Senate Bill No. 212
(By Senators Wells, Foster, Browning and Stollings)
____________
[Introduced January 19, 2011; referred to the Committee on
Education; and then to the Committee on Finance.]
____________
A BILL to amend and reenact §18A-2-1 of the Code of West Virginia,
1931, as amended; to amend and reenact §18A-4-7a of said code;
and to amend and reenact §18A-5-8 of said code, all relating
to the employment of personnel in public schools; providing
for inclusion of school's faculty senate members in interview
and recommendation process when employing professional and
paraprofessional personnel at the school; authorizing ranking
of preferences and reposting; authorizing nomination of
prospective graduates for employment with conditions; revising
criteria for judging qualifications affecting hiring of
professional personnel; and changing date prior to
instructional term after which professional personnel, autism
mentors and certain aides, paraprofessionals and interpreters
may not transfer to another position in county during
instructional term subject to certain conditions.
Be it enacted by the Legislature of West Virginia:
That §18A-2-1 of the Code of West Virginia, 1931, as
amended,
be amended and reenacted; that §18A-4-7a of said code be amended
and reenacted; and that §18A-5-8 of said code be amended and
reenacted, all to read as follows:
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-1. Employment in general.
(a) The employment of professional personnel shall be made by
the board only upon nomination and recommendation of the
superintendent: Provided, That the superintendent shall provide
the principal at the school at which the professional educator or
paraprofessional employee is to be employed an opportunity to
interview all qualified applicants and make recommendations to the
county superintendent regarding their employment. The principal
shall include members of the school's faculty senate in the
interview and recommendation process. The number of classroom
teachers included in the process shall be at least equal to the
number of other members and each member shall have one equal vote.
At least one of the classroom teachers included in the interview
and recommendation process shall be in the same content area as the
posted position unless the position is the only one in the content
area at the school. The recommendations may be ranked in the order
of preferences for employment at the school along with stated
reasons. If there are more than three qualified applicants for a
single posted position, the rankings may be limited to the three
most highly recommended applicants. If no more than one qualified applicant applies for a posted position, a recommendation may be
made that the position be reposted and the superintendent may
repost the position: Provided, however, That nothing shall
prohibit the timely employment of persons to perform necessary
duties.
(b) In case the board refuses to employ any or all of the
persons nominated, the superintendent shall nominate others and
submit the same other qualified applicants to the board at such
time as the board may direct.
(c) All personnel so nominated and recommended for employment
and for subsequent assignment shall meet the certification,
licensing, training and other eligibility classifications as may be
required by provisions of this chapter and by state board
regulation: Provided, That the superintendent may nominate and
recommend a prospective graduate of a teacher education program on
the condition that the person meets these certification, licensing,
training and other eligibility requirements prior to the
commencement of his or her duties. In addition to any other
information required, the application for any certification or
licensing shall include the applicant's social security number.
(d) Professional personnel employed as deputy, associate or
assistant superintendents by the board in offices, departments or
divisions at locations other than a school and who are directly
answerable to the superintendent shall serve at the will and
pleasure of the superintendent and may be removed by the superintendent upon approval of the board. Such professional
personnel shall retain seniority rights only in the area or areas
in which they hold valid certification or licensure.
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-7a. Employment, promotion and transfer of professional
personnel; seniority.
(a) A county board of education shall make decisions affecting
the hiring of professional personnel other than classroom teachers
on the basis of the applicant with the highest qualifications.
(b) The county board shall make decisions affecting the hiring
of new classroom teachers on the basis of the applicant with the
highest qualifications.
(c) (b) In judging qualifications for hiring employees,
pursuant to subsections (a) and (b) of this section, consideration
shall be given to each of the following criteria which, in judging
the qualifications of classroom teachers, shall be given equal
weight:
(1) Appropriate certification, licensure or both. In the case
of a classroom teaching position, applicants who hold a
certification permit for the position, or who are eligible for an
alternative program certification, or who are prospective graduates
of teacher education programs who have not yet obtained full
certification may only be considered if no fully certified
applicant applies;
(2) Amount of experience relevant to the position; or, in the case of a classroom teaching position, the amount of teaching
experience in the subject content area and at the programmatic
level.
Programmatic level means the elementary, middle school,
junior high school or high school levels, and does not mean
specific grades within those levels;
(3) The amount of course work degree level or both in the
relevant field and degree level generally relevant to the position;
(4) Academic and professional achievement. In the case of
classroom teachers, "academic achievement" means achievement in
course work relevant to the position, including degrees in the
content area, and certification by the National Board for
Professional Teaching Standards; and "professional achievement"
means a special recognition of a teacher specifically recognized by
the West Virginia Commission for Professional Teaching Standards as
being awarded on the basis of quality teaching and no others;
(5) Relevant Specialized training relevant to the position.
In the case of classroom teachers, "specialized training relevant
to the position" includes the level of expertise gained through
formal or informal experiences in (i) utilizing the technology
available in the position, (ii) employing specific instructional
strategies expected to be implemented in the position, and (iii)
performing any other responsibilities required in the position as
specifically stated in the job posting;
(6) Past Performance evaluations conducted within the past
five years pursuant to section twelve, article two of this chapter, or, in the case of beginning teachers, section two-b, article three
of this chapter;
(7) In the case of classroom teachers, the interview
recommendations of the principal, and faculty senate if applicable,
of the school at which the teacher will be employed;
(8) In the case of classroom teachers, seniority; and
(7) (9) Except in the case of classroom teachers, other
measures or indicators upon which the relative qualifications of
the applicant to perform the required duties as stated job posting
may fairly be judged.
(d) If one or more permanently employed instructional
personnel apply for a classroom teaching position and meet the
standards set forth in the job posting, the county board of
education shall make a decision affecting the filling of the
position on the basis of the following criteria:
(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 section twelve,
article two of this chapter; and
(7) Seniority.
(e) (c) In filling classroom teacher positions pursuant to
subsection (d) of this section, consideration shall be given to
each criterion with each criterion being given equal weight. if
the applicant with the most seniority is not selected for the
position, upon the request of the applicant a written statement of
reasons shall be given to the applicant with suggestions for
improving the applicant's qualifications.
(f) (d) With the exception of guidance counselors, the
seniority of classroom teachers, as defined in section one, article
one of this chapter shall be determined on the basis of the length
of time the employee has been employed as a regular full-time
certified and/or licensed professional educator by the county board
of education and shall be granted in all areas that the employee is
certified, licensed or both.
(g) (e) Upon completion of one hundred thirty-three days of
employment in any one school year, substitute teachers, except
retired teachers and other retired professional educators employed
as substitutes, shall accrue seniority exclusively for the purpose
of applying for employment as a permanent, full-time professional
employee. One hundred thirty-three days or more of said employment
shall be prorated and shall vest as a fraction of the school year
worked by the permanent, full-time teacher.
(h) (f) Guidance counselors and all other professional
employees, as defined in section one, article one of this chapter, except classroom teachers, shall gain seniority in their
nonteaching area of professional employment on the basis of the
length of time the employee has been employed by the county board
of education in that area: Provided, That if an employee is
certified as a classroom teacher, the employee accrues classroom
teaching seniority for the time that employee is employed in
another professional area. For the purposes of accruing seniority
under this paragraph, employment as principal, supervisor or
central office administrator, as defined in section one, article
one of this chapter, shall be considered one area of employment.
(i) (g) Employment for a full employment term shall equal one
year of seniority, but no employee may accrue more than one year of
seniority during any given fiscal year. Employment for less than
the full employment term shall be prorated. A random selection
system established by the employees and approved by the board shall
be used to determine the priority if two or more employees
accumulate identical seniority: Provided, That when two or more
principals have accumulated identical seniority, decisions on
reductions in force shall be based on qualifications.
(j) (h) Whenever a county board is required to reduce the
number of professional personnel in its employment, the employee
with the least amount of seniority shall be properly notified and
released from employment pursuant to the provisions of section two,
article two of this chapter. The provisions of this subsection are
subject to the following:
(1) 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;
(2) An employee subject to release shall be employed in any
other professional position where the employee is certified and was
previously employed or to any lateral area for which the employee
is certified, licensed or both, if the employee's seniority is
greater than the seniority of any other employee in that area of
certification, licensure or both;
(3) If an employee subject to release holds certification,
licensure or both in more than one lateral area and if the
employee's seniority is greater than the seniority of any other
employee in one or more of those areas of certification, licensure
or both, the employee subject to release shall be employed in the
professional position held by the employee with the least seniority
in any of those areas of certification, licensure or both; and
(4) If, prior to August 1, of the year a reduction in force is
approved, the reason for any particular reduction in force no
longer exists as determined by the county board in its sole and
exclusive judgment, the board shall rescind the reduction in force
or transfer and shall notify the released employee in writing of
his or her right to be restored to his or her position of
employment. Within five days of being so notified, the released
employee shall notify the board, in writing, of his or her intent to resume his or her position of employment or the right to be
restored shall terminate. Notwithstanding any other provision of
this subdivision, if there is another employee on the preferred
recall list with proper certification and higher seniority, that
person shall be placed in the position restored as a result of the
reduction in force being rescinded.
(k) (i) For the purpose of this article, all positions which
meet the definition of classroom teacher as defined in section one,
article one of this chapter shall be lateral positions. For all
other professional positions, the county board of education shall
adopt a policy by October 31, 1993, and may modify the policy
thereafter as necessary, which defines which positions shall be
lateral positions. The board shall submit a copy of its policy to
the state board within thirty days of adoption or any modification,
and the state board shall compile a report and submit the report to
the Legislative Oversight commission on education accountability by
December 31, 1993, and by that date in any succeeding year in which
any county board submits a modification of its policy relating to
lateral positions. In adopting the policy, the board shall give
consideration to the rank of each position in terms of title;
nature of responsibilities; salary level; certification, licensure
or both; and days in the period of employment.
(l) (j) After the fifth day July 15, prior to the beginning of
the instructional term, no a person employed and assigned to a
professional position may not transfer to another professional position in the county during that instructional term unless the
person holding that position does not have valid certification.
The provisions of this subsection are subject to the following:
(1) The person may apply for any posted, vacant positions with
the successful applicant assuming the position at the beginning of
the next instructional term;
(2) Professional personnel who have been on an approved leave
of absence may fill these vacancies upon their return from the
approved leave of absence; and
(3) The county board, upon recommendation of the
superintendent may fill a position before the next instructional
term when it is determined to be in the best interest of the
students: Provided, That the county superintendent shall notify
the state board of each transfer of a person employed in a
professional position to another professional position after the
fifth day July 15, prior to the beginning of the instructional
term; and
(4) The provisions of this subsection do not apply to the
filling of a position vacated by virtue of a resignation or
retirement on or before July 15, prior to the beginning of the
instructional term
.
The Legislature finds that it is not in the best interest of
the students particularly in the elementary grades to have multiple
teachers for any one grade level or course during the instructional
term. It is the intent of the Legislature that the filling of positions through transfers of personnel from one professional
position to another after the fifth day July 15, prior to the
beginning of the instructional term should be kept to a minimum.
(m) (k) All professional 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. As to any professional position opening
within the area where they had previously been employed or to any
lateral area for which they have certification, licensure or both,
the employee shall be recalled on the basis of seniority if no
regular, full-time professional personnel, or those returning from
leaves of absence with greater seniority, are qualified, apply for
and accept the position.
(n) (l) Before position openings that are known or expected to
extend for twenty consecutive employment days or longer for
professional personnel may be filled by the board, the board shall
be required to notify all qualified professional personnel on the
preferred list and give them an opportunity to apply, but failure
to apply shall not cause the employee to forfeit any right to
recall. The notice shall be sent by certified mail to the last
known address of the employee, and it shall be the duty of each
professional personnel to notify the board of continued
availability annually, of any change in address or of any change in
certification, licensure or both.
(o) (m) 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.
(p) (n) Notwithstanding any other provision of the code to the
contrary, where the total number of classroom teaching positions in
an elementary school does not increase from one school year to the
next, but there exists in that school a need to realign the number
of teachers in one or more grade levels, kindergarten through six,
teachers at the school may be reassigned to grade levels for which
they are certified without that position being posted: Provided,
That the employee and the county board of education mutually agree
to the reassignment.
(q) (o) Reductions in classroom teaching positions in
elementary schools shall be processed as follows:
(1) When the total number of classroom teaching positions in
an elementary school needs to be reduced, the reduction shall be
made on the basis of seniority with the least senior classroom
teacher being recommended for transfer; and
(2) When a specified grade level needs to be reduced and the
least senior employee in the school is not in that grade level, the
least senior classroom teacher in the grade level that needs to be
reduced shall be reassigned to the position made vacant by the
transfer of the least senior classroom teacher in the school without that position being posted: Provided, That the employee is
certified, licensed or both and agrees to the reassignment.
(r) (p) Any board failing to comply with the provisions of
this article may be compelled to do so by mandamus and shall be
liable to any party prevailing against the board for court costs
and reasonable attorney fees as determined and established by the
court. Further, employees denied promotion or employment in
violation of this section shall be awarded the job, pay and any
applicable benefits retroactive to the date of the violation and
payable entirely from local funds. Further, the board shall be
liable to any party prevailing against the board for any court
reporter costs including copies of transcripts.
(s) (q) The county board shall compile, update annually on
July 1, and make available by electronic or other means to all
employees a list of all professional personnel employed by the
county, their areas of certification and their seniority.
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 does 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 does 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 county 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 county
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 county board
approval.
(g) Autism mentors and aides providing services to children
diagnosed as autistic or with autism spectrum disorder; and
paraprofessionals, interpreters and aides providing one-on-one
services to students with exceptionalities as required by the
students' individualized education programs (IEP).
(1) Legislative findings and intent.
(A) The Legislature finds that it is not in the best interest
of a student with autism or a student with an exceptionality whose
IEP requires one-on-one services to have multiple teachers,
mentors, aides, paraprofessionals, interpreters or any combination
thereof during the instructional term; and
(B) It is the intent of the Legislature that filling positions
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 for autism mentors and aides who work with
students with autism and for paraprofessionals, interpreters and
aides who work with students with exceptionalities whose IEPs
require one-on-one services.
(2) Transfer limitations and conditions.
(A) Notwithstanding the provisions of subsection (f) of this
section, after the fifth day July 15, prior to the beginning of
the instructional term, a service person employed and assigned as
an autism mentor or aide who works with students with autism, or as a paraprofessional, interpreter or aide who works with a student
with an exceptionality whose IEP requires one-on-one services a
service person may not transfer to another position in the county
during that instructional term, unless he or she does not have
valid certification, if the service person is employed and assigned
as an autism mentor or aide who works with students with autism, or
as a paraprofessional, interpreter or aide who works with a student
with an exceptionality whose IEP requires one-on-one services.
(B) The provisions of this subsection are subject to the
following conditions:
(i) The aide, autism mentor, paraprofessional or interpreter
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 who is subject to the provisions of this
subsection is transferred to another position after the fifth day
July 15, 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 (j), section
thirteen, article five, chapter eighteen of this code and section
two, article twenty of said chapter.
NOTE: The purpose of this bill is to: (a) Include the
school's faculty senate members on the interview and recommendation
process for employing professional and paraprofessional personnel
at the school; (b) authorize the superintendent to nomination of
prospective graduates for employment with conditions; (c) revise
the criteria for judging qualifications affecting hiring of
professional personnel and consolidate them into a single list; and
(d) provide an earlier date prior to the instructional term after
which professional personnel, autism mentors and certain aids,
paraprofessionals and interpreters may not transfer to another
position in county, subject to certain conditions.
Strike-throughs indicate existing language that would be
removed, and underscoring indicates new language that would be
added.
This bill was recommended for introduction and passage during
the Regular Session of the Legislature by the Joint Standing
Committee on Education.