February 16, 1991

Mr. Nick P. Zervos
Superintendent
Marshall County Schools
Post Office Box 578
Moundsville, West Virginia 26041-0578

Dear Mr. Zervos:

1. You have written that from my answer1 to your question, "Do we continue the practice of including substitute teaching days worked equal to or in excess of 133 days when calculating seniority for full-time teachers," you infer that once a substitute teacher has worked 133 days in some school year, all days worked as a substitute thereafter (no matter how many or how few in a single year) are accumulated and prorated in the calculation of seniority. i.e. If a substitute worked 133 days one year and 10 days the next year, the 10 days would be prorated as a portion of the school year and used in the total calculation of seniority.

This inference is correct for substitute teachers who did not begin work until the present 1990-91 school year; and it is correct, too, for substitute teachers who began work earlier than that yet never had worked a semester (or its equivalent). However, it is not correct for teachers whose substitute teaching began before the effective date of Senate Bill 1 enacting W.Va. Code 18A-4-7a (August 30, 1990) if they taught a semester (or its equivalent) during the school year. These teachers would only have had to work a semester before getting credit for seniority and being able to earn it thereafter day by day.2

Please refer to the second from last sentence in the second from last paragraph of my December 12, 1990, letter to Mrs. Cosma Crites which was enclosed with my January 18, 1991, letter to you. It reads:

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1 By letter of January 18, 1991.

2 Please refer to the three decisions on this question made by the Education and State Employees' Grievance Board. They are listed in footnote number 3 of my December 12, 1990, letter to Cosma Crites which was enclosed with my letter written to you on January 18, 1991. Cf. Footnote 10 of the Cosma Crites letter.


Mr. Nick Zervos
February 26, 1991
Page 2

"* * * a substitute teacher shall have earned and can use seniority after a semester's work - (or its equivalent) until August 30, 1990, at which time any substitute teacher who has not met this measure will have to work 133 days in a school year, in order to get seniority started."

2. You also ask whether a teacher who began her/his career as permanently employed but later became a substitute would have to work 133 days or a semester's equivalent--as the case may be--before being able to compete for permanent teaching jobs on the basis of seniority.

If this teacher worked as a permanently employeed teacher before the 1990-91 school year and she/he worked a semester or its equivalent in that capacity, then when she/he became a substitute teacher, this individual would continue to earn seniority day by day which could be used to regain permanent employment. The reason for this construciton of the school law is that: "School personnel regulations and laws are to be strictly construed in favor of the employee." [Morgan_v._Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979), Syllabus Point 1.]

Of course, if this teacher would begin her/his permanent employment as a teacher during the 1990-91 school year and later on would become a substitute, then she/he would have to work 133 days either as a permanently employed teacher or as a substitute teacher before getting seniority credit (while a substitute) which could be used to regain permanent employment.

3. You also ask how much seniority a permanently employed teacher would have who has worked like so:

1. 1965-1972 employed full-time

2. 1972-1973 school year, worked as a substitute 13 days

1973-1974 school year, worked as a substitute 73/ days

1974-1975 26 days

3. 1975-1977 not employed ----

4. 1977-1978 47/ days

1978-1979 165 days

5. 1979-1990 employed full-time 

Mr. Nick Zervos
February 26, 1991
Page 3

This teacher's seniority would be 7 years for 1965-72; 13/200 of a year for 1972-73; 73//200 of a year3 for 1973-74; 26/200 of a year for 1974-75; none for 1975-77; 47//200 of a year4 for 1977-78; 165/200 for 1978-79; and 11 years for 1979-90. If this teacher works during the 1990-91 school year, then he or she will, of course, continue earning seniority.

Hoping that I have been of service, I am,

Sincerely,

/s/

Henry Marockie
State Superintendent of Schools
0081d:0001d/cf
Enclosure

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3 Please read my letter written to Harold M. Smith on September 12, 1990, enlosed.