Interpretation's Date: January 24, 2001
by superintendent David Stewart
Section: V. Personnel
SubSection: A. Professional Personnel



January 24, 2001

Sandy Hedrick
Superintendent's Secretary / Certification Coordinator Grant County Board of Education
204 Jefferson Avenue
Petersburg, WV 26847

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?
No. There is no statute, rule, or regulation requiring a county to employ a non-certified applicant to fill a vacancy, even if the county interviews the applicant. West Virginia Code 18A-4-7a states, in pertinent part, that ". . . [i]f one or more applicants meets the qualifications listed in the job posting, the successful applicant shall be selected by the board within thirty working days of the end of the posting period . . ." The statute does not mandate that an unqualified applicant be chosen to fill a vacancy simply because he or she has interviewed for the position.

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
January 24, 2001
Page 2

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, section 9.9).

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).
In determining how to fill the position in question with a substitute, you should apply the above guidelines to your specific expectations and knowledge of circumstances regarding the hiring of a teacher to fill your vacancy. Do keep in mind, however, that even if a long term substitute is hired, you should continue to seek a qualified full time employee to step in and fill the vacancy at a time that you deem to be in the best interest of the students.

Ms. Sandy Hedrick
January 24, 2001
Page 3

Hoping that I have been of service, I am



David Stewart
State Superintendent of Schools




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