Legal Matters

February 12, 2016 — Volume 36 Issue 5


By Kimberly S. Croyle, Esq.

Q:  As a Board Member, what information am I entitled to review before the Superintendent presents the recommendations for RIF’s and transfers?  Too often, I hear about this information from the community first!

A:  The interplay between the County Board of Education and the County Administration is both simple and complex during RIF and transfer “season.”  It is simple in the fact that the Board of Education sits as the judge and jury in determining whether to accept the recommendations for RIF and transfer, but complex, and seemingly awkward, in the manner in which these recommendations make their way to the Board. 

It is the duty of the County Superintendent to “[a]ssign, transfer, suspend or promote teachers and all other school employees of the district, subject only to the approval of the county board, and to recommend to the county board their dismissal.”

With respect to RIFs and transfers, the board must receive and vote on those recommendations pursuant to a strict time frame.  That limited window, defined by statute, requires all reduction in force recommendations to be made prior to March 1, and recommendations for transfers prior to April 15. If presented outside of these timeframes, the recommendations are unlawful and will not stand.  To complicate these timeframes, those employees contemplated for RIF or transfer are entitled to a hearing before the Board prior to the presentation of the lists to the Board.

Simply put, it is the duty of the county superintendent to recommend in a thoughtful manner personnel actions to the county board based on the statutory requirements and with the best interests of the schools in mind.  It is the duty of the county board to consider in a thoughtful manner the recommendations by the county superintendent, and with the best interests of the schools in mind.  The rejection of the recommendation must not be arbitrary and capricious or demonstrate an abuse of discretion.

During RIF and transfer season, county boards are frequently accused of ‘prejudging’ personnel recommendations by those whose positions are eliminated or find themselves transferred to new positions.  The accusations surround the board ‘knowing too much’ or actually participating in the decision making process prior to the employee receiving notice of the personnel action, a hearing, and the recommendation to the Board by the Superintendent.

The Grievance Board has determined that a county board is not guilty of prejudgment when, before notice is sent to teachers proposed for RIF termination and before RIF hearings are held, the board discusses in a general way, but does not decide, areas where potential reductions could be made and how this would affect other positions through “bumping” and terminations.  As long as, in such discussions, the county board addresses only programs in general, specific individuals are not mentioned by name, the county board makes no decisions and gives no approvals, but rather discusses possibilities and potential impacts, no prejudgment occurs.

Even with this guidance, county boards need to be extremely careful in the discussions had about potential personnel action.  Likewise, the Board is only permitted to consider information it receives in the hearing or from the Superintendent as part of the recommendation if there is no hearing, in considering the recommendation.  Board members are not entitled to conduct their own investigation into the facts to “see for themselves” what is going on. 

If the Board is seen in any way as having a hand in the decision making process before the employee is permitted to be heard, the personnel action will likely be overturned by the Grievance Board and/or the courts.  If that happens, the Board risks putting itself in financial hardship - or even a deficit situation! 

The best practice would be for the Board, prior to the hearings and recommendations that come before it, to “see no evil, hear no evil, speak no evil

Kim Croyle, a partner in the firm of Bowles Rice LLP (Morgantown) and a member of the Bowles Rice Education Law group. She advises, represents and conducts trainings for school districts, regional education service agencies, and multi-county career and technical education centers.