H. B. 2551
(By Delegate Yeager (By Request))
[Introduced January 23, 2003; referred to the
Committee on Education.]
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 school service
personnel generally and prohibiting the voluntary transfer of
school service personnel to a different position five days
prior to and during the school term; exceptions and findings.
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) A county board shall make decisions affecting promotions
and the 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 of this article,
on the basis of seniority, qualifications and evaluation of past
service.
(b) Qualifications shall mean that the applicant holds a
classification title in his or her 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 of this article, that relates to
the promotion or vacancy. If requested by the employee, the board
must show valid cause why an employee with the most seniority is
not promoted or employed in the position for which he or she
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.
(c) The county board may not prohibit a service employee from
retaining or continuing his or her employment in any positions or jobs held prior to the effective date of this section and
thereafter.
(d) A promotion shall be defined as any change in his or her
employment that the employee deems considers to improve his or her
working circumstance within his or her 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 of this
article 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. Paraprofessional,
autism mentor and braille or sign language specialist class titles
shall be included in the same classification category as aides.
The mechanic assistant and chief mechanic class titles shall be
included in the same classification category as mechanics.
(e) For purposes of determining seniority under this section
an employee's seniority begins on the date that he or she enters
into his or her assigned duties.
(f) Notwithstanding any other provisions of this chapter to the contrary, decisions affecting service 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 extra
duty 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 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.
(g) Boards shall post and date notices of all job vacancies of
established existing or newly created positions in conspicuous
places for all school service employees to observe for at least
five working days. The notice of the 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. Job
postings for vacancies made pursuant to this section shall be
written so as to ensure that the largest possible pool of qualified
applicants may apply. Job postings may not require criteria which
are not necessary for the successful performance of the job and may
not be written with the intent to favor a specific applicant.
(h) All decisions by county boards concerning reduction in
work force of service personnel shall be made on the basis of
seniority, as provided in this section.
(i) The seniority of any service personnel shall be determined
on the basis of the length of time the employee has been employed
by the county board within a particular job classification. For
the purpose of establishing seniority for a preferred recall list
as provided in this section, when an employee has been employed in
one or more classifications, the seniority accrued in each previous
classification shall be retained by the employee.
(j) If a county board is 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 the classification or grades of classification, he or she shall be
employed in any other job classification which he or she previously
held with the county board if there is a vacancy and shall retain
any seniority accrued in the job classification or grade of
classification.
(k) If, prior to the first day of August after a reduction in
force or transfer is approved, the reason for any particular
reduction in force or transfer no longer exists as determined by
the county board in its sole and exclusive judgment, the board
shall rescind the reduction in force or transfer and shall notify
the affected employee in writing of his or her right to be restored
to his or her former position of employment. Within five days of
being so notified, the affected employee shall notify the board of
his or her intent to return to his or her former position of
employment or the right of restoration to the former position shall
terminate: Provided, That the board shall not rescind the
reduction in force of an employee until all employees with more
seniority in the classification category on the preferred recall
list have been offered the opportunity for recall to regular
employment as provided in this section. If there are insufficient
vacant positions to permit reemployment of all more senior
employees on the preferred recall list within the classification
category of the employee who was subject to reduction in force, the
position of the released employee shall be posted and filled in accordance with this section.
(l) 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.
(m) 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.
(n) 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.
(o) 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.
(p) The county board shall notify all employees on the
preferred recall list of all position openings that from time to
time exist. The notice shall be sent by certified mail to the last
known address of the employee; it is the duty of each such employee
to notify the county board of any change in the address of the employee.
(q) 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.
(r) (l) After the fifth day prior to the beginning of the
instructional term, no person employed and assigned to a service
personnel position may transfer to another service personnel
position in the county during that instructional term unless the
person holding that position does not have a valid certification
required for the position. The provisions of this subsection are
subject to the following:
(2) The person may apply for any posted, vacant positions with
the successful applicant assuming the position at the beginning of
the next instructional term;
(3) Service personnel who have been on an approved leave of
absence may fill these vacancies upon their return from the
approved leave of absence; and
(4) The county board, upon recommendation of the
superintendent may fill a position before the next instructional
term when it is determined to be in the best interest of the
students. It is the intent of the Legislature that the filling of
positions through transfers of personnel from one service personnel position to another after the fifth day prior to the beginning of
the instructional term should be kept to a minimum.
(r) (s) An employee released from employment for lack of need
as provided in section eight-a or six, article two of this chapter
shall be accorded preferred recall status on the first day of July
of the succeeding school year if the employee has not been
reemployed as a regular employee.
(s) (t) Any board failing to comply with the provisions of
this article may be compelled to do so by mandamus and is liable to
any party prevailing against the board for court costs and the
prevailing party's 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 shall be paid entirely from local funds. Further,
the board is 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 prohibit the voluntary
transfer of service personnel after the fifth day prior to the
beginning of and during the instructional term.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.