March 28, 2005
109 Barkes Fork Road
Chapmanville, WV 25508
Dear Mr. White:
I am in receipt of your request for an opinion regarding the Logan County School
Service Personnel Association. You state that in 2000, the Logan County School Service
Personnel Association ?voted to allow bumping within the building.? You inquire as to
whether this practice is contrary to law, and whether the bumping of service personnel is
permitted at all.
Though you do not explain what is meant by ?allow[ing] bumping within the building,?
I presume that you are referring to the process whereby a county determines which
employee in a school building will be given notice of a transfer when the overall number
of positions within a classification needs to be reduced.
To begin, West Virginia Code ?18A-4-8b provides in pertinent part:
A county board shall make decisions affecting promotions and the filling of any
service personnel positions of employment or jobs occurring throughout the school
year that are to be performed by service personnel as provided in section eight [??
18A-4-8] of this article, on the basis of seniority, qualifications and evaluation of past
* * *
If a county board is required to reduce the number of employees within a particular
job classification, the employee with the least amount of seniority within that
classification or grades of classification shall be properly released and employed in
a different grade of that classification if there is a job vacancy: Provided, That if
there is no job vacancy for employment within the classification or grades of
classification, he or she shall be employed in any other job classification which he
or she previously held with the county board if there is a vacancy and shall retain
any seniority accrued in the job classification or grade of classification.
The transfer statute, West Virginia Code ?18A-2-7 provides, in pertinent part, that
?[t]he superintendent, subject only to approval of the board, shall have authority to assign, transfer, promote, demote or suspend school personnel and to recommend their dismissal pursuant to provisions of this chapter.?
In construing these statutes, however, it has been held that ?where the number of
employees within a particular job classification is reduced the employee with the least
amount of seniority within that classification is to be released.? Berry v. Kanawha County
Bd. of Educ., 191 W. Va 422, 446 S.E.2d, (1994). Thus, though not specifically discussed in code, a service employee cannot be forced to take a position with a shorter contract length as long as there are less-senior employees holding longer contracts, which means that some ?bumping? may occur when reducing service employees. This is commonly referred to as a ?Berry bump.?
Further, in Roles v. Raleigh County Bd. Of Educ., Docket No. 03-41-175 (April 23,
2004), the grievance board considered a transfer which occurred pursuant to a policy
adopted by the county requiring that, when the number of aides at a particular school is
reduced, the least senior aide in the particular program area is to be placed on transfer.
This policy of categorizing its aides into program areas for the purpose of making transfer decisions was upheld by the Grievance Board as a reasonable measure. Thus, if there is a need to reduce the number of service employees in a building, it would be permissible for a county to look to the least senior similarly classified employee in a building.
Without knowing the specific details of the vote taken by the Logan County School
Service Association, I am unable to specifically determine whether it is permissible exercise of county discretion. However, in the scenarios set forth above, the displacement of one service employee by another is not contrary to law.
Hoping that I have been of service, I am
State Superintendent of Schools
cc: Office of School Finance