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Clarifying When Competency Testing Must be Provided to Service Personnel

The requirements for competency testing by county boards of education are set forth in West Virginia Code 18A-4-8e, which defines the purpose of the tests as “to provide county boards of education a uniform means of determining whether . . . employees who do not hold a classification title . . . meet the definition of the classification title.” An issue often arises as to whether a county board of education is required to provide competency testing to existing regularly employed service personnel outside of the classification vacancy when others who have previously tested and passed have also applied.

For example, assume Employee “A” has been a regular employed custodian for 14 years. The county board of education posts a vacancy for a General Maintenance/Plumber II/Sanitation Plant Operator. At the time of the posting, Employee “A” is not qualified, as he has not passed the competency test for these classifications. However, Employee “B”, currently a regularly employed Cook, has previously qualified for all of the classifications in the posting by successfully passing the competency tests. Both Employee “A” and “B” apply for the vacancy.

Of course we all know that there is a “hiring priority” set forth in West Virginia Code 18A-4-8b, whereby regular employees who “hold” the classification title of the posted position are entitled to be hired over all others. So, does the county board of education have to provide Employee “A” with an opportunity to take the necessary competency tests (with required in-service preparation), so that he can attempt to qualify for the position?

The answer is “no”. A county board of education is under no obligation to wait to fill a position while a regularly employed service employee attempts to obtain the qualifications for the position, when others have previously qualified. West Virginia Code 18A-4-8b(a) provides that a board of education is required to “make decisions affecting . . . the filling of any service personnel positions . . . on the basis of seniority, qualifications and evaluation of past service.” In turn, the same statute defines “qualifications” as meaning that “the applicant holds the classification title in his or her category of employment . . . and shall be given first opportunity for . . . filling vacancies.”

In turn, West Virginia Code 18A-4-8e contains several provisions which make it clear that, once an applicant has passed the applicable competency test, they are then qualified for any future vacancies in that classification. Therefore, since the statutory purpose of competency testing is to determine qualifications of applicants who do not “hold” the classification title, an applicant who has previously passed the test, but is not currently working in that job classification, is still considered to be one who “holds” the class title, having previously qualified.

These provisions have been interpreted by the Grievance Board to mean that “only if no qualified individuals apply, i.e., no applicants hold the class titles in question or have successfully completed the competency test, is the board obligated to offer competency testing in order for other employees to be deemed qualified through successful completion of the examination.” Fuccy v. Hancock, 2008-0264-HanED. As also stated in West Virginia Code 18A-4-8e, if no applicants are qualified, “other employees then shall be considered and shall qualify by meeting the definition of the job title,” i.e., be allowed to take the applicable competency test. 

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume I, Number 162


About this Author

Jason Long, education law practice chair, Dinsmore Lewisburg Office

Jason Long is a Partner in the firm’s Lewisburg office, is the Chair of the Education Law Practice Group and a member of the Labor and Employment Practice Group. Jason's practice concentrates on two areas of law that are quite diverse from each other. The first area of Jason’s practice originates from his pre-lawyer days as an educator as well as growing up as the son of a county school superintendent. Jason focuses on representation of numerous county boards of education in the firm’s Educational Law Practice Group, providing a wide range of services, including, but not...

Denise M. Spatafore, Dinsmore Shohl, Education Law, Administrative Law Judge
Of Counsel

Denise Spatafore is a member of the Labor and Employment Department. She focuses her practice on education law. Prior to joining the firm, Denise served as the Supervisor of Personnel for the Harrison County Board of Education. As the administrator in charge, she led the personnel department of a school system with approximately 2,000 employees, providing both human resources management and legal services. Earlier in her career, Denise served as an Administrative Law Judge for the West Virginia Public Employees Grievance Board.