June 29, 2005

Jim Dodgins
P.O. Box 831
Augusta, WV 26704

Dear Mr. Dodgins:

I am in receipt of your request for an interpretation regarding your job classification at the West Virginia Schools for the Deaf and Blind [WVSDB].

Records indicate that you have had a long employment history at the WVSDB. On or about September 16, 1996, you applied for and received the position of general maintenance/groundsman after having passed the applicable competency exam(s). Due to various conflicts, you were assigned to several different supervisors and work locations over the years.

On or about April 2, 2001, you were assigned to perform general maintenance/groundsman duties at the Blind School complex under the supervision of Principal Connie Newhouse. After Ms. Newhouse evaluated you on or about April 22, 2002, she determined that the duties you had actually performed at the Blind School complex more closely matched the code description for the classification of custodian. On April 23, 2002, you signed an agreement acknowledging your assent to the change in classification. In fact, you have performed the duties of a custodian at the Blind School complex since April 2002.

Recently, the WVSDB hired a custodian to work at the Blind School cafeteria. The position will expire by its own terms on July 1, 2005. The WVSDB has determined that this position will be permanently eliminated, and that the custodians at the blind students' dormitory and the Blind School building will divide and assume the custodial duties at the Blind School cafeteria. This means that you would assume some of these duties, primarily cleaning the cafeteria on a rotating basis. After learning that you would be asked to assume additional responsibilities at the Blind School cafeteria, you formally asked Superintendent Jane McBride to reclassify you as a general maintenance/groundsman once again. Superintendent McBride has denied your request.

You have stated, in your correspondence to me, that you believe you have been illegally classified as a custodian. You do not feel that the WVSDB had the right to reclassify you as a custodian at the Blind School. Rather, you allege that 1) the WVSDB created a new custodial position at the Blind School which should have been posted and 2) that it was improper to reclassify you as a custodian because you have never taken the custodian competency exam. You also express concern that you have lost your seniority as a general maintenance/groundsman as a result of your reclassification as a custodian.

West Virginia Code 18A-4-8(l) states, in pertinent part:

The county boards shall review each service personnel employee job classification annually and shall reclassify all service employees as required by the job classifications. The state superintendent of schools may withhold state funds appropriated pursuant to this article for salaries for service personnel who are improperly classified by the county boards. Further, the state superintendent shall order county boards to correct immediately any improper classification matter and with the assistance of the attorney general shall take any legal action necessary against any county board to enforce the order.

Regarding competency exams for service personnel, West Virginia Code 18A-4-8e states, in pertinent part:

(b) The purpose of these tests shall be to provide county boards of education a uniform means of determining whether school service personnel employees who do not hold a classification title in a particular category of employment can meet the definition of the classification title in another category of employment as defined in section eight of this article. Competency tests shall not be used to evaluate employees who hold the classification title in the category of their employment.

(c) The competency test shall consist of an objective written and/or performance test: Provided, That applicants shall have the opportunity of taking the written test orally if requested . . . Achieving a passing score shall conclusively demonstrate the qualification of an applicant for a classification title. Once an employee passes the competency test of a classification title, the applicant shall be fully qualified to fill vacancies in that classification category of employment as provided in section eight?b of this article and shall not be required to take the competency test again.

(d) An applicant who fails to achieve a passing score shall be given other opportunities to pass the competency test when making application for another vacancy within the classification category.

(e) Competency tests shall be administered to applicants in a uniform manner under uniform testing conditions. County boards of education are responsible for scheduling competency tests, notifying applicants of the date and time of the one day of training prior to taking the test and the date and time of the test . . .

(f) When scheduling of the competency test conflicts with the work schedule of a school employee who has applied for a vacancy, the employee shall be excused from work to take the competency test without loss of pay.

* * *

(h) Competency tests shall be utilized to determine the qualification of new applicants seeking initial employment in a particular classification title as either a regular or substitute employee. (Emphasis added.)

The West Virginia Education and State Employees Grievance Board has examined the issue of reclassification and has stated:

Competency tests provide a mechanism by which individuals currently employed by a board of education as service personnel may demonstrate their qualifications to hold another classification and provides the board with a tool by which to measure the ability of new applicants. There is no statutory requirement that employees whose duties evolve over a period of time, or change by agreement, must also successfully complete a competency test to obtain the proper classification. Further, competency testing does not relieve a board of the duty to "review each service personnel employee job classification annually and . . . reclassify all service employees as required by such job classifications." W.Va. Code 18A-4-8. (Emphasis added.)
Cook v. Randolph County Bd. Of Educ., Docket No. 95-42-238 (December 27, 1995).

I agree with the conclusion of the Grievance Board in the Cook opinion. To begin, no new position was created in the scenario you described. Rather, as a result of numerous conflicts and complaints you were eventually assigned to the Blind School complex as a general maintenance/groundsman. However, while in that position, your supervisor recognized that your duties had naturally evolved and that you were primarily performing the duties of a custodian. Thus, she sought to reclassify you according to the mandate of W. Va. Code 18A-4-8(l). Notably, you agreed to this classification and did not complain about it until you were asked to assume additional duties in the cafeteria. I do not find the actions of the WVSDB to be inappropriate in any respect. Rather, in viewing the totality of your employment history at the WVSDB, it appears that your position evolved from general maintenance/groundsman to custodian as a result of the WVSDB's accommodation of your employment needs and supervisory preferences.

Finally, regarding your seniority, West Virginia Code 18A-4-8g states, in pertinent part:

(d) The seniority of an employee who transfers out of a class title or classification category of employment and subsequently returns to that class title or classification category of employment shall be calculated as follows:

The county board shall establish the number of calendar days between the date the employee left the class title or category of employment in question and the date of return to the class title or classification category of employment. This number of days shall be added to the employee's initial seniority date to establish a new beginning seniority date within the class title or classification category. The employee shall then be considered as having held uninterrupted service within the class title or classification category from the newly established seniority date. The seniority of an employee who has had a break in the accumulation of seniority as a result of being willfully absent from employment duties because of a concerted work stoppage or strike shall be calculated in the same manner.

* * *

(h) Seniority acquired as a substitute and as a regular employee shall be calculated separately and shall not be combined for any purpose. Seniority acquired within different classification categories shall be calculated separately: Provided, That when a school service employee makes application for a position outside of the classification category currently held, if the vacancy is not filled by an applicant within the classification category of the vacancy, the applicant shall combine all regular employment seniority acquired for the purposes of bidding on the position.

Thus, as you can see, all of your seniority accumulated prior to you reclassification as a custodian is not simply lost.

Hoping that I have been of service, I am

Sincerely,

/s/

David Stewart
State Superintendent of Schools