March 28, 2005

Joe White
109 Barkes Fork Road
Chapmanville, WV 25508

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:
A county board shall make decisions affecting promotions and the filling of any service personnel positions of employment or jobs occurring throughout the school year that are to be performed by service personnel as provided in section eight [§§ 18A-4-8] of this article, on the basis of seniority, qualifications and evaluation of past service.

* * *

If a county board is required to reduce the number of employees within a particular job classification, the employee with the least amount of seniority within that classification or grades of classification shall be properly released and employed in a different grade of that classification if there is a job vacancy: Provided, That if there is no job vacancy for employment within the classification or grades of classification, he or she shall be employed in any other job classification which he or she previously held with the county board if there is a vacancy and shall retain any seniority accrued in the job classification or grade of classification.
The transfer statute, West Virginia Code 18A-2-7 provides, in pertinent part, that "[t]he superintendent, subject only to approval of the board, shall have authority to assign, transfer, promote, demote or suspend school personnel and to recommend their dismissal pursuant to provisions of this chapter."

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."
Further, in Roles v. Raleigh County Bd. Of Educ., Docket No. 03-41-175 (April 23, 2004), the grievance board considered a transfer which occurred pursuant to a policy adopted by the county requiring that, when the number of aides at a particular school is reduced, the least senior aide in the particular program area is to be placed on transfer. This policy of categorizing its aides into program areas for the purpose of making transfer decisions was upheld by the Grievance Board as a reasonable measure. Thus, if there is a need to reduce the number of service employees in a building, it would be permissible for a county to look to the least senior similarly classified employee in a building.

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

/s/

David Stewart
State Superintendent of Schools