An issue that arises every summer for counties relates to summer employment and summer seniority for service personnel. W. Va. Code 18-5-39(f) addresses the establishment of summer school programs. 

In particular, W. Va. Code 18-5-39(f), states in pertinent part that:

Notwithstanding any other provision of the code to the contrary, the county board may employ school service personnel to perform any related duties outside the regular school term as defined in section eight, article four, chapter eighteen-a of this code. An employee who was employed in any service personnel job or position during the previous summer shall have the option of retaining the job or position if the job or position exists during any succeeding summer. . . .

So, the question is, how is a board of education to apply § 18-5-39? What follows are some common questions and answers that our Education Law Practice Group receives each summer. 

Question: The board of education has a new summer cook position that is posted for the summer of 2013 and two applicants apply for the position. Applicant "A" has 25 years of regular cook seniority but has never worked in the summer. Applicant "B" has three years of regular cook seniority but has one year of summer seniority. Who gets the new position, "A" or "B"? 

Answer: Applicant "B" is to be awarded the position. A board of education must fill the position based upon overall summer seniority. See e.g., Pricket v. Monongalia County Board of Education, Docket No. 03-30-227 (Dec. 22, 2003). A board of education should have a summer seniority list and a separate regular seniority list. “The seniority granted to regularly employed workers and the ‘seniority’ granted to summer employees in their positions is controlled by separate statutes and is not meant to be commingled.” See e.g., Cowan v. Ritchie County Board of Education, Docket No. 2010-1537-CONS (Jan. 20, 2012). 

Question: The board of education posts new summer aide position for the summer of 2013. Applicant "A" has been a summer aide for three consecutive years (2010, 2011 and 2012). Applicant "B" was a summer aide in 1997, 1999, 2002 and 2003. Who gets the new position, "A" or "B"? 

Answer: Applicant "B" is to be awarded the position. Again, the board of education must fill the position based upon overall summer seniority, and whether summer seniority is obtained in consecutive years has no bearing. See e.g., Sizemore v. Brooke County Board of Education, Docket No. 03-05-253 (March 23, 2004). However, applicant "A" is still entitled to the aide position that she held in the prior year if it exists. See e.g., Lilly v. Fayette County Bd. of Education, Docket No. 96-10-481 (Sept. 15, 1997). “‘Once a board of education employee is properly placed in a particular summer position, seniority rights are established for the employee to return to the position during any succeeding years[ . . . ]’. Kennedy v. Marion County Bd. of Educ., Docket No. 91-24-427 (Dec. 30, 1991). ”Established summer positions are to be filled through competitive posting in accordance with W. Va. Code § 18A-4-8b only if the employee who held the position during the preceding summer is "unavailable." 

Question: The board of education needs to reduce a summer position for the 2013 summer. There are two summer employees in the classification that is the subject of reduction. Employee "A" has eight years of summer seniority in the classification (not consecutive years), employee "B" has seven years of summer seniority in the classification (consecutive years). Who is subject to downsize, "A" or "B"? 

Answer: Employee "B" would be subject to the downsize. W. Va. Code 18-5-39(f) provides than when a board of education reduces the number of employees to be employed in a particular summer program or classification from the number employed in that position in previous summers, the reductions in force and priority in reemployment to that summer position shall be based upon the length of service time in the particular summer program or classification. Reductions in force and priority in reemployment to that summer position shall be based upon the length of service time in the particular summer program or classification. See e.g., Sizemore v. Brooke County Board of Education, Docket No. 03-05-253 (March 23, 2004). Again, whether summer seniority is obtained in consecutive years has no bearing. 

Question: The board of education needs to reduce a summer position for the 2013 summer. There are two summer employees in the classification and both positions existed only for the summer of 2012. Employee "A" has two years of summer seniority in the classification and employee "B" has four years of summer seniority in the classification. Both of the employees had contracts for the summer of 2012 that provided that the contracts were effective 6/17/12 to 8/16/12. Does the board of education have to provide Employee "A" with the reduction in force process? 

Answer: No. Because the employment contract of "A" terminated his/her employment at the end of the Summer 2012 period, it is not necessary to eliminate his/her 2013 summer employment through the reduction in force process. However, if there is a need in the summer of 2013 (or beyond) for the same eliminated position that "A" held, s/he is entitled to the position s/he held in the summer of 2011. See e.g., Wolfe v. Monongalia County Board of Education, Docket No. 03-30-133 (Sept. 16, 2003). 

Question: Employee “A” retires at the conclusion of the 2013 school year as a bus operator, and is placed on the substitute list. For the past six years, “A” has had the same summer assignment, beginning in early July. Can “A” keep his summer assignmet? 

Answer: No. When “A” retired, he lost all of his seniority with the board of education, including his right to retain summer assignments. See e.g., Coss v. Ohio County Board of Education, Docket No. 2010-0996-CONS (Feb. 28, 2011). 

Other tidbits: 

What about “same assignment”? W. Va. Code 18-5-39(f) which addresses the employment of service personnel for summer school programs, provides that any employee who accepts a summer assignment is entitled to the “same assignment” the following year if it exists. A topic that often comes up relates to the definition of “same assignment” especially when summer programs changes names based upon various factors, including funding. However, keep in mind that “the Grievance Board has also determined that some flexibility exists in the definition of ‘same assignment.’ It is enough that there is consistency in the type of work being performed, even if the location and exact nature of the work is somewhat different. By way of example, bus operators’ positions remain the same even though the routes change from summer to summer, school lunch programs at different schools are part of one overall summer lunch program, and a summer transportation program employing aides remain the same program even though the routes change from summer to summer.” See e.g., Cowan v. Ritchie County Board of Education, Docket No. 2010-1537-CONS (Jan. 20, 2012). 

Pay issues: W. Va. Code 18-5-39(f) requires that summer service employees “shall” be paid according to the salary schedule of persons regularly employed in the same class title (i.e., 3.5 hours or full-time).

Counting seniority: Some counties county summer seniority literally to the day. See e.g., Sprouse v. Lewis County Board of Education, Docket No. 2010-1638-LEWED (May 27, 2011).