November 7, 2001

William W. Harmon, Attendance Director Fayette County Schools
111 Fayette Avenue
Fayetteville, West Virginia 25840

Dear Mr. Harmon:

This is to acknowledge the receipt of your letter dated October 18, 2001 relative to laws relating to truancy. In particular you asked:

"(1) In reference to WV Code 18-8-4, is an out-of-school suspension an unexcused absence as it applies to the attendance director serving a written notice to the parent for a conference at the school within 10 days? (This is in the case of 5 consecutive or ten total unexcused absences of a child during a school year.)

(2) Can a parent be prosecuted for the child's truancy due to out-of-school suspension days? (WV Code 18-8-2)

(3) Are out-of-school suspension days just cause for a parent to fail to cause their child to attend school? (WV Code 18-8-2)"

As you are aware, West Virginia Code 18-8-4 states that:

In the case of five consecutive or ten total unexcused absences of a child during a school year, the attendance director or assistant shall serve written notice to the parent, guardian or custodian of such child that the attendance of such child is required and that within ten days of the receipt of the notice the parent, guardian or custodian, accompanied by the child, shall report in person to the school the child attends for a conference with the principal or other designated representative of the school in order to discuss and correct the circumstances causing the inexcusable absence of the child ...

Additionally, West Virginia Board of Education Policy 4110, Section 4.2.1, indicates that county school districts are responsible for "defining excused and unexcused absences in compliance with W. Va. Code §18-8-1 and 18-8-2 and attendance in Policy 2510 Assuring the Quality of Education: Regulations for Education Programs."

Therefore, the answer to your question numbered one would depend upon your county's policy defining "unexcused absence." If your county did include out-of-school suspensions in its definition of "unexcused absence", then the provisions requiring notice and a conference outlined above would apply and the conference could focus on, among other things, working together with the parent to improve the behavior of the student that resulted in the out-of-school suspension.

Additionally, if your county did include out-of-school suspensions in its definition of "unexcused absence", a parent could be the subject of a truancy complaint if he or she failed to attend the meeting duly scheduled and noticed pursuant to the law. This complaint process would be initiated in compliance with West Virginia Code 18-8-4. It would then be the responsibility of the Magistrate to determine whether a summons or warrant would be issued based upon probable cause as is stated in West Virginia Code 18-8-4.

Finally, as the child's failure of attendance during the period of out-of-school suspension would have been as a direct result of the parent abiding by a directive from the district, I believe just cause would exist pursuant to West Virginia Code 18-8-2 which would provide the parent a defense at trial. However, if the Magistrate issues a summons or complaint, when the parent appears to attend the pretrial hearing, the Prosecuting Attorney or the Magistrate could consider dismissing the charge prior to trial; providing an opportunity for the parent, child and Attendance Director to immediately meet; delaying the prosecution for such reasonable time as to permit the parent, child and Attendance Director to meet; or such other activities within the power of their offices.

As the goal is to eliminate barriers to attendance, this process provides opportunities for dialogue as well as penalties for the failure of attendance without just cause.

Hoping that I have been of service, I am

Sincerely,

/s/

David Stewart
Superintendent of Schools