June 29, 2001

Terry M. Nelson
P.O. Box 75
Valley Bend, WV 26293

Dear Mr. Nelson:

I am in receipt of your request for a Superintendent's Interpretation regarding recent legislative changes set forth in Senate Bill 227. Specifically, you expressed concern over a new provision in West Virginia Code 18A-4-7a which provides that professional and service personnel job postings be written to ensure that the largest possible pool of qualified applicants apply and prohibits job postings which require criteria that are unnecessary for the successful performance of the job or are intended to favor a specific applicant. You have asked the following questions:

1. When does this law go into effect? Is it law as soon as the governor signs it or does it have to wait until the beginning of the next physical [sic] year?

The new law has been in effect from its date of passage on April 14, 2001.

2. Does this mean that counties can not add phrases like: Must have 3 years teaching experience at the 9-12 level, for a high school position?

The new provisions of West Virginia Code 18A-4-7a do not necessarily prohibit counties from adding these types of phrases to job postings. The section states, in pertinent part:

(o) Openings in established, existing or newly created positions shall be processed as follows:
(1) Boards shall be required to post and date notices which shall be subject to the following:
(A) The notices shall be posted in conspicuous working places for all professional personnel to observe for at least five working days; (B) The notice shall be posted within twenty working days of the position openings and shall include the job description;

Mr. Terry M. Nelson
June 29, 2001
Page 2

(C) Any special criteria or skills that are required by the position shall be specifically stated in the job description and directly related to the performance of the job;
(D) Postings for vacancies made pursuant to this section shall be written so as to ensure that the largest possible pool of qualified applicants may apply; and
(E) Job postings may not require criteria which are not necessary for the successful performance of the job and may not be written with the intent to favor a specific applicant . . .

West Virginia Code 18A-4-7a.

Clearly, the statute does allow special skills and criteria to be included in a posting as long as they are "specifically stated in the job description and directly related to the performance of the job." Id. If a county determines that grade specific teaching experience is necessary for successful performance of an administrative position and specifically states that requirement in the job posting, then the county is not in violation of the new provisions of West Virginia Code 18A-4-7a. If, however, a county includes this requirement in postings only on a selective basis so that targeted individuals are intentionally precluded from applying for the posted position, then those postings would be improper.

(3) If you have experience at the K-6 level, why does it make a difference at the 6-8 level? If you have that experience at one level it should not make a difference at the elementary or middle school level.

Because the student populations of elementary and middle schools are significantly different, as are the required curricula and teacher certifications, it is reasonable for a county to determine that a successful administrator must have teaching experience at the grade level which he or she will supervise as an administrator. There is no legal authority either mandating or prohibiting this requirement.

Hoping that I have been of service, I am

Sincerely,

/s/