ENGROSSED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 4

(By Senators Jackson, Minear, Redd, Hunter, McKenzie, Edgell, Boley, Bowman, Plymale, Unger, Snyder, Kessler, Minard, Oliverio and Caldwell)

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[Originating in the Committee on Education;

reported January 16, 2002.]

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A BILL to amend and reenact section one, article one, chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section one-a, article five of said chapter; and to amend and reenact section two, article seven, chapter sixty-one of said code, all relating to defining alternative education and dangerous student; allowing county boards to determine whether a student is a dangerous student; allowing county boards to refuse to provide alternative education to dangerous students who have been expelled; authorizing county superintendents to request authority from a circuit judge or magistrate to subpoena witnesses and documents for expulsion hearings; setting forth guidelines a superintendent may use in determining whether or not to reduce a mandatory twelve-month suspension; and amending the definition of deadly weapon as the term applies to schools.

Be it enacted by the Legislature of West Virginia:
That section one, article one, chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section one-a, article five of said chapter be amended and reenacted; and that section two, article seven, chapter sixty-one of said code be amended and reenacted, all to read as follows:
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 thereto shall, unless the context clearly indicates a different meaning, be construed as follows:
(a) "School personnel" means all personnel employed by a county board of education whether employed on a regular full-time basis, an hourly basis or otherwise. School personnel shall be comprised of two categories: Professional personnel and service personnel.
(b) "Professional personnel" means persons who meet the certification and/or licensing requirements of the state, and includes the professional educator and other professional employees.
(c) "Professional educator" is synonymous with and has the same meaning as "teacher" as defined in section one, article one, chapter eighteen of this code. Professional educators shall be classified as:
(1) "Classroom teacher". -- The professional educator who has direct instructional or counseling relationship with pupils, spending the majority of his or her time in this capacity.
(2) "Principal". -- The professional educator who, as agent of the board, has responsibility for the supervision, management and control of a school or schools within the guidelines established by said board. The major area of such responsibility shall be the general supervision of all the schools and all school activities involving pupils, teachers and other school personnel.
(3) "Supervisor". -- The professional educator who, whether by this or other appropriate title, is responsible for working primarily in the field with professional and/or and other personnel in instructional and other school improvement.
(4) "Central office administrator". -- The superintendent, associate superintendent, assistant superintendent and other professional educators, whether by these or other appropriate titles, who are charged with the administering and supervising of the whole or some assigned part of the total program of the countywide school system.
(d) "Other professional employee" means that person from another profession who is properly licensed and is employed to serve the public schools and includes a registered professional nurse, licensed by the West Virginia board of examiners for registered professional nurses and employed by a county board of education, who has completed either a two-year (sixty-four semester hours) or a three-year (ninety-six semester hours) nursing program.
(e) "Service personnel" means those who serve the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch and as aides.
(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 professional employees who wish to divide between them the duties and responsibilities of one authorized full-time position.
(i) "Prospective employable professional personnel" means certified professional educators who:
(1) Have been recruited on a reserve list of a county board;
(2) Have been recruited at a job fair or as a result of contact made at a job fair;
(3) Have not obtained regular employee status through the job posting process provided for in section seven-a, article four of this chapter; and
(4) Have obtained a baccalaureate degree from an accredited institution of higher education within the past year.
(j) "Dangerous student" means a pupil who is substantially likely to cause serious bodily injury to another individual.
(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.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1a. Possessing deadly weapons on premises of educational facilities; possessing a controlled substance on premises of educational facilities; assaults and batteries committed by pupils upon teachers or other school personnel; temporary suspension, hearing; procedure, notice and formal hearing; extended suspension; sale of narcotic; expulsion; exception; alternative education.

(a) A principal shall suspend a pupil from school or from transportation to or from the school on any school bus if the pupil, in the determination of the principal after an informal hearing pursuant to subsection (d) of this section, has: (i) Violated the provisions of subsection (b), section fifteen, article two, chapter sixty-one of this code; (ii) violated the provisions of subsection (b), section eleven-a, article seven of said chapter; or (iii) sold a narcotic drug, as defined in section one hundred one, article one, chapter sixty-a of this code, on the premises of an educational facility, at a school-sponsored function or on a school bus. If a student has been suspended pursuant to this subsection, the principal shall, within twenty-four hours, request that the county superintendent recommend to the county board that the student be expelled. Upon such a request by a principal, the county superintendent shall recommend to the county board that the student be expelled. Upon such recommendation, the county board shall conduct a hearing in accordance with subsections (e), and (f) and (g) of this section to determine if the student committed the alleged violation. If the county board of education finds that the student did commit the alleged violation, the county board of education shall expel the student.
(b) A principal shall suspend a pupil from school, or from transportation to or from the school on any school bus, if the pupil, in the determination of the principal after an informal hearing pursuant to subsection (d) of this section, has: (i) Committed an act or engaged in conduct that would constitute a felony under the laws of this state if committed by an adult; or (ii) unlawfully possessed on the premises of an educational facility or at a school-sponsored function a controlled substance governed by the uniform controlled substances act as described in chapter sixty-a of this code. If a student has been suspended pursuant to this subsection, the principal may request that the superintendent recommend to the county board that the student be expelled. Upon such recommendation by the county superintendent, the county board may hold a hearing in accordance with the provisions of subsections (e), and (f) and (g) of this section to determine if the student committed the alleged violation. If the county board finds that the student did commit the alleged violation, the county board may expel the student.
(c) A principal may suspend a pupil from school, or transportation to or from the school on any school bus, if the pupil, in the determination of the principal after an informal hearing pursuant to subsection (d) of this section: (i) Threatened to injure, or in any manner injured, a pupil, teacher, administrator or other school personnel; (ii) willfully disobeyed a teacher; (iii) possessed alcohol in an educational facility, on school grounds, a school bus or at any school-sponsored function; (iv) used profane language directed at a school employee or pupil; (v) intentionally defaced any school property; (vi) participated in any physical altercation with another person while under the authority of school personnel; or (vii) habitually violated school rules or policies. If a student has been suspended pursuant to this subsection, the principal may request that the superintendent recommend to the county board that the student be expelled. Upon such recommendation by the county superintendent, the county board may hold a hearing in accordance with the provisions of subsections (e), and (f) and (g) of this section to determine if the student committed the alleged violation. If the county board finds that the student did commit the alleged violation, the county board may expel the student.
(d) The actions of any pupil which may be grounds for his or her suspension or expulsion under the provisions of this section shall be reported immediately to the principal of the school in which the pupil is enrolled. If the principal determines that the alleged actions of the pupil would be grounds for suspension, he or she shall conduct an informal hearing for the pupil immediately after the alleged actions have occurred. The hearing shall be held before the pupil is suspended unless the principal believes that the continued presence of the pupil in the school poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process, in which case the pupil shall be suspended immediately and a hearing held as soon as practicable after the suspension.
The pupil and his or her parent(s), guardian(s) or custodian(s), as the case may be, shall be given telephonic notice, if possible, of this informal hearing, which notice shall briefly state the grounds for suspension.
At the commencement of the informal hearing, the principal shall inquire of the pupil as to whether he or she admits or denies the charges. If the pupil does not admit the charges, he or she shall be given an explanation of the evidence possessed by the principal and an opportunity to present his or her version of the occurrence. At the conclusion of the hearing or upon the failure of the noticed student to appear, the principal may suspend the pupil for a maximum of ten school days, including the time prior to the hearing, if any, for which the pupil has been excluded from school.
The principal shall report any suspension the same day it has been decided upon, in writing, to the parent(s), guardian(s) or custodian(s) of the pupil by certified mail, return receipt requested: Provided, That certified mail is not required if one or both of the parents, guardians or custodians of the pupil are present at the time the suspension is decided upon, or if any one of them acknowledges receipt of the report by signing and dating a copy of the report. The suspension also shall be reported to the county superintendent and to the faculty senate of the school at the next meeting after the suspension.
(e) Prior to a hearing before the county board, the county board shall cause a written notice which states the charges and the recommended disposition to be served upon the pupil and his or her parent(s), guardian(s) or custodian(s), as the case may be. Such The notice shall set forth a date and time at which such the hearing shall be held, which date shall be within the ten-day period of suspension imposed by the principal.
(f) The county board shall hold the scheduled hearing to determine if the pupil should be reinstated or should or, under the provisions of this section, must be expelled from school. If the county board determines that the student should or must be expelled from school, it may also determine whether the student is a dangerous student pursuant to subsection (g) of this section. At this hearing the pupil may be represented by counsel, may call his or her own witnesses to verify his or her version of the incident and may confront and cross-examine witnesses supporting the charge against him or her. The hearing shall be recorded by mechanical means unless recorded by a certified court reporter. The hearing may be postponed for good cause shown by the pupil but he or she shall remain under suspension until after the hearing. The state board may adopt other supplementary rules of procedure to be followed in these hearings. At the conclusion of the hearing the county board either shall order the pupil reinstated immediately or at the end of his or her initial suspension or shall suspend the pupil for a further designated number of days or shall expel the pupil from the public schools of such county.
(g) If the county board expels the student, it may determine whether the student is a dangerous student as defined in section one, article one of this chapter. If the county board finds that the student is a dangerous student, the county board may refuse to provide alternative education. However, when a student is found to be a dangerous student, is expelled and is denied alternative education, a hearing shall be conducted within three months after the refusal by the board to provide alternative education to reexamine whether or not the student is a dangerous student and whether the student shall be provided alternative education. Thereafter, a hearing for the purpose of reexamining whether or not the student is a dangerous student and whether the student shall be provided alternative education shall be conducted every three months for so long as the student is denied alternative education. If it is determined during any of the hearings that the student is no longer a dangerous student or should be provided alternative education, the student shall be provided alternative education during the remainder of the period of time that the student is expelled.
(h) The superintendent may apply to a circuit judge or magistrate for authority to subpoena witnesses and documents, upon his or her own initiative, in a proceeding related to a recommended student expulsion before a county board conducted pursuant to the provisions of this section. Upon the written request of any other party, the superintendent shall apply to a circuit judge or magistrate for the authority to subpoena witnesses, documents or both on behalf of the other party in a proceeding related to a recommended student expulsion before a county board. If the authority to subpoena is granted, the superintendent shall subpoena the witnesses, documents or both requested by the other party. Furthermore, if the authority to subpoena is granted, it shall be exercised in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code.
(g) (i) Pupils may be expelled pursuant to the provisions of this section for a period not to exceed one school year, except that if a pupil is determined to have violated the provisions of subsection (a) of this section the pupil shall be expelled for a period of not less than twelve consecutive months: Provided, That the county superintendent may lessen the mandatory period of twelve consecutive months for the expulsion of the pupil if the circumstances of the pupil's case demonstrably warrant. Upon the reduction of the period of expulsion, the county superintendent shall prepare a written statement setting forth the circumstances of the pupil's case which warrant the reduction of the period of expulsion. The county superintendent shall submit the statement to the county board, the principal, the faculty senate and the local school improvement council for the school from which the pupil was expelled. The county superintendent may use the following factors as guidelines in determining whether or not to reduce a mandatory twelve-month expulsion:
(1) The extent of the pupil's malicious intent;
(2) The outcome of the pupil's misconduct;
(3) The pupil's past behavior history; and
(4) The likelihood of the pupil's repeated misconduct.
(h) (j) Notwithstanding the preceding provisions of this section, if a pupil has been classified as a student with a disability, prior to performing the actions giving rise to this section, special consideration shall be given to such the pupil as hereinafter provided:
(1) Regardless of whether or not the misconduct is the proximate result of the disability of a student, a student with a disability may be suspended immediately for up to ten consecutive days for each occurrence of misconduct or when it is necessary for the protection of the student, the protection of school personnel or the protection of other students;
(2) If the misconduct is found to be the proximate result of the disability of the student, then, subject to the provisions of subsection (3) of this section, the student may not be suspended or expelled for more than ten consecutive days for each occurrence of misconduct or for each occurrence when it is necessary for the protection of the student, the protection of school personnel or the protection of other students;
(3) A student with a disability who has committed a violation involving the possession of a firearm, as defined in section two, article seven, chapter sixty-one of this code, on the school premises or at a school-sponsored function may be placed in an alternative educational setting by the individualized education program committee, as described in section one, article twenty, chapter eighteen of this code, for a period of not more than forty- five calendar days. During this time, if a parent, guardian or custodian requests a due process hearing to contest placement of the student, the student shall remain in the alternative education setting during the pendency of any proceeding, unless the parents and the county board agree otherwise. At the conclusion of the proceeding, if it is determined that the student with a disability committed a violation involving the possession of a firearm and the violation is not the proximate result of the disability of the student, the student with a disability shall be expelled from school for the period set forth in the applicable provisions of this section: Provided, That special education and related services must be provided during this additional period of expulsion;
(4) If the behavior giving rise to the violation or activity is not the proximate result of the disability of the student, a student with a disability who has committed a violation involving the possession of a deadly weapon, as defined in section two, article seven, chapter sixty-one of this code, other than a firearm, or who has committed a violation or has engaged in any other activity for which suspension or expulsion is a punishment under the provisions of this article, shall be suspended or expelled from school in the manner described in this section. In addition, special education and related services must be provided during the period of a suspension or expulsion exceeding ten days; and
(5) If the student with a disability has been suspended and it is determined that the misconduct is the proximate result of the disability of the student, it is recommended that school officials determine whether the student is receiving appropriate instructional and related services in the current placement. In addition, the violations may be addressed through strategies, including, but not limited to, the following: (i) Conflict management and behavior management strategies which are not inconsistent with the individualized education program of the student; (ii) student and teacher training initiatives which are not inconsistent with the individualized education program of the student; (iii) an initiation by professional educators, at any time, of a change in the placement of the student through an individualized education program meeting to be held within twenty- one days, subject to the applicable procedural safeguards; and (iv) an initiation of a court order to remove the student from school if there is belief that maintaining the student in the current educational placement is substantially likely to cause injury to the student or others.
(i) (k) In all hearings under this section, facts shall be found by a preponderance of the evidence.
(j) (l) For purposes of this section, nothing herein shall be construed to be in conflict with the federal provisions of the Individuals with Disabilities Education Act of 1990 (PL 101-476).
(k) (m) If a pupil transfers to another school in West Virginia, the principal of the school from which the pupil transfers shall provide a written record of any disciplinary action taken against the pupil to the principal of the school to which the pupil transfers.
(l) (n) Principals may exercise any other authority and perform any other duties to discipline pupils consistent with state and federal law, including policies of the state board of education.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 7. DANGEROUS WEAPONS.
§61-7-2. Definitions.

As used in this article, unless the context otherwise requires:
(1) "Blackjack" means a short bludgeon consisting, at the striking end, of an encased piece of lead or some other heavy substance and, at the handle end, a strap or springy shaft which increases the force of impact when a person or object is struck. The term "blackjack" shall include, but not be limited to, a billy, billy club, sand club, sandbag or slapjack.
(2) "Gravity knife" means any knife that has a blade released from the handle by the force of gravity or the application of centrifugal force and when so released is locked in place by means of a button, spring, lever, or other locking or catching device.
(3) "Knife" means an instrument, intended to be used or readily adaptable to be used as a weapon, consisting of a sharp- edged or sharp-pointed blade, usually made of steel, attached to a handle which is capable of inflicting cutting, stabbing or tearing wounds. The term "knife" shall include, but not be limited to, any dagger, dirk, poniard or stiletto, with a blade over three and one-half inches in length, any switchblade knife or gravity knife and any other instrument capable of inflicting cutting, stabbing, or tearing wounds. A pocket knife with a blade three and one-half inches or less in length, a hunting or fishing knife carried for hunting, fishing, sports or other recreational uses, or a knife designed for use as a tool or household implement shall not be included within the term "knife" as defined herein unless such knife is knowingly used or intended to be used to produce serious bodily injury or death.
(4) "Switchblade knife" means any knife having a spring-operated blade which opens automatically upon pressure being applied to a button, catch or other releasing device in its handle.
(5) "Nunchuka" means a flailing instrument consisting of two or more rigid parts, connected by a chain, cable, rope or other nonrigid, flexible or springy material, constructed in such a manner as to allow the rigid parts to swing freely so that one rigid part may be used as a handle and the other rigid part may be used as the striking end.
(6) "Metallic or false knuckles" means a set of finger rings attached to a transverse piece to be worn over the front of the hand for use as a weapon and constructed in such a manner that, when striking another person with the fist or closed hand, considerable physical damage may be inflicted upon the person struck. The terms "metallic or false knuckles" shall include any such instrument without reference to the metal or other substance or substances from which the metallic or false knuckles are made.
(7) "Pistol" means a short firearm having a chamber which is integral with the barrel, designed to be aimed and fired by the use of a single hand.
(8) "Revolver" means a short firearm having a cylinder of several chambers that are brought successively into line with the barrel to be discharged, designed to be aimed and fired by the use of a single hand.
(9) "Deadly weapon" means an instrument which is designed to be used to produce serious bodily injury or death or is readily adaptable to such use. The term "deadly weapon" shall include, but not be limited to, the instruments defined in subdivisions (1) through (8), inclusive, of this section or other deadly weapons of like kind or character which may be easily concealed on or about the person. For the purposes of section one-a, article five, chapter eighteen-a of this code and section eleven-a, article seven of this chapter, in addition to the definition of "knife" set forth in subdivision (3) of this section, the term "deadly weapon" also includes any instrument included within the definition of "knife" with a blade of three and one-half inches or less in length. Additionally, for the purposes of section one-a, article five, chapter eighteen-a of this code and section eleven-a, article seven of this chapter, the term "deadly weapon" includes explosive, chemical, biological and radiological materials. Notwithstanding any other provision of this section, the term "deadly weapon" shall not include any item or material owned by the school or county board of education intended for curricular use and actually used for curricular purposes.
(10) "Concealed" means hidden from ordinary observation so as to prevent disclosure or recognition. A deadly weapon is concealed when it is carried on or about the person in such a manner that another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried.
(11) "Firearm" means any weapon which will expel a projectile by action of an explosion.
(12) "Controlled substance" shall have the same meaning as is ascribed to that term in subsection (d), section one hundred one, article one, chapter sixty-a of this code.
(13) "Drug" shall have the same meaning as is ascribed to that term in subsection (l), section one hundred one, article one, chapter sixty-a of this code.