September 15, 2004

Tifney Terry
HC 36 Box 52
Charleston, WV 25306

Dear Ms. Terry:

I am in receipt of your request for a Superintendent's Interpretation dated April 5, 2004. Specifically, you ask:

May a state Delegate who also works as a school board administrator receive legislative pay and his school board pay simultaneously? Also, can a county school employee take professional leave while attending a legislative session?

Pursuant to West Virginia Code 18-3-6, the State Superintendent has the authority to "give his interpretation of the meaning of any part of the school law or of the rules of the state board of education." There are no rules of the State Board of Education which address the questions you raised. Thus, this interpretation is limited to only those statutes found within the school laws of West Virginia.

As to the pay issue, the only statute within the school laws that appears to have any bearing on your question is West Virginia Code 18A-2-2. It states, in pertinent part:

(d) In the assignment of position or duties of a teacher under said continuing contract, the board may provide for released time of a teacher for any special professional or governmental assignment without jeopardizing the contractual rights of such teacher or any other rights, privileges or benefits under the provisions of this chapter. Released time shall be provided for any professional educator while serving as a member of the Legislature during any duly constituted session of that body and its interim and statutory committees and commissions without jeopardizing his or her contractual rights or any other rights, privileges, benefits or accrual of experience for placement on the state minimum salary schedule in the following school year under the provisions of this chapter, board policy and law.

Though the Legislature has not defined the phrase "without jeopardizing his or her contractual rights or any other rights, privileges, benefits or accrual of experience for placemen on the state minimum salary schedule," it is my opinion that this statute may protect the employment rights and benefits of school employees who are members of the Legislature in regards to issues such as continuing contract status, the right to notice and a hearing prior to termination or transfer, the accrual of personal leave, the accrual of seniority, the accrual of experience for pay purposes, the right to be paid the statutory minimum salary for work performed, and other rights, privileges and benefits set forth in Chapter 18A of the West Virginia Code. West Virginia Code 18A-2-2 does not, in my opinion, guarantee a Legislator that he or she will continue to receive full pay from a county board of education while serving as a member of the Legislature.

However, the statute does not address whether a school employee who is also a member of the Legislature may continue to work as a school employee on a full time basis while also performing all of the duties of a member of the Legislature. If it is possible for an individual to accomplish both, then it is my opinion that the school law does not prohibit an individual from receiving payment for both.

The term "professional leave" is not defined by the West Virginia Code or by any West Virginia Board of Education policy. West Virginia Code 18A-5-4, however, does provide that:

"A county board of education may approve the attendance of any or all teachers at educational conventions, conferences, or other professional meetings of teachers on school days when in the judgment of the superintendent it is necessary or desirable. Attendance at such meetings may be substituted for an equal amount of teaching or employment and teachers attending shall not suffer loss of pay."

Although county boards are to adopt policies addressing these events, it does not appear that it would be permissible for a county board of education to approve an employee to take paid leave to serve as a member of the Legislature under the terms of this statute.

Again, please note that this interpretation is limited only to those statutes found within the school law portions of the West Virginia Code (Chapters 18 and 18A) and the policies of the West Virginia Board of Education. Further guidance may be available from other agencies such as the Ethics Commission.

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

/s/

David Stewart
State Superintendent of Schools