Senate Bill No. 352
(By Senators Tomblin, Mr. President, Jackson, Manchin,
Love, Schoonover, Oliverio, Wagner, Yoder,
Blatnik and Wiedebusch)
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[Introduced February 9, 1996;
referred to the Committee on Education.]
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A BILL to amend and reenact section eight-b, article four,
chapter eighteen-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
the seniority rights of school service personnel and
including the class title of paraprofessional within the
same classification category as aides.
Be it enacted by the Legislature of West Virginia:
That section eight-b, article four, chapter eighteen-a of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-8b. Seniority rights for school service personnel.
A county board of education shall make decisions affecting promotion and filling of any service personnel positions of
employment or jobs occurring throughout the school year that are
to be performed by service personnel as provided in section
eight, article four of this chapter, on the basis of seniority,
qualifications and evaluation of past service.
Qualifications shall mean that the applicant holds a
classification title in his category of employment as provided in
this section and must be given first opportunity for promotion
and filling vacancies. Other employees then must be considered
and shall qualify by meeting the definition of the job title as
defined in section eight, article four of this chapter, that
relates to the promotion or vacancy. If the employee so
requests, the board must show valid cause why an employee with
the most seniority is not promoted or employed in the position
for which he applies. Applicants shall be considered in the
following order:
(1) Regularly employed service personnel;
(2) Service personnel whose employment has been discontinued
in accordance with this section;
(3) Professional personnel who held temporary service
personnel jobs or positions prior to the ninth day of June, one thousand nine hundred eighty-two, and who apply only for such
temporary jobs or positions;
(4) Substitute service personnel; and
(5) New service personnel.
The county board of education may not prohibit a service
employee from retaining or continuing his employment in any
positions or jobs held prior to the effective date of this
section and thereafter.
A promotion shall be defined as any change in his employment
that the employee deems to improve his working circumstance
within his classification category of employment and shall
include a transfer to another classification category or place
of employment if the position is not filled by an employee who
holds a title within that classification category of employment.
Each class title listed in section eight, article four of this
chapter shall be considered a separate classification category of
employment for service personnel, except for those class titles
having Roman numeral designations, which shall be considered a
single classification of employment. The cafeteria manager class
title shall be included in the same classification category as
cooks. The executive secretary class title shall be included in the same classification category as secretaries. The
paraprofessional class title shall be included in the same
classification category as aides.
For purposes of determining seniority under this section an
employee's seniority begins on the date that he enters into his
assigned duties.
Notwithstanding any other provisions of this chapter to the
contrary, decisions affecting such personnel with respect to
extra-duty assignments shall be made in the following manner:
An employee with the greatest length of service time in a
particular category of employment shall be given priority in
accepting such assignments, followed by other fellow employees
on a rotating basis according to the length of their service time
until all such employees have had an opportunity to perform
similar assignments. The cycle then shall be repeated:
Provided, That an alternative procedure for making extra-duty
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. For the purpose of this section, extra-duty assignments are defined as irregular jobs
that occur periodically or occasionally such as, but not limited
to, field trips, athletic events, proms, banquets and band
festival trips.
Boards shall be required to post and date notices of all job
vacancies of established existing or newly created positions in
conspicuous working places for all school service employees to
observe for at least five working days. The notice of such job
vacancies shall include the job description, the period of
employment, the amount of pay and any benefits and other
information that is helpful to the employees to understand the
particulars of the job. After the five day minimum posting
period all vacancies shall be filled within twenty working days
from the posting date notice of any job vacancies of established
existing or newly created positions.
All decisions by county boards of education concerning
reduction in work force of service personnel shall be made on the
basis of seniority, as hereinafter provided.
The seniority of any such service personnel shall be
determined on the basis of the length of time the employee has
been employed by the county board of education within a particular job classification. For the purpose of establishing
seniority for a preferred recall list as hereinafter provided,
when an employee has been employed in one or more
classifications, the seniority accrued in each previous
classification shall be retained by the employee.
Should a county board of education be required to reduce the
number of employees within a particular job classification, the
employee with the least amount of seniority within that
classification or grades of classification shall be properly
released and employed in a different grade of that classification
if there is a job vacancy: Provided, That if there is no job
vacancy for employment within such classification or grades of
classification, he shall be employed in any other job
classification which he previously held with the county board if
there is a vacancy and shall retain any seniority accrued in
such job classification or grade of classification.
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.
All employees 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 and shall be recalled to employment by the county board on
the basis of seniority.
Employees placed upon the preferred list shall be recalled
to any position openings by the county board within the
classification(s), where they had previously been employed, or to
any lateral position for which the employee is qualified or to a
lateral area for which an employee has certification and/or
licensure.
Employees on the preferred recall list shall not forfeit
their right to recall by the county board if compelling reasons
require an employee to refuse an offer of reemployment by the
county board.
The county board shall be required to notify all employees
on the preferred recall list of all position openings that from
time to time exist. Such notice shall be sent by certified mail
to the last known address of the employee; it shall be the duty
of each such employee to notify the county board of any change in
the address of such employee.
No position openings may be filled by the county board,
whether temporary or permanent, until all employees on the preferred recall list have been properly notified of existing
vacancies and have been given an opportunity to accept
reemployment.
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
his reasonable attorney fee, 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 retroactively 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.
NOTE: The purpose of this bill is to include the school
service personnel class title of paraprofessional within the same
classification category as aides.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.