Senate Bill No. 423
(By Senators Wagner and White)
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[Introduced February 16, 1996; referred to the Committee on Education; and then to the Committee on Finance.]
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A BILL to amend chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article three-c, relating to school personnel; West Virginia educator's professional standards board; transferring the setting of public school teacher certification standards from the state superintendent to the professional standards board; purpose and findings; definitions; powers and duties of the board and the superintendent; requiring teachers license or permit and renewals; refusal, suspension, revocation and reinstatement of licenses and permits; civil penalties; meetings, minutes, chairperson and annual reports; and the appointment of an executive director.

Be it enacted by the Legislature of West Virginia:
That chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article three-c, to read as follows:

ARTICLE 3C. EDUCATORS' PROFESSIONAL STANDARDS BOARD.

§18A-3C-1. Purpose and findings.
The purpose of this article is to transfer the responsibility for setting public school teacher certification standards from the state superintendent to the West Virginia educator's professional standards board. By transferring the authority to set certification standards from the state superintendent to the professional standards board, the profession of teaching will attain a status comparable to that of other professions. The attainment of this status will ensure that qualified teachers will be employed to educate West Virginia's public school children.
Teacher standards have two objectives. The first objective is to provide every child in West Virginia with a teacher who is qualified to practice the profession of teaching. Because every child is compelled to attend school, no child should have to attend a classroom conducted by someone who has not been determined, in advance, to be qualified to practice this profession. The second objective is to establish public confidence in the teaching profession. To that end, all educators will be required to receive a license or permit from the professional standards board qualifying them to teach in the West Virginia public school system.
The Legislature finds that the provision of a quality education for the children of West Virginia is a critical function of state government. It is vitally important that the highest possible standards be applied to the training of teachers and the screening of teacher applicants. In light of national efforts to establish certificates for teachers, the Legislature finds that a West Virginia educators' professional standards board will provide more public accountability and will ensure a higher level of professionalism and excellence among teachers.
§18A-3C-2. Definitions.
As used in this article:
"Board" means the West Virginia educators' professional standards board.
"License" means the documents signifying the board's grant of permission to practice the profession of teaching.
"Permit" means an emergency or temporary license issued under this article based on standards and guidelines set by the board.
"Superintendent" means the state superintendent of schools.
"Teacher," for the purpose of this article, shall mean teacher, public school librarian, guidance counselor, principal, supervisor, central office administrator or registered professional nurse.
§18A-3C-3. Powers and duties of board.
(a) The board shall create and implement standards and procedures for certifying teachers as qualified for a certificate to practice in the public schools of West Virginia. Standards and procedures for a certificate to practice in the public schools of West Virginia. Standards and procedures established by the board shall be adopted as legislative rules in conformity with the Administrative Procedures Act, section one, article one, chapter twenty-nine and shall include the following:
(1) Set standards for teacher licensing and administer a professional licensing and certification process, including appropriate examinations and assessments, for acquiring and maintaining certification.
(2) Administer requirements needed to renew or maintain certification;
(3) Set standards for permits to be used as an emergency temporary teaching license where a bona fide shortage of licensed teachers in a particular specialization exists, as specified in regulations promulgated by the board;
(4) Approve or disapprove teacher preparation programs;
(5) Set fees to be charged in connection with teacher licensing;
(6) Issue, renew, suspend, revoke or reinstate teacher licenses;
(7) Enter into agreement with other states to acquire reciprocal approval of teacher license and preparation programs;
(8) Set standards for teacher licensing relative to new subjects of study; and
(9) Perform any other action that relates to the improvement of instruction in the public schools through teacher education and professional development through continuing education and that attracts qualified candidates for teacher training from among the high school graduates of West Virginia.
(b) In addition to establishing standards for the issuance and maintenance of licenses and permits, the board's powers and duties shall include:
(1) Setting and administering its own budget;
(2) Adopting, amending, repealing or suspending the policies, standards or rules of the board;
(3) Receiving grants or donations from private foundations;
(4) Submitting an annual report to the governor and the Legislature on the board's operations;
(5) Conducting a cyclical review of standards and suggesting revisions for their improvement;
(6) Establishing licensing and permitting fees; and
(7) Establishing penalties for noncompliance with this article.
(c) The board shall recommend to the West Virginia University board of trustees, the board of directors of the state college system and private colleges and universities, standards and procedures for preparing teachers to qualify for initial and renewable certification to practice in the public schools of West Virginia, including the following:
(1) Preservice preparation;
(2) Approval of teacher education programs, both graduate and undergraduate; and
(3) Approval of programs of alternative certification, such as national teacher examinations and permits that certify competency in subject areas or programs taught in the public schools.
(d) The board shall review any report(s), study(ies) or other work by the National Council for Accreditation of Teacher Education, or any other group(s), to determine whether approval of any teacher education program is appropriate. The board also shall have the authority to determine whether any teacher education program proposed for its approval meets its adopted criteria.
(e) The board shall review any report(s), study(ies) or other work by the National Board of Professional Teaching Standards ("NBPTS"), to determine whether adoption of any NBPTS standards is appropriate for teachers desiring to obtain national board certification. The board shall attempt to consolidate teacher licensure areas to parallel, insofar as is reasonably practicable, those issued by the NBPTS.
(f) The board shall not have the authority over the compensation, benefits or working conditions of teachers in the public schools of West Virginia: Provided, That the board shall have the authority to make recommendations to the Legislature regarding compensation or other issues within its purview as they relate to teacher certification.
(g) The board shall have the authority to hear the public, the teaching profession and professional groups and associations on any matter of concern under the jurisdiction of the board. Such meetings shall conform to the requirements of the Open Governmental Proceedings Act, section one, article nine-a, chapter six.
§18A-3C-4. Powers and duties of the state superintendent.
The state superintendent shall retain all of his or her rights and powers except for those provided to the West Virginia educators' professional standards board under this article. The state superintendent's responsibilities under this article shall consist of assisting with the teacher licensing and permitting process, as needed or requested by the board. The state superintendent, upon request by the board, shall provide information relating to currently certified teachers as the board deems necessary to carry out its duties under this article.
§18A-3C-5. Teachers license or permit required; renewals.
(a) Beginning with the one thousand nine hundred ninety- seven--ninety-eight school year, no person shall serve as a teacher in a public school without first having obtained a license or permit from the board under this article. All licenses shall be issued provisionally for an initial period of three years. All licenses may be renewed for a period of five years, provided the licensee continues to satisfy the board's licensing standards. After completing two renewals, any licensee may apply for a permanent license, provided the licensee has satisfied the requirements for a permanent license under regulations promulgated by the board. All permits issued by the board shall be renewable every year, up to a maximum of three years, provided the permit holder continues to satisfy the board's permitting standards and actively pursues appropriate licensing.
(b) No person shall be issued a license or permit without having first paid the fee established by the board.
(c) All certificates in force in this state which were issued by the state superintendent prior to the first day of January, one thousand nine hundred ninety-seven, shall continue in full force and effect, subject to all the terms and conditions under which they were issued, unless and until they expire by virtue of their own limitations. All such certificates issued by the state superintendent prior to the first day of January, one thousand nine hundred ninety-seven, shall be deemed to have been issued by the board for purposes of any law or regulations relating to such certificates.
§18A-3C-6. Refusal, suspension, revocation and reinstatement of
licenses and permits.
(a) The board may, on the written complaint of the county board of education employing a teacher, which complaint shall specify with particularity the nature and character of the charges, suspend or revoke such teacher's license or permit to teach for any of the following causes:
(1) Immorality;
(2) Willful neglect of duty;
(3) Failure to meet licensing or permitting requirements;
(4) Fraud or misrepresentation in obtaining a license or permit; or
(5) Conviction of a felony or a guilty plea or plea of nolo contendere to a felony charge.
(b) The board shall establish procedures for the conduct of proceedings pursuant to this article. The board shall provide for confidentiality of the proceedings to protect all parties. Stenographic recording of all proceedings before the board shall be maintained as the official record of such proceedings.
Any applicant who has been refused a license or permit or any licensee or permit holder whose license or permit has been suspended or revoked may present their claim to the board or if the board so elects, to a hearing officer appointed by the board. The board or hearing officer, upon written request for a hearing, shall schedule a hearing within sixty days of receipt of such request. The board or hearing officer shall give all parties at least twenty days notice of the time and place for the hearing.
If appointed, the hearing officer shall prepare a recommended decision within thirty days of the conclusion of the hearing, or such other time frame as may be agreed upon by the parties. At its next regular meeting, but in no case more than thirty days after its receipt of the hearing examiner's decision, the board shall, in open session, make a decision on the recommended decision of the hearing officer. The board shall accept the hearing officer's recommended decision unless it: (1) Was contrary to law or lawfully adopted rule, regulation or written policy of the board; (2) exceeded the board's statutory authority; (3) was the result of fraud or deceit; (4) was clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (5) was arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion.
If no hearing officer is appointed, the board shall issue a final decision within thirty days of the conclusion of the hearing, or such other time frame as may be agreed upon by the parties.
Any party to board proceedings may represent himself or herself or be represented by counsel or another representative. Any applicant who has been refused a license or permit, or any licensee or permit holder whose license or permit has been suspended or revoked, shall be entitled to review and copy any relevant documents in the possession of the board at least ten days in advance of the hearing.
In all proceedings before it, the board may administer oaths, compel the attendance of witnesses and production of documentary evidence and examine witnesses. In case of disobedience by any person to any order of the board or to any subpoena issued by the board, or the refusal of any witness to testify to any matter that the person may be questioned lawfully, any circuit judge, on application of the board or a member thereof, shall compel obedience in the case of disobedience of the requirements of a subpoena issued by a circuit court or a refusal to testify.
Any applicant who has been refused a license or permit or any licensee or permit holder whose license or permit has been suspended or revoked, shall have the right to appeal, within thirty days of receipt of the board's decision, to the Kanawha County circuit court or the circuit court in which the applicant, licensee or permit holder resides. The circuit court shall affirm any board decision, unless it: (1) Was contrary to law or lawfully adopted rule, regulation or written policy of the board; (2) exceeded the board's statutory authority; (3) was the result of fraud or deceit; (4) was clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (5) was arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. The decision of the board shall not be stayed automatically upon the filing of an appeal, but a stay may be granted by the circuit court upon separate motion therefor.
The court's ruling shall be upon the entire record made before the board, and the court may hear oral arguments and require written briefs. The court may reverse, vacate or modify the decision of the board or may remand the matter to the board for further proceedings.
(c) After the expiration of three years from the date of revocation of any license or permit, the affected licensee or permit holder may petition the board for reinstatement of such license or permit. For good cause shown, the board may reinstate any license or permit, subject to any terms and conditions as the board may prescribe. The board shall establish procedures for the disposition of petitions for reinstatement of licenses and permits. The board shall serve as the final adjudicator of all petitions for reinstatement of a license or a permit.
(d) Upon revocation of a license or permit, the board may disclose the name, birthdate, social security number and matters specifically set out in a written revocation order related to the former holder of the license or permit for the purpose of exchanging information with other national or state teacher certification agencies about school personnel who have had licenses, permits or other certificates revoked.
§18A-3C-7. Penalty.
Any person who engages in the profession of teaching in a public school without first being issued a license or permit shall be fined not more than five hundred dollars. Any person who knowingly or intentionally violates this article by employing an individual as a public school teacher who does not possess a valid license or permit shall be fined not more than five hundred dollars.
§18A-3D-8. Selection of chairperson; calling of meetings; quorum; minutes; annual report.
(a) The chairperson of the board shall be elected by a majority of the members of the board from among the members of the board for a term of one year. A member may be reelected to serve as chairperson for a maximum of three subsequent terms.
(b) Meetings shall be held at the call of the chairperson or upon the request in writing of a majority of the board. Two thirds of the membership shall constitute a quorum of the board. A quorum shall be required for the board to act upon any matter brought before the board.
(c) The board shall keep minutes of its meetings and make its annual written report available for inspection by the public.
(d) Meetings of the board shall be conducted in conformity with the Open Governmental Proceedings Act, section one, article nine-a, chapter six.
(e) The board shall prepare an annual report of its activities and shall forward the same to the governor and the Legislature on or before the first day of November.
§18A-3C-9. Executive director.
(a) The board shall appoint an executive director who shall serve as the executive officer of the board. Such executive director shall serve at the will and pleasure of the board and be compensated in an amount fixed by the board. The executive director shall have the authority to employ such professional and clerical personnel as may be necessary to carry out the duties and responsibilities of the board. Personnel of the department of education may be utilized by the board, subject to the approval of the state superintendent.
(b) All full-time employees of the board shall be members of the public employees' retirement system of West Virginia, except for members of the state teachers retirement system who, without any break in service, become full-time employees of the board. Such employees shall continue as members of the state teachers retirement system. All employer contributions to said retirement systems and for social security for said employees shall be paid from funds appropriated for the operation of the board. Employees of the board shall be eligible for participation in any other benefit programs generally available to employees of the state of West Virginia, including, but not limited to, those available under the public employees' insurance act.
(c) The board shall, on and after the first day of January, one thousand nine hundred ninety-seven, assume possession and control of all records, papers, equipment, supplies and all other tangible property possessed and controlled by the department of education as of the first day of January, one thousand nine hundred ninety-seven, in its performance of functions or duties transferred to the board under this article.
Any officers, employees and agents of the department of education who, on the first day of January, one thousand nine hundred ninety-seven, are employed in the performance of a function or duty which shall be vested in the board by the provisions of this article shall at the election of the board, be transferred to the board and thereafter shall be employees of the board. The status, position and rights of any persons so transferred shall not be affected by the transfer, in and of itself and such persons shall retain, inter alia, all rights of rank or grade, rights to annual leave, sick pay and leave, rights under any retirement or personnel plan and any other rights under any law or administrative policy.
(d) The activities of the board shall be funded out of general revenues, as determined by the Legislature from year to year. The department of education shall transfer _______________ in fiscal year _____________, and _____________ in fiscal year ____________, from the budgetary allotment made to it, to the board for the purposes of funding the board's activities pursuant to this article.
(e) The board shall succeed to all rules, regulations, policies, procedures and administrative orders of the department of education which are in effect on the first day of January, one thousand nine hundred ninety-seven, and which relate to the functions transferred to the board by this article. Such rules, regulations, policies, procedures and administrative orders shall remain in effect until amended, repealed, superseded or nullified by proper authority or as otherwise provided by law.
(f) The rights, privileges, entitlements and duties of parties to contracts, leases, agreements and other transactions entered into before the first day of January, one thousand nine hundred ninety-seven, by the department of education and which pertain to the functions transferred to the board by this article shall continue to exist and none of these rights, privileges, entitlements and duties are impaired or diminished by reason of the transfer of the functions to the board. In all such instances, the board shall be substituted for the department of education and the board shall succeed to the rights and duties under such contracts, leases, agreements and other transactions.
§18A-3C-10. Repeal of inconsistent provisions.
The provisions of any articles or parts of articles, of the code of West Virginia, one thousand nine hundred thirty-one, as amended, which are inconsistent with the provisions of this chapter, are hereby repealed to the extent of such inconsistency.
§18A-3C-11. Severability.
If any provision of this article, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.

NOTE: The purpose of this bill is to transfer the responsibility for setting public school teacher certification standards from the State Superintendent to the West Virginia Educators' Professional Standards Board. It further provides that beginning with the 1997-98 school year no person may serve as a teacher in a public school without having obtained a license or permit from the board.

Article 3C is new; therefore, strike-throughs and underscoring have been omitted.