H. B. 2730
(By Delegates Fragale and Heck)
[Introduced January 10, 1996; referred to the
Committee on Education then Finance.]
A BILL to amend and reenact section thirty-nine, article five,
chapter eighteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
section eight-a, article two, chapter eighteen-a of said
code; to amend and reenact sections eight-g, fifteen and
sixteen, article four, chapter eighteen-a of said code; and
to further amend said article four by adding thereto two new
sections, designated sections eight-h and eight-i, all
relating to providing school personnel who work during
summer be allowed benefits of regular service personnel;
providing seniority must be the basis for a decision not to
relieve a probationary employee; accumulation of seniority
status while acting as a substitute school service employee;
resolving question of seniority by drawing numbers at
random; evaluation of school service personnel; improvement plans; limitation of number of school service personnel
positions to be held by an employee; filling positions
created by leave of absence; and providing that all school
service personnel assignments are considered as regular
positions or extra-duty assignments.
Be it enacted by the Legislature of West Virginia:
That section thirty-nine, article five, chapter eighteen of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended; that section eight-a, article two,
chapter eighteen-a of said code be amended and reenacted; that
sections eight-g, fifteen and sixteen, article four, chapter
eighteen-a of said code be amended and reenacted; and that said
article four be further amended by adding thereto two new
sections, designated sections eight-h and eight-i, all to read as
follows:
CHAPTER 18. EDUCATION.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-39. Establishment of summer school programs; tuition.
Inasmuch as the present county school facilities for the
most part lie dormant and unused during the summer months, and
inasmuch as there are many students who are in need of remedial
instruction and others who desire accelerated instruction, it is
the purpose of this section to provide for the establishment of
a summer school program, which program is to be separate and apart from the full school term as established by each county.
The board of education of any county shall have authority to
establish a summer school program utilizing the public school
facilities and to charge tuition for students who attend such
summer school, such tuition not to exceed in any case the actual
cost of operation of such summer school program: Provided, That
any deserving pupil whose parents, in the judgment of the board,
are unable to pay such tuition, may attend at a reduced charge or
without charge. The county board of education shall have the
authority to determine the term and curriculum of such summer
schools based upon the particular needs of the individual county.
The curriculum may include, but is not limited to, remedial
instruction, accelerated instruction, and the teaching of manual
arts. The term of such summer school program may not be
established in such a manner as to interfere with the regular
school term.
The county boards may employ as teachers for this summer
school program any certified teacher. Certified teachers
employed by the county board to teach in the summer school
program shall be paid an amount to be determined by the county
board and shall enter into a contract of employment in such form
as is prescribed by the county board: Provided, That teachers
who teach summer courses of instruction which are offered for
credit and which are taught during the regular school year shall be paid at the same daily rate such teacher would receive if paid
in accordance with the then current minimum monthly salary in
effect for teachers in that county.
Any funds accruing from such tuition shall be credited to
and expended within the existing framework of the general current
expense fund of the county board.
Notwithstanding any other provision of this code to the
contrary, the board shall fill professional positions established
pursuant to the provisions of this section on the basis of
certification and length of time the professional has been
employed in the county's summer school program. In the event
that no employee who has been previously employed in the summer
school program holds a valid certification or licensure, a board
shall fill the position as a classroom teaching position in
accordance with section eight-b, article four, chapter eighteen-a
of this code.
Notwithstanding any other provision of the code to the
contrary, the county board of education is authorized to employ
school service personnel to perform any related duties outside
the regular school term as defined in section eight, article
four, chapter eighteen-a of this code. An employee who was
employed in any service personnel job or position during the
immediate previous summer shall have the option of retaining such
job or position if such exists during any succeeding summer. If such employee is unavailable or if the position is newly created,
the position shall be filled pursuant to section eight-b, article
four, chapter eighteen-a of this code. When any summer employee
who is employed in a summer position is granted a leave of
absence for the summer months, the board shall give regular
employment status to such employee for that summer position which
shall be filled under the procedure set forth in section eight-b,
article four, chapter eighteen-a of this code. The summer
employee on leave of absence shall have the option of returning
to that summer position if such exists the succeeding summer or
whenever such position is reestablished if it were abolished.
The salary of a summer employee shall be in accordance with the
salary schedule of persons regularly employed in the same
position in the county where employed and persons employed in
such positions shall be entitled to all rights, privileges, and
benefits provided in sections five-b, eight, eight-a, ten and
fourteen, article four, chapter eighteen-a: Provided, That such
persons shall not be entitled to a minimum employment term of two
hundred days for their summer position.
If a county board reduces in force the number of employees
to be employed in a particular summer program or classification
from the number employed in such position in previous summers,
such reductions in force and priority in reemployment to such
summer positions shall be based upon the length of service time in the particular summer program or classification.
For the purpose of this section, summer employment for
service personnel shall be defined, but not limited to, filling
jobs and positions as defined in section eight, article four,
chapter eighteen-a of this code and especially established for
and which are to be predominantly performed during the summer
months to meet the needs of a county board of education.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-8a. Notice to probationary personnel of rehiring or
nonrehiring; hearing.
The superintendent at a meeting of the board on or before
the first Monday in May of each year shall provide in writing to
the board a list of all probationary teachers that he 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 four and section
five of this article. Any such probationary teacher or other
probationary employee who is not rehired by the board at that
meeting to be recommended for rehiring 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 on or before the first day of April
of the intention of the superintendent not to recommend the
rehiring of the employee.
Any probationary teacher or other probationary employee who
receives notice that he has will not been be 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. Such 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.
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-8g. Determination of seniority for service personnel.
The seniority for service personnel shall be determined in
the following manner:
Seniority accumulation for a regular school service employee
shall begin on the date such employee enters upon regular
employment duties pursuant to a contract as provided in section
five, article two of this chapter and shall continue until the employee's employment as a regular employee is severed with the
county board of education. Seniority shall not cease to
accumulate when an employee is absent without pay as authorized
by the county board or the absence is due to illness or other
reasons over which the employee has no control as authorized by
the county board. Seniority accumulation for a substitute
employee shall begin upon the date the employee enters upon the
duties of a substitute as provided in section fifteen, article
four of this chapter, after executing with the board a contract
of employment as provided in section five, article two of this
chapter. The seniority of a substitute employee, once
established, shall continue until such employee enters into the
duties of a regular employment contract as provided in section
five, article two of this chapter or employment as a substitute
with the county board of education is severed. Seniority of a
regular or substitute employee shall continue to accumulate
except during the time when an employee is willfully absent from
employment duties because of a concerted work stoppage or strike
or is suspended without pay.
For all purposes including the filling of vacancies and
reduction in force, seniority shall be accumulated within
particular classification categories of employment as those classification categories are referred to in section eight-e of
this article: Provided, That when implementing a reduction in
force, an employee with the least seniority within a particular
classification category shall be properly released and placed on
the preferred recall list. The particular classification title
held by an employee within the classification category shall not
be taken into consideration when implementing a reduction in
force.
On or before the first day of September and the fifteenth
day of January of each school year, county boards of education
shall post at each county school or working station the current
seniority list or lists of each school service classification.
Each list shall contain the name of each regularly employed
school service personnel employed in each classification and the
date that each employee began performing his or her assigned
duties in each classification. Current seniority lists of
substitute school service personnel shall be available to
employees upon request at the county board of education office.
The seniority of an employee who transfers out of a class
title or classification category of employment and subsequently
returns to said class title or classification category of
employment shall be calculated as follows:
The county board of education shall establish the number of
calendar days between the date the employee left the class title
or category of employment in question and the date of return to
the class title or classification category of employment. This
number of days shall be added to the employee's initial seniority
date to establish a new beginning seniority date within the class
title or classification category. The employee shall then be
considered as having held uninterrupted service within the class
title or classification category from the newly established
seniority date. The seniority of an employee who has had a break
in the accumulation of seniority as a result of being willfully
absent from employment duties because of a concerted work
stoppage or strike shall be calculated in a like manner.
A substitute school service employee shall acquire regular
employment status and seniority if said employee receives a
position pursuant to subsections (2) and (5), section fifteen,
article four of this chapter: Provided, That a substitute
employee who accumulates regular employee seniority while holding
a position acquired pursuant to subsections two and five, section
fifteen, article four, of this chapter shall simultaneously
accumulate substitute seniority. County boards of education
shall not be prohibited from providing any benefits of regular employment for substitute employees, but such benefits shall not
include regular employee status and seniority.
If two or more employees accumulate identical seniority, the
priority shall be determined by a random selection system
established by the employees and approved by the county board. A
board of education shall conduct such random selection within
thirty days upon said employees establishing an identical
seniority date. All employees with an identical seniority date
within the same class title or classification category shall
participate in the random selection. As long as the affected
employees hold identical seniority within the same classification
category, the initial random selection conducted by the board of
education shall be permanent for the duration of the employment
within the same classification category of said employees by the
board of education. This random selection priority shall apply
to the filling of vacancies and to the reduction in force of
school service personnel: Provided, That if another employee or
employees subsequently acquire seniority identical to the
employees involved in the original random selection, a second
random selection shall be held within thirty days to determine
the seniority ranking of the new employee or employees within the
group. The priority between the employees who participated in the original random selection shall remain the same. The second
random selection shall remain the same. The second random
selection will be performed by placing numbered pieces of paper
equal to the number of employees with identical seniority in a
container. The employees who were not involved in the original
random selection will draw a number from the container which will
determine their seniority within the group as a whole. This
process will be repeated if additional employees subsequently
acquire identical seniority. The same process will be utilized
if additional employees are subsequently discovered to have the
same seniority as the original group of employees but who did not
participate in the original random selection through oversight or
mistake.
Service personnel who are employed in a classification
category of employment at the time when a vacancy is posted in
the same classification category of employment shall be given
first opportunity to fill such vacancy.
Seniority acquired as a substitute and as a regular employee
shall be calculated separately and shall not be combined for any
purpose. Seniority acquired within different classification
categories shall be calculated separately: Provided, That when
a school service employee makes application for a position outside of the classification category currently held, if the
vacancy is not filled by an applicant within the classification
category of the vacancy, the applicant shall combine all regular
employment seniority acquired for the purposes of bidding on the
position.
School service personnel who hold multiclassification titles
shall accrue seniority in each classification category of
employment which said employee holds and shall be considered an
employee of each classification category contained within his
multiclassification title. Multiclassified employees shall be
subject to reduction in force in any category of employment
contained within their multiclassification title based upon the
seniority accumulated within said category of employment:
Provided, That if a multiclassified employee is reduced in force
in one classification category, said employee shall retain
employment in any of the other classification categories that he
holds within his multiclassification title. In such a case, the
county board of education shall delete the appropriate
classification title or classification category from the contract
of the multiclassified employee.
When applying to fill a vacancy outside the classification
categories held by the multiclassified employee, seniority acquired simultaneously in different classification categories
shall be calculated as if accrued in one classification category
only.
The seniority conferred herein shall apply retroactively to
all affected school service personnel, but the rights incidental
thereto shall commence as of the effective date of this section.
§18A-4-8h. Evaluation of school personnel; improvement plans.
All school service personnel shall receive regular
evaluations of the performance of their duties. Such evaluations
shall be fair, honest and impartial. School service personnel
who hold continuing contract status will receive at least one
evaluation by their immediate supervisor each school year to be
completed on or before the first day of June of the current
school year. School service personnel who hold probationary
contract status will receive at least two evaluations by their
immediate supervisor each school year. The first evaluation must
be completed on or before the fifteenth day of January of the
current school year and the second to be completed on or before
the first day of June of the current school year. Substitute
employees shall be evaluated on any assignment which exceeds
fifteen working days.
The state department of education shall design and provide an evaluation document which shall be utilized by county boards
of education on or before the first day of July, one thousand
nine hundred ninety-five. The evaluation document designed by
the state board of education shall be utilized by county boards
of education. The evaluation document shall provide for:
(1) An overall designation of "performance acceptable" or
"performance unacceptable" and other areas of evaluation as it
deems proper;
(2) A signature and date line for the immediate supervisor
and the employee;
(3) Space for comments or suggestions for improvement by the
immediate supervisor; and
(4) Space for the employee to indicate agreement or
disagreement with the evaluation or parts thereof.
The state department of education may, at its discretion,
design separate evaluation documents for various classification
categories or titles of employment and substitute employees.
A copy of an employee's evaluation shall provide to all
regular employees and shall be discussed with the employee when
presented. A copy of the evaluations of substitute employees
shall be mailed to their last known address within ten working
days of completion and the substitute employee shall be notified
of the opportunity to discuss the evaluation with the immediate
supervisor and shall be given the opportunity to do so at a mutually agreeable time if the employee so requests. An employee
may file a written response to any evaluation with the immediate
supervisor within ten working days of receipt of the evaluation.
This response shall be made a part of the employee's personnel
file and shall be attached to the evaluation in question.
An employee who receives the designation of "performance
unacceptable" shall be placed on a written improvement plan to
cover a time period of no less than thirty working days. The
immediate supervisor shall design the improvement plan and
provide a copy of said improvement plan to the employee. The
improvement plan shall designate the deficiencies to be corrected
and suggested action to accomplish the designated goals. The
purpose of such an improvement plan is to give the employee a
fair opportunity to improve his performance.
After completion of the plan of improvement, the immediate
supervisor shall prepare an evaluation of the employee. If the
evaluation results in a designation of "performance
unacceptable," the employee will be placed on a second plan of
improvement of no less than thirty working days. This plan of
improvement shall be prepared by an improvement team. The
improvement team shall consist of an employee designated by the
affected employee, an administrator designated by the county
superintendent and an experienced employee in the same
classification category designated by the county superintendent. The designated administrator may be the immediate supervisor
unless the employee objects.
The improvement team shall conduct at least two observations
of the employee and provide a written summary of those
observations to the employee. After the completion of the second
improvement plan, the improvement team shall evaluate the
employee on the standard form, provide a copy of this evaluation
of the employee and discuss the evaluation with the employee. The
employee shall have the right to file a written response to said
evaluation within ten working days with his immediate supervisor.
Such response will be forwarded to members of the improvement
team and shall be placed in the employee's personnel file and
attached to the evaluation in question.
No employee may be terminated for unacceptable performance
of his or her duties, incompetency or correctable misconduct as
provided in section eight, article two, chapter eighteen-a of
this code, unless the above procedure is utilized immediately
before discharge of the employee. However, nothing contained
herein shall be construed to limit an employer to utilization of
only two plans of improvement for an employee nor to require an
employer to discharge an employee when the circumstances do not
warrant such action: Provided, That nothing herein shall abridge
the right of an employee to utilize the grievance procedure as
provided in article twenty-nine, chapter eighteen of this code, to seek the modification or removal of an evaluation, plan of
improvement or disciplinary action based thereon on the grounds
that the document or process was inaccurate or unfair or the
designation of another evaluator or improvement team on the same
grounds.
The state department of education is authorized to
promulgate rules consistent with this section for implementation
of the evaluation and improvement plan process.
§18A-4-8i.
Limitation of number of school service personnel
positions to be held by an employee.
No school service personnel shall be permitted to hold more
than one regular full-time position nor more than two one-half
time positions at the same time: Provided, That nothing herein
shall be construed to prohibit a school service personnel from
holding an extracurricular assignment or assignments or summer
position as provided in section thirty-nine, article five,
chapter eighteen of this code, in addition to his or her regular
position nor from performing extra-duty assignments as provided
in section eight-b, article four, chapter eighteen of this code,
in addition to his or her regular position.
§18A-4-15. Employment of service personnel substitutes.
The county board shall employ and the county superintendent,
subject to the approval of the county board of education, shall
assign substitute service personnel on the basis of seniority to perform any of the following duties:
(1) To fill the temporary absence of another service
employee;
(2) To fill the position of a regular service employee on
leave of absence: Provided, That if such leave of absence is to
extend beyond thirty days, the board, within twenty working days
from the commencement of the leave of absence, shall give regular
employee status to a person hired to fill such position. The
person employed on a regular basis shall be selected under the
procedure set forth in section eight-b of this article. The
substitute shall hold such position and regular employee status
only until the regular employee shall be returned to such
position and the substitute shall have and shall be accorded all
rights, privileges and benefits pertaining to such position:
Provided, That if a regular employee fills a vacancy created by
a leave of absence as provided herein, upon termination of the
leave of absence said employee shall be returned to his or her
original position. The board of education shall temporarily fill
the position of said employee with a substitute until the return
of the employee;
(3) To perform the service of a service employee who is
authorized to be absent from duties without loss of pay;
(4) To temporarily fill a vacancy in a permanent position
caused by severance of employment by the resignation, transfer, retirement, permanent disability, dismissal pursuant to section
eight, article two of this chapter, or death of the regular
service employee who had been assigned to fill such position:
Provided, That within twenty working days from the commencement
of the vacancy, the board shall fill such vacancy under the
procedures set out in section eight-b of this article and section
five, article two of this chapter and such person hired to fill
the vacancy shall have and shall be accorded all rights,
privileges and benefits pertaining to such position;
(5) To fill the vacancy created by a regular employee's
suspension: Provided, That if the suspension is for more than
thirty working days the substitute service employee shall be
assigned to fill the vacancy on a regular basis and shall have
and be accorded all rights, privileges and benefits pertaining to
such position until such termination by the county board of
education becomes final. If the suspended employee is not
returned to his job, the board shall fill the vacancy under the
procedures set out in section eight-b of this article and section
five, article two of this chapter; and
(6) To temporarily fill a vacancy in a newly created
position prior to employment of a service personnel on a regular
basis under the procedure set forth in section eight-b of this
article.
Substitutes shall be assigned in the following manner: A substitute with the greatest length of service time, that is,
from the date he began his assigned duties as a substitute in
that particular category of employment, shall be given priority
in accepting the assignment throughout the period of the regular
employee's absence or until the vacancy is filled on a regular
basis under the procedures set out in section eight-b of this
article. All substitutes shall be employed on a rotating basis
according to the length of their service time until each
substitute has had an opportunity to perform similar assignments:
Provided, That if there are regular service employees employed in
the same building or working station as the absent employee and
who are employed in the same classification category of
employment, such regular employees shall be first offered the
opportunity to fill the position of the absent employee on a
rotating and seniority basis with the substitute then filling the
regular employee's position. A regular employee assigned to fill
the position of an absent employee shall be given the opportunity
to hold that position throughout such absence.
The salary of a substitute service employee shall be based
upon his years of employment as defined in section eight of this
article and as provided in the state minimum pay scale set forth
in section eight-a of this article and shall be in accordance
with the salary schedule of persons regularly employed in the
same position in the county in which he is employed.
Before any substitute service employee enters upon his
duties, he shall execute with the county board of education a
written contract as provided in section five, article two of this
chapter.
To establish a uniform system of providing a fair and
equitable opportunity for substitutes to enter upon their duties
for the first time, the following method shall be used: The
initial order of assigning newly employed substitutes shall be
determined by a random selection system established by the
affected substitute employees and approved by the county board.
This initial priority order shall be in effect only until the
substitute service personnel have entered upon their duties for
the first time.
Substitute service employees who have worked thirty days for
a school system shall have all rights pertaining to suspension,
dismissal and contract renewal as is granted to regular service
personnel in sections six, seven, eight and eight-a, article two
of this chapter.
§18A-4-16. Extracurricular assignments.
(1) The assignment of teachers and service personnel to
extracurricular assignments shall be made only by mutual
agreement of the employee and the superintendent, or designated
representative, subject to board approval. Extracurricular
duties shall mean, but not be limited to, any activities that occur at times other than regularly scheduled working hours,
which include the instructing, coaching, chaperoning, escorting,
providing support services or caring for the needs of students,
and which occur on a regularly scheduled basis: Provided, That
all school service personnel assignments shall be considered
extracurricular assignments except such assignments as are
considered either regular positions as provided by section eight,
article four, chapter eighteen or extra-duty assignments as
provided by section eight-b, article four, chapter eighteen-a.
(2) The employee and the superintendent, or a designated
representative, subject to board approval, shall mutually agree
upon the maximum number of hours of extracurricular assignment in
each school year for each extracurricular assignment.
(3) The terms and conditions of the agreement between the
employee and the board of education shall be in writing and
signed by both parties.
(4) An employee's contract of employment shall be separate
from the extracurricular assignment agreement provided for in
this section and shall not be conditioned upon the employee's
acceptance or continuance of any extracurricular assignment
proposed by the superintendent, a designated representative, or
the board.
(5) The board of education shall fill extracurricular and
supplemental school service personnel assignments and vacancies in accordance with section eight-b, article four of this chapter:
Provided, That an alternative procedure for making
extracurricular and supplemental school service personnel
assignments within a particular classification category of
employment may be utilized if the alternative procedure is
approved both by the county board of education and by an
affirmative vote of two thirds of the employees within that
classification category of employment.
NOTE: The purpose of this bill is to bestow upon summer
service related employees the same entitlements to benefits as
regular school service employees with the exception that they are
not entitled to work for a minimum of two-hundred days. The bill
also seeks to apply seniority rights to regular service personnel
who work under the authority of the board of education and to
bestow further employment related entitlements to this category
of employees, akin to such entitlements already reserved for
teachers.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Sections eight-h and eight-i are new; therefore,
strike-throughs and underscoring have been omitted.