An issue that arises every summer for counties relates to summer employment and summer seniority for service personnel. W. Va. Code § 18-5-39(f) addresses the establishment of summer school programs.

In particular, W. Va. Code § 18-5-39(f), states in pertinent part that: Notwithstanding any other provision of the code to the contrary, the county board may employ school service personnel to perform any related duties outside the regular school term as defined in section eight, article four, chapter eighteen-a of this code. An employee who was employed in any service personnel job or position during the previous summer shall have the option of retaining the job or position if the job or position exists during any succeeding summer. . . .

So, the question is, how is a board of education to apply § 18-5-39? What follows are some common questions and answers that our Education Practice Group receives each summer.

Question: The board of education has a new summer cook position that is posted for the summer of 2009 and 2 applicants apply for the position. Applicant "A" has 25 years of regular cook seniority but has never worked in the summer. Applicant "B" has 3 years of regular cook seniority but has 1 year of summer seniority. Who gets the new position, "A" or "B"?

Answer: Applicant "B" is to be awarded the position. A board of education must fill the position based upon overall summer seniority. See e.g., Pricket v. Monongalia County Board of Education, Docket No. 03-30-227 (Dec. 22, 2003). A board of education should have a summer seniority list (and of course, as we all know, a regular seniority list).

Question: The board of education posts new summer aide position for the summer of 2009. Applicant "A" has been a summer aide for 3 consecutive years (2006, 2007 and 2008). Applicant "B" was a summer aide in 1997, 1999, 2002 and 2003. Who gets the new position, "A" or "B"?

Answer: Applicant "B" is to be awarded the position. Again, the board of education must fill the position based upon overall summer seniority, and whether summer seniority is obtained in consecutive years has no bearing. See e.g., Sizemore v. Brooke County Board of Education, Docket No. 03-05-253 (March 23, 2004). However, applicant "A" is still entitled to the aide position that she held in the prior year. See e.g., Lilly v. Fayette County Bd. of Education, Docket No. 96-10-481 (Sept. 15, 1997). Established summer positions are to be filled through competitive posting in accordance with W. Va. Code § 18A-4-8b only if the employee who held the position during the preceding summer is "unavailable."

Question: The board of education needs to reduce a summer position. There are 2 summer employees in the classification that is the subject of reduction. Employee "A" has 8 years of summer seniority in the classification (not consecutive years), employee "B" has 7 years of summer seniority in the classification (consecutive years). Who is subject to downsize, "A" or "B"?

Answer: Employee "B" would be subject to the downsize. W. Va. Code §18-5-39(f) provides than when a board of education reduces the number of employees to be employed in a particular summer program or classification from the number employed in that position in previous summers, the reductions in force and priority in reemployment to that summer position shall be based upon the length of service time in the particular summer program or classification. Reductions in force and priority in reemployment to that summer position shall be based upon the length of service time in the particular summer program or classification. See e.g., Sizemore v. Brooke County Board of Education, Docket No. 03-05-253 (March 23, 2004). Again, whether summer seniority is obtained in consecutive years has no bearing.

Question: The board of education needs to reduce a summer position. There are 2 summer employees in the classification and both positions existed only for the summer of 2008. Employee "A" has 2 years of summer seniority in the classification and employee "B" has 4 years of summer seniority in the classification. Both of the employees had contracts for the summer of 2008 that provided that the contracts were effective 6/17/08 to 8/16/08. Does the board of education have to provide Employee "A" with the reduction in force process?

Answer: No. Because the employment contract of "A" terminated his/her employment at the end of the Summer 2008 period, it is not necessary to eliminate his/her 2009 summer employment through the reduction in force process. However, if there is a need in the summer of 2010 (or beyond) for the same eliminated position that "A" held, s/he is entitled to the position s/he held in the summer of 2008. See e.g., Wolfe v. Monongalia County Board of Education, Docket No. 03-30-133 (Sept. 16, 2003).