September 30, 2004

Ruth Caplinger
Director of Vocation Education
Mason County Schools
1200 Main Street
Point Pleasant, WV 25550

Dear Ms. Caplinger:

I am in receipt of your request for an opinion regarding the payment of Adult Night School instructors. Specifically, you ask whether Mason County teachers who obtain positions with the Adult Night School Program are required to be paid their regular daily rate, or if it is permissible for the county to set an alternate hourly rate of pay for the positions.

To begin, we must understand that teaching positions at the Adult Night School Program are extracurricular positions. The night school program involves the instructing of students and occurs at times other than the regularly scheduled working hours for teachers. West Virginia Code ?18-4-16, states, in pertinent part:

?(1) . . . Extracurricular duties shall mean, but not be limited to, any activities that occur at times other than regularly scheduled working hours, which include the instructing, coaching, chaperoning, escorting, providing support services or caring for the needs of students, and which occur on a regularly scheduled basis . . .?

Further, West Virginia Code ?18A-4-16 provides that:

?(1) The assignment of teachers and service personnel to extracurricular assignments shall be made only by mutual agreement of the employee and the superintendent, or designated representative, subject to board approval . . .

(3) The terms and conditions of the agreement between the employee and the board shall be in writing and signed by both parties.

(4) An employee's contract of employment shall be separate from the extracurricular assignment agreement . . .?

Thus, it is clear that there is no requirement that a board of education pay teachers their regular hourly rate for services performed pursuant to an extracurricular contract. It is permissible for the county to set an alternate hourly rate of pay. The rate of pay for an extracurricular contract must, however, be set forth in a written agreement signed by both parties to the agreement.

Hoping that I have been of service, I am
Sincerely,

/s/

David Stewart
State Superintendent of Schools