Legal Update for Administrators: Recent Statutes, Court Decisions, and Grievance Opinions Affecting Public Education

1
Legal Update for Administrators Recent Statutes,
Court Decisions, and Grievance Opinions Affecting
Public Education

• Howard Seufer, Jr. hseufer_at_bowlesrice.com
• RESA 7
• Village Square Conference Center
• August 3, 2009

2
The Education Law Group at Bowles Rice McDavid
Graff Love

• Primary Attorneys
• Greg Bailey - Morgantown
• Rick Boothby - Parkersburg
• Howard Seufer - Charleston
• Rebecca Tinder - Charleston
• Kim Croyle - Morgantown
• Ashley Hardesty - Morgantown
• Legal Assistants
• Sarah Plantz - Charleston
• Dianne Wolfe - Parkersburg

• Adjunct Attorneys
• Bob Bays - Eminent Domain
• Rick Brown - Employee Disability
• Joe Caltrider Personal Injury Defense
• Pat Clark - Contracts
• Mark DAntoni - Real Estate
• Mark Dellinger - Human Rights
• Kit Francis - Creditors Rights
• Jill Hall - Employee Benefits
• Tom Heywood - Government Relations
• Bob Kent - Personal Injury Defense
• Jeff Matherly - Health Information
• Ellen Maxwell-Hoffman - Ethics
• Edd McDevitt Bonds, QZABs Levies
• Marion Ray - Workers Compensation
• Lesley Russo Employee Benefits
• Cam Siegrist - Finance
• Beth Walker - Wage Hour

3
Our Agenda

• Some recent legal developments of particular
  interest to public school administrators
• Legislation
• Supreme Court Decisions
• W. Va. Supreme Court Decisions
• Grievance Board Decisions
• State Superintendent Interpretations
• As time permits, some issues to pay special
  attention to in the coming school year

4
A Word About This Presentation

• The specific facts of each situation can make a
  difference in the legal principles that apply and
  the best course of action to take from a legal
  standpoint
• We are speaking in general terms today and do not
  have the time to consider all the factual
  contexts in which these legal issues may arise
• For that reason, this presentation must not be
  treated as legal advice about any specific
  situation
• Also, due to the rapidly changing nature of the
  law, information contained in this presentation
  may become outdated
• No person should act or rely upon the information
  contained in this presentation without seeking
  the advice of an attorney

5
Some Words About the Handout

• Then first 37 pages of the handout consist of
  summaries only
• The summaries of legislation, court and grievance
  decisions, and interpretations are ours
• Never take important action in reliance upon a
  summary
• Time prevents us from covering every new law (and
  decision) summarized in the handout

6
New West Virginia Legislation of Particular
Interest to Public School Administrators

• From the 2009 Regular and First Special Sessions
• Handout, page 1

7
These Bills Did Not Pass and Are Not Law

• School calendar
• Altering the seven factors used to compare
  candidates for professional vacancies
• Relieving county boards of liability for unfunded
  PEIA benefits for retirees
• School board member pay raise
• Removing budget cap on RESA foundation allowance

8
Seven Categories of Legislation

• Students
• Safe Schools
• Personnel
• Finance
• Business
• Public Officials
• Retirement

9
Students
10
Senate Bill 398Restrictions on Graduated
Drivers Licenses(In Effect July 10,
2009)Handout, page 2
11
Senate Bill 498Early Childhood Education(In
Effect April 11, 2009)Handout, page 4
12
Reporting

• Before July 1 of each school year after
  2012-2013, each county board must report to DHHR
  Secretary and State Superintendent
• documentation showing the extent to which it is
  maximizing resources by using existing
  community-based programs, including Head Start
  and child care
• Any county that includes in its net enrollment
  for state aid children in contracted
  community-based programs must also report
• documentation that the county equitably
  distributes funds for all children regardless of
  setting

13
Quality Rating Improvement

• Requires DHHR Secretary to
• establish a plan for phased implementation
  (starting July 1, 2011) of a statewide quality
  rating and improvement system covering
• licensed child care centers and facilities
• registered family child care homes
• other types of child care settings licensed after
  the system is implemented
• include a financial plan providing for staffing,
  public awareness, an internet-based information
  system, financial assistance for programs, and
  assistance for consumers at or under 200 of the
  federal poverty level
• create a Quality Rating and Improvement System
  Advisory Council to advise concerning the plan
  and ongoing review
• Recognizes that stimulus funds may fund some
  expenditures

14
Mandatory Elements of New System

• 4-star rating system that easily communicates to
  consumers
• One star meets minimum acceptable standards
• Four stars meets the highest standards
• 4-level program standards for registered homes
  and licensed programs
• Only mandatory level Level 1 (basic state
  registration and licensing requirements)
• Accountability measures to assess compliance
• Evaluations, observation/assessment tools, annual
  self-assessments, model program improvement
  planning to help in improvement
• Rules for the reduction, suspension, or
  disqualification of programs from the system

15
Possible Pilot Programs

• Authorizes DHHR Secretary to implement a quality
  rating and improvement system as a pilot project
  in up to five counties beginning July 1, 2009 to
  help
• test the rating system
• assess the quality of existing providers
• estimate financial requirements of the future
  statewide system
• Inform future policy decision
• Ratings of pilot project participants may not be
  individually disclosed

16
Senate Bill 1001Critical Skills Instruction
Support Programs for Third and Eighth Grade(In
Effect July 1, 2009)Handout, page 5
17
Critical Skills Instructional Support Programs

• For students in grades 3 and 8 who
• are not mastering language arts and math
  adequately for success at next grade level, and
• are recommended by Student Assistance Team or
  classroom teacher
• To occur
• during the instructional day, and
• after the instructional day, and
• during the summer

18
State Board of Education

• Enact rules to
• Maximize parental involvement in supporting
  critical skills development
• Ensure employment of qualified personnel under
  the existing summer employment laws
• Create formula or grant-based distribution of
  funds
• Providing for transportation, healthy foods, and
  supervision of participating students
• Annually report to LOCEA, Joint Committee on
  Government Finance, Governor

19
County Boards

• Provide suitable facilities, equipment, services
  to support the programs
• May provide summer programs at central locations
• Cannot charge tuition
• Must ensure that SATs are established and
  performing needs assessments
• If funds are inadequate for full implementation,
  may implement in phases, prioritizing programs
  for third graders

20
Students

• Summer program may be made a condition of
  promotion for a third or eighth grader
• who was provided help in the in-school and
  after-school programs, and
• is recommended by SAT or classroom teacher for
  additional help in language arts and/or math to
  succeed at next grade level
• In spite of program, classroom teacher may
  recommend grade level retention
• Program is not to affect IEPs
• Program does preclude summer programs under
  existing laws

21
House Bill 109Innovation Zones(In Effect July
1, 2009)Handout, page 8
22
Purpose

• Create testing grounds for innovative education
  reform programs at the school level that document
  educational strategies that enhance student
  success and increase the accountability of the
  states public schools
• Do so by providing principals and teachers with
  flexibility from the constraints of certain
  statutes, policies, rules, and interpretations

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Allows Exceptions from County and State Rules,
Policies, and Interpretations, and from State
Statutes

• Only within designated zones, and under approved
  innovation zone plans
• Exceptions cannot be granted to
• Any federal law, including NCLB
• WV laws on the filling of personnel vacancies and
  the assignment, transfer, and reduction in force
  of professional and service employees
• But if a majority of all the countys teachers
  vote to approve, heightened qualifications may be
  posted for teaching vacancies in an innovation
  zone

24
Designating Innovation Zones

• An innovation zone may consist of
• a school
• a group of schools
• a subdivision or department of a school
• a subdivision or department of a group of schools
• Application for designation
• State Board rules will govern
• Must describe innovations to be instituted
• Must estimate affected employees

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(Designating Innovation Zones)

• Step One Secret ballot special election by
  affected regular employees
• Special panel calls meeting, conducts election,
  certifies vote
• Schools elected faculty senate officers, a
  service personnel representative, three parent
  members of LSIC
• Requires approval by 80 of eligible voters
• Step Two State Board decides whether to
  designate, considering at least
• Level of commitment by staff, parents, students,
  county board, LSIC, and business partners
• Potential for applicant to succeed as an
  innovation zone

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Approving Innovation Plans

• Minimum plan contents
• Description of programs, policies, or initiatives
  that the zone intends to implement as an
  innovative strategy to improve student learning
• An explanation of the needed exceptions to
  identified rules, policies, interpretations, and
  statutes
• Other information required by the State Board of
  Education

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(Approving Innovation Plans)

• Step One 80 approval in special election by
  affected employees
• Conducted exactly like the zone designation
  election by affected employees
• Step Two Submission to county board and
  superintendent
• Board and superintendent must report support
  and/or concerns in 60 days
• Reports go to principal, faculty senate, LSIC

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(Approving Innovation Plans)

• Step Three Approval by both the State
  Superintendent and State Board
• Approve or disapprove
• If both approve, requested exemptions from county
  and state rules, policies, and interpretations
  take effect (but not exemptions from state
  statutes)
• Any disapproval requires statement of reasons.
  Plan may be revised and resubmitted, but only
  after another 80 election by affected employees
  and another submission to, and report by, the
  county superintendent and board

29
(Approving Innovation Plans)

• Step Four If the plan requests exemption from
  any West Virginia statute, the exemption must be
  approved by Act of the Legislature
• First the plan must be submitted to LOCEA
• LOCEA makes a recommendation to the Legislature

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Additional Provisions

• Employee Transfers
• Every reasonable effort must be made to grant a
  transfer request by a regular employee at a
  school that is proposed or approved as an
  innovation zone and whose duties may be
  affected by a proposed or approved innovation
  plan
• State Board reports
• Annually review progress of the development or
  implementation of each plan
• A zone that hasnt made adequate progress in
  developing or implementing its plan is reviewed
  again in six months
• State Board may then revoke zone designation or
  plan approval
• Annually reports to LOCEA on all innovation zones

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(Additional Provisions)

• Higher Education Institutions
• May establish innovation zone schools
• State Board to establish process
• Students attending the school
• will be enrolled in a public school in county of
  residence
• May participate at the public school in
  extracurricular and co-curricular activities
• Higher Education institutions school may not be
  funded with state or county moneys resulting from
  state aid formula

32
House Bill 3083Blood Donations by 16-Year-Olds
with Parental Consent(In Effect June 24,
2009)Handout, page 14
33
Safe Schools
34
House Bill 2952Terroristic Threats (In Effect
July 7, 2009)Handout, page 14
35
Personnel
36
Senate Bill 1006Hiring, Terminating,
Transferring, and Reassigning Teachers and School
Personnel(In Effect July 1, 2009)Handout, page
6
37
Deadline Classroom Teachers Early Notice of
Year-End Retirement, Qualifying for 500 Bonus

• Old Law
• Must give notice to the county board on or before
  February 1
• No guidance on posting position or retracting the
  year-end retirement

• New Law
• Must give notice to the county board on or before
  December 1
• Board may post vacancy for next year once notice
  is given
• For unforeseen financial hardship, may keep job
  if forfeit 500 bonus

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Deadline For Any Employee to Exercise Right to
Retire at Years End, Regardless of Boards Wishes

• Old Law
• Must deliver written resignation on or before the
  first Monday in April

• New Law
• Must deliver written resignation on or before
  February 1

39
Deadline Boards Vote to Terminate Employees
Continuing Contract at Year-End for Lack of Need

• Old Law
• Must vote on or before the first Monday in April
• Note Prior to the vote, employees must be given
  advance written notice and the opportunity for a
  hearing

• New Law
• Must vote on or before February 1
• Note Prior to the vote, employees must be given
  advance written notice and the opportunity for a
  hearing

40
Deadline Superintendents Notification of
Employees Who Are Being Considered for Transfer
for the Next Year

• New Law
• On or before February 1

• Old Law
• On or before the first Monday in April

41
Deadline Boards Receipt and Approval of
Superintendents List of Employees to Be
Considered for Transfer for the Ensuing Year

• New Law
• On or before March 15

• Old Law
• On or before the first Monday in May

42
Deadline Boards Acceptance of Superintendents
List of Probationary Employees to Be Awarded
Another Contract

• New Law
• On or before March 15

• Old Law
• On or before the first Monday in May

43
The New Deadlines

• Early notice retirement
• Year end resignation
• Vote RIF terminations
• Advance Notice Transfer
• Vote Transfer list
• Vote Probationary list

• December 1
• February 1
• February 1
• February 1
• March 15
• March 15

44
Additional Provisions

• Teacher contracts may be signed conditioned upon
  the issuance of a teaching certificate prior to
  the start of the employment term, if necessary to
  facilitate employment of
• employable professional personnel, and
• recent graduates of teacher education programs
• who have not yet attained certification

45
House Bill 2566Malicious Assault and Battery(In
Effect July 10, 2009)Handout, page 11
46

• Makes it
• a felony to maliciously or unlawfully assault,
• a misdemeanor or felony (second offense) to
  batter, and
• a misdemeanor to assault,
• certain persons known by the perpetrator to be
  acting in an official capacity

47

• Current Law
• Protects
• police officers
• probation officers
• conservation officers
• humane officers
• EMS personnel
• health care workers
• protective service workers
• firefighters
• State Fire Marshall or employees
• Division of Forestry employees
• county correctional employees
• urban mass transportation system employees
• court security personnel, or
• PSC motor carrier inspectors or enforcement
  officers

• New Law
• Protects
• any officer or employee of the state or a
  political subdivision
• a person under contract with a state agency or
  political subdivision
• health care workers employed by or under contract
  to a hospital, county or district health
  department, long-term care facility, physicians
  office, clinic, or outpatient treatment facility

48
House Bill 3146Seniority Rights for Service
Personnel(In Effect July 10, 2009)Handout,
page 14
49
Current Law Consider Applicants for Posted
Service Vacancies in This Order

• Regular service personnel
• currently employed in the classification category
  of the vacancy
• currently employed in another classification
  category
• Service personnel whose employment has been
  discontinued in a RIF
• Professionals who held temporary service jobs
  before 7/29/72 apply for such positions
• Substitute service personnel
• New service personnel

50
New Law Consider Qualified Applicants in This
Order

• Regular personnel holding a title in the
  classification
• Personnel whose employment has been
  RIF-discontinued who have held a title in the
  classification
• Regular personnel who do not hold a title in the
  classification
• Personnel whose employment has been
  RIF-discontinued who have not held a title in the
  classification
• Substitutes who hold a title in the
  classification
• Substitutes who do not hold a title in the
  classification
• New service personnel

51
New Law, Old Law, Side by Side

• Regular personnel holding a title in the
  classification
• Personnel whose employment has been
  RIF-discontinued who have held a title in the
  classification
• Regular personnel who do not hold a title in the
  classification
• Personnel whose employment has been
  RIF-discontinued who have not held a title in the
  classification
• Substitutes who hold a title in the
  classification
• Substitutes who do not hold a title in the
  classification
• New service personnel

• Regular service personnel
• currently employed in the classification category
  of the vacancy
• currently employed in another classification
  category
• Service personnel whose employment has been
  discontinued in a RIF
• Professionals who held temporary service jobs
  before 7/29/72 apply for such positions
• Substitute service personnel
• New service personnel

52
New Seniority Right Aides

• The assignment of an aide to a particular
  position within a school is based on seniority
  within the aide classification category if the
  aide is qualified for the position
• Does the aide have a choice?
• Does this refer to the initial assignment? Might
  the assignments change from year to year, or
  during a year, as different aides enter and leave
  the school?
• Does the new right affect the aide stay put
  rules?
• Does it affect itinerant or countywide aides when
  assigned to particular schools?
• Is a transportation aide assigned within a
  school?
• When a substitute is assigned for an absent aide,
  do the assignments change based upon the
  substitutes seniority?

53
New Seniority Right Custodians

• Assignment of a custodian to work shifts in a
  school or work site is based on seniority within
  the custodian classification category
• Does the custodian have a choice?
• Does this refer to the initial assignment? Might
  the assignments change from year to year, or
  during a year, as different custodians enter and
  leave the school?
• Can a more senior Custodian I, II, or III take
  the Head Custodians shift, relegating the Head
  Custodian to a shift where he or she is
  ineffective as Head Custodian?
• What about multiclassified bus operator/custodians
  ? Could the new seniority right complicate those
  multi-classifications or make the holders into
  split shift workers?
• When a substitute is assigned for an absent
  custodian, do the assignments change based upon
  the substitutes seniority?

54
Finance
55
Senate Bill 243 General Obligation Bonds(In
Effect July 9, 2009)Handout, page 1
56
House Bill 2530Public School Support(In Effect
July 1, 2009)Handout, page 10
57
Business
58
Senate Bill 464PEIA Fee for Paper
Transactions(In Effect July 9, 2009)Handout,
page 3
59
Senate Bill 492PEIA Retirement Requirements(In
Effect July 10, 2009)Handout, page 4
60
Senate Bill 481Providing Documentation to
PEIA(In Effect July 10, 2009)Handout, page 3
61
House Bill 3313Depositories May Provide Letters
of Credit(In Effect July 9, 2009)Handout, page
17
62
Senate Bill 537Workers Compensation(In Effect
July 10, 2009)Handout, page 5
63
Public Officials
64
Senate Bill 258Local Fiscal Bodies Not Liable
for Certain Deficits(In Effect April 11,
2009)Handout, page 2
65
House Bill 2869Post-Election Financial
Statements(In Effect July 10, 2009)Handout,
page 13
66
House Bill 3208Appointing County
Superintendents County Board Member Training(In
Effect July 9, 2009)Handout, page 15
67
Retirement
68
House Bill 2703State Teachers Retirement
System(In Effect July 6, 2009)Handout, page 12
69
House Bill 2734Minimum Guarantees to Transferees
from Defined Contribution System(In Effect July
7, 2009)Handout, page 13
70
House Bill 2870Extending Buyback Deadline to the
State Teachers Retirement System(In Effect April
11, 2009)Handout, page 13
71
Some U.S. Supreme Court Decisions of Particular
Interest to Public School Administrators

• From our nations highest court
• Handout, page 18

72
4. Forest Grove School District v. T.A.Handout,
page 19

• IDEA authorizes reimbursing parents for private
  special education services when the public
  schools fail to provide FAPE, and the private
  placement is appropriate
• This is the case even if the child never received
  special education services from the school
  district

73
5. Safford Unified School District 1 v.
ReddingHandout, page 19

• School searches must be reasonably related to
  their objectives and not excessively intrusive
  given the age and sex of the student and the
  nature of the infraction
• A strip search is categorically distinct

74
Note The Strip Search Rule in West Virginia

• State of West Virginia ex rel Cathy Galford v.
  Mark Anthony B. (W. Va. Supreme Court, 1993)
• Two-stage inquiry
• Was the search justified in its inception?
• Was it conducted in a manner reasonably related
  in scope to the circumstances justifying the
  search?

75

• Was the search justified in its inception?
• Yes, if there are reasonable grounds for
  suspecting that the search will turn up evidence
  that the student has violated or is violating
  either the law or the rules of the school
• Totality of the circumstances
• Was the search justified in its scope?
• Yes, if the measures adopted were reasonably
  related to the objectives of the search and not
  excessively intrusive in light of the age and sex
  of the student and the nature of the infraction
• Totality of the circumstances
• A search justified by reasonable suspicion for
  one item may give rise to reasonable suspicion
  for another item

76
Some W. Va. Supreme Court Decisions of Particular
Interest to Public School Administrators

• From our states highest court
• Handout, page 20

77
1. Mayo v. West Virginia SSAC

• WVSSAC is not a state agency
• Its rules are not unconstitutional for failing to
  allow administrative review before a multi-game
  suspension is imposed for a rule violation

78
3. In Re Charleston Gazette FOIA Request

• Construe FOIA liberally in favor of disclosure
  construe the exemptions narrowly
• 5-factor test of whether a disclosure of personal
  information would be an unreasonable invasion of
  privacy

79
4. Alderman v. Pocahontas County Board of
Education

• There are restrictions on a public employees
  right to free speech
• To be protected, the employees speech must meet
  three standards
• The employee has the burden to show his or speech
  is protected

80
Some Grievance Board Opinions of Particular
Interest to Public School Administrators

• Before personnel issues land in the courts, they
  must often first visit the Grievance Board
• Handout, page 22

81

• 1. Painter v. Kanawha - immorality mitigation
• 2. Ketz v. Raleigh - grievance abandonment
• 3. Posey v. Lewis - incompetency
• 4. Ribas v. Monongalia - preschool sp. needs
• 5. Howell v. Mercer posting details
• 6. Long v. Mason disciplinary burden of proof
• 7. Wimmer v. Braxton credibility of witnesses
• 8. Barber v. Mercer standing to grieve
• 9. Jamison v. Monongalia precedent travel

82

• 10. Jamison v. Monongalia summer subs
• 11. Nolan v. Wood back pay extended year
• 12. Scarbrough v. Fayette summer seniority
• 13. Bailey v. McDowell supts intervention
• 14. Mullins v. Kanawha no service subs
• 15. Smith v. Mingo first set of 7 factors
• 16. Byrd v. Kanawha lesson plans
• 17. Murphy v. Pleasants timeliness certificate
• 18. Shute v. Brooke no math boards role

83

• 19. Martin v. Barbour annual coach contracts
• 20. Liptrap v. Putnam alternate procedures
• 21. Scyoc v. Monongalia grievance trigger
• 22. Mullins v. McDowell intervenors errors
• 23. Barlow v. Mercer discrimination motive
• 24. Williams v. South Branch filing at level I
• 25. Browning v. Logan deadline waivers
• 26. Fulmer v. Kanawha tandem proceedings
• 27. Geho v. Marshall conduct code priors

84

• 28. Sanders v. Lincoln - error fix new claims
• 29. Waggoner v. Cabell - correctable
• 30. Bowles v. Putnam - step-up domino
• 31. Toney v. Lincoln - fixing errors relegation
• 32. Goodson v. Fayette - extra duty runs
• 33. Toney v. Lincoln - elements of reprisal
• 34. Graham v. Wood - extracurricular recall
• 35. Bailey v. McDowell - ignorance trust
• 36. Mascaro v. Marion - subs as grievants

85

• 37. Henry v. McDowell - math state intervention
• 38. Swick v. South Branch - level I filing
  default
• 39. Straight v. Kanawha - errors dont bind
• 40. Boothe v. Jackson - question abstraction
• 41. Lynch v. Raleigh - uniformity classification
• 42. Summers v. Logan - penal enhancement
• 43. Romano v. Marion - imp. plan ? evaluatn
• 44. White v. Monongalia - summer extra duty
• 45. Gunnoe v. Raleigh - uniformity retirees

86

• 46. Farmer v. Logan - 504 insubordination
• 47. Hudok v. Randolph - reprisal/retaliation
• 48. Morris v. Raleigh - expanding definitions
• 49. Fuccy v. Hancock - competency testing
• 50. Sisler v. Pocahontas - itinerant waiver
• 51. Yeager v. Kanawha - temporary service sub
• 52. Browning v. Logan - default consequences
• 53. Cook v. Logan - abandoned claims
• 54. Legg-Hendrickson v. Fayette - picket line

87

• 55. James v. Putnam - emergency subs
• 56. Hoover v. Wirt - insubordination mitigation
• 57. Vanguilder v. Marion - job bid format
• 58. Daniel v. Fayette - waivers not implied
• 59. Nelson v. Boone - competency testing
• 60. Carder v. McDowell - voluntary resignation
• 61. Jenkins v. Jefferson - nonrenewal discretion
• 62. Rodriques v. Grant - force factors
• 63. Komorowski v. Marshall - retired moot

88

• 64. Filberto v. Hancock - preferred
  qualifications
• 65. Carter v. Nicholas - principal silence
• 66. Darby v. Kanawha - credibility/burden of
  proof
• 67. Vance v. Jefferson - contract modification
• 68. Marsicano v. Marion - no longer preferred
• 69. Kowalsky v. Monroe - back pay limit
• 70. Bailey v. McDowell - asst. supt. licensure
• 71. Nelson v. Lincoln - state intervention
  bumps
• 72. Ranson v. Kanawha - alien sub no standing

89

• 73. Blackburn v. Brooke - labels charges
• 74. English v. Logan - race discrimination
• 75. Farr v. Wood - aide/paraprofessional RIFs

90
Some State Superintendent Interpretations of
Particular Interest to Public School
Administrators

• When issued, they are often the only published
  advice on issues of school law
• Handout, page 37

91
2. Weighted Grades Changing grading policies
after student registration and/or the beginning
of classes is unfair and may be an abuse of
discretion absent a non-arbitrary or compelling
reason
92
Annual LSIC Report to Countywide Council County
boards are to be the Countywide Councils on
Productive and Safe Schools that receive LSICs
annual reports on productive and safe
schoolsLSICs should never review individual
student disciplinary data
93
(No Transcript)
94
2009-10 Red Flag Legal Issues for School
Administrators

• Not always recognized as they develop
• Costly in terms of time, resources, and leadership

95
1. Proper responses to allegations of employee
misconduct

• Reports to law enforcement
• Reports to Child Protective Services
• Report abuse! W. Va. Code 49-6A-2 (48 hours
  principals duty)
• Reports to State Police and State Superintendent
• Report deadly weapons! W. Va. Code 61-7-11a
  (72 hours principals duty)
• Scrupulously following county policy in taking
  complaints, investigating and acting
• Interview procedures, especially involving
  students

96
2. Searches of students and their possessions

• What is a search?
• Police action that intrudes upon and invades an
  individuals justifiable expectation of privacy
• Includes people, not just places
• Purses, pockets, backpacks, clothing, books, gym
  bags
• Lockers and cars
• Urine, blood, breath

97
3. Disciplining students with disabilities

• State statute v. reauthorized IDEA and State
  Policy 2419
• Who is entitled to special procedures?
• Necessary elements of any manifestation
  determination
• Consequences

98
4. Workforce realignments, including aides and
custodians

• House Bill 3146 (handout, page 14)
• Farr v. Wood County Board of Education (handout,
  page 36)
• RIF-related terminations, non-renewals, and
  transfers
• Other terminations, non-renewals, and transfers
• Administrative reassignments
• Mutual agreements

99
5. Unauthorized expenditures

• West Virginia Code 11-9-25 et seq.
• Accounting Procedures Manual
• Civil and possible criminal consequences
• Unauthorized manner
• Unauthorized purpose
• In excess of available funds for current year
• Be sure you have authority

100
6. Releasing Student Records

• FERPA State Policy
• Education records
• Personally identifiable information
• Right to review and contest
• Limited disclosure exceptions

101
7. Evaluations and Improvement Plans

• State Board Policy 5310 (professional employees)
  local policy (service personnel)
• Beginning of year explanation
• All time lines (conferences, due dates)
• Improvement plans, teams, periods, and performance

102
8. Bullying and sexual harassment

• Scrupulous adherence to the requirements of
  county policy
• No screening of complaints unless expressly
  authorized by county policy
• No insistence on written complaints
• Cannot turn a blind eye

103
9. Filling professional vacancies

• All openings must be posted
• There is no legal basis for preferring
• regular employees over substitutes
• in-county applicants over out-of-county
• If the process is unfair in a way that might have
  made a difference, the hiring decision may be
  reversed on that basis alone
• misapplication of the qualification criteria
• relatives on the interview team
• abuse of teacher applicant interviews
• pre-selection and pre-judgment
• reprisal

104
10. Off-Campus Student Behavior

• Technology abuse
• Physical altercations
• Arrests, juvenile offenses, criminal convictions
• Lifestyle choices
• Relationships
• Did off-campus, out-of-school misconduct have a
  sufficient nexus with the school, and cause
  such a foreseeable disruption at school, that
  discipline is warranted for conduct that, if
  committed in-school or at a school-sponsored
  activity, would violate school rules?

105
Thank you for taking time to update your
understanding of the school laws

• And thank you for all you do to improve student
  achievement in West Virginias schools