March 31, 2017 - Volume 37 Issue 9


By Rebecca Tinder, Esq. 

What is an acceptable year of employment and why should you care? The term could make the difference between a continuing contract and a probationary by contract for your employees and a different process with different deadlines during personnel season, when acting on recommendations for contract terminations and renewals from your superintendent.

The term, acceptable, is used in the West Virginia school laws when discussing the contract status of your employees. Under W. Va. Code § 18A-2-6, after three years of acceptable employment, a service employee gains continuing contract status. Additionally, an employee who has continuing contract status with one county board of education and transitions to another county, the following year, gains continuing contract status at the completion of one year of acceptable employment (§ 18A-2-2 for professional and Code § 18A-2-6 for service employees).

If, for example, your employee had a continuing contract with another West Virginia county board of education the year immediately preceding employment with your board of education and was struggling and on an improvement plan during that first year, would that be an acceptable year of employment? If, on the other hand, that same employee completed most of the year in your county and then was suspended for a portion of the school year, would that be an acceptable year of employment? How is that term acceptable defined?

Unfortunately, the term, acceptable, is not defined in the school statutes. However, the West Virginia Supreme Court of Appeals recently upheld a Kanawha County Circuit Court decision which addressed this very issue. In Louk v Board of Education of the County of Braxton, No. 16-0321 (Feb. 21, 2017), a service employee, who had been on a continuing contract in one county, was employed by the Braxton County Board of Education on a probationary contract. Before completing his first year of employment, but beyond 133 working days, he was suspended without pay, for disciplinary reasons, for a couple of months at the end of the school year.

Although his contract had been renewed for the next school year (year 2 with the Board), the Board argued that Mr. Louk had not completed an acceptable year of employment during year 1 because of his disciplinary suspension, he was entitled only to a probationary contract, in year 2. Thus, when the Board decided to part company with the employee at the end of his second year of employment, the Board used the procedure for non-renewing his probationary contract, rather than the stricter procedure for terminating a continuing contract.

Although Mr. Louk argued that his 145 days, prior to his suspension, was a sufficient length of time to be determined an acceptable year of employment and, therefore, that his year 2 contract should have been a continuing contract instead of a probationary contract, the Circuit Court and Supreme Court ruled that the Board’s interpretation of the meaning of the term “acceptable” should be given upheld because it was based on a permissible understanding of the statute, since the term “acceptable” was not defined anywhere in the school statutes. Additionally, when looking for the ordinary meaning of the word, acceptable, the Court turned to the dictionary to find definitions such as “finished” and “tolerated and allowed” and found that Mr. Louk did not finish his first year of employment with the Board, because of his suspension, and his suspension illustrated that his performance was neither tolerated or allowed.

In the end, the West Virginia Supreme Court affirmed the decision of the Kanawha County Circuit Court in finding that Mr. Louk was a probationary employee in year 2; the Board’s interpretation of the term, “acceptable,” was based upon a reasonable understanding of the statute; and the Board used the correct procedure in non-renewing the contract at the end of the employee’s second year of employment.

The point of the case: Just because a probationary employee’s contract is renewed does not necessarily mean the employee is entitled to continuing contract status and to the stricter process for terminating a continuing contract.

Tinder, a partner in the firm of Bowles Rice LLP (Charleston) 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.