June 17, 2005

Dr. J. Patrick Law, Superintendent
Pocahontas County Schools
926 Fifth Avenue
Marlinton, WV 24954

Dear Dr. Law:

I am in receipt of your request for an opinion regarding autism mentors. The purpose of your request is to provide clarification regarding my earlier interpretation dated March 28, 2005. Thus, this interpretation should be read in conjunction with the interpretation of March 28, 2005. Specifically, you ask:

When conducting a RIF [reduction in force] within the aide classification, how must a school district treat a multi-classified aide/autism mentor who, by virtue of her seniority, would be RIFed based upon her relative seniority as an aide?

You go on to explain:

The individual holding the aide/autism mentor position is currently providing services to an autistic child and is fully utilizing her knowledge, skill and experience as an autism mentor. The more senior aide is currently working as an ?Itinerant Special Education Classroom/Bus Aide.? She has met all of the requirements to become an aide/autism mentor . . . however, the more senior aide has, as of this date, never held an autism mentor position.

West Virginia Code ?18A-4-8(i)(14) defines "autism mentor" as:

[P]ersonnel who work with autistic students and who meet standards and experience to be determined by the state board: Provided, That if any employee has held or holds an aide title and becomes employed as an autism mentor, the employee shall hold a multiclassification status that includes aide and autism mentor titles . . . (emphasis added)

West Virginia Code ?18A-8b(j) provides:

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.

Regarding seniority, West Virginia Code ?18A-8-8b(d), provides, in pertinent part,

Paraprofessional, autism mentor and braille or sign language specialist class titles shall be included in the same classification category as aides.

In the scenario you set forth, the Pocahontas County Board of Education must reduce the number of aides it employs. The least senior aide subject to release has more overall seniority than another employee currently working as an aide/autism mentor. It is important to note that though the more senior aide in question has met all of the requirements to become an aide/autism mentor, she has never been employed as an autism mentor. Thus, she does not hold the multiclassification status of autism mentor.
When a county board is required to reduce the number of employees in a job classification, it must look to the employee with the least amount of seniority in the classification and release that employee. Here, the least senior aide happens to have more seniority than a multiclassified aide/autism mentor. However, the least senior aide is still the proper employee to release. If the aide/autism mentor were released and the aide placed into her position, she would, in essence, be receiving a promotion via the reduction in force (an aide IV is paid at paygrade D and an aide/autism mentor is paid at paygrade E). It is inappropriate to award an employee with a promotion simply because the classification in which he or she currently works has been reduced.

W. Va. Code ?18A-4-8b(a) states that ?[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 of this article, on the basis of seniority, qualifications and evaluation of past service.? W. Va. Code ?18A-4-8b(b) goes on to explain that an applicant currently holding a class title shall be given first priority for promotions or filling vacancies in that classification category. If the least senior aide, who does not hold the aide/autism mentor classification, were to receive a promotion via the RIF process, then this statutory scheme would be thwarted.

This interpretation does not rob W. Va. Code ?18A-4-8b(d) of meaning. An aide/autism mentor will accrue seniority as an aide and as an autism mentor simultaneously. If the county were to reduce aide/autism mentor positions, an individual employed as an aide/autism mentor could displace a less senior aide. However, when reading W. Va. Code ?18A-4-8b as a whole, we must not allow paragraph (d) to completely override paragraphs (a) and (b).

Finally, throughout this analysis, we must not lose sight of the undeniable fact that autistic children respond poorly to change in routine and have inherit difficulty in forming relationships with strangers. If we were to construe the personnel laws of the state to negatively impact the educational needs of autistic children, we would truly do a disservice to these uniquely situated students. Thus, in consideration of all these factors, it is my opinion that, in the situation you describe, the multiclassified aide/autism mentor should not be displaced in conducting a reduction in force in the aide classification.

Hoping that I have been of service, I am
Sincerely,

/s/

David Stewart
State Superintendent of Schools