January 3, 2001

Ms. Kristin Willard
Director of Finance
The West Virginia Schools for the
Deaf and the Blind
301 East Main Street
Romney, West Virginia 26757

Dear Ms. Willard:

I am in receipt of your correspondence dated December 4, 2000, regarding the filling of a full time General Maintenance position at the West Virginia Schools for the Deaf and Blind. You stated that the applicants for the position include several full time out of classification employees and one general maintenance substitute employee who has worked at the school on a special project since June 17, 2000. Your question was:

Since the substitute was working as a General Maintenance employee for an extended period of time and during the posting period, is he to be considered next in line for the full time position or is the next in line the full time employee out of classification with the most seniority?

The position should be awarded to the full time employee with the most seniority, even if he/she is out of classification. You were correct to note that West Virginia Code ? 18A-4-8g states that a substitute school service employee shall acquire regular employment status and seniority if said employee receives a position pursuant to ? 18A-5-15(2) or ? 18A-5-15(5). However, the substitute employee in this situation did not receive his position pursuant to ? 18A-5-15(2) or ? 18A-5-15(5), as he is neither filling the position of a regular service employee on a leave of absence nor filling a vacancy created by a regular employee?s suspension. Thus, you must look to West Virginia Code ? 18A-4-8b for direction on your hiring decision.

West Virginia Code ? 18A-4-8b states that applicants within a classification title must be given first opportunity for promotion and filling vacancies. However, you have no full time applicants within the classification category. Accordingly, section 18A-4-8b goes on to say, in pertinent part:

Ms. Kristin Willard
January 3, 2001
Page 2

Applicants shall be considered in the following order:

(1) Regularly employed service personnel;

(2) Service Personnel whose employment has been discontinued in accordance with this section;

(3) Professional personnel who held temporary service personnel jobs or positions prior to the ninth day of June, one thousand nine hundred eighty-two, and who apply only for such temporary jobs or positions;

(4) Substitute service personnel; and

(5) New service personnel.

Consequently, your posting for a General Maintenance position should be awarded to the full time applicant with the most seniority, even if he/she is not currently employed in the classification of the posted position.

If you have any questions or concerns relative to this issue, please contact our Legal Services Office at (304) 558-3667.

Sincerely,

/s/

David Stewart
State Superintendent of Schools

DS/mp