ENROLLED
Senate Bill No. 1006
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
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[Passed June 2, 2009; to take effect July 1, 2009.]
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AN ACT to amend and reenact §18-5-4 of the Code of West Virginia,
1931, as amended; to amend and reenact §18A-1-1 of said code;
and to amend and reenact §18A-2-2, §18A-2-6, §18A-2-7 and
§18A-2-8a of said code, all relating to the hiring,
termination, transfer and reassignment of teachers and school
personnel; revising definition of "long-term substitute";
revising certain dates upon which action must be taken with
respect to the hiring, termination, resignation or transfer of
teachers and school personnel; clarifying probationary
professional employee contract; providing conditional contract
of prospective and recent graduates and prospective employable
professional personnel; revising dates regarding the early
notification of retirement; providing for nonrevocation of
early notification; and providing an economic hardship
exception.
Be it enacted by the Legislature of West Virginia:
That §18-5-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §18A-1-1 of said code be amended and
reenacted; and that §18A-2-2, §18A-2-6, §18A-2-7 and §18A-2-8a of
said code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-4. Meetings; employment and assignment of teachers; budget
hearing; compensation of members; affiliation with
state and national associations.
(a) The county board shall meet on the first Monday in July,
and upon the dates provided by law for the laying of levies, and at
any other times the county board fixes upon its records. Subject
to adequate public notice, nothing in this section prohibits the
county board from conducting regular meetings in facilities within
the county other than the county board office. At any meeting as
authorized in this section and in compliance with the provisions of
chapter eighteen-a of this code, the county board may employ
qualified teachers, or those who will qualify by the time they
enter upon their duties, necessary to fill existing or anticipated
vacancies for the current or next ensuing school year. Meetings of
the county board shall be held in compliance with the provisions of
chapter eighteen-a of this code for purposes relating to the
assignment, transfer, termination and dismissal of teachers and
other school employees.
(b) Special meetings may be called by the president or any three members, but no business may be transacted other than that
designated in the call.
(c) In addition, a public hearing shall be held concerning the
preliminary operating budget for the next fiscal year not fewer
than ten days after the budget has been made available to the
public for inspection and within a reasonable time prior to the
submission of the budget to the state board for approval.
Reasonable time shall be granted at the hearing to any person who
wishes to speak regarding any part of the budget. Notice of the
hearing shall be published as a Class I legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code.
(d) A majority of the members of the county board constitutes
the quorum necessary for the transaction of official business.
(e) Board members may receive compensation at a rate not to
exceed $160 per meeting attended, but they may not receive pay for
more than fifty meetings in any one fiscal year. Board members who
serve on an administrative council of a multicounty vocational
center also may receive compensation for attending up to twelve
meetings of the council at the same rate as for meetings of the
county board. Meetings of the council are not counted as board
meetings for purposes of determining the limit on compensable board
meetings.
(f) Members also shall be paid, upon the presentation of an
itemized sworn statement, for all necessary traveling expenses, including all authorized meetings, incurred on official business,
at the order of the county board.
(g) When, by a majority vote of its members, a county board
considers it a matter of public interest, the county board may join
the West Virginia School Board Association and the National School
Board Association and may pay the dues prescribed by the
associations and approved by action of the respective county
boards. Membership dues and actual traveling expenses incurred by
board members for attending meetings of the West Virginia School
Board Association may be paid by their respective county boards out
of funds available to meet actual expenses of the members, but no
allowance may be made except upon sworn itemized statements.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 1. GENERAL PROVISIONS.
§18A-1-1. Definitions.
The definitions contained in section one, article one, chapter
eighteen of this code apply to this chapter. In addition, the
following words used in this chapter and in any proceedings
pursuant to this chapter have the meanings ascribed to them unless
the context clearly indicates a different meaning:
(a) "School personnel" means all personnel employed by a
county board whether employed on a regular full-time basis, an
hourly basis or otherwise. "School personnel" is comprised of two
categories: Professional personnel and service personnel;
(b) "Professional person" or "professional personnel" means those persons or employees who meet the certification requirements
of the state, licensing requirements of the state, or both, and
includes a professional educator and other professional employee;
(c) "Professional educator" has the same meaning as "teacher"
as defined in section one, article one, chapter eighteen of this
code. Professional educators are classified as follows:
(1) "Classroom teacher" means 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;
(2) "Principal" means a professional educator who functions as
an agent of the county board and has responsibility for the
supervision, management and control of a school or schools within
the guidelines established by the county board. The principal's
major area of responsibility is the general supervision of all the
schools and all school activities involving students, teachers and
other school personnel;
(3) "Supervisor" means a professional educator who is
responsible for working primarily in the field with professional
and other personnel in instructional and other school improvement.
This category includes other appropriate titles or positions with
duties that fit within this definition; and
(4) "Central office administrator" means a superintendent,
associate superintendent, assistant superintendent and other
professional educators who are charged with administering and
supervising the whole or some assigned part of the total program of the countywide school system. This category includes other
appropriate titles or positions with duties that fit within this
definition;
(d) "Other professional employee" means a person from another
profession who is properly licensed and who is employed to serve
the public schools. This definition includes a registered
professional nurse, licensed by the West Virginia Board of
Examiners for Registered Professional Nurses, who is employed by a
county board and has completed either a two-year (sixty-four
semester hours) or a three-year (ninety-six semester hours) nursing
program;
(e) "Service person" or "service personnel", whether singular
or plural, means a nonteaching school employee who is not included
in the meaning of "teacher" as defined in section one, article one,
chapter eighteen of this code and who serves the school or schools
as a whole, in a nonprofessional capacity, including such areas as
secretarial, custodial, maintenance, transportation, school lunch
and aides. Any reference to "service employee" or "service
employees" in this chapter or chapter eighteen of this code means
service person or service personnel as defined in this section;
(f) "Principals Academy" or "academy" means the academy
created pursuant to section two-b, article three-a of this chapter;
(g) "Center for Professional Development" means the center
created pursuant to section one, article three-a of this chapter;
(h) "Job-sharing arrangement" means a formal, written agreement voluntarily entered into by a county board with two or
more of its employees who wish to divide between them the duties
and responsibilities of one authorized full-time position;
(i) "Prospective employable professional person", whether
singular or plural, means a certified professional educator who:
(1) Has been recruited on a reserve list of a county board;
(2) Has been recruited at a job fair or as a result of contact
made at a job fair;
(3) Has not obtained regular employee status through the job
posting process provided in section seven-a, article four of this
chapter; and
(4) Has obtained a baccalaureate degree from an accredited
institution of higher education within the past year;
(j) "Dangerous student" means a student who is substantially
likely to cause serious bodily injury to himself, herself or
another individual within that student's educational environment,
which may include any alternative education environment, as
evidenced by a pattern or series of violent behavior exhibited by
the student, and documented in writing by the school, with the
documentation provided to the student and parent or guardian at the
time of any offense;
(k) "Alternative education" means an authorized departure from
the regular school program designed to provide educational and
social development for students whose disruptive behavior places
them at risk of not succeeding in the traditional school structures and in adult life without positive interventions; and
(l) "Long-term substitute" means a substitute employee who
fills a vacant position:
That the county superintendent expects to extend for at least
thirty consecutive days, and is either:
(A) Listed in the job posting as a long-term substitute
position of over thirty days; or
(B) Listed in a job posting as a regular, full-time position
and:
(i) Is not filled by a regular, full-time employee; and
(ii) Is filled by a substitute employee.
For the purposes of section two, article sixteen, chapter five
of this code, long-term substitute does not include a retired
employee hired to fill the vacant position.
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 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 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 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 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. 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 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
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.