Interpretation's Date: March 28, 2005
by superintendent David Stewart
Section: V. Personnel
SubSection: C. Service Personnel
March 28, 2005
Dear Mr. White:
I am in receipt of your request for an opinion regarding the Logan County School
Service Personnel Association. You state that in 2000, the Logan County School Service
Personnel Association "voted to allow bumping within the building." You inquire as to
whether this practice is contrary to law, and whether the bumping of service personnel is
permitted at all.
Though you do not explain what is meant by "allow[ing] bumping within the building," I presume that you are referring to the process whereby a county determines which employee in a school building will be given notice of a transfer when the overall number of positions within a classification needs to be reduced.
To begin, West Virginia Code 18A-4-8b provides in pertinent part:
In construing these statutes, however, it has been held that "where the number of
employees within a particular job classification is reduced the employee with the least
amount of seniority within that classification is to be released." Berry v. Kanawha County
Bd. of Educ., 191 W. Va 422, 446 S.E.2d, (1994). Thus, though not specifically discussed in code, a service employee cannot be forced to take a position with a shorter contract length as long as there are less-senior employees holding longer contracts, which means that some "bumping" may occur when reducing service employees. This is commonly referred to as a "Berry bump."
Without knowing the specific details of the vote taken by the Logan County School
Service Association, I am unable to specifically determine whether it is permissible exercise of county discretion. However, in the scenarios set forth above, the displacement of one service employee by another is not contrary to law.