November 30, 2001

Honorable Dave Pethtel
West Virginia House of Delegates
Fifth District
Building 1, Room 204-E
1900 Kanawha Blvd., East
Charleston, WV 25305-3155

Dear Delegate Pethtel:

I am in receipt of your request for a Superintendent's Interpretation dated November 28, 2001, regarding experience credit, retirement benefits, and seniority for professional school employees who are members of the Legislature. You state:

I am writing and requesting your interpretation that a professional school employee must have at least 133 paid days of employment to receive a year of experience. Further, I am asking your opinion if an employee's term of employment falls below 133 days, is there a negative impact on their retirement and/or seniority incurred.

You go on to explain that you are both a member of the West Virginia House of Delegates and a teacher in the Wetzel County school system. Since the Legislature has been in special session on several occasions this year, it is very likely that you will not acquire one hundred thirty-three days of paid employment as a teacher for the 2001-2002 school year.
The Legislature has clearly addressed the answer to your questions regarding both retirement and seniority in your favor.

Regarding retirement, West Virginia Code 18-7A-17(e) provides that "no member [of the state teachers retirement system] shall be considered absent from service while serving as a member or employee of the Legislature of the State of West Virginia during any duly constituted session of that body . . ." Therefore, the fact that you will not work one hundred-thirty three days this school year because of your service in the Legislature will not negatively impact your retirement.

Regarding seniority, West Virginia Code 18A-4-7b(b) provides that "[a]n employee shall receive seniority credit for each day the employee is professionally employed regardless of whether the employee receives pay for that day . . ." Therefore, as long as you are professionally employed by a board of education during your service with the Legislature you will continue to accrue seniority for each day that you are employed, even if you are not paid for a full one hundred thirty-three days.

The Legislature has been less clear in addressing the answer to your question regarding years of experience and no West Virginia Supreme Court Cases have been found that illuminate the relationship between years of service and released time for government assignments.

Specifically, West Virginia Code 18A-4-1(1) defines a year of experience as "the number of years the teacher has been employed in the teaching profession including active work in educational positions other than in the public schools . . ." Traditionally, a professional employee of a county board of education must work at least one hundred thirty-three days in a school year in order to receive credit for a year of teaching experience for salary increment purposes. See Superintendent Interpretation dated September 22, 1982 (27). This rule has been upheld by the Education and State Employees Grievance Board. See Wade v. Fayette County Board of Education, Docket No. 97-10-047 (July 29, 1997). A day of work is construed to mean a day for which the teacher is entitled to be paid, including actual days of work, holidays, vacation days, inclement weather days, personal leave days, and other such days. If a teacher does not meet this one hundred thirty-three day requirement, the teacher does not receive the corresponding salary credit for having gained a year of experience.

However, as a member of the Legislature, you will likely be exempt from this rule. West Virginia Code 18A-2-2(d) provides that a board of education "shall have authority to provide for released time of a teacher for any special professional or governmental assignment without jeopardizing the contractual rights of such teacher or any other rights, privileges or benefits under the provisions of this chapter." Accordingly, it is my opinion that a county board of education has the authority to provide a teacher time to serve in the Legislature without jeopardizing that teacher's right to gain a year of teaching experience for salary purposes under the one-hundred thirty-three day rule.
Hoping that I have been of service, I am,

Sincerely,

/s/