June 29, 2004

John Everett Roush, Esq.
WV School Service Personnel Association 1591 Washington Street, East
Charleston, WV 25311

Dear Mr. Roush:

I am in receipt of your request for a Superintendent's Interpretation regarding the filling of a vacant bus operator position. You state:

"The board of education hired a substitute bus operator ("x") to fill a vacancy. A regular employee from another classification ("y") filed a grievance seeking the position. Before the grievance ran its course, another vacancy for a bus operator occurred. The second vacancy was posted and "y" bid upon and received it. "Y" continued the grievance seeking back pay, seniority, and other benefits from the date of the filling of the second vacancy. Ultimately, "y" prevailed. "Y" was awarded back pay, benefits, and seniority back to the initial date that "x" was placed into the system. As "y" already held a full time position as a bus operator by this time, she did not seek instatement into the original position. "

You ask:

1. "Should the board of education have reposted the original position."

No, I do not believe that the board was required to repost the original position. The dispute at issue in this hiring decision was between "x" and "y"only. When "y" accepted an alternate position prior to the resolution of the grievance, the dispute as to who could maintain the position was moot, and it was proper for "x" to remain in the position.

2. "If the answer to question #1 is no, should the BOE subtract twenty days of seniority of "x" to account for the time it would have taken to repost the original position and fill it with ‘x' ?"

It was not necessary for the board to subtract seniority from "x". The West Virginia Supreme Court of Appeals, in the case of Hall v. Bd. of Educ., 208 W. Va. 534, 541 S.E.2d 624 (2000), held that school service personnel must be given seniority earned from time served under a contract for a position later determined to have been incorrectly awarded to such employee.

3. "Could the board of education simply give ‘y' priority over ‘x' in seniority and leave the two with the same seniority date?"

The board could not simply give "y" priority over "x". As stated above, school service personnel must be given seniority earned from time served under a contract for a position later determined to have been incorrectly awarded to such employee.

4. "Should ‘x' and ‘y' be required to engage in a random selection system to break their ‘tie'?"

Yes, "x" and "y" should be required to engage in a random selection system to break their seniority tie pursuant to West Virginia Code 18A-4-8g

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

/s/

David Stewart
State Superintendent of Schools