Fayette to update reduction of force policy before school closures

By Sarah Plummer Register-Herald Reporter

FAYETTEVILLE — Prior to reductions in force associated with upcoming school closures, Fayette County Schools must update its policy outlining how professional staff in eliminated positions can use seniority to bump other employees.

At a Tuesday work session, Rebecca Tinder, an attorney with Bowles Rice’s educational law team, explained that Fayette County’s current Policy B-4, “Lateral Reduction in Force,” is not up-to-date according to state code, West Virginia Department of Education policies and Supreme Court interpretations.

The county policy has not been updated since 2007, and typically all county policies should be reviewed biannually as they are impacted by the Legislature and Supreme Court interpretations, said Fayette Superintendent Terry George.
Tinder explained that state code allows the Fayette County Board of Education to set up tiers and denote which job positions they deem equal to each other, although state code requires lateral jobs be equal in terms of pay, responsibilities and number of days in contract.

Some Supreme Court rulings have also generated interpretations for some positions. For example, the highest court has made a distinction between principal and assistant principal, meaning they are not lateral, equal positions. There is also a distinction between high school and elementary principals.

According to the state guidelines, if a high school principal loses their job, they have the opportunity to take the job of the least senior high school principal, if they have more seniority than the person holding that position.

Under Fayette’s outdated policy, if the high school principal does not have more seniority than the least senior high school principal, they can move down through the lateral tiers and bump an elementary principal or assistant principal.

Tinder says that does not fall in line with state code and policy. Instead, employees can only bump the least senior person among all the positions they themselves have held in Fayette County.

For example, if the high school principal has been a teacher and assistant principal, they would take the position of the person with the least seniority, be it a position as a teacher, assistant principal or high school principal — as long as they retain required certifications.

Tinder said employees are not given an option of positions. They can only be offered the position of the person with least seniority.

If a high school principal has never worked in another position in Fayette and has less seniority than the least senior high school principal, they do not have an option to bump another employee.

They could still apply for any open position in the county, she said.

Board member Patsy Holliday asked why an employee must bump the least senior job across all of their previously held positions instead of considering each tier one at a time.

“I don’t disagree with you that that would be a good plan,” said Tinder, “but it is not the plan the Legislature put in place.”

Holliday stressed that in Tinder’s scenario, and if Fayette County organizes its lateral tiers as suggested by court interpretations and state policy, a high school principal could end up working as a teacher under an elementary school principal with less seniority.

“I think this is very unjust to our teachers and our principals, and I’ll never go along with it,” said Holliday.
Board vice president Pat Gray said a proposed replacement policy considered at an earlier meeting “fell far short of the language needed to explain some of this.”

Board member Darrin McGuffin asked, if the county’s policy is not revised, would the board expect to see a large number of grievances?

“Anybody impacted in a negative way by the application of whatever policy will likely file a grievance,” said Tinder. “Then the language of the policy will be called into question if it is not in accord with the state statute and cases I have cited today.

“You can rely on the language being lawful and appropriate. Even if it is not fair, we can prevail because we are following the law,” said Tinder.

She said level three grievances can cost between $50,000 to $100,000 in attorney fees.

Furthermore, if the board makes choices that force the county to operate with more than a casual deficit, board members could be held personally liable.

Board member Steve Slockett asked what would happen if an employee filed a grievance and won.

Tinder said the employee would get their old job back, even if they are the principal of a school that has been closed. The county could end up paying professional staff for a school that is closed, she said.

— Email: splummer@register-herald.com; follow on Twitter @Sarah_E_Plummer