Interpretation's Date: January 24, 2001
by superintendent David Stewart
Section: V. Personnel
SubSection: A. Professional Personnel
January 24, 2001
Dear Ms. Hedrick:
On January 16, 2001, you contacted our legal services department seeking information regarding an open special education position in your county. You indicated that the application deadline for the position was posted as "until filled by certified applicant." You further indicated that, to date, only two non-certified individuals had applied for the position. Based on this situation, you asked the following questions:
1. If we decide to interview the non-certified applicants, will we ultimately have
to hire one of them to fill the vacancy?
However, if the candidates applying for your vacancy are interested in obtaining certification in the area of the posting and no other qualified applicant applies for the job, the most qualified of the two applicants can be awarded the position. Pursuant to State Board of Education Policy 5202, the successful applicant will be required to seek an out of area permit (information on license application). The employee will then be required to complete six hours per year toward certification in the permit area. If this requirement is met, the out of area permit can be renewed each year for a period of five years. If the employee has not obtained the necessary certificate at the end of the five year period, the employee will not be issued
Ms. Sandy Hedrick
another out of area permit and the position must be posted as a vacancy. (See West Virginia Code 18A-4-7a.
2. How long can the position be posted?
West Virginia Code 18A-4-7a provides that vacancies shall be posted for
a minimum of five days. There is no restriction on posting a vacancy until a
qualified individual applies.
3. How should we fill the vacant position during the posting period?
The county superintendent is granted the authority to hire substitute teachers
to fill vacant positions pursuant to West Virginia Code 18A-2-3. According
to State Board of Education Policy 5202, section 9.10, a short term substitute
(who fills a position for thirty days or less may be employed in a
specialization area not reflected on his or her license. A substitute who fills
a position for more than thirty days (long-term), is required to hold a license
with an endorsement appropriate for the assignment. A county
superintendent who is unable to staff a long-term substitute position with a
qualified educator shall seek approval from the local board of education to
request a waiver from the state superintendent of schools. The written
waiver must indicate the efforts that were made to employ a fully qualified
candidate. However, the county superintendent must continue to seek the
services of a qualified educator and place that individual in the position at a
time determined to be in the best interest of the students. (See Policy 5202,
Further, the West Virginia Supreme Court of Appeals has held that when a
board of education receives information that leads it to know, or reasonably
expect, that a teacher's absence will prospectively extend for twenty
consecutive employment days, or more, there is an opening within the
meaning of 18A-4-7a. Thus, the board is then required to notify all
qualified personnel on the preferred recall list that such an opening exists.
(See Serdich v. Preston County Bd. Of Educ., 488 S.E.2d 34 (W. Va. 1997).
Ms. Sandy Hedrick
Hoping that I have been of service, I am