December 22, 2004
David L. Roach, Superintendent
Cabell County Schools
P.O. Box 446
Huntington, WV 25709
Dear Superintendent Roach:
I am in receipt of your request for an opinion regarding the hiring of retired teachers as
substitutes in areas of critical need and shortage. Specifically, you ask:
Under W. Va. Code ? 18A-2-3(c), may a county board of education lawfully
designate ?administration? as an area of critical need and shortage in which
retired teachers may be used as substitutes without affecting their monthly
You explain that your board has difficulty finding qualified substitutes to fill the temporary absences of administrators such as principals.
West Virginia Code ? 18A-2-3 states, in paragraph (c):
(1) The Legislature hereby finds and declares that due to a shortage of qualified
substitute teachers, a compelling state interest exists in expanding the use of
retired teachers to provide service as substitute teachers. The Legislature further
finds that diverse circumstances exist among the counties for the expanded use
of retired teachers as substitutes.
(2) A person receiving retirement benefits under the provisions of article seven-a
of this chapter or who is entitled to retirement benefits during the fiscal year in
which that person retired may accept employment as a substitute teacher for an
unlimited number of days each fiscal year without affecting the monthly
retirement benefit to which the retirant is otherwise entitled if the following
conditions are satisfied:
(A) The county board adopts a policy recommended by the
superintendent to address areas of critical need and shortage;
(B) The policy provides for the employment of retired teachers as
substitute teachers during the school year on an expanded basis as provided in
this subsection . . .
(D) The state board approves the policy and the use of retired teachers as
substitute teachers on an expanded basis as provided in this subsection . . .
The answer to your question hinges on the definition of the word ?teacher? as used in
Code ? 18A-2-3.
The West Virginia Code and West Virginia Board of Education policies often use the
term ?teacher? to refer to any licensed professional educator working in the public schools. (See, e.g., Policy 1340, Rules of Procedure for Administrative Hearings and Appeals, section 4.1.2). West Virginia Code ? 18A-1-1, which contains definitions pertaining to the whole of Chapter 18A, states that ? ?[p]rofessional educator? has the same meaning as ?teacher? as defined in section one, article one, chapter eighteen of this code.? Code ? 18-1-1 defines the term ?teacher? to mean ?teacher, supervisor, principal, superintendent or public school librarian; registered professional nurse, licensed by the West Virginia board of examiners for registered professional nurses and employed by a county board of education, who has a baccalaureate degree; or any other person regularly employed for instructional purposes in a public school in
this state . . .? When referring only to those professional educators who have a direct
instructional or counseling relationship with pupils, the West Virginia Code uses the term ?classroom teacher.? (See, e.g., Code ?? 18A-1-1(c)(1), 18A-2-2(f) and (g), 18A-3-8, 18A-4-2(b), 18A-4-2a, etc.) In fact Code ? 18A-2-3 itself refers specifically to ?classroom teachers? in paragraph b.
Considering these definitions of the word ?teacher? as found in West Virginia law and
in State Board of Education policy, I find that it is appropriate to designate ?administration? as an area of critical need and shortage pursuant to the terms of West Virginia Code ? 18A-2-3. However, it is important to remember that Code ?18A-2-3 does permit retired teachers to be employed as a substitutes in areas of critical need and shortage only when no other teacher who holds certification and training in the area and who is not retired is available and accepts the substitute assignment, and requires that the county board continue to post a vacant position until it is filled with a regularly employed teacher when a retired teacher has been used to fill the vacant position.
Hoping that I have been of service, I am
State Superintendent of Schools