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 retirement benefits?

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
Sincerely,

/s/

David Stewart
State Superintendent of Schools