Personnel Season is fast approaching for county boards of education. Personnel offices, among other things, will be busy ensuring proper notices are sent to impacted employees, that employees are afforded hearings before a reduction and/or transfer is acted upon by the board, and ensuring board of education agendas are legally compliant. At the same time, personnel offices are also receiving early notice of year-end retirements from classroom teachers. W. V a. Code 18A-2-2(g) provides classroom teachers who provide early notice of year-end retirement qualify for a $500 bonus if the teacher gives notice to the board of education on or before January 15, 2016.

A common question since the adoption of West Virginia Department of Education Policy 5000 relates to the provision of reserving vacancies for individuals subject to release. For example, from a simplistic standpoint, assume elementary teacher “A” submits to the board, on or before January 15th, his/her early retirement notice effective at the conclusion of this school year. Thereafter (by law, on or before March 1, 2016), 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 3 employees (meaning they will not be guaranteed employment for the 2016-17 school year).

What happens with “A’s” position, which is needed for the 2016-17 school year? Does the board post “A’s” position so any and all interested individuals can apply?

As required by Policy 5000, “All employees subject to release [“B”, “C” and “D”] 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 next ensuring 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 others.”

“A’s” position is not posted, instead “B”, “C” and “D” are the automatic applicants. This of course has created concerns among more senior classroom teachers, who for years may have been interested in transferring to “A’s” school.

The next common question we see in this process is, if administration is not required to post “A’s” assignment for the 2016-17 school year, who gets the position between “B”, “C” and “D”? Is it based solely upon seniority? If not, does the building principal have a vote between the 3 automatic applicants? What about the school’s faculty senate, do they get a vote?

Policy 5000 provides, “If more than one individual subject to release is qualified for a known vacancy [in the instant, “B”, “C” and “D”], the successful candidate shall be selected based on application of the factors set forth in W. Va. Code 18A-4-7a(b)(1) through 9, weighted equally.”

As such, seniority isn’t the determining factor, nor do the building principal and/or faculty senate get a vote. Instead, the following 9 factors are weighted equally in determining who gets “A’s” position:

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.

Should you have any questions on this issue or any issues please feel free to contact a member of Dinmore & Shohl's Education Law Practice Group.