Interpretation's Date: March 28, 2005
by superintendent David Stewart
Section: V. Personnel
March 28, 2005
Dear Dr. Law:
I am in receipt of your request for an opinion regarding autism mentors. Specifically,
When conducting a RIF [reduction in force] within the aide classification, how must a school district treat a multi-classified aide/autism mentor who, by virtue of her seniority, would be RIFed based upon her relative seniority as an aide?
You go on to explain:
The individual holding the aide/autism mentor position is currently providing
services to an autistic child and is fully utilizing her knowledge, skill and experience
as an autism mentor. It is not unlikely that a significant lapse in competent services
from an autism mentor would occur should the current aide/autism mentor be
RIFed and the position filled with a more senior aide with little or no autism
mentor training or experience.
West Virginia Code 18A-4-8(i)(14) defines "autism mentor" as:
[P]ersonnel who work with autistic students and who meet standards and
experience to be determined by the state board: Provided, That if any employee
has held or holds an aide title and becomes employed as an autism mentor, the
employee shall hold a multiclassification status that includes aide and autism
mentor titles . . .
West Virginia Code §18A-8b provides:
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.
In Taylor-Hurley v. Mingo County Board of Education, 209 W. Va. 780, 551 S.E.2d 702 (2001), the West Virginia Supreme Court of Appeals held:
In the event a multiclassified employee is subject to a reduction in force in one or more, but less than all, of the categories composing his or her multiclassification title, such employee remains in the employ of the county board of education with those categories that are subject to the reduction in force being deleted from the employee's multiclassification title.
However, the situation you describe is unique. To begin, it is unlikely that an individual holding only the "aide" classification would be qualified to be employed as an autism mentor. Accordingly, an aide could not displace the autism mentor because he or she would be unable to perform the specialized duties of the job and would, as you indicate, significantly hinder the educational achievement of the autistic child in question.
Additionally, as noted above, West Virginia Code 18A-4-8(i)(14) requires that any service employee working as an autism mentor hold a multiclassification status that includes the titles of both aide and autism mentor. Because of this, the aide classification cannot be deleted from the aide/autism mentor title. While this is a different standard than that applied to other multiclassified titles, I believe that the difference is justified considering both the wording of Code 18A-4-8(i)(14) and the reality that autistic children often experience severe negative reactions to any change in structure or routine, including changes in the delivery of educational services.
In consideration of all these factors, it is my opinion that, in the situation you describe, the multiclassified aide/autism mentor should not be displaced in conducting a reduction in force in the aide classification.
Hoping that I have been of service, I am