M E M O R A N D U M

TO: Dr. Marockie

FROM: Bill Toussaint

SUBJECT: St. ex rel. Jeanne V. Melchiori v. The Board of Ed. of the County of Marshall, No. 21115 (December 18, 1992)

DATE: January 20, 1993

Ms. Melchiori was a physical education teacher who was RIF'd into a mental retardation teaching position because she was certified to teach P.E. (grades 1-12) and M.R. (grades K-12) and because the least senior teacher in these two areas was certified to teach mental retardation.

The pertinent law is W.Va. Code 18A-4-7a where it prescribes:

"That an employee subject to release shall be employed in any other professional position where such employee is certified and was previously employed or to any lateral area for which such employee is certified and/or licensed, if such employee's seniority is greater than the seniority of any other employee in that area of certification and/or licensure."

Marshall County Board of Education's action was consistent with a State Superintendent's Interpretation which said what has been our traditional position. As pointed out by the State Supreme Court of Appeals in this Opinion, this was a strict rather than loose construction of the RIF law.

Ms. Melchiori preferred to remain a physical education teacher when her job was abolished rather than become a mental retardation teacher because her experience had been in P.E. rather than M.R. The Court has agreed with her because one should expect teaching experience to make a teacher more qualified than the lack of it.

Memo to Dr. Marockie
January 20, 1993
Page 2

The Court recognizes that experience in an instructional area should not always enable a RIF'd teacher to claim the position of the least senior teacher in her or his experienced teaching area; however, according to Syllabus Point 4 of this case:

"A county board of education must make a showing that its assignment of a displaced teacher is sound when the teacher is assigned to instruct in an area for which she is certified but has not been employed to teach, where an alternative assignment in an area in which the teacher has previously been employed to teach was available under the seniority framework."

The Court, also, recognizes that its decision in this case could cause a domino effect further complicating personnel actions in a RIF because the teacher displaced due to a more experienced teacher's seniority probably herself or himself will, also, be entitled to displace a teacher.

In summary,

"When educational personnel lose their positions due to a reduction in force, both of the alternatives for reassignment provided in West Virginia Code 18A-4-7a (Supp. 1992) should be considered in conjunction with the reassignment decision." [Syllabus Point 1 of the case.]

The two alternatives are:

1.) To replace the least senior teacher in the county who is certified in an area for which the RIF'd teacher is certified. This could be a lateral assignment instead of reassignment to an area in which the RIF'd teacher is experienced.

2.) To replace the least senior teacher in the RIF'd teacher's area of experience. This would only be an "other professional position where such employee is certified and was previously employed." It would not be a "lateral area for which such employee is certified and/or licensed." (Quotations are from the RIF provision of W.Va. Code 18A-4-7a.)

The bases for the Court's decision are the importance placed upon teaching qualifications by W.Va. Code 18A-4-7a in

Memo to Dr. Marockie
January 20, 1993
Page 3

the making of assignments1 and the State Supreme Court of Appeals' Opinion that teaching qualifications are very important for quality education.2

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1. Syllabus Point 3. A county board of education must give weight to the years of teaching experience a displaced teacher has in given subject areas when making a decision to reassign the teacher pursuant to W.Va. Code 18A-4-7a (Supp. 1992).