H. B. 4394

 

         (By Delegates M. Poling, Perry, Barrett,

            Lawrence, Campbell, Williams, Moye,

             Walker, Fragale, Tomblin and Young)

         [Introduced February 3, 2014; referred to the

         Committee on Education.]

 

 

A BILL to amend and reenact §18A-2-2, §18A-2-3 and §18A-2-7a of the Code of West Virginia, 1931, as amended; to amend and reenact §18A-3-1 of said code; and to amend and reenact §18A-4-7a, all relating to the filling of professional personnel positions in the public schools; adjusting dates for certain notices to accommodate flexibility in the beginning date of the instructional term; changing deadline for classroom teacher to give written notice of retirement and be paid bonus; defining critical need and shortage for substitute teachers; creating deadline for retirement before employment as substitute; requiring posting of positions on statewide job bank; removing funding for positions not posted as required; changing expiration date for provisions authorizing extended employment of retirees as substitutes; expanding purposes of statewide job bank; requiring uniform application and process for positions posted on job bank; requiring information on loan forgiveness on job bank; defining critical need and shortage area position; requiring continuous posting on job bank; requiring certain other positions to be posted as critical need and shortage positions; correcting references to outdated provisions; requiring issuance of additional content area certifications upon submission of certain test scores; clarifying certain provisions in teacher in residence program agreement; requiring principal and teachers to consider certain qualification in making recommendation for employment of classroom teacher; removing requirement for concurrence of superintendent; limiting resignation and employment in another county in professional positions after twentieth prior to instructional term subject to certain exception; requiring position postings on county website and statewide job bank and requiring information on loan forgiveness programs applicable to position; and making technical improvements.

Be it enacted by the Legislature of West Virginia:

    That §18A-2-2, §18A-2-3 and §18A-2-7a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §18A-3-1 of said code be amended and reenacted; and that §18A-4-7a of said code be amended and reenacted, all to read as follows:

ARTICLE 2. SCHOOL PERSONNEL.

§18A-2-2. Employment of teachers; contracts; continuing contract status; how terminated; dismissal for lack of need; released time; failure of teacher to perform contract or violation thereof; written notice bonus for teachers and professional personnel.

    (a) Before entering upon their duties, all teachers shall execute a contract with their county boards, which shall state the salary to be paid and shall be in the form prescribed by the state superintendent. Each contract shall be signed by the teacher and by the president and secretary of the county board and shall be filed, together with the certificate of the teacher, by the secretary of the office of the county board: Provided, That when necessary to facilitate the employment of employable professional personnel and prospective and recent graduates of teacher education programs who have not yet attained certification, the contract may be signed upon the condition that the certificate is issued to the employee prior to the beginning of the employment term in which the employee enters upon his or her duties.

    (b) Each teacher's contract, under this section, shall be designated as a probationary or continuing contract. A probationary teacher’s contract shall be for a term of not less than one nor more than three years, one of which shall be for completion of a beginning teacher internship pursuant to the provisions of section two-b, article three of this chapter, if applicable. If, after three years of such employment, the teacher who holds a professional certificate, based on at least a bachelor's degree, has met the qualifications for a bachelor’s degree and the county board enter into a new contract of employment, it shall be a continuing contract, subject to the following:

    (1) Any teacher holding a valid certificate with less than a bachelor's degree who is employed in a county beyond the three-year probationary period shall upon qualifying for the professional certificate based upon a bachelor's degree, if reemployed, be granted continuing contract status; and

    (2) A teacher holding continuing contract status with one county shall be granted continuing contract status with any other county upon completion of one year of acceptable employment if the employment is during the next succeeding school year or immediately following an approved leave of absence extending no more than one year.

    (c) The continuing contract of any teacher shall remain in full force and effect except as modified by mutual consent of the school board and the teacher, unless and until terminated, subject to the following:

    (1) A continuing contract may not be terminated except:

    (A) By a majority vote of the full membership of the county board on or before March 1 of the then current year, after written notice, served upon the teacher, return receipt requested, stating cause or causes and an opportunity to be heard at a meeting of the board prior to the board's action on the termination issue; or

    (B) By written resignation of the teacher on or before March 1 to initiate termination of a continuing contract;

    (2) The termination shall take effect at the close of the school year in which the contract is terminated;

    (3) The contract may be terminated at any time by mutual consent of the school board and the teacher;

    (4) This section does not affect the powers of the school board to suspend or dismiss a principal or teacher pursuant to section eight of this article;

    (5) A continuing contract for any teacher holding a certificate valid for more than one year and in full force and effect during the school year 1984-1985 shall remain in full force and effect;

    (6) A continuing contract does not operate to prevent a teacher's dismissal based upon the lack of need for the teacher's services pursuant to the provisions of law relating to the allocation to teachers and pupil-teacher ratios. The written notification of teachers being considered for dismissal for lack of need shall be limited to only those teachers whose consideration for dismissal is based upon known or expected circumstances which will require dismissal for lack of need. An employee who was not provided notice and an opportunity for a hearing pursuant to this subsection may not be included on the list. In case of dismissal for lack of need, a dismissed teacher shall be placed upon a preferred list in the order of their length of service with that board. No teacher may be employed by the board until each qualified teacher upon the preferred list, in order, has been offered the opportunity for reemployment in a position for which he or she is qualified, not including a teacher who has accepted a teaching position elsewhere. The reemployment shall be upon a teacher's preexisting continuing contract and has the same effect as though the contract had been suspended during the time the teacher was not employed.

    (d) In the assignment of position or duties of a teacher under a continuing contract, the board may provide for released time of a teacher for any special professional or governmental assignment without jeopardizing the contractual rights of the teacher or any other rights, privileges or benefits under the provisions of this chapter. Released time shall be provided for any professional educator while serving as a member of the Legislature during any duly constituted session of that body and its interim and statutory committees and commissions without jeopardizing his or her contractual rights or any other rights, privileges, benefits or accrual of experience for placement on the state minimum salary schedule in the following school year under the provisions of this chapter, board policy and law.

    (e) Any teacher who fails to fulfill his or her contract with the board, unless prevented from doing so by personal illness or other just cause or unless released from his or her contract by the board, or who violates any lawful provision of the contract, is disqualified to teach in any other public school in the state for a period of the next ensuing school year and the State Department of Education or board may hold all papers and credentials of the teacher on file for a period of one year for the violation: Provided, That marriage of a teacher is not considered a failure to fulfill, or violation of, the contract.

    (f) Any classroom teacher, as defined in section one, article one of this chapter, who desires to resign employment with a county board or request a leave of absence, the resignation or leave of absence to become effective on or before July 15, of the same year and after completion of the employment term, may do so at any time during the school year, but at least forty-five days before the beginning of the Fall instructional term, by written notification of the resignation or leave of absence and any notification received by a county board shall automatically extend the teacher's public employee insurance coverage until August 31 of the same year.

    (g) (1) A classroom teacher who gives written notice to the county board on or before January 15 February 21 of the school year of his or her retirement from employment with the board at the conclusion of the school year shall be paid $500 from the Early Notification of Retirement line item established for the Department of Education for this purpose, subject to appropriation by the Legislature. If the appropriations to the Department of Education for this purpose are insufficient to compensate all applicable teachers, the Department of Education shall request a supplemental appropriation in an amount sufficient to compensate all such teachers. Additionally, if funds are still insufficient to compensate all applicable teachers, the priority of payment is for teachers who give written notice the earliest. This payment shall not be counted as part of the final average salary for the purpose of calculating retirement.

    (2) The position of a classroom teacher providing written notice of retirement pursuant to this subsection may be considered vacant and the county board may immediately post the position as an opening to be filled at the conclusion of the school year. If a teacher has been hired to fill the position of a retiring classroom teacher prior to the start of the next school year, the retiring classroom teacher is disqualified from continuing his or her employment in that position. However, the retiring classroom teacher may be permitted to continue his or her employment in that position and forfeit the early retirement notification payment if, after giving notice of retirement in accordance with this subsection, he or she becomes subject to a significant unforeseen financial hardship, including a hardship caused by the death or illness of an immediate family member or loss of employment of a spouse. Other significant unforeseen financial hardships shall be determined by the county superintendent on a case-by-case basis. This subsection does not prohibit a county school board from eliminating the position of a retiring classroom teacher.

§18A-2-3. Employment of substitute teachers and retired teachers as substitutes in areas of critical need and shortage; employment of prospective employable professional personnel.

    (a) The county superintendent, subject to approval of the county board, may employ and assign substitute teachers to any of the following duties: (1) To fill the temporary absence of any teacher or an unexpired school term made vacant by resignation, death, suspension or dismissal; (2) to fill a teaching position of a regular teacher on leave of absence; and (3) to perform the instructional services of any teacher who is authorized by law to be absent from class without loss of pay, providing the absence is approved by the board of education in accordance with the law. The substitute shall be a duly certified teacher.

    (b) Notwithstanding any other provision of this code to the contrary, a substitute teacher who has been assigned as a classroom teacher in the same classroom continuously for more than one half of a grading period and whose assignment remains in effect two weeks prior to the end of the grading period, shall remain in the assignment until the grading period has ended, unless the principal of the school certifies that the regularly employed teacher has communicated with and assisted the substitute with the preparation of lesson plans and monitoring student progress or has been approved to return to work by his or her physician. For the purposes of this section, teacher and substitute teacher, in the singular or plural, mean professional educator as defined in section one, article one of this chapter.

    (c) (1) The Legislature hereby finds and declares that due to a shortage of qualified substitute teachers, a compelling state interest exists in expanding the use of retired teachers to provide service as substitute teachers in areas of critical need and shortage. The Legislature further finds that diverse circumstances exist among the counties for the expanded use of retired teachers as substitutes. For the purposes of this subsection, “area of critical need and shortage for substitute teachers” means an area of certification and training in which the number of available substitute teachers in the county who hold certification and training in that area and who are not retired is insufficient to meet the projected need for substitute teachers.

    (2) A person receiving retirement benefits under the provisions of article seven-a, chapter eighteen of this code or who is entitled to retirement benefits during the fiscal year in which that person retired may accept employment as a substitute teacher for an unlimited number of days each fiscal year without affecting the monthly retirement benefit to which the retirant is otherwise entitled if the following conditions are satisfied:

    (A) The county board adopts a policy recommended by the superintendent to address areas of critical need and shortage for substitute teachers;

    (B) The policy sets forth the areas of critical need and shortage for substitute teachers in the county in accordance with the definition of area of critical need and shortage for substitute teachers set forth in subdivision (1) of this subsection;

    (C) The policy provides for the employment of retired teachers as substitute teachers during the school year on an expanded basis in areas of critical need and shortage for substitute teachers as provided in this subsection;

    (D) The policy provides that a retired teacher may be employed as a substitute teacher in an area of critical need and shortage for substitute teachers on an expanded basis as provided in this subsection only when no other teacher who holds certification and training in the area and who is not retired is available and accepts the substitute assignment;

    (E) The retired teacher’s retirement became effective at least forty days before the first instructional term during which he or she is employed as a substitute;

    (F) The positions are posted on the statewide job bank in accordance with section seven-a of this article;

    (E) (G) The policy is effective for one school year only and is subject to annual renewal by the county board;

    (F) (H) The state board approves the policy and the use of retired teachers as substitute teachers on an expanded basis in areas of critical need and shortage for substitute teachers as provided in this subsection; and

    (G) (I) Prior to employment of a substitute teacher beyond the post-retirement employment limitations established by the Consolidated Public Retirement Board, the superintendent of the affected county submits to the Consolidated Public Retirement Board and the state board, in a form approved by the retirement board, an affidavit signed by the superintendent stating the name of the county, the fact that the county has adopted a policy to employ retired teachers as substitutes to address areas of critical need and shortage, the name or names of the person or persons to be employed pursuant to the policy, the critical need and shortage area position filled by each person, the date that the person gave notice to the county board of the person’s intent to retire, and the effective date of the person’s retirement.

    (3) Any person who retires and begins work as a substitute teacher within the same employment term shall lose those retirement benefits attributed to the annuity reserve, effective from the first day of employment as a retiree substitute in that employment term and ending with the month following the date the retiree ceases to perform service as a substitute.

    (4) Retired teachers employed to perform expanded substitute service pursuant to this subsection are considered day-to-day, temporary, part-time employees. The substitutes are not eligible for additional pension or other benefits paid to regularly employed employees and shall not accrue seniority.

    (5) When a retired teacher is employed as a substitute to fill a vacant position, the county board shall continue to post the vacant position, including posting on the statewide job bank as provided in section seven-a of this article, until it is filled with a regularly employed teacher. fully certified or permitted applicant who is not retired. Each position not posted as required in this section shall be subtracted from the number of professional educators computed for state aid funding in accordance with section twelve, article nine-a, chapter eighteen of this code for the second month of the next school term.

    (6) Until this subsection is expired pursuant to subdivision (7) of this subsection, the state board, annually, shall report to the Joint Committee on Government and Finance prior to February 1 of each year. Additionally, a copy shall be provided to the Legislative Oversight Commission on Education Accountability. The report shall contain information indicating the effectiveness of the provisions of this subsection on expanding the use of retired substitute teachers to address areas of critical need and shortage including, but not limited to, the number of retired teachers, by critical need and shortage area position filled and by county, employed beyond the post-retirement employment limit established by the Consolidated Public Retirement Board, the date that each person gave notice to the county board of the person’s intent to retire, and the effective date of the person’s retirement.

    (7) The provisions of this subsection shall expire on June 30, 2014 June 30, 2017.

    (d) (1) Notwithstanding any other provision of this code to the contrary, each year a county superintendent may employ prospective employable professional personnel on a reserve list at the county level subject to the following conditions:

    (A) The county board adopts a policy to address areas of critical need and shortage as identified by the state board. The policy shall include authorization to employ prospective employable professional personnel;

    (B) The county board posts a notice of the areas of critical need and shortage in the county in a conspicuous place in each school for at least ten working days; and

    (C) There are not any potentially qualified applicants available and willing to fill the position.

    (2) Prospective employable professional personnel may only be employed from candidates at a job fair who have or will graduate from college in the current school year or whose employment contract with a county board has or will be terminated due to a reduction in force in the current fiscal year.

    (3) Prospective employable professional personnel employed are limited to three full-time prospective employable professional personnel per one hundred professional personnel employed in a county or twenty-five full-time prospective employable professional personnel in a county, whichever is less.

    (4) Prospective employable professional personnel shall be granted benefits at a cost to the county board and as a condition of the employment contract as approved by the county board.

    (5) Regular employment status for prospective employable professional personnel may be obtained only in accordance with the provisions of section seven-a, article four of this chapter.

    (e) The state board annually shall review the status of employing personnel under the provisions of subsection (d) of this section and annually shall report to the Legislative Oversight Commission on Education Accountability on or before November 1 of each year. The report shall include, but not be limited to, the following:

    (A) The counties that participated in the program;

    (B) The number of personnel hired;

    (C) The teaching fields in which personnel were hired;

    (D) The venue from which personnel were employed;

    (E) The place of residency of the individual hired; and

    (F) The state board’s recommendations on the prospective employable professional personnel program.

§18A-2-7a. Statewide job bank.

    (a) The state board shall establish and maintain a statewide job bank to assist the recruitment and reemployment of experienced professional personnel whose employment with county boards has been terminated because of a reduction in force. The state board shall collaborate with the higher education policy commission to ensure that students in the teacher preparation programs in the state are informed of the statewide job bank and that the program student placement offices use it to assist students in locating potential employment in the state.

    (b) The job bank shall consist of two three parts for each county:

    (1) A list of the names, qualifications and contact information of all professional personnel who have been terminated because of a reduction in force, except personnel who have requested in writing that they not be listed in the job bank; and

    (2) A list of professional positions position postings for which the county is seeking applicants and a uniform application and process for positions in any county; and

    (3) Information on state and federal loan forgiveness programs for which teachers are eligible when employed at specific schools in the county or in certain areas of critical need and shortage.

    (c) The job bank shall be accessible electronically to each county and to individuals on a read only basis, except that each county shall have the capability of editing information for the county and shall be responsible for maintaining current information on the county lists.

    (d) A critical need and shortage area position, not including a substitute position, is a professional personnel position that has been posted on the statewide job bank for at least ninety consecutive days and no fully certified or permitted applicant has applied. A critical need and shortage area position shall be posted continuously on the statewide job bank until filled with a fully certified or permitted applicant. Continuous posting includes posting during periods of reductions in force in other positions. The posting of a position as a critical need and shortage position also includes:

    (1) A position in an area of certification that has been filled for one or more instructional terms by a teacher with an out-of-field authorization to teach in that area of certification which position shall be continually posted on the statewide job bank after the first year until filled by a fully certified or permitted applicant;

    (2) A vacant position that is filled by a retired teacher as a substitute in accordance with section two of this article which position shall continue to be a vacant position and shall be posted on the statewide job bank until filled by a fully certified or permitted applicant who is not retired;

    (3) A substitute teacher position in an area of certification that has been identified by a county board as an area of critical need and shortage for substitute teachers in accordance with section two of this article and that has been filled by retired teachers for more than one hundred forty days which position shall be continually posted on the statewide job bank as a substitute teacher position commencing with the first day in excess of one hundred forty that it is filled by one or more retired teachers.

ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL DEVELOPMENT.

§18A-3-1. Teacher preparation programs; program approval and standards; authority to issue teaching certificates.

    (a) The education of professional educators in the state is under the general direction and control of the state board after consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education who shall represent the interests of educator preparation programs within the institutions of higher education in this state as defined in section two, article one, chapter eighteen-b of this code.

    The education of professional educators in the state includes all programs leading to certification to teach or serve in the public schools. The programs include the following:

    (1) Programs in all institutions of higher education, including student teaching and teacher-in-residence programs as provided in this section;

    (2) Beginning teacher internship and induction, mentoring and professional support programs;

    (3) Granting West Virginia certification to persons who received their preparation to teach outside the boundaries of this state, except as provided in subsection (b) of this section;

    (4) Alternative preparation programs in this state leading to certification, including programs established pursuant to the provisions of section one-a of this article and programs which are in effect on the effective date of this section; and

    (5) Continuing professional education, professional development and in-service training programs for professional educators employed in the public schools in the state.

    (b) After consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education, the state board shall adopt standards for the education of professional educators in the state and for awarding certificates valid in the public schools of this state. The standards include, but are not limited to the following:

    (1) A provision for the study of multicultural education. As used in this section, multicultural education means the study of the pluralistic nature of American society including its values, institutions, organizations, groups, status positions and social roles;

    (2) A provision for the study of classroom management techniques, including methods of effective management of disruptive behavior including societal factors and their impact on student behavior; and

    (3) A teacher from another state shall be awarded a teaching certificate for a comparable grade level and subject area valid in the public schools of this state, subject to section ten of this article, if he or she has met the following requirements:

    (A) Holds a valid teaching certificate or a certificate of eligibility issued by another state;

    (B) Has graduated from an educator preparation program at a regionally accredited institution of higher education;

    (C) Possesses the minimum of a bachelor’s degree; and

    (D) Meets all of the requirements of the state for full certification except employment; and

    (4) A teacher with a valid West Virginia teaching certificate shall be awarded certification to teach in an additional area of certification upon submission of a score on the appropriate content area test required of other teachers for certification in that area regardless of whether additional course work was taken in that area.

    (c) The state board may enter into an agreement with county boards for the use of the public schools in order to give prospective teachers the teaching experience needed to demonstrate competence as a prerequisite to certification to teach in the West Virginia public schools.

    (d) An agreement established pursuant to subsection (c) of this section shall recognize student teaching as a joint responsibility of the educator preparation institution and the cooperating public schools. The agreement shall include the following items:

    (1) The minimum qualifications for the employment of public school teachers selected as supervising teachers, including the requirement that field-based and clinical experiences be supervised by a teacher fully certified in the state in which that teacher is supervising;

    (2) The remuneration to be paid to public school teachers by the state board, in addition to their contractual salaries, for supervising student teachers;

    (3) Minimum standards to guarantee the adequacy of the facilities and program of the public school selected for student teaching;

    (4) Assurance that the student teacher, under the direction and supervision of the supervising teacher, shall exercise the authority of a substitute teacher; and

    (5) A provision requiring any higher education institution with an educator preparation program to document that the student teacher’s field-based and clinical experiences include participation and instruction with multicultural, at-risk and exceptional children at each programmatic level for which the student teacher seeks certification;

    (6) A provision authorizing a school or school district that has implemented a comprehensive beginning teacher induction program, to enter into an agreement that provides for the training and supervision of student teachers consistent with the educational objectives of this subsection by using an alternate structure implemented for the support, supervision and mentoring of beginning teachers. The agreement is in lieu of any specific provisions of this subsection and is subject to the approval of the state board.

    (e) Teacher-in-residence programs. --

    (1) In lieu of the provisions of subsections (c) and (d) of this section and subject to approval of the state board, an institution of higher education with a program for the education of professional educators in the state approved by the state board may enter into an agreement with county boards for the use of teacher-in-residence programs in the public schools.

    (2) A “teacher-in-residence program” means an intensively supervised and mentored residency program for prospective teachers during their senior year that refines their professional practice skills and helps them gain the teaching experience needed to demonstrate competence as a prerequisite to certification to teach in the West Virginia public schools.

    (3) The authorization for the higher education institution and the county board to implement a teacher-in-residence program is subject to state board approval. The provisions of the agreement include, but are not limited to, the following items:

    (A) A requirement that the prospective teacher in a teacher-in-residence program shall have completed the content area preparation courses and shall have passed the appropriate basic skills and subject matter test or tests required by the state board for teachers to become certified in the area for which licensure is sought;

    (B) A requirement that the teacher-in-residence serve only in a teaching position in the county which has been posted and for which no other teacher fully certified for the position has been employed;

    (C) Specifics regarding the program of instruction for the teacher-in-residence setting forth the responsibilities for supervision and mentoring by the higher education institution’s educator preparation program, the school principal, and peer teachers and mentors, including providing additional time for the peer teachers and mentors to perform these duties, and the responsibilities for the formal instruction or professional development necessary for the teacher-in-residence to perfect his or her professional practice skills. The program also may include other instructional items as considered appropriate.

    (D) A requirement that the teacher-in-residence hold a teacher-in-residence permit qualifying the individual to teach in his or her assigned position as the teacher of record;

    (E) A requirement that the salary and benefit costs for the position to which the teacher-in-residence is assigned shall be used only for program support and to pay a stipend to the teacher-in-residence as specified in the agreement, subject to the following:

    (i) The teacher-in-residence is a student enrolled in the teacher preparation program of the institution of higher education and is not a regularly employed employee of the county board;

    (ii) The teacher-in-residence is included on the certified list of employees of the county eligible for state aid funding the same as an employee of the county at the appropriate level based on their permit and level of experience;

    (iii) All state-aid-funding due to the county board for the teacher-in-residence shall be used only in accordance with the agreement with the institution of higher education for support of the program as provided in the agreement, including costs associated with instruction and supervision as set forth in paragraph (C) of this subdivision;

    (iv) The teacher-in-residence is provided the same liability insurance coverage as other employees; and

    (v) All state aid funding due to the county for the teacher- in-residence and not required for support of the program shall be paid as a stipend to the teacher-in-residence: Provided, That the stipend paid to the teacher-in-residence shall be no less than sixty-five percent of all state aid funding due the county for the teacher-in-residence.

    (4) Other provisions that may be required by the state board.

    (f) In lieu of the student teaching experience in a public school setting required by this section, an institution of higher education may provide an alternate student teaching experience in a nonpublic school setting if the institution of higher education meets the following criteria:

    (1) Complies with the provisions of this section;

    (2) Has a state board approved educator preparation program; and

    (3) Enters into an agreement pursuant to subdivisions (g) and (h) of this section.

    (g) At the discretion of the higher education institution, an agreement for an alternate student teaching experience between an institution of higher education and a nonpublic school shall require one of the following:

    (1) The student teacher shall complete at least one half of the clinical experience in a public school; or

    (2) The educator preparation program shall include a requirement that any student performing student teaching in a nonpublic school shall complete the following:

    (A) At least two hundred clock hours of field-based training in a public school; and

    (B) A course, which is a component of the institution’s state board approved educator preparation program, that provides information to prospective teachers equivalent to the teaching experience needed to demonstrate competence as a prerequisite to certification to teach in the public schools in West Virginia. The course also shall include instruction on at least the following elements:

    (i) State board policy and provisions of this code governing public education;

    (ii) Requirements for federal and state accountability, including the mandatory reporting of child abuse;

    (iii) Federal and state mandated curriculum and assessment requirements, including multicultural education, safe schools and student code of conduct;

    (iv) Federal and state regulations for the instruction of exceptional students as defined by the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq.; and

    (v) Varied approaches for effective instruction for students who are at-risk.

    (h) In addition to the requirements set forth in subsection (g) of this section, an agreement for an alternate student teaching experience between an institution of higher education and a nonpublic school shall include the following:

    (1) A requirement that the higher education institution with an educator preparation program shall document that the student teacher’s field-based and clinical experiences include participation and instruction with multicultural, at-risk and exceptional children at each programmatic level for which the student teacher seeks certification; and

    (2) The minimum qualifications for the employment of school teachers selected as supervising teachers, including the requirement that field-based and clinical experiences be supervised by a teacher fully certified in the state in which that teacher is supervising.

    (i) The state superintendent may issue certificates as provided in section two-a of this article to graduates of educator preparation programs and alternative educator preparation programs approved by the state board. The certificates are issued in accordance with this section and rules adopted by the state board after consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education.

    (1) A certificate to teach may be granted only to a person who meets the following criteria:

    (A) Is a citizen of the United States, except as provided in subdivision (2) of this subsection;

    (B) Is of good moral character;

    (C) Is physically, mentally and emotionally qualified to perform the duties of a teacher; and

    (D) Is at least eighteen years of age on or before October 1, of the year in which his or her certificate is issued.

    (2) A permit to teach in the public schools of this state may be granted to a person who is an exchange teacher from a foreign country or an alien person who meets the requirements to teach.

    (j) In consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education, institutions of higher education approved for educator preparation may cooperate with each other, with the center for professional development and with one or more county boards to organize and operate centers to provide selected phases of the educator preparation program. The phases include, but are not limited to the following:

    (1) Student teaching and teacher-in-residence programs;

    (2) Beginning teacher internship and induction, mentoring and professional support programs;

    (3) Instruction in methodology; and

    (4) Seminar programs for college students, teachers with provisional certification, professional support team members and supervising teachers.

    By mutual agreement, the institutions of higher education, the center for professional development and county boards may budget and expend funds to operate the centers through payments to the appropriate fiscal office of the participating institutions, the center for professional development and the county boards.

    (k) The provisions of this section do not require discontinuation of an existing student teacher training center or school which meets the standards of the state board.

    (l) All institutions of higher education approved for educator preparation in the 1962-63 school year continue to hold that distinction so long as they meet the minimum standards for educator preparation. Nothing in this section infringes upon the rights granted to any institution by charter given according to law previous to the adoption of this code.

    (m) Definitions. -- For the purposes of this section, the following words have the meanings ascribed to them unless the context clearly indicates a different meaning:

    (1) “Nonpublic school” means a private school, parochial school, church school, school operated by a religious order or other nonpublic school that elects to meet the following conditions:

    (A) Comply with the provisions of article twenty-eight, chapter eighteen of this code;

    (B) Participate on a voluntary basis in a state operated or state sponsored program provided to this type school pursuant to this section; and

    (C) Comply with the provisions of this section;

    (2) “At-risk” means a student who has the potential for academic failure, including, but not limited to, the risk of dropping out of school, involvement in delinquent activity or poverty as indicated by free or reduced lunch status; and

    (3) Exceptional child” or “exceptional children” has the meaning ascribed to these terms pursuant to section one, article twenty, chapter eighteen of this code, but, as used in this section, the terms do not include gifted students.

ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.

§18A-4-7a. Employment, promotion and transfer of professional personnel; seniority.

    (a) A county board of education shall make decisions affecting the filling of vacancies in professional positions of employment on the basis of the applicant with the highest qualifications: Provided, That the county superintendent shall be hired under separate criteria pursuant to section two, article four, chapter eighteen of this code.

    (b) In judging qualifications for the filling of vacancies of professional positions of employment, consideration shall be given to each of the following:

    (1) Appropriate certification, licensure or both;

    (2) Amount of experience relevant to the position or, in the case of a classroom teaching position, the amount of teaching experience in the required certification area;

    (3) The amount of course work, degree level or both in the relevant field and degree level generally;

    (4) Academic achievement;

    (5) In the case of a classroom teaching position or the position of principal, certification by the National Board for Professional Teaching Standards;

    (6) Specialized training relevant to the performance of the duties of the job;

    (7) Past performance evaluations conducted pursuant to section twelve, article two of this chapter and section two, article three-c of this chapter or, in the case of a classroom teacher, past evaluations of the applicant’s performance in the teaching profession;

    (8) Seniority;

    (9) Other measures or indicators upon which the relative qualifications of the applicant may fairly be judged;

    (10) In the case of a classroom teaching position, the recommendation of the principal of the school at which the applicant will be performing a majority of his or her duties. The recommendation shall be based upon the principal’s consideration of the applicant’s qualifications as set forth in subdivisions (1) through (9) of this subsection; and

    (11) In the case of a classroom teaching position, the recommendation, if any, resulting from the process established pursuant to the provisions of section five, article five-a, chapter eighteen of this code by the faculty senate of the school at which the employee will be performing a majority of his or her duties. The recommendation shall be based upon the consideration of the applicant’s qualifications as set forth in subdivisions (1) through (9) of this subsection.

    (c) In considering the filling of a vacancy pursuant to this section, a county board is entitled to determine the appropriate weight to apply to each of the criterion when assessing an applicant’s qualifications: Provided, That if one or more permanently employed instructional personnel apply for a classroom teaching position and meet the standards set forth in the job posting, each criterion under subsection (b) of this section shall be given equal weight except that the criterion in subdivisions (10) and (11) shall each be double weighted.

    (d) For a classroom teaching position, if the recommendations resulting from the operations of subdivisions (10) and (11), subsection (b) of this section are for the same applicant, and the superintendent concurs with that recommendation, then the other provisions of subsections (b) and (c) of this section do not apply and the superintendent shall recommend and the county board shall appoint that applicant notwithstanding any other provision of this code to the contrary.

    (e) The state board shall promulgate a rule, including an emergency rule if necessary, in accordance with the provisions of article three-b, chapter twenty-nine-a of this code to implement and interpret the provisions of this section, including provisions that may provide for the compensation based on the appropriate daily rate of a classroom teacher who directly participates in making recommendations pursuant to this section for periods beyond his or her individual contract.

    (f) Recommendations made pursuant to subdivisions (10) and (11), subsection (b) of this section shall be made based on a determination as to which of the applicants is the highest qualified for the position: Provided, That nothing in this subsection shall require principals or faculty senates to assign any amount of weight to any factor in making a recommendation.

    (g) With the exception of guidance counselors, the seniority of classroom teachers, as defined in section one, article one of this chapter, shall be determined on the basis of the length of time the employee has been employed as a regular full-time certified and/or licensed professional educator by the county board of education and shall be granted in all areas that the employee is certified, licensed or both.

    (h) Upon completion of one hundred thirty-three days of employment in any one school year, substitute teachers, except retired teachers and other retired professional educators employed as substitutes, shall accrue seniority exclusively for the purpose of applying for employment as a permanent, full-time professional employee. One hundred thirty-three days or more of said employment shall be prorated and shall vest as a fraction of the school year worked by the permanent, full-time teacher.

    (i) Guidance counselors and all other professional employees, as defined in section one, article one of this chapter, except classroom teachers, shall gain seniority in their nonteaching area of professional employment on the basis of the length of time the employee has been employed by the county board of education in that area: Provided, That if an employee is certified as a classroom teacher, the employee accrues classroom teaching seniority for the time that that employee is employed in another professional area. For the purposes of accruing seniority under this paragraph, employment as principal, supervisor or central office administrator, as defined in section one, article one of this chapter, shall be considered one area of employment.

    (j) Employment for a full employment term shall equal one year of seniority, but no employee may accrue more than one year of seniority during any given fiscal year. Employment for less than the full employment term shall be prorated. A random selection system established by the employees and approved by the board shall be used to determine the priority if two or more employees accumulate identical seniority: Provided, That when two or more principals have accumulated identical seniority, decisions on reductions in force shall be based on qualifications.

    (k) Whenever a county board is required to reduce the number of professional personnel in its employment, the employee with the least amount of seniority shall be properly notified and released from employment pursuant to the provisions of section two, article two of this chapter. The provisions of this subsection are subject to the following:

    (1) All persons employed in a certification area to be reduced who are employed under a temporary permit shall be properly notified and released before a fully certified employee in such a position is subject to release;

    (2) Notwithstanding any provision of this code to the contrary, all employees subject to release shall be considered applicants for any vacancy in an established, existing or newly created position that, on or before February 15, is known to exist for the ensuing school year, and for which they are qualified, and, upon recommendation of the superintendent, the board shall appoint the successful applicant from among them before posting such vacancies for application by other persons;

    (3) An employee subject to release shall be employed in any other professional position where the employee is certified and was previously employed or to any lateral area for which the employee is certified, licensed or both, if the employee’s seniority is greater than the seniority of any other employee in that area of certification, licensure or both;

    (4) If an employee subject to release holds certification, licensure or both in more than one lateral area and if the employee’s seniority is greater than the seniority of any other employee in one or more of those areas of certification, licensure or both, the employee subject to release shall be employed in the professional position held by the employee with the least seniority in any of those areas of certification, licensure or both; and

    (5) If, prior to August 1 of the year a reduction in force is approved, not less than twenty days prior to the beginning of the next instructional term following an approved reduction in force, the reason for any particular reduction in force 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 released employee in writing of his or her right to be restored to his or her position of employment. Within five days of being so notified, the released employee shall notify the board, in writing, of his or her intent to resume his or her position of employment or the right to be restored shall terminate. Notwithstanding any other provision of this subdivision, if there is another employee on the preferred recall list with proper certification and higher seniority, that person shall be placed in the position restored as a result of the reduction in force being rescinded.

    (l) For the purpose of this article, all positions which meet the definition of “classroom teacher” as defined in section one, article one of this chapter shall be lateral positions. For all other professional positions, the county board of education shall adopt a policy, by October 31, 1993, and may modify the policy thereafter as necessary, which defines which positions shall be lateral positions. The county board shall submit a copy of its policy to the state board within thirty days of adoption or any modification, and the state board shall compile a report and submit the report to the Legislative Oversight Commission on Education Accountability by December 31, 1993, and by that date in any succeeding year in which any county board submits a modification of its policy relating to lateral positions. In adopting the policy, the board shall give consideration to the rank of each position in terms of title; nature of responsibilities; salary level; certification, licensure or both; and days in the period of employment.

    (m) After the twentieth day prior to the beginning of the instructional term, no person employed and assigned to a professional position may transfer to another professional position in the county during that instructional term unless the person holding that position does not have valid certification, nor may a person employed and assigned to a professional position resign and be employed by another county board after the twentieth day prior to the beginning of the instructional term. The provisions of this subsection are subject to the following:

    (1) The person may apply for any posted, vacant positions with the successful applicant assuming the position at the beginning of the next second half of the instructional term as determined in the county of employment or initial employment;

    (2) Professional personnel who have been on an approved leave of absence may fill these vacancies in their county of employment upon their return from the approved leave of absence;

    (3) The county board, upon recommendation of the superintendent, may authorize a transfer to fill a another position in the county before the next second half of the instructional term, or with the mutual consent of the person may release him or her to commence employment in another county, when it is determined to be in the best interest of the students. The county superintendent shall notify the state board of each transfer and each release of a person employed in a professional position to another professional position or county after the twentieth day prior to the beginning of the instructional term;

    (4) The provisions of this subsection do not apply to the filling transfer of a person to another professional position in the county vacated because of resignation or retirement that became effective on or before the twentieth day prior to the beginning of the instructional term, but not posted until after that date; and

    (5) The Legislature finds that it is not in the best interest of the students particularly in the elementary grades to have multiple teachers for any one grade level or course during the instructional term. It is the intent of the Legislature that the filling of positions through transfers of personnel from one professional position to another after the twentieth day prior to the beginning of the instructional term should be kept to a minimum.

    (n) All professional personnel 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. As to any professional position opening within the area where they had previously been employed or to any lateral area for which they have certification, licensure or both, the employee shall be recalled on the basis of seniority if no regular, full-time professional personnel, or those returning from leaves of absence with greater seniority, are qualified, apply for and accept the position.

    (o) Before position openings that are known or expected to extend for twenty consecutive employment days or longer for professional personnel may be filled by the board, the board shall be required to notify all qualified professional personnel on the preferred list and give them an opportunity to apply, but failure to apply shall not cause the employee to forfeit any right to recall. The notice shall be sent by certified mail to the last known address of the employee, and it shall be the duty of each professional personnel to notify the board of continued availability annually, of any change in address or of any change in certification, licensure or both.

    (p) Openings in established, existing or newly created positions shall be processed as follows:

    (1) Boards shall be required to post and date notices of each opening at least once. At their discretion, boards may post an opening for a position other than classroom teacher more than once in order to attract more qualified applicants. At their discretion, boards may post an opening for a classroom teacher one additional time after the first posting in order to attract more qualified applicants only if fewer than three individuals apply during the first posting subject to the following:

    (A) Each notice shall be posted in conspicuous working places, on the county website and on the statewide job bank for all professional personnel to observe for at least five working days. Each notice of a vacancy in an area of critical need and shortage shall be posted on the statewide job bank in accordance with section seven-a, article two of this chapter;

    (B) At least one Each notice shall be posted at least once within twenty working days of the position openings and shall include the job description and any information on state and federal loan forgiveness programs applicable to the position;

    (C) Any special criteria or skills that are required by the position shall be specifically stated in the job description and directly related to the performance of the job;

    (D) 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; and

    (E) 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;

    (2) No vacancy shall be filled until after the five-day minimum posting period of the most recent posted notice of the vacancy;

    (3) If one or more applicants under all the postings for a vacancy meets the qualifications listed in the job posting, the successful applicant to fill the vacancy shall be selected by the board within thirty working days of the end of the first posting period;

    (4) A position held by a teacher who is certified, licensed or both, who has been issued a permit for full-time employment and is working toward certification in the permit area shall not be subject to posting if the certificate is awarded within five years; and

    (5) Nothing provided herein shall prevent the county board of education from eliminating a position due to lack of need.

    (q) Notwithstanding any other provision of the code to the contrary, where the total number of classroom teaching positions in an elementary school does not increase from one school year to the next, but there exists in that school a need to realign the number of teachers in one or more grade levels, kindergarten through six, teachers at the school may be reassigned to grade levels for which they are certified without that position being posted: Provided, That the employee and the county board mutually agree to the reassignment.

    (r) Reductions in classroom teaching positions in elementary schools shall be processed as follows:

    (1) When the total number of classroom teaching positions in an elementary school needs to be reduced, the reduction shall be made on the basis of seniority with the least senior classroom teacher being recommended for transfer; and

    (2) When a specified grade level needs to be reduced and the least senior employee in the school is not in that grade level, the least senior classroom teacher in the grade level that needs to be reduced shall be reassigned to the position made vacant by the transfer of the least senior classroom teacher in the school without that position being posted: Provided, That the employee is certified, licensed or both and agrees to the reassignment.

    (s) 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 reasonable attorney fees 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 retroactive 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.

    (t) The county board shall compile, update annually on July 1 and make available by electronic or other means to all employees a list of all professional personnel employed by the county, their areas of certification and their seniority.

    (u) Notwithstanding any other provision of this code to the contrary, upon recommendation of the principal and approval by the classroom teacher and county board, a classroom teacher assigned to the school may at any time be assigned to a new or existing classroom teacher position at the school without the position being posted.

    (v) The amendments to this section during the 2013 regular session of the Legislature shall be effective for school years beginning on or after July 1, 2013, and the provisions of this section immediately prior to those amendments remain in effect until July 1, 2013.

 

    NOTE: The purpose of this bill is to improve the process for employing highly qualified professional personnel in the public schools. Among the changes made in the bill are several to ensure that positions filled by retirees and not fully qualified teachers are posted statewide and easily available to new graduates and reduction in force teachers who are seeking employment; allowing capable teachers to more easily obtain certification in additional content areas; ensuring teachers and principals consider applicant qualifications for employment; and limiting the movement of professional personnel to other counties when they are already assigned to a position and the instructional is about to or has begun.

    Strike-throughs indicate existing language that would be removed, and underscoring indicates new language that would be added.