Session 3: Personnel Potpourri: Questions from the Field

1. Session 3: Personnel Potpourri: Questions from the Field West Virginia ASA January 24, 2019

2. DENISE M. SPATAFORE 304-225-1445 denise.spatafore@dinsmore.com JASON S. LONG 304-645-9120 jason.long@dinsmore.com DINSMORE & SHOHL LLP • LEGAL COUNSEL

3. Changing of Bus Runs • We have no bus operator candidates to fill vacancies and have no substitutes willing to drive certain bus runs, can we change bus routes even if it substantially extends the amount of time students ride the bus?

4. Changing of Bus Runs • A service person may not have his or her daily work schedule changed during the school year without the employee’s written consent. • Example: Grievant was employed by the BOE as a Bus Operator. He argued that BOE could not legally make the changes it made to his bus route after the beginning of the school year. Grievant argued that he should receive additional compensation for the additional time it took him to complete his route and fuel his bus as a direct result of the changes made to his bus route. Grievant did not demonstrate that the changes to his bus route were in violation of the applicable statutory provisions.

5. Changing of Bus Runs • The changes to Grievant’s bus route added an additional 11 miles to Grievant’s “short workday, all in an effort to reduce the travel time for young students to less than an hour,” route which added 23 minutes of driving time to his route. • Minor alterations to a route, which cannot be anticipated prior to the beginning of the school year, may be made after the school year begins; for example, if a child moves into an area, or to alleviate "overloading."

6. Changing of Bus Runs • The statute has been interpreted to allow a board of education "freedom to make reasonable changes to a service employee's daily work schedule, within the parameters of his contract, some of which cannot reasonably be effected until shortly after school starts.“

7. Changing of Bus Runs • West Virginia Code § 18A-4-8 provides: "Without the written consent of the service person, a county board may not establish the beginning work station for a bus operator or transportation aide at any site other than a county board-owned facility with available parking. The workday of the bus operator or transportation aide commences at the bus at the designated beginning work station and ends when the employee is able to leave the bus at the designated beginning work station, unless he or she agrees otherwise in writing. The application or acceptance of a posted position may not be construed as the written consent referred to in this subsection."

8. Change in Teacher’s Schedule What percentage of a teacher’s schedule can be changed from the original posting? (Example: A teacher hired for chemistry also has math certification and there is a need to ask that teacher to teach a couple of math classes).

9. Change in Teacher’s Schedule • Grievance Board decisions have generally held that “A teaching schedule adjustment not including duties or responsibilities outside of a teacher’s presently utilized area of certification, discipline, department or grade level is not a change in assignment amounting to a transfer . . .”. • “The primary inquiry is necessarily whether or not changes in the schedules are so substantial that a teacher has been essentially transferred from one position to another.”

10. Change in Teacher’s Schedule • Examples: • It was held that full-time special education teachers whose duties were reduced by one-half when they were assigned K and regular elementary classes were transferred. This change required them to utilize regular education certification which they were not utilizing in their schedules consisting solely of special education classes. • A full-time librarian’s change to one-half time librarian and one-half time vocational home economics position was deemed a transfer requiring notice and an opportunity to be heard. Once again, the schedule change required the librarian to utilize a certification area which she was not using in her full library schedule. • A full-time librarian was required to teach one class of library science was not a transfer even though the employee had not previously done so. The deciding factor was that the new assignment of teaching a library science class was within the teacher’s “presently utilized area of certification.” • A change in an elementary teacher’s grade level assignment has been deemed to constitute a transfer.

11. Change in Teacher’s Schedule • Examples: • Teacher had been teaching four English classes and one Social Studies class was given a new schedule where those numbers were reversed, not a transfer. • Due to financial constraint, driver education courses were no longer going to be offered at the high school causing a teacher’s schedule to be changed from two driver educational classes and one health class, to three health classes, not a transfer. SO, THOUGHTS ON THE CHEMISTRY TEACHER, WHOSE POSTING WAS FOR SCIENCE/CHEMISTRY, BEING REQUIRED TO TEACHER A COUPLE OF MATH CLASSES.

12. Teacher Resignations Question: You post a position in May and you have a fully certified teacher bid and has been board approved for the position. In July, that teacher is given the opportunity to take a position closer to home and he/she resigns. You then have to repost the position for at least 10 days before you can consider an alternative certification applicant. It is too late to enroll someone in the alternative program – what do you do? W. Va. Code 18A-2-2: A teacher may resign from a continuing contract “on or before May 1” with the resignation taking effect at the end of the SY. Teacher may be disqualified from teaching in the state for the school year, and credentials may be held by the State Department. BOE may refuse to accept the resignation: Jones v. Grant County, DN 02-12-322

13. Absent Service Personnel Employee • What is the section of the WV Code that addresses the filing of bus operator positions while an employee is on a leave (medical, workers compensation)? • If a regular bus operator wants to take another driver’s route who is on a leave, how’s that done?

14. Absent Service Personnel Employee • Service employee requests a leave of absence in writing that will last more than 30 working days. • The leave of absence position must be posted and filled pursuant to W. Va. Code 18A-4-8b (successful applicant could be regular employee, substitute or new employee). • IF a regular employee receives the temporary LOA position, that regular employee (“A”) is now absent from their usual position. • The absence of the regular employee, “A”, triggers the requirement to provide step-up opportunity to other regular employees in the classification.

15. Absent Service Personnel Employee 18A-4-15(b)(3) states “Any regular service person employed in the same building or working station and the same classification category of employment as the absent employee shall be given the first opportunity to fill the position of the absent employee on a rotating and seniority basis. In such case the regular service person's position is filled by a substitute service person. A regular service person assigned to fill the position of an absent employee has the opportunity to hold that position throughout the absence.”

16. Absent Service Personnel Employee • Once a regular employee steps up, the next substitute in rotation is called to fill the position of the absent regular employee (A). Contrary to popular misconception, there is only one step-up, and the position of regular employee A is filled by a substitute (and no further postings). • If a leave is never requested in writing, there is no posting, and the substitute called to fill the position remains in the position throughout the absence.

17. Absent Service Personnel Employee Scenario 1: • Employee "A" is regular bus operator that is on an approved leave of absence ("LOA") that was requested in writing and approved by the board of education. The LOA is expected to extend beyond thirty days. When an employee receives a LOA from the board (or is on workers’ compensation), and the leave will extend for more than thirty days, W. Va. Code 18A-4-15 requires the board to post the assignment and fill it per W. Va. Code 18A-4-8b. • The assignment is awarded to the most senior regular employee in the classification that applies, and if no regular employee is interested, bus operators on preferred recall, and if none, substitute bus operators that might apply.

18. Absent Service Personnel Employee • Suppose that in the instant, Employee "B", the most senior regular bus operator bids and receives the assignment. “B” finds the route more attractive than his or her route because it is closer to home, or is short (or some other reason). Keep in mind this is not a "step-up" for "B". As for "B's" regular assignment though, you have to permit "step-up" (not posting it), which is offering “B’s” assignment to the regular bus drivers via seniority based rotation. Let's say regular Employee "C" wants “B’s” assignment via the “step-up” up process. If "C" “steps-up”, "C" will remain in that assignment until "B" returns. A substitute bus driver via rotation (whoever is next on the list) will substitute for "C". You do not allow “step-up” to "C's" regular assignment. “Step-up” happens once.

19. Absent Service Personnel Employee Scenario 2: • Employee “A” is a regular bus operator out from work using sick leave. “A” has not requested a LOA in writing from the board (and not out on workers’ compensation). It appears that “A” is going to be absent for an extended period of time (lets’ say sixty days). The board does not post it after the twentieth day (that is a common myth and from prior version of law). Instead, the board utilizes the "step-up" process of W. Va. Code 18A-4-15 and offer “A’s” assignment to the most senior bus operators via seniority based rotation. If a regular bus operator “steps-up” (let's say "B"), a substitute next on the bus operator list is called for "B". “Step-up” does not continue on-and-on-and-on. A substitute is called for "B". Yes, a substitute with little seniority might get lucky if s/he is next in line on the substitute list. If no regular driver steps-up, the substitute next in line on the substitute list is called.

20. Absent Service Personnel Employee • Always keep in mind that if a substitute is initially called for “A’s” assignment (which is often the case because the board might not know the absence could extend for a few days), but after that initial day it appears the regular employee will continue to be absent, the board should offer "step-up" per W. Va. Code 18A-4-15 to regular employees, who then bump the substitute out. The Grievance Board encourages this process. And again, if a regular employee “steps-up”, a substitute is then called for the regular employee who took the opportunity to “step-up”.

21. Reducing a 261-day contract • What is the process necessary to reduce the 261 day employment term for central office or building level administrators? Does there have to be a precipitating event which changes the financial condition of the county in order to reduce the length of administrative contracts, or those of 261 day service personnel?

22. Reducing a 261-day contract Service personnel: • Appropriate notice must be given to the employee, indicating a reduction in contract term, reason(s) for the same, and opportunity for a hearing. • Keep in mind the following: • Uniformity; • A 240 employee might work the same as a 261; • "Where county board of education employees perform substantially similar work under 261-day and 240-day contracts, and vacation days provided to 261-day employees reduce their annual number of work days to level at or near the 240-day employees, principles of uniformity demand that the similarly situated employees receive similar benefits." • Need to look at the contract terms of others in the classification.

23. Reducing a 261-day contract Professional personnel: • Appropriate notice must be given to the employee, indicating a reduction in contract term, reason(s) for the same, and opportunity for a hearing. • Arbitrary and capricious standard. • “Grievant proved by a preponderance of the evidence that Respondent's decision to reduce his contract term from 261 days to 240 days was arbitrary and capricious.” • Keep in mind the following: • The notice needs to accurately reflect the reason(s) for the reduction; • Know the duties of the employee; • If it’s financial, know the finances (including why others are 261).

24. Stay put provisions • Which service personnel employees are required to “stay put” during the school year when employees bid on positions?

25. Stay put provisions • Service Personnel (certain aides, autism mentors, paraprofessionals, interpreters and ECCATs) • The Legislature finds that it is not in the best interest of students with autism or with an exceptionality whose IEP requires one-on-one services, or students in the early childhood years, to have multiple teachers, mentors, aides, paraprofessionals, interpreters or any combination thereof during the instructional term. Therefore, it is the intent of the Legislature that after the twentieth day prior to the beginning of the instructional term, filling positions through transfers of personnel from one position to another be kept to a minimum for autism mentors and aides who work with students with autism and for paraprofessionals, interpreters, early childhood classroom assistant teachers and aides who work with students with exceptionalities whose IEPs require one-on-one services, in accordance with the following:

26. Stay put provisions • (2) The aide, autism mentor, paraprofessional, interpreter or early childhood classroom assistant teacher may apply for any posted, vacant position with the successful applicant assuming the position at the beginning of the next instructional term; and • (3) The county board, upon recommendation of the superintendent, may fill a position before the beginning of the next instructional term when it is determined to be in the best interest of the students.

27. Stay put provisions • Service Personnel (all other classifications, including new service personnel): • After the twentieth day prior to the beginning of the instructional term, a service person may transfer to another position of employment one time only during any one half of the instructional term, unless otherwise mutually agreed upon by the service person and the county superintendent, or the superintendent's designee, subject to county board approval. During the first year of employment as a service person, a service person may not transfer to another position of employment during the first one half of the instructional term unless mutually agreed upon by the service person and county superintendent, subject to county board approval, except as follows:

28. Stay put provisions • (1) Upon return from an approved leave of absence, a service person may fill a vacant position for which he or she is qualified or holds valid certification; • (2) A service person may apply for a posted, vacant position at any time. The successful applicant for the position may not assume the position until the beginning of the next one half of the instructional term; and • (3) Extracurricular assignments for school bus operators pursuant to section sixteen, article four of this chapter are exempt from the requirements of this subsection.

29. Stay put provisions • What about classroom teachers? • Classroom teachers: 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. Therefore, 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 in accordance with the following:

30. Stay put provisions • (1) 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; • (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) Professional 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.

31. Surplus personnel • Other than the anaconda rule, how can you move a K-6 teacher within an elementary school if enrollment changes in August or September?

32. Surplus personnel WVDE Policy 5000 Reassignment of Surplus Personnel Without Posting Based on Pupil-Teacher Ratio and Class Size Rules.  9.1. When actual student enrollment in a grade level or program, unforeseen before May 1 of the preceding school year, permits the assignment of fewer teachers or service personnel to or within a school under any pupil-teacher ratio, class size or caseload standard established in W. Va. Code §18‑5‑18a or any policy of the WVBE, the county superintendent, with board approval, may reassign the surplus personnel to another school or to another grade level or program within the school if needed there to comply with any such pupil-teacher ratio, class size or caseload standard. 9.1.a. Before any reassignment may occur pursuant to this subsection, written notice shall be provided to the employee via certified mail or hand delivery at least 10 days prior and the employee shall be provided an opportunity to appear before the county board to state the reasons for his or her objections, if any, prior to the board voting on the reassignment. The opportunity to be heard shall not be a hearing with the right to present witnesses, rather, it is an opportunity for the employee to concisely state his or her objections to the board. However, reassignments may not occur after the last day of the second school month. 9.1.b. A professional employee reassigned under this subsection shall be the least senior of the surplus professional personnel who holds certification or licensure to perform the duties at the other school or at the grade level or program within the school.

33. Surplus personnel Certified Mail and/or Hand Delivery Dear Ms. : There has been an unforeseen change in needs at John Smith Elementary School as it relates to 4th grade for the 2018-19 school year (one less class is needed). In these instances, W. Va. Code 18A-2-7(e) provides that surplus personnel may be reassigned and that administration must reassign the least senior of the surplus personnel in the grade level. As such, you are being recommended for reassignment to at John Smith Elementary School (2nd grade). If you have an objection to this reassignment, you have the right to appear before the Board prior to this action being taken (this is not a hearing). If you desire to appear before the Board and object you must within ten (10) calendar days of your receipt of this letter notify me of your request in writing. If a request is made, a date/time will be provided to you. Absent a request to appear, the recommendation will be taken to the Board after your response deadline. Sincerely,

34. Discipline • When is the Employee Code of Conduct not applicable when dealing with an employee? (Example: off-duty behavior).

35. Employee Code of Conduct • An employee of a board of education who has received proper training on the employee code of conduct, and subsequently engages in unprofessional behavior violative of the same with and around students may be subject to dismissal for insubordination and/or willful neglect of duty. Lancaster v. Ritchie County Board of Education, No. 15-0554 (W. Va. Sup. Ct., May 23, 2016) (memorandum decision).

36. Disciplinary issues • RIGHT TO REPRESENTATION!! • “An employee may designate a representative who may be present at any step of the procedure as well as any meeting that is held with the employee for the purpose of discussing or considering disciplinary action.” • “Regardless of the label or title given to a meeting by the employer, if the topic of the meeting is conduct of the employee that could lead to discipline, the employee has a statutory right to have a representative present . . .”. • “The Legislature established that the right to a representative at such meetings [concerning conduct which might result in discipline] is included in Due Process protections."

37. Disciplinary issues W. Va. Code 18A-2-8 provides that: A board may suspend or dismiss any person in its employment at any time for: • Immorality; • Incompetence; • Cruelty; • Insubordination; • Intemperance • Willful neglect of duty; • Unsatisfactory performance; or • Conviction of a felony or a guilty plea or plea of nolo contendere to a felony charge.

38. Disciplinary issues (rational nexus) • “In order to discipline a school employee for acts performed at a time and place separate from his employment, the board must demonstrate a “rational nexus” between the conduct performed outside the job and the duties the employee is to perform.” • In Rogliano v. Fayette County Board of Education, 176 W. Va. 700, 347 S.E.2d 220 (1986), the Supreme Court of Appeals of West Virginia stated that a “‘rational nexus’ exists in at least two circumstances: (1) if the conduct directly affects the performance of the occupational responsibilities of the teacher; or (2) if, without contribution on the part of school officials, the conduct has become the subject of such notoriety as to significantly and reasonably impair the capability of the particular teacher to discharge the responsibilities of the teaching position.”

39. Disciplinary issues (rational nexus) • Employee worked as head cook and held an extracurricular position as head cheerleading coach. BOE terminated employee from both of her positions . BOE asserted that the employee participated in an unauthorized overnight, out of county trip with the cheerleaders. While on this unauthorized trip, employee permitted the cheerleaders to behave in an inappropriate manner by allowing them to get into the hot tub topless and also posted on social media a photo of the cheerleaders, albeit fully clothed, but referring to them as “hoes.” • Grievance Board HELD that BOE failed to prove a rational nexus between Employee’s behavior as the cheerleading coach and her position as cook. Kimble v. Kanawha Cty BOE, Docket No. 2009-1640-KanED (Nov. 30, 2009). Upheld the termination from the coaching position, but NOT as a regularly employed cook.

40. Kanawha v. Kimble – REVERSED by WVSCA • Court held that application of the rational nexus test was in error, even though the conduct was unrelated to cook duties. • This case did “not involve conduct outside of the scope of Ms. Kimble's employment. Rather, it directly involves her conduct with students in the course of her employment. When parents entrusted Ms. Kimble with their children for this overnight trip, Ms. Kimble was acting in her role as a coach employed by the board. Ms. Kimble had no privacy interest in her activities while working as a coach. The board understandably expects that its employees will refrain from misconduct in all aspects of employment. ‘The Board is responsible for all aspects of the operation of the educational system in its county. The effective fulfillment of this duty requires the trust, confidence, and respect of parents and students.’”

41. Rational NexusExamples • Employee (custodian) was convicted of the misdemeanor crimes of passing bad checks and of impersonating a conservation officer. BOE terminated his employment as a probationary substitute custodian based on these convictions, on the basis that his criminal activity was immoral. • BOE did establish a rational nexus between employee’s off-duty misconduct and his job, as his duties placed him in a position of trust, and his crimes involved dishonesty. Employee’s custodial position is one of trust, since while working he has keys to the entire building and works alone in the school unsupervised. Reed v. Summers Cty BOE, Docket No. 06-45-002 (Jan. 26, 2006).

42. Rational NexusExamples • Example arrests: • General Maintenance employee arrested (M) for driving under the influence in that “he had just recently took a pain pill by mouth and that he smoked meth two days ago.” • Counselor arrested (M) for Domestic Battery. • Cook arrested (F) for possession of crystal meth in her bra. • Special education teacher arrested (F) for concealment of a minor child. • Aide arrested (F) for death of an incapacitated adult.

43. Recapturing seniority • When a classroom teacher retires, but later is re-employed by the school system, does that teacher recapture their seniority? • When a service personnel employee retires, but later is re-employed by the school system as a full-time employee, does that individual recapture their seniority?

44. Preferred recall • Please clarify the preferred recall process as it relates to classroom teachers, especially if multiple applicants apply for a vacancy?

45. Preferred recall • W. Va. Code 18A-4-7a(m) provides that “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.”

46. Preferred recall • Open 1st grade position. • Applicant “A” is a regular employee; • Applicant “B” is on recall, 2 years of seniority; • Applicant “C” is on recall, 1 year of seniority. • Who gets the job? “A”, “B”, or “C”. Can “C” get the job before “B”.

47. Preferred recall • Open 1st grade position. • Applicant “A” is on recall, 2 years of seniority; • Applicant “B” is on recall, 1 year of seniority. • Who gets the job? “A” or “B”.

48. Preferred recall • Open 1st grade position. • Applicant “A” is on recall, 2 years of seniority; • Applicant “B” is on recall, 1 year of seniority • Applicant “C” is employed by another county board of education. • Who gets the job? “A”, “B” or “C”.

49. Alternative Certification • If you have an alternative certification candidate that gets RIF notification, when it comes time to rehire, where do they fit into the process? Since they are provisionally certified teachers, do they get first chance over someone who is fully certified since they are on the RIF list? • In short, what happens with an alternative certification person on preferred recall? (This would be unusual.)

50. Alternative Certification What is alternative certification? Alternative certification (AC) is an “alternate” pathway to teacher certification that is different than the traditional route and only available to fill critical need and shortage areas in West Virginia public schools. School districts with approved AC programs may offer employment to eligible individuals for positions that have been posted at least twice (for a minimal ten-day period) and for which no fully certified applicant has applied. Candidates accepted into the district’s approved AC program hold an alternative teaching certificate while completing the program of study. Upon successful completion of the program, assessment and evaluation, candidates may be recommended for an initial teaching certificate by the school district. W. Va. Code 18A-4-7a(n) provides the following: 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. W. Va. Code 18A-2-2 provides the following: 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.