Highly Qualified Teacher SupportFederal Programs Fall Directors’ Conference

Embassy Suites, Charleston

October 13, 2011

Leaders of the Education Law Group at Bowles Rice Greg Bailey: Morgantown

gbailey@bowlesrice.com Rick Boothby: Parkersburg

rboothby@bowlesrice.com Howard Seufer: Charleston

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information contained in this presentation may become outdated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The requirements of the school personnel laws must ordinarily be followed, no matter how inconvenient, inefficient, outdated, unreasonable, or irrelevant they may seem in a particular situation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 full-time employment and is working toward certification in the permit area shall not be subject to posting if the certificate is awarded within five years; and

(5) Nothing provided herein shall prevent the county board of education from eliminating a position due to lack of need.

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(classroom teaching position, at least one qualified regular

instructional employee applied)

1. Appropriate certification, licensure or both

2. Total amount of teaching experience

3. The existence of teaching experience in the required certification area

4. Degree level in the required certification area

5. Specialized training directly related to the performance of the job as stated in the job description

6. Receiving an overall rating of satisfactory in the previous two evaluations conducted pursuant to § 18A-2-12

7. 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. Appropriate certification and/or licensure2. Amount of experience relevant to the position or, in the case

of a classroom teaching position, the amount of teaching experience in the subject area

3. The amount of course work, degree level or both in the relevant field and degree level generally

4. Academic achievement5. Relevant specialized training6. Past performance evaluations conducted pursuant to 18A-2-

127. 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 ThreeProcesses 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

in but one area, or in multiple areas but cannot assume a position under the first

rule of this step, then transfer the person to a professional position for

which he or she is certified and 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