March 31, 2005

Harry M. Rubenstein
Kay Casto & Chaney, P.L.L.C.
50 Clay Street
Morgantown, WV 26501

Dear Mr. Rubenstein:

I am in receipt of your request for an opinion regarding West Virginia Code 18A-4-8f. You explain that there is currently an elementary school comprised of Kindergarten through fourth grade. When students who have attended the school reach the fifth grade, they attend a neighboring elementary school comprised of Kindergarten through sixth grade.

Based upon enrollment and staffing, the school board plans to transfer the fourth grade students from the K-4 elementary school to the K-6 elementary school. There will be no need to employ additional teachers or staff at the K-6 elementary school as there is currently a sufficient number of teachers in the K-6 school to accommodate the incoming fourth grade.

Because the fourth grade students in question have always contemplated that they will leave the K-4 elementary school and progress upward to the K-6 elementary school, the movement is a vertical change in school structure which does not require the county to comply with the procedures outlined in West Virginia Code 18-5-13a. See 61 Op. Atty. Gen. 87, Feb. 24, 1986.

You inquire as to whether, in accomplishing this change in school structure, the superintendent is required to implement the faculty senate vote as set forth in West Virginia Code 18A-4-8f, which states, in pertinent part:

Each year a consolidation or merger is proposed, prior to the implementation of that plan, the superintendent shall cause to be prepared and distributed to all faculty senates a ballot on which teachers may indicate whether or not they desire those affected by school closings to be given priority status in filling new positions.

It is my opinion that, in the scenario you describe, the faculty senate vote need not occur because no new positions will be created at the K-6 elementary school as a result of the influx of the fourth grade students. Thus, priority status would be meaningless. However, if it is later determined that any new teaching positions will be created as a result of the influx, the county will be required to proceed with the vote.
Hoping that I have been of service, I am
Sincerely,

/s/

David Stewart
State Superintendent of Schools