H. B. 2757
(By Mr. Speaker, (Mr. Thompson) and Delegate Armstead)
[By Request of the Executive]
[Originating in the Committee on Education.]
(February 3, 2011)
A BILL to amend and reenact §18A-2-2, §18A-2-6, §18A-2-7, §18A-2-8a, §18A-2-12 and §18A-2-12a of the Code of West Virginia, 1931, as amended, all relating to employment of school personnel; changing dates for notice, hearing, furnishing to county board and board action respecting certain personnel subject to transfer, reassignment, termination and re-employment; providing for evaluation of professional personnel in the public schools; specifying certain professional personnel who must be evaluated; requiring evaluations to be at least annual; providing certain processes for evaluations and applicable dates; requiring State Board of Education to revise professional personnel evaluations and pilot test revised process; limitations on use of pilot test evaluation results; requiring State Board of Education to establish task force to address rule changes regarding professional personnel evaluations; requiring state board study of duties and responsibilities of certain professional employees and time required to accomplish evaluations; requiring use and reporting of study results; establishing task force reporting and recommendations; requiring state board report to Legislative Oversight Commission on Education Accountability; establishing dates certain for submission of proposed rule and adopted rule and effective date of rule; requiring certain rule provisions; requiring provision of written evaluation results to persons evaluated; modifying related evaluation provisions to comport with changes; and making technical corrections and removing obsolete provisions throughout.
Be it enacted by the Legislature of West Virginia:
That §18A-2-2, §18A-2-6, §18A-2-7, §18A-2-8a, §18A-2-12 and §18A-2-12a of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-2. Employment of teachers; contracts; continuing contract status; how terminated; dismissal for lack of need; released time; failure of teacher to perform contract or violation thereof; written notice bonus for teachers and professional personnel.
(a) Before entering upon their duties, all teachers shall execute a contract with their county boards, which shall state the salary to be paid and shall be in the form prescribed by the state superintendent. Each contract shall be signed by the teacher and by the president and secretary of the county board and shall be filed, together with the certificate of the teacher, by the secretary of the office of the county board: Provided, That when necessary to facilitate the employment of employable professional personnel and prospective and recent graduates of teacher education programs who have not yet attained certification, the contract may be signed upon the condition that the certificate is issued to the employee prior to the beginning of the employment term in which the employee enters upon his or her duties.
(b) Each teacher's contract, under this section, shall be designated as a probationary or continuing contract. A probationary teacher’s contract shall be for a term of not less than one nor more than three years, one of which shall be for completion of a beginning teacher internship pursuant to the provisions of section two-b, article three of this chapter, if applicable. If, after three years of such employment, the teacher who holds a professional certificate, based on at least a bachelor's degree, has met the qualifications for a bachelor’s degree and the county board enter into a new contract of employment, it shall be a continuing contract, subject to the following:
(1) Any teacher holding a valid certificate with less than a bachelor's degree who is employed in a county beyond the three-year probationary period shall upon qualifying for the professional certificate based upon a bachelor's degree, if reemployed, be granted continuing contract status; and
(2) A teacher holding continuing contract status with one county shall be granted continuing contract status with any other county upon completion of one year of acceptable employment if the employment is during the next succeeding school year or immediately following an approved leave of absence extending no more than one year.
(c) The continuing contract of any teacher shall remain in full force and effect except as modified by mutual consent of the school board and the teacher, unless and until terminated, subject to the following:
(1) A continuing contract may not be terminated except:
(A) By a majority vote of the full membership of the county board on or before February April 1 of the then current year, after 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 on the termination issue; or
(B) By written resignation of the teacher on or before February April 1 to initiate termination of a continuing contract;
(2) The termination shall take effect at the close of the school year in which the contract is terminated;
(3) The contract may be terminated at any time by mutual consent of the school board and the teacher;
(4) This section does not affect the powers of the school board to suspend or dismiss a principal or teacher pursuant to section eight of this article;
(5) A continuing contract for any teacher holding a certificate valid for more than one year and in full force and effect during the school year 1984-1985 shall remain in full force and effect;
(6) A continuing contract does not operate to prevent a teacher's dismissal based upon the lack of need for the teacher's services pursuant to the provisions of law relating to the allocation to teachers and pupil-teacher ratios. The written notification of teachers being considered for dismissal for lack of need shall be limited to only those teachers whose consideration for dismissal is based upon known or expected circumstances which will require dismissal for lack of need. An employee who was not provided notice and an opportunity for a hearing pursuant to this subsection may not be included on the list. In case of dismissal for lack of need, a dismissed teacher shall be placed upon a preferred list in the order of their length of service with that board. No teacher may be employed by the board until each qualified teacher upon the preferred list, in order, has been offered the opportunity for reemployment in a position for which he or she is qualified, not including a teacher who has accepted a teaching position elsewhere. The reemployment shall be upon a teacher's preexisting continuing contract and has the same effect as though the contract had been suspended during the time the teacher was not employed.
(d) In the assignment of position or duties of a teacher under a continuing contract, the board may provide for released time of a teacher for any special professional or governmental assignment without jeopardizing the contractual rights of the teacher or any other rights, privileges or benefits under the provisions of this chapter. Released time shall be provided for any professional educator while serving as a member of the Legislature during any duly constituted session of that body and its interim and statutory committees and commissions without jeopardizing his or her contractual rights or any other rights, privileges, benefits or accrual of experience for placement on the state minimum salary schedule in the following school year under the provisions of this chapter, board policy and law.
(e) Any teacher who fails to fulfill his or her contract with the board, unless prevented from doing so by personal illness or other just cause or unless released from his or her contract by the board, or who violates any lawful provision of the contract, is disqualified to teach in any other public school in the state for a period of the next ensuing school year and the state Department of Education or board may hold all papers and credentials of the teacher on file for a period of one year for the violation: Provided, That marriage of a teacher is not considered a failure to fulfill, or violation of, the contract.
(f) Any classroom teacher, as defined in section one, article one of this chapter, who desires to resign employment with a county board or request a leave of absence, the resignation or leave of absence to become effective on or before July 15 of the same year and after completion of the employment term, may do so at any time during the school year by written notification of the resignation or leave of absence and any notification received by a county board shall automatically extend the teacher's public employee insurance coverage until August 31 of the same year.
(g) (1) A classroom teacher who gives written notice to the county board on or before December 1 of the school year of his or her retirement from employment with the board at the conclusion of the school year shall be paid $500 from the Early Notification of Retirement line item established for the Department of Education for this purpose, subject to appropriation by the Legislature. If the appropriations to the Department of Education for this purpose are insufficient to compensate all applicable teachers, the Department of Education shall request a supplemental appropriation in an amount sufficient to compensate all such teachers. Additionally, if funds are still insufficient to compensate all applicable teachers, the priority of payment is for teachers who give written notice the earliest. This payment shall not be counted as part of the final average salary for the purpose of calculating retirement.
(2) The position of a classroom teacher providing written notice of retirement pursuant to this subsection may be considered vacant and the county board may immediately post the position as an opening to be filled at the conclusion of the school year. If a teacher has been hired to fill the position of a retiring classroom teacher prior to the start of the next school year, the retiring classroom teacher is disqualified from continuing his or her employment in that position. However, the retiring classroom teacher may be permitted to continue his or her employment in that position and forfeit the early retirement notification payment if, after giving notice of retirement in accordance with this subsection, he or she becomes subject to a significant unforeseen financial hardship, including a hardship caused by the death or illness of an immediate family member or loss of employment of a spouse. Other significant unforeseen financial hardships shall be determined by the county superintendent on a case-by-case basis. This subsection does not prohibit a county school board from eliminating the position of a retiring classroom teacher.
§18A-2-6. Continuing contract status for service personnel; termination.
After three years of acceptable employment, each service personnel employee who enters into a new contract of employment with the board shall be granted continuing contract status: Provided, That a service personnel employee holding continuing contract status with one county shall be granted continuing contract status with any other county upon completion of one year of acceptable employment if such employment is during the next succeeding school year or immediately following an approved leave of absence extending no more than one year. The continuing contract of any such employee shall remain in full force and effect except as modified by mutual consent of the school board and the employee, unless and until terminated with written notice, stating cause or causes, to the employee, by a majority vote of the full membership of the board before February April 1 of the then current year, or by written resignation of the employee on or before that date. The affected employee has the right of a hearing before the board, if requested, before final action is taken by the board upon the termination of such employment.
Those employees who have completed three years of acceptable employment as of the effective date of this legislation shall be granted continuing contract status.
§18A-2-7. Assignment, transfer, promotion, demotion, suspension and recommendation of dismissal of school personnel by superintendent; preliminary notice of transfer; hearing on the transfer; proof required.
(a) The superintendent, subject only to approval of the board, may assign, transfer, promote, demote or suspend school personnel and recommend their dismissal pursuant to provisions of this chapter. However, an employee shall be notified in writing by the superintendent on or before February April 1 if he or she is being considered for transfer or to be transferred. Only those employees whose consideration for transfer or intended transfer is based upon known or expected circumstances which will require the transfer of employees shall be considered for transfer or intended for transfer and the notification shall be limited to only those employees. Any teacher or employee who desires to protest the proposed transfer may request in writing a statement of the reasons for the proposed transfer. The statement of reasons shall be delivered to the teacher or employee within ten days of the receipt of the request. Within ten days of the receipt of the statement of the reasons, the teacher or employee may make written demand upon the superintendent for a hearing on the proposed transfer before the county board of education. The hearing on the proposed transfer shall be held on or before March 15 May 1. At the hearing, the reasons for the proposed transfer must be shown.
(b) The superintendent at a meeting of the board on or before March 15 May 1 shall furnish in writing to the board a list of teachers and other employees to be considered for transfer and subsequent assignment for the next ensuing school year. An employee who was not provided notice and an opportunity for a hearing pursuant to subsection (a) of this section may not be included on the list. All other teachers and employees not so listed shall be considered as reassigned to the positions or jobs held at the time of this meeting. The list of those recommended for transfer shall be included in the minute record of the meeting and all those so listed shall be notified in writing, which notice shall be delivered in writing, by certified mail, return receipt requested, to the persons' last known addresses within ten days following the board meeting, of their having been so recommended for transfer and subsequent assignment and the reasons therefor.
(c) The superintendent's authority to suspend school personnel shall be temporary only pending a hearing upon charges filed by the superintendent with the board of Education and the period of suspension may not exceed thirty days unless extended by order of the board.
(d) The provisions of this section respecting hearing upon notice of transfer is not applicable in emergency situations where the school building becomes damaged or destroyed through an unforeseeable act and which act necessitates a transfer of the school personnel because of the aforementioned condition of the building.
§18A-2-8a. Notice to probationary personnel of rehiring or nonrehiring; hearing.
The superintendent at a meeting of the board on or before March 15 May 1 of each year shall provide in writing to the board a list of all probationary teachers that he or she recommends to be rehired for the next ensuing school year. The board shall act upon the superintendent's recommendations at that meeting in accordance with section one of this article. The board at this same meeting shall also act upon the retention of other probationary employees as provided in sections two and five of this article. Any such probationary teacher or other probationary employee who is not rehired by the board at that meeting shall be notified in writing, by certified mail, return receipt requested, to such persons' last known addresses within ten days following said board meeting, of their not having been rehired or not having been recommended for rehiring.
Any probationary teacher who receives notice that he or she has not been recommended for rehiring or other probationary employee who has not been reemployed 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 regularly scheduled Board of Education meeting or a special meeting of the board called within thirty days of the request for hearing. At the hearing, the reasons for the nonrehiring must be shown.
§18A-2-12. Performance evaluations of school personnel; professional personnel evaluation process.
(a) The state board shall adopt a written system for the evaluation of the employment performance of personnel, which system shall be applied uniformly by county boards of education in the evaluation of the employment performance of personnel employed by the board.
(b) The system adopted by the state board for evaluating the employment performance of professional personnel shall be in accordance with the provisions of this section.
(c) For purposes of this section, "professional personnel", "professional" or "professionals", means professional personnel as defined in section one, article one of this chapter.
(d) In developing the professional personnel performance evaluation system, and amendments thereto, the state board shall consult with the Center for Professional Development created in article three-a of this chapter. The center shall participate actively with the state board in developing written standards for evaluation which clearly specify satisfactory performance and the criteria to be used to determine whether the performance of each professional meets such standards.
(e) The performance evaluation system shall contain, but shall not be limited to, the following information:
(1) The professional personnel positions to be evaluated, at least including classroom teachers, principals and county superintendents, and any other professional personnel to be evaluated, whether they be teachers professional educators or other professional employees or, substitute teachers; administrators, principals or others
(2) The frequency and duration of the evaluations, which shall be on a regular at least an annual basis and of such frequency and duration as to insure the collection of a sufficient amount of data from which reliable conclusions and findings may be drawn: Provided, That for school personnel with five or more years of experience, who have not received an unsatisfactory rating, evaluations shall be conducted no more than once every three years unless the principal determines an evaluation for a particular school employee is needed more frequently: Provided, however, That for classroom teachers with five or more years of experience who have not received an unsatisfactory rating, an evaluation shall be conducted or professional growth and development plan required only when the principal determines it to be necessary for a particular classroom teacher, or when a classroom teacher exercises the option of being evaluated at more frequent intervals;
(3) Effective on the effective date of this section and until a revised state board rule on professional personnel evaluations is adopted as provided in subdivision (4) of this subsection and becomes effective, the processes for evaluating classroom teachers, professional support personnel and athletic coaches shall be as follows:
(A) Teachers in their first or second year of employment shall be evaluated two times per year including a minimum of two observations of thirty minutes duration per evaluation;
(B) Teachers in their third year of employment shall have one evaluation per year including two observations of thirty minutes duration each;
(C) Additional observations and evaluations may be scheduled for teachers in their first, second or third year at the discretion of the principal to address deficiencies;
(D) Teachers in their fourth or subsequent year of employment who have not received an unsatisfactory evaluation rating within the last five years shall be informally evaluated by the principal or assistant principal. The principal or assistant principal shall record the names of the teachers informally evaluated by him or her whose performance he or she determines to be satisfactory and for whom no further evaluative measures are required. If the principal or assistant principal determines that further evaluative measures are required to determine the performance of a teacher, the teacher shall be evaluated in accordance with paragraphs (B) and (C) of this subdivision;
(E) Teachers in their fourth or subsequent year of employment who have received an unsatisfactory evaluation rating shall be evaluated using the processes specified in paragraphs (B) and (C) of this subdivision and as may be provided in a plan of improvement;
(F) Teachers in their fourth or subsequent year of employment who have not received an unsatisfactory evaluation rating shall be evaluated in accordance with paragraphs (B) and (C) of this subdivision or using a professional growth and development plan method of evaluation if requested in writing by the teacher;
(G) The evaluation of professional support personnel and athletic coaches shall be conducted under a similar process; and
(H) The state board shall promulgate an emergency rule, as necessary, to implement the provisions of this subdivision and to provide for a limited number of affected personnel to be included in a pilot test of the revised evaluation process proposed in accordance with subdivision (4) of this section. The rule may provide for the exemption of selected classes of personnel evaluated under the pilot test from evaluation under this subsection during the same school year. The results of evaluations conducted under the pilot test may not be used as evaluation results of the individual employee;
(4) The state board shall promulgate a legislative rule in accordance with article three-b, chapter twenty-nine-a of this code, revising the professional personnel evaluation process in accordance with the following:
(A) The state board shall conduct a study of the duties and responsibilities required of principals, and assistant principals in schools where they are present, and the time required to perform these duties and responsibilities. The state board shall present the study and its findings to the Legislative Oversight Commission on Education Accountability;
(B) The state board shall form a task force on professional personnel evaluations to advise it on needed revisions to the state board rule on professional personnel evaluations. The task force shall be comprised of at least the following representatives of the relevant stakeholders: county boards; superintendents; principals; teachers and representatives of teacher professional organizations including the West Virginia Education Association, the American Federation of Teachers West Virginia and the West Virginia Professional Educators; parents; and the Legislature;
(C) The task force shall be provided a copy of the study and its findings required in paragraph (A) of this subdivision and shall consider them in making its recommendations to the state board for the revision of the state board rule on professional personnel evaluations. The recommendations of the task force also shall include recommendations related to the personnel time required to accomplish the process and purposes of the professional personnel evaluations at each level of personnel;
(D) The state board shall report to the Legislative Oversight Commission on Education Accountability as requested on its progress on revising its rule related to professional personnel evaluations and pilot testing the proposed revisions to the evaluation process, and shall submit its proposed rule to the commission not later than December 1, 2011, along with any additional recommendations it may have on related changes necessary to accomplish the process and purposes of the professional personnel evaluations at each level of personnel. The state board shall submit the final rule adopted by the state board not later than February 1, 2012;
(E) The rule shall at least include annual evaluation procedures for classroom teachers, principals and county superintendents;
(F) The rule shall provide for the informal evaluation by the principal or assistant principal of teachers in their fourth or subsequent year of employment who have not received an unsatisfactory evaluation rating and for the recording by the principal of those teachers whose performance he or she determines to be satisfactory and for whom no further evaluative measures are required; and
(G) The rule shall include an effective date of July 1, 2012.
(5) Each person evaluated under the provisions of subsections (3) and (4) of this subsection shall be provided written results of their evaluation;
(3) (6) The evaluation shall serve the following purposes:
(A) Serve as a basis for the improvement of the performance of the personnel in their assigned duties;
(B) Provide an indicator of satisfactory performance for individual professionals;
(C) Serve as documentation for a dismissal on the grounds of unsatisfactory performance; and
(D) Serve as a basis for programs to increase the professional growth and development of professional personnel;
(4) (7) The standards for satisfactory performance for professional personnel and the criteria to be used to determine whether the performance of each professional meets such standards and other criteria for evaluation for each professional position evaluated. Effective July 1, 2003 and thereafter, professional personnel, as appropriate, shall demonstrate competency in the knowledge and implementation of the technology standards adopted by the state board. If a professional fails to demonstrate competency, in the knowledge and implementation of these standards, he or she will be subject to an improvement plan to correct the deficiencies; and
(5) (8) Provisions for a written improvement plan, which shall be specific as to what improvements, if any, are needed in the performance of the professional and shall clearly set forth recommendations for improvements, including recommendations for additional education and training during the professional's recertification process.
(f) A professional whose performance is considered to be unsatisfactory shall be given notice of deficiencies. A remediation plan to correct deficiencies shall be developed by the employing county board of education and the professional. The professional shall be given a reasonable period of time for remediation of the deficiencies and shall receive a statement of the resources and assistance available for the purposes of correcting the deficiencies.
(g) No person may evaluate professional personnel for the purposes of this section unless the person has an administrative certificate issued by the state superintendent and has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education training approved by the state board, which will enable the person to make fair, professional, and credible evaluations of the personnel whom the person is responsible for evaluating. After July 1, 1994, No person may be issued an administrative certificate or have an administrative certificate renewed unless the state board determines that the person has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education and training approved by the state board.
(h) Any professional whose performance evaluation includes a written improvement plan shall be given an opportunity to improve his or her performance through the implementation of the plan. If the next performance evaluation shows that the professional is now performing satisfactorily, no further action may be taken concerning the original performance evaluation. If the evaluation shows that the professional is still not performing satisfactorily, the evaluator either shall make additional recommendations for improvement or may recommend the dismissal of the professional in accordance with the provisions of section eight of this article.
(I) Lesson plans are intended to serve as a daily guide for teachers and substitutes for the orderly presentation of the curriculum. Lesson plans may not be used as a substitute for observations by an administrator in the performance evaluation process. A classroom teacher, as defined in section one, article one of this chapter, may not be required to post his or her lesson plans on the Internet or otherwise make them available to students and parents or to include in his or her lesson plans any of the following:
(1) Teach and reteach strategies;
(2) Write to learn activities;
(3) Cultural diversity;
(4) Color coding; or
(5) Any other similar items which are not required to serve as a guide to the teacher or substitute for daily instruction. and
(j) The Legislature finds that classroom teachers must be free of unnecessary paper work so that they can focus their time on instruction. Therefore, classroom teachers may not be required to keep records or logs of routine contacts with parents or guardians.
(k) Nothing in this section may be construed to prohibit classroom teachers from voluntarily posting material on the Internet.
§18A-2-12a. Statement of policy and practice for the county boards and school personnel to minimize possible disagreement and misunderstanding.
(a) The Legislature makes the following findings:
(1) The effective and efficient operation of the public schools depends upon the development of harmonious and cooperative relationships between county boards and school personnel;
(2) Each group has a fundamental role to perform in the educational program and each has certain separate, distinct and clearly defined areas of responsibility as provided in chapters eighteen and eighteen-a of this code; and
(3) There are instances, particularly involving questions of wages, salaries and conditions of work, that are subject to disagreement and misunderstanding between county boards and school personnel and may not be so clearly set forth.
(b) The purpose of this section is to establish a statement of policy and practice for the county boards and school personnel, as follows, in order to minimize possible disagreement and misunderstanding:
(1) County boards, subject to the provisions of this chapter, chapter eighteen of this code and the policies and rules of the state board, are responsible for the management of the schools within their respective counties. The powers and responsibilities of county boards in setting policy and in providing management are broad, but not absolute;
(2) The school personnel shares the responsibility for putting into effect the policies and practices approved by the county board that employs them and the school personnel also have certain rights and responsibilities as provided in statute, and in their contracts;
(3) School personnel are entitled to meet together, form associations and work in concert to improve their circumstances and the circumstances of the schools;
(4) County boards and school personnel can most effectively discharge their total responsibilities to the public and to each other by establishing clear and open lines of communication. School personnel should be encouraged to make suggestions, proposals and recommendations through appropriate channels to the county board. Decisions of the county board concerning the suggestions, proposals and recommendations should be communicated to the school personnel clearly and openly;
(5) Official meetings of county boards are public meetings. School personnel are free to attend the meetings without fear of reprisal and should be encouraged to attend;
(6) All school personnel are entitled to know how well they are fulfilling their responsibilities and should be offered the opportunity of open and honest evaluations of their performance on a regular basis and in accordance with the provisions of section twelve of this article. All school personnel are entitled to opportunities to improve their job performance prior to the termination or transfer of their services. Decisions concerning the promotion, demotion, transfer or termination of employment of school personnel, other than those for lack of need or governed by specific statutory provisions unrelated to performance, should be based upon the evaluations, and not upon factors extraneous thereto. All school personnel are entitled to due process in matters affecting their employment, transfer, demotion or promotion; and
(7) All official and enforceable personnel policies of a county board must be written and made available to its employees.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.