Legalities

February 1, 2019 - Volume 39 Issue 4

Legalities

Rebecca Tinder

By Rebecca Tinder

According to W. Va. Code § 18A-4-7a, during personnel season, when county boards are working through the process of implementing reductions in force relating to professional personnel, “[a]n employee subject to release shall be employed in any other professional position where the employee is certified and was previously employed or to any lateral area for which the employee is certified, licensed or both, if the employee’s seniority is greater than the seniority of any other employee in that area of certification, licensure or both”.

The statute further provides that “all positions which meet the definition of ‘classroom teacher’ as defined in section one, article one of this chapter shall be lateral positions. For all other professional positions, the county board of education shall adopt a policy by October 31, 1993, and may modify the policy thereafter as necessary, which defines which positions shall be lateral positions. In adopting the policy, the board shall give consideration to the rank of each position in terms of title; nature of responsibilities; salary level; certification, licensure or both; and days in the period of employment.”

Of course, every county board of education has adopted such a policy, but may not have revisited the same to determine if modifications are necessary, to delete positions that no longer exist in the county, and add positions that are not mentioned in the policy. All professional positions, except the superintendent and treasurer, should be listed in the policy.

Keep in mind, when reviewing the county laterality policy, that “if-then” or “stairstep” policies are not permissible. An if-then policy or stairstep policy is one in which defines a lateral position but goes on to state that if there is no lateral position, then the professional moves down to the next level of professional position. This is not permissible and should be corrected when the policy is revisited.

In determining which positions are lateral to which positions, the underscored factors, above, should be considered (title; nature of responsibilities; salary level; certification, licensure or both; and days in the period of employment). Promotions cannot result through application of the laterality policy, as this would be a vertical, not lateral, move. As an example, an assistant principal cannot be lateral to a principal. This displacement would constitute a “vertical” transfer, not a permissible lateral transfer, because a principal occupies a higher employment plane (title, nature of responsibilities, salary) than does an assistant principal.

Because these policies are used in determining appropriate bumping destinations when planning and implementing professional reduction in force plans, waiting until personnel planning is underway may cause affected employees to claim that policies were changed to target particular employees in a negative way. As a result, the best time to review and revise county laterality policies is well before or well after personnel season. However, policies missing existing professional positions should be updated as soon as possible.

 

Editor's Note: Rebecca Tinder is a partner at the law firm of Bowles Rice.