.
 The contract did not end on its own terms.
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Notice Requirements (cont’d)
Keep in mind the principle that school personnel
laws and regulations are to be strictly
construed in favor of the employee. Morgan v.
Pizzino, 163 W. Va. 454, 256 S.E.2d 592 (1979).
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Notice Requirements (cont’d)
Suggestions on Notice:
Hand delivery, and acknowledgement of receipt.
Explain the process to the employee.
Certified mail, return receipt.
First class mail.
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Pop Quiz:
Should I See What the Board Thinks
Beforehand? Prejudgment?
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Prejudgment?
 It has been held by the West Virginia Supreme Court of Appeals that the law
was violated when a Superintendent proposed elimination of an employee’s
position and obtained the Board's “tentative approval” before notifying the
employee of the proposed transfer. The Court stated as follows:
The statute requires that a superintendent not submit an employee's name
for proposed transfer . . ., or discuss such actions with the board, until after
the superintendent has notified the employee directly and afforded him an
opportunity to request a hearing before the board. Such a procedure is
consistent with the concept that the board is to make a detached and
independent evaluation of the employee's case. Lavender v. McDowell
County Bd. of Educ., 174 W. Va. 513, 327 S.E.2d 691 (1984).
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Beverage v. Pocahontas Cty BOE,
Docket No. 00-38-250 (Apr. 23, 2001)
 As part of a countywide reduction in force of teachers, due to reduced funding, the
Grievants were placed on notice of transfer. Grievants argued that the Board
discussed and decided on their RIF's/transfers prior to their hearings, and also
contended that the Board violated the Open Meetings law by discussing RIF's in
executive sessions at several meetings. At several Board meetings the Board met in
executive session to discuss areas where potential reductions could be made and
how this would affect other positions through “bumping” and terminations. During
these sessions, the Board made no decisions, and merely discussed possibilities and
potential impacts, and the Superintendent never sought approval of the Board. Also,
the Board only discussed programs in general, and specific individuals were not
mentioned by name. Consistent with prior decisions, it was found that the Board
made no actual decisions on Grievants' RIF's until after their hearings, and Grievants
were allowed to present their cases to the Board several times during meetings
where the overall process was being discussed. Also no violations of Open Meetings
law were found, because Board's discussions were covered within the exceptions
portion of that statute. Matters relating to transfers may be discussed in executive
session, as long as no decisions are made.
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Some more on that issue: Violations of the
Open Meetings Act?
 A board may discuss, in executive session, the potential
impact of various RIFs, transfers and program cuts, so long
as no decisions are made, no individual employees are
discussed, and the employees ultimately recommended
receive the benefit of hearings before the board, prior to
any decisions being made.
 W. Va. Code § 6-9A-3 allows discussion in executive
session of “matters arising from the . . . transfer,
discharge, dismissal or compensation of a public officer or
employee . . . .”
 Example: Beverage v. Pocahontas Cty BOE,
Docket No. 00-38-250 (Apr. 23, 2001).
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Pop Quiz
I’m not quite sure how the bus routes will change next school
year, if at all. To be safe, can we just place every bus operator
on transfer?
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Avoid the Blanket Transfer!!
When bus operators would not agree to any
changes in their runs which might arise in the
next school year, the board placed them all on
transfer list.
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Mayle v. Barbour Cty BOE,
Docket No. 02-01-219
 West Virginia Code §18A-2-7 says transfers must be
based on "known or expected circumstances" and is
designed to prohibit such "blanket" transfers, found
illegal. The board was directed to cease this practice of
mass transfers.
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“Basics” of a RIF for Service Personnel
(W. Va. Code 18A-4-8b)
 If a board is required to reduce the number of service personnel within a
particular job classification, 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.
 However, if no vacancy exists, the county board should determine whether
a vacancy in another classification which the employee previously held
exists and fill it with the employee.
 If no vacancy exists, the employee is terminated/RIF.
 The length of employment contracts must be considered when
implementing a reduction in force.
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Probationary Service Personnel
RIF v. Non-Renewal:
 If you provide a probationary employee with RIF notice, and
indicate lack of need, that employee is going to be on preferred
recall.
 Or, if you simply don’t renew, but the reason for the non-rehire is
lack of need, that employee is going to be on preferred recall.
 If the RIF is based upon lack of need, follow the RIF deadlines. If
the non-renewal is for some other reason (performance), follow
probationary deadlines to avoid preferred recall.
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Probationary Employees (cont’d)
 If a probationary employee has been given an
opportunity to improve, but still continues with
unsatisfactory performance, non-renewal is the simplest
route. Then the board does not have the strict burden of
proof of W. Va. Code 18A-2-8, and the employee has no
preferred recall rights.
(See Meredith v. Mercer County Bd. of Educ.,
Docket No. 00-27-247)
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Pop Quiz
Service Personnel on Preferred Recall: Priority
in Substitute Assignments?
A common question we see on a yearly basis
from county boards of education relates to
whether a service personnel employee whose
regular employment contract has been
terminated as a result of a reduction in force (but
still has preferred recall status) is entitled to
some kind of priority when it comes to the
substitute list and certain substitute assignments
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Example
For example, let’s say Employee “A” was a regularly
employed aide for the 2015-16 school year, but her
employment was terminated for the 2016-17 school
year as a result of a reduction in force. Prior to “A’s”
regular employment, she had served as a substitute
aide for the county board of education. For the
2016-17 school year “A” has asked that county
board place her on the substitute list in the aide
classification, while she is also on preferred recall in
that classification. Several issues might arise out of
these circumstances.
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The first question we typically see is: Is “A” entitled to
be placed at the top of the substitute rotation list (or
recapture her prior substitute seniority)? No.
Once a substitute becomes a regular service employee, she
loses all previously accrued substitute seniority, which
cannot be recaptured upon the employee’s return to
substitute employment. Martin v. Kanawha County Board of
Education, Docket No. 02-20-058 (July 19, 2001).
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The second question we typically see is: A regular service employee
is going to be absent, but it is not a situation which would require
the board to post the assignment. Can we give “A” this assignment?
No.
To illustrate, suppose “A” began the 2016-17 school year on the preferred
recall list. An aide position was posted for John Smith Middle School in
August of 2016. “A” and several others applied, but the position was
awarded to “B” based on seniority and regular employment in the
classification. Because the school year had begun, and “B” was currently
serving in an autism mentor position at a different location, “B” could not
legally assume the position at John Smith Middle School, because of state
law prohibiting such moves after the start of the school year. So “B” was
hired for the position, effective for the 2017-2018 school year. Although
the John Smith Middle School aide position had been posted and an
applicant selected, the position would remain unfilled for the 2016-2017
school year. Therefore, the board was correct to place the position in the
substitute call-out system, and a substitute aide was called to fill the
position from the seniority-based rotation. No preference to employee
on preferred recall under these circumstances.
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Board Agenda for Personnel Action
West Virginia Ethics Commission Advisory Opinion:
Employee names MUST either be listed on the
published board agenda OR announced in open
session when the board votes on the recommended
action. The Open Meetings Act requires that the
board agenda be “sufficiently worded to enable the
public to understand what is being deliberated,
voted, or acted upon.”
Example: “Recommendation of placement on the
transfer list for subsequent assignment for the 201213 school year -- Joan Smith, autism mentor, City
Elementary.”
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Can you give me some example FORMS?
(Service Personnel)
 Reduction in Force – Reducing Number of Days of Employment for
Service Personnel
 RIF-Service Personnel
 Transfer of Service Personnel
 Hearing Request Form
 Board Info on RIF
 Board Info Transfer
 Hearing Outline
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Questions?
Jason S. Long, Esq.
Lewisburg ^ 304.276.7778
jason.long@dinslaw.com
Denise M. Spatafore, Esq.
Morgantown ^ 304.225.1445
denise.spatafore@dinslaw.com
© 2011 DINSMORE & SHOHL | LEGAL COUNSEL
| www.dinsmore.com