A common issue for West Virginia county boards of education relates to the filling of coaching positions in public schools. For example, does a citizen (non-employee) receive a coaching position over a currently certified professional educator? Does a certified professional educator receive a coaching position over a substitute employee holding certification? Does a certified professional educator in the home county receive priority over a certified professional educator employed in an adjoining county? What is the impact of an employee who is on permit?

Prior to June 12, 2015, county boards of education had long followed the principle that a certified professional educator had priority in coaching vacancies over all other applicants (such as a citizen coach, certified through the West Virginia Secondary School Activities Commission (WVSSAC), who was not a certified professional educator) (See also our Sept. 2011 Education Alert for answers to the above questions). Reason being is that the W. Va. Code 18A-4-3a provided that the state superintendent could not issue a coaching permit to a non-certified professional educator unless “A currently employed certified professional educator has not applied for the position.”

However, that changed with an amendment to W. Va. Code 18A-3-2a, effective June 12, 2015, as it related to the selection priority of hiring coaches for county boards of education. As a result of that amendment, no longer are certified professional educators given statutory priority. W. Va. Code 18A-3-2a now reads as follows:

(1) Other certificates and permits may be issued, subject to the approval of the State Board, to persons who do not qualify for the professional or paraprofessional certificate.

(2) A certificate or permit may not be given permanent status and a person holding one of these credentials shall meet renewal requirements provided by law and by regulation, unless the State Board declares certain of these certificates to be the equivalent of the professional certificate.

(3) Within the category of other certificates and permits, the State Superintendent may issue certificates for persons to serve in the public schools as athletic coaches or coaches of other extracurricular activities, whose duties may include the supervision of students, subject to the following limitations:

(A) The person is employed under a contract with the county board of education.

(i) The contract specifies the duties to be performed, specifies a rate of pay that is equivalent to the rate of pay for professional educators in the district who accept similar duties as extra duty assignments, and provides for liability insurance associated with the activity; and

(ii) The person holding this certificate is not considered an employee of the board for salary and benefit purposes other than as specified in the contract.

(B) The person completes an orientation program designed and approved in accordance with State Board rules.

Noticeably absent from the law that took effect in June of 2015 was the provision that a currently employed certified professional educator has not applied for the position. As such, the applicable statutory provisions now allow for the issuance of a certificate or permit to a non-certified professional educator even if a currently employed certified professional educator has applied for the position. However, the selection of coaches continues to be governed by the arbitrary and capricious standard. 
Also, on June 7, 2016, the West Virginia Department of Education sent an email to county boards related to “Posting of Coaching Positions” and among other things, stated that “The Office of Educator Effectiveness and Licensure (OEEL) has received several inquiries regarding the issuance of Coaching Authorizations and the posting of such positions. As a result of recent revisions to WV Code §18A-3-2a, counties are no longer required to post coaching positions annually. WVBE Policy 5202, establishes that the applicant ‘be employed under a contract with a board of education to serve as a coach.’”

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