© 2011 DINSMORE & SHOHL | LEGAL COUNSEL | Preparing for Personnel Season Personnel Season 101 West...

© 2011 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com

Preparing for Personnel SeasonPersonnel Season 101West Virginia County Boards of Education

WVASAOct. 29, 2015


Presenters

Jason S. Long, Esq.Lewisburg ^ [email protected]

Denise M. Spatafore, Esq.Morgantown ^ [email protected]


Jason Long is a Partner in the firm’s Lewisburg office and is the Chair of the West Virginia Education Law Practice Group. Jason's practice concentrates on education related issues and develops 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 limited to, guidance on personnel matters (both service and professional personnel), student and employee discipline matters, and due process hearings. He often provides in-service training to school personnel on issues such as student rights, student discipline, employee discipline, employee evaluations, and updates on the ever changing educational laws. [email protected]

Denise Spatafore is a native of southern West Virginia, Denise is uniquely experienced in the education law area. For many years, she served as an administrative law judge for the Public Employees Grievance Board, authoring hundreds of administrative decisions that are still recognized precedent in the field of West Virginia school personnel law. Most recently before joining the firm, Denise was the personnel director for Harrison County Schools in Clarksburg, West Virginia, providing both legal services and human resources management for a large school system. Because of her background in the very specialized field of West Virginia school law and her experience as a central office administrator, Denise has a unique understanding of the issues facing our board of education clients. She is an of counsel member of the Labor and Employment Department, focusing on education law practice. [email protected] 225-1445

mailto:[email protected]

mailto:[email protected]


Education LawAttorneys in Dinsmore & Shohl's Education Law Practice Group possess significant experience representing public and private school districts and professional associations throughout the region. Our law firm has the depth and resources you are looking for in addressing the ever growing complicated legal issues facing educational institutions. Our services are far reaching and unsurpassed and include personnel, ADA, FMLA, immigration, student rights, special education, Title VII, Title IX, HIPAA, bond finance, tax, litigation, real estate, environmental, media and public relations and the like. We offer proactive training and consultation to assist our clients in minimizing and avoiding expensive litigation to the fullest extent possible. Our Education Law Practice Group includes current Board members, who have a unique 1st hand insight into the issues, and practical solutions to the problems confronted by our education law clients. We treasure our clients and treat their matters personally.

Client RelationshipsWe highly value the relationships we have with our clients and work to instill in them a sense that they can depend on us for quality legal advice and representation with a results-oriented focus. The success of this relationship comes from teamwork and a risk management focus.

Education Law IssuesThe firm advises and represents school districts concerning all matters impacting the educational law arena. We take great pride in our responsiveness and resourcefulness to address our clients' needs.

TrainingThe firm provides counseling and workshops for training in a wide range of topics. These workshops include administrative workshops, coaching workshops, teacher workshops, counseling workshops, special education workshops, on topics such as employee code of conduct, reporting suspected child abuse, ethical issues for counselors, overview of employee suspension, board-employee relations, drug-free workplace; anti-harassment, confidentiality of student information, student related policies, the evaluation process, avoiding liability in education issues, complying with the Americans With Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) and handling EEO/sexual harassment issues. Our attorneys are frequent speakers on all aspects of Education Law and write numerous articles on practical education law tips for many news publications.


RIF and Transfer Deadlines


Pop Quiz

When is the statutory deadline for the board of education to vote on the recommendation to terminate a Service Personnel employee contract for next school year (2016-17)?


Deadline: Termination of Service PersonnelReduction-in-Force (“RIF”) of service personnel employees:

Board approval before March 1, 2016. Keep in mind that notice and a hearing (if requested) must occur prior to March 1, 2016, per W. Va. Code 18A-2-6.

“Written notice, stating cause or causes . . .”.


Pop Quiz

When is the statutory deadline for the board of education to vote on the recommendation to terminate a Professional Personnel employee contract for next school year (2016-17)?


Deadline: Termination of Professional Personnel

RIF of Professional Employees:

Board approval on or before March 1, 2016 (one day beyond the deadline for service personnel). Keep in mind that notice and hearing must occur prior to the March 1 deadline per W. Va. Code 18A-2-2(c).

“Written notice, served upon the teacher, return receipt requested, stating cause or causes and an opportunity to be heard at a meeting of the board prior to the board’s action”.


Pop Quiz

When is the statutory deadline for the board of education to vote on the recommendation to transfer a Service Employee and Professional Personnel employee for next school year (2016-17)?


Deadline: Transfer of Professional & Service Personnel

Transfer of employees:

Notified in writing by the Superintendent on or before March 1, 2016.

If a hearing is requested on the proposed transfer, it shall be held on or before April 15, 2016.

The Superintendent at a meeting of the board on or before April 15, 2016, shall furnish in writing to the board a list of teachers and other employees to be considered for transfer and subsequent assignment for the 2016-17 school year pursuant to W. Va. Code 18A-2-7.


Pop Quiz

When is the statutory deadline for the board of education to vote on the recommendation to non-renew the contract of a probationary Service Employee and Professional Personnel for next school year (2016-17)?


Deadline: Non-Renewal of Probationary Employees

Non-renewal of teachers and service employees with probationary status (less than three full years):

The Superintendent at a meeting of the board on or before April 15, 2016, shall provide in writing to the board a list of all probationary personnel that s/he recommends to be rehired for the next ensuing school year. The board shall act upon the superintendent’s recommendations at that meeting per W. Va. Code 18A-2-8a.

Within ten days after the board meeting, the Superintendent must notify, by certified mail, return receipt requested, any probationary employee who was not on the list of renewed contracts.


Non-renewal of probationary employees (cont’d)

Any probationary employee who receives notice that s/he has not been recommended for rehiring may, within ten days after receiving the written notice, request a statement of the reasons for not having been rehired and may request a hearing before the board. The hearing shall be held at the next regular scheduled board of education meeting or a special meeting of the board called within thirty days of the request for hearing.


Pop Quiz

When is the statutory deadline for the board of education to vote rescind the RIF or transfer employee if administration becomes aware that the need for the prior personnel action no longer exists?


Deadline: Rescission of RIFs and Transfers

If prior to the first day of August of 2016, the reason for the particular employee’s RIF or transfer no longer exists, the board must rescind the action. W. Va. Code 18A-4-7a. and W. Va. Code 18A-4-8b(k).

This provision is MANDATORY – regardless of interim events, the employee is entitled by law to be restored to his/her previous position.


Pop Quiz

Employee “A” was RIFd as a cook at James Madison Middle School (3 cooks at the school) for next school year. However, prior to the end of the current school year a custodian position became available for next school year. S/he applied and got the job, and will start in August. On July 24th, administration became aware that in fact 3 cooks would be needed. Does “A” get to return to cook position?


But she took another job, why rescind the RIF?

Facts: Employee “A” was given notice that her full- time position would be

reduced. During the school year, “A” bid on another position that would

provide her with full-time employment the next year The need for “A’s” reduction went away, BOE didn’t rescind her RIF.

Reason: She took another job.


Harris v. Lincoln County BOE,Docket No. 06-22-132

“If the reason for any particular reduction in force or transfer no longer exists prior to the first day of August, a county board of education shall rescind the reduction in force or transfer, and shall notify the affected employee of her right to be restored to her former position of employment.”

“Under the circumstances of this case, the transfer was only requested due to an impending reduction in force. Since that reduction did not occur, rescission of the transfer is consistent with W. Va. Code § 18A-4-8b(k).

Advice: Get written statement as to whether the employee would want the prior position if the action were to be rescinded.


Pop Quiz

What happens if the personnel office fails to provide written notice of a RIF or Transfer? OOPS!! For example, notice was not sent to John Smith that his extracurricular run for the 2016-17 school year would no longer be needed.


Shoot!! Forgot that RIF Letter

Facts: Employee “A” had an extracurricular run during the

2015-16 school year BOE made a mistake and failed to provide “A” with

notice that the run would not be needed for the 2016-17 school year

“A” wants $$ for 2016-17


Hess v. Monongalia County BOE,Docket No. 07-30-108

As we all know, the BOE must utilize the notice and hearing procedures of W. Va. Code 18A-2-8 or 18A-2-7 to terminate an extracurricular contract.

Employee “A” did not receive notice. Employee “A” was awarded back pay, plus interest, for

2014-15 school year. The contract did not end on its own terms.


Notice Requirements (cont’d)

Keep in mind the principle that school personnel laws and regulations are to be strictly construed in favor of the employee. Morgan v. Pizzino, 163 W. Va. 454, 256 S.E.2d 592 (1979).


Notice Requirements (cont’d)

Suggestions on Notice: Hand delivery, and acknowledgement of receipt.

Explain the process to the employee. Certified mail, return receipt. First class mail.


Pop Quiz:Should I See What the Board Thinks

Beforehand? Prejudgment?


Prejudgment?

It has been held by the West Virginia Supreme Court of Appeals that the law was violated when a Superintendent proposed elimination of an employee’s position and obtained the Board's “tentative approval” before notifying the employee of the proposed transfer. The Court stated as follows:

The statute requires that a superintendent not submit an employee's name for proposed transfer . . ., or discuss such actions with the board, until after the superintendent has notified the employee directly and afforded him an opportunity to request a hearing before the board. Such a procedure is consistent with the concept that the board is to make a detached and independent evaluation of the employee's case. Lavender v. McDowell County Bd. of Educ., 174 W. Va. 513, 327 S.E.2d 691 (1984).


Beverage v. Pocahontas Cty BOE, Docket No. 00-38-250 (Apr. 23, 2001)

As part of a countywide reduction in force of teachers, due to reduced funding, the Grievants were placed on notice of transfer. Grievants argued that the Board discussed and decided on their RIF's/transfers prior to their hearings, and also contended that the Board violated the Open Meetings law by discussing RIF's in executive sessions at several meetings. At several Board meetings the Board met in executive session to discuss areas where potential reductions could be made and how this would affect other positions through “bumping” and terminations. During these sessions, the Board made no decisions, and merely discussed possibilities and potential impacts, and the Superintendent never sought approval of the Board. Also, the Board only discussed programs in general, and specific individuals were not mentioned by name. Consistent with prior decisions, it was found that the Board made no actual decisions on Grievants' RIF's until after their hearings, and Grievants were allowed to present their cases to the Board several times during meetings where the overall process was being discussed. Also no violations of Open Meetings law were found, because Board's discussions were covered within the exceptions portion of that statute. Matters relating to transfers may be discussed in executive session, as long as no decisions are made.


Some more on that issue: Violations of the Open Meetings Act?

A board may discuss, in executive session, the potential impact of various RIFs, transfers and program cuts, so long as no decisions are made, no individual employees are discussed, and the employees ultimately recommended receive the benefit of hearings before the board, prior to any decisions being made.

W. Va. Code § 6-9A-3 allows discussion in executive session of “matters arising from the . . . transfer, discharge, dismissal or compensation of a public officer or employee . . . .”

Example: Beverage v. Pocahontas Cty BOE,

Docket No. 00-38-250 (Apr. 23, 2001).


Pop Quiz

I’m not quite sure how the bus routes will change next school year, if at all. To be safe, can we just place every bus operator on transfer?


Avoid the Blanket Transfer!!

When bus operators would not agree to any changes in their runs which might arise in the next school year, the board placed them all on transfer list.


Mayle v. Barbour Cty BOE,Docket No. 02-01-219

West Virginia Code §18A-2-7 says transfers must be based on "known or expected circumstances" and is designed to prohibit such "blanket" transfers, found illegal. The board was directed to cease this practice of mass transfers.


“Basics” of a RIF for Service Personnel(W. Va. Code 18A-4-8b)

If a board is required to reduce the number of service personnel within a particular job classification, the employee with the least amount of seniority within that classification or grades of classification shall be properly released and employed in a different grade of that classification if there is a job vacancy.

However, if no vacancy exists, the county board should determine whether a vacancy in another classification which the employee previously held exists and fill it with the employee.

If no vacancy exists, the employee is terminated/RIF. The length of employment contracts must be considered when

implementing a reduction in force.


Probationary Service PersonnelRIF v. Non-Renewal:

If you provide a probationary employee with RIF notice, and indicate lack of need, that employee is going to be on preferred recall.

Or, if you simply don’t renew, but the reason for the non-rehire is lack of need, that employee is going to be on preferred recall.

If the RIF is based upon lack of need, follow the RIF deadlines. If the non-renewal is for some other reason (performance), follow probationary deadlines to avoid preferred recall.


Probationary Employees (cont’d)

If a probationary employee has been given an opportunity to improve, but still continues with unsatisfactory performance, non-renewal is the simplest route. Then the board does not have the strict burden of proof of W. Va. Code 18A-2-8, and the employee has no preferred recall rights.

(See Meredith v. Mercer County Bd. of Educ., Docket No. 00-27-247)


Pop Quiz

Service Personnel on Preferred Recall: Priority in Substitute Assignments?

A common question we see on a yearly basis from county boards of education relates to whether a service personnel employee whose regular employment contract has been terminated as a result of a reduction in force (but still has preferred recall status) is entitled to some kind of priority when it comes to the substitute list and certain substitute assignments


Example

For example, let’s say Employee “A” was a regularly employed aide for the 2015-16 school year, but her employment was terminated for the 2016-17 school year as a result of a reduction in force. Prior to “A’s” regular employment, she had served as a substitute aide for the county board of education. For the 2016-17 school year “A” has asked that county board place her on the substitute list in the aide classification, while she is also on preferred recall in that classification. Several issues might arise out of these circumstances.


The first question we typically see is: Is “A” entitled to be placed at the top of the substitute rotation list (or recapture her prior substitute seniority)? No.

Once a substitute becomes a regular service employee, she loses all previously accrued substitute seniority, which cannot be recaptured upon the employee’s return to substitute employment. Martin v. Kanawha County Board of Education, Docket No. 02-20-058 (July 19, 2001).


The second question we typically see is: A regular service employee is going to be absent, but it is not a situation which would require the board to post the assignment. Can we give “A” this assignment? No.

To illustrate, suppose “A” began the 2016-17 school year on the preferred recall list. An aide position was posted for John Smith Middle School in August of 2016. “A” and several others applied, but the position was awarded to “B” based on seniority and regular employment in the classification. Because the school year had begun, and “B” was currently serving in an autism mentor position at a different location, “B” could not legally assume the position at John Smith Middle School, because of state law prohibiting such moves after the start of the school year. So “B” was hired for the position, effective for the 2017-2018 school year. Although the John Smith Middle School aide position had been posted and an applicant selected, the position would remain unfilled for the 2016-2017 school year. Therefore, the board was correct to place the position in the substitute call-out system, and a substitute aide was called to fill the position from the seniority-based rotation. No preference to employee on preferred recall under these circumstances.


Board Agenda for Personnel Action

West Virginia Ethics Commission Advisory Opinion:

Employee names MUST either be listed on the published board agenda OR announced in open session when the board votes on the recommended action. The Open Meetings Act requires that the board agenda be “sufficiently worded to enable the public to understand what is being deliberated, voted, or acted upon.”

Example: “Recommendation of placement on the transfer list for subsequent assignment for the 2012-13 school year -- Joan Smith, autism mentor, City Elementary.”


Can you give me some example FORMS?(Service Personnel)

Reduction in Force – Reducing Number of Days of Employment for Service Personnel

RIF-Service Personnel Transfer of Service Personnel Hearing Request Form Board Info on RIF Board Info Transfer Hearing Outline


Questions?

Jason S. Long, Esq.Lewisburg ^ [email protected]

Denise M. Spatafore, Esq.Morgantown ^ [email protected]

© 2011 DINSMORE & SHOHL | LEGAL COUNSEL | Preparing for Personnel Season Personnel Season 101 West...

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