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. Recently our Education Law Practice Group handled an employee grievance for a county board of education in which many of these same issues were addressed and reaffirmed by the West Virginia Public Employees Grievance Board.
For example, let’s say Employee “A” was a regularly employed aide for the 2011-12 school year, but her employment was terminated for the 2012-13 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 2012-13 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 2012-13 school year on the preferred recall list. An aide position was posted for John Smith Middle School in August of 2012. “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 2013-2014 school year. Although the John Smith Middle School aide position had been posted and an applicant selected, the position would remain unfilled for the 2012-2013 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.
Keep in mind that the only conditions which would require posting of a substitute position, pursuant to W. Va. Code § 18A-4-15, are when a requested leave of absence or suspension extends beyond 30 days. Since the actual vacancy had already been posted and filled, pursuant to W. Va. § 18A-4-8b, and no leave of absence or suspension was involved, there was no requirement to post. In fact, posting under these circumstances would be contrary to law.
The Grievance Board has repeatedly held that a school board has no discretion when the requirement to assign a substitute is triggered under § 18A-4-15. The statute “requires a county board of education to employ substitute school service personnel to temporarily fill vacancies in newly created positions prior to employment of a school service employee in such position on a regular basis in accordance with W. Va. Code § 18A-4-8b. See Hall v. Mingo County Bd. of Educ., Docket No. 97-29-420 (Jan. 21, 1998); Byers v. Marion County Bd. of Educ., Docket No. 94-24- 388 (Dec. 29, 1995).” Owens v. Lincoln County Bd. of Educ., Docket No. 97-22-121 (Feb. 11, 1998) (Emphasis added). “[§ 18A-4-15] requires that substitutes be called to fill ‘true vacancies,’ whether those vacancies result from the resignation, transfer, retirement, permanent disability, or death of a regular employee, or the creation of an entirely new position.” Hall, supra.
This exact issue has been addressed by the Grievance Board, and it is clear that preferred recall status employees have no right to usurp the rights of substitutes. In Byers v. Marion County Bd. of Educ., Docket No. 94-24-388 (Dec. 29, 1995), the board of education provided when a position was anticipated to extend beyond five days, whether due to a vacancy or leave, priority was given to preferred recall employees, over substitutes, in performing these assignments. The following language from Byers is applicable to the instant situation:
Clearly, MCBE's policy and practice of taking preferred recall aides, or any other similar service employees, "out of rotation" on the substitute list and giving them all of the substitute jobs of five or more days' duration is violative of Code §18A-4-15. Moreover, nothing in Code §18A-4-8b gives employees on the preferred recall list preference rights over substitute employees for temporary, substitute assignments of five days or longer.
The administrative law judge went on to determine that, only when positions are posted and filled pursuant to § 18A-4-8b “would regular service employees and those on preferred recall have priority over substitute service employees for the jobs.” Byers, supra.
The Byers ruling was affirmed in Hall, supra, a case in which preferred recall employees were given preference in filling vacancies until they were posted and filled, rather than calling substitutes in rotation. Again, the Grievance Board recognized that, until positions are filled on a permanent basis, the county “shall employ substitute service personnel to perform these duties.” Id. (Emphasis in original). The decision also noted that it is posted vacant positions that represent the “job openings” to which preferred recall employee are entitled over all others except current regular employees.
Most recently the Grievance Board addressed this issue in Swaim v. Morgan County Bd. of Educ., Docket No. 2012-0263-MorED (Sept. 20, 2012), and clearly held that “As an employee on preferred recall, Grievant could not be placed in a substitute position ahead of employees on the substitute list.”