February 14, 1991

Mr. John Everett Roush
Legal Services
West Virginia School Service Personnel Association 1610 Washington Street, East
Charleston, West Virginia 25311

Dear Mr. Roush:

You have asked:

1. How is "leave of absence" defined and what specific elements are necessary to constitute a "leave of absence"?

Leave of absence is not defined by the school law, nor is it defined by W.Va. Code 2-2-10 ("Rules for construction of statutes.") However, a leave of absence is unpaid leave as I interpret W.Va. Code 18-5-15(2) and 18A-2-2a, granted to a service employee by his/her county board of education pursuant to W.Va. Code 18A-4-10 where it prescribes:

"Any board of education shall have authority to supplement such [personal] leave provisions in any manner it may deem advisable in accordance with applicable rules of the state board and the provisions of this chapter and chapter eighteen of this code."

In Norma_Stutler_v._Wood_County_Board_of_Education, #54-86-333-3, decided August 20, 1987, at page 4 (enclosed), the Education and State Employees Grievance Board concluded " . . . that a regular [service] employee who had been off work over twenty days was, in fact, on a leave of absence [for /18A-4-15(2) purposes] irrespective of a lack of formal approval for leave of absence . . ."* Therefore, a service employee is on leave of absence by operation of law [/18A-4-15(2)] after twenty days of unpaid leave.

A leave of absence ordinarily is a suspension of contract for reasons agreed to by the county board of education and the employee.

_______________

* This quotation is from the restatement of this decision in footnote #3 of Cleatus_Varney_v._Logan_County_Board_of_Education, #23-86-374-1, decided August 26, 1987, by the grievance board (enclosed). 

Mr. John Everett Roush
February 14, 1991
Page 2

With respect to medical leaves of absence, please see the enclosed letter of December 12, 1990, to Howard S. Charlton, Superintendent of Hancock County Schools.

2. An employee is granted a leave of absence for a year by a board of education. At the end of the year, the employee requests a leave of absence for another year. Is there any law or regulation which prohibits the board of education from granting this request?

No. A county board of education and an employee can agree to renew a leave of absence.

Hoping that I have been of service, I am,

Sincerely,

/s/

Henry Marockie
State Superintendent of Schools