October 22, 2003

David E. Friend, Superintendent
Hampshire County Schools
46 S. High Street
Romney, WV 26757-1832

Dear Superintendent Friend:

I am in receipt of your request regarding the legality of a county board of education hiring part-time employees and contracting with employees. Specifically, you ask whether Hampshire County can "hire part-time employees or contract with employees" to "meet payroll and accounts payable." It is my understanding that the need for additional help is necessitated by the fact that two payroll clerks have been suspended with pay while an investigation is being conducted.

West Virginia Code 18-4-15 states:

(a) The county board shall employ and the county superintendent, subject to the approval of the county board, shall assign substitute service personnel on the basis of seniority to perform any of the following duties:

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(5) To fill the vacancy created by a regular employee's suspension: Provided, That if the suspension is for more than thirty working days the substitute service employee shall be assigned to fill the vacancy on a regular basis and shall have and be accorded all rights, privileges and benefits pertaining to the position until the termination by the county board becomes final. If the suspended employee is not returned to his or her job, the board shall fill the vacancy under the procedures set out in section eight-b of this article and section five, article two of this chapter; . . .

Accordingly, it would be appropriate to hire substitute employees to fill in for the suspended payroll clerks as needed.

As to the legality of contracting with outside providers to perform payroll functions, the West Virginia Education and State Employees Grievance Board has held that the "contractual scheme of employment for school personnel does not allow for the hiring of contract employees to perform full-time regular duties of school service personnel." Dempsey v. Fayette County Board of Education, Docket No. 98-10-357 (December 8, 1998) (emphasis in original). However, this holding does not apply to situations where the work to be performed by the contract employees does not amount to "full-time regular duties" of school service personnel. See, Goins v. Mercer County Board of Education, Docket No. 02-27-317 (January 15, 2003). Further, it is permissible for a county board of education to contract out services for jobs which could be considered "extra duty" assignments within the definition of W. Va. Code §18A-8b. Dempsry, supra.

Thus, if you wish to employ an individual to come in and perform all of the functions of a suspended payroll clerk, you should hire a substitute employee pursuant to the process set forth in West Virginia Code 18A-4-8b. However, if you wish to employ an individual to come in and perform work in the payroll office that is not equivalent to the full-time duties performed by the suspended payroll clerks or is "extra duty" in nature, you may utilize the services of contract workers.

Under the circumstances, I do not believe that it is appropriate to hire a part-time employee to perform the necessary payroll functions.

I hope you find this information to be useful.

Sincerely,

/s/

David Stewart
State Superintendent of Schools