May 26, 2020

May 26, 2020

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Reminder to Reserve Vacancies this Personnel Season

Personnel Season is fast approaching for county boards of education. Personnel offices are busy ensuring proper notices are sent to impacted employees, employees are afforded hearings before a reduction or transfer is acted upon by the board, and board of education agendas are legally compliant. At the same time, personnel offices are receiving early notice of year-end retirements from classroom teachers. W. V a. Code 18A-2-2(g) provides a classroom teacher who provides early notice of year-end retirement a $500 bonus if the teacher gives notice to the board of education on or before March 1, 2018.

A common question we often see relates to W. Va. Code 18A-4-7a(k)(2) and how to handle the statutory provision of reserving vacancies for individual professionals subject to release (i.e. reduced in force). For example, assume elementary teacher A submits to the board, on or before March 1, his/her early retirement notice effective at the conclusion of this school year. Thereafter (by law, on or before May 1, 2018), the personnel office notifies elementary teachers B, C and D all at different elementary schools in the county that they are being recommended for a reduction-in-force (their seniority doesn’t allow them to bump anyone countywide), and the board subsequently approves the reductions of these three employees (meaning they will not be guaranteed employment for the 2018-19 school year).

What happens with A’s position, which is needed for the 2018-19 school year? Does the board post A’s position so any and all interested individuals can apply?

As required by W. Va. Code 18A-4-7a(k)(2), “for any vacancy in an established, existing or newly created position that, on or before March 1, is known to exist for the ensuing school year, upon recommendation of the superintendent, the board shall appoint the successful applicant from among all qualified applicants. All employees subject to release [B, C and D] shall be considered applicants for the positions for which they are qualified and shall be considered before posting such vacancies for application by nonemployees.”

A’s position is posted, and “all qualified [in-county] applicants” are considered along with the “employees subject to release [B, C and D]”. In determining who the most qualified applicant is, among all qualified in-county applicants and those subject to a reduction in force, the county will apply W. Va. Code 18A-4-7a(b)(1) through (11) (the 11 factors). It is important to remember that even if a regular employee applies for the position, let’s say E, E doesn’t get preference over B, C or D, or vice versa. The most qualified applicant among B, C, D and E will be recommended for the position.

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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.