A common issue which often arises for West Virginia county boards of education relates to the filling of coaching positions in public schools. For example, does a citizen (non-employee) receive a coaching position over a currently certified professional educator? Does a certified professional educator receive a coaching position over a substitute employee holding certification? Does a certified professional educator in the home county receive priority over a certified professional educator employed in an adjoining county? What is the impact of an employee who is on permit?

Prior to June 12, 2015, the answers to these questions have been the following:

• A certified professional educator generally has priority in coaching vacancies. However, a substitute who is a fully certified teacher is equal to a certified regularly employed professional educator. As such, a board of education does not violate W. Va. Code 18A-3-2a when it hires a substitute teacher over a regularly employed teacher to fill a coaching position. Halley v. Boone County Bd. of Educ., Docket No. 00-03-329 (Apr. 4, 2001).

• An employee possessing a substitute teaching permit cannot receive a coaching position over a currently employed certified professional educator who has applied for the position or a fully certified substitute who has applied for the position. Arrington v. Jackson County Bd. of Educ., Docket No. 04-18-365 (Apr. 29, 2005).

• W. Va. Code 18A-3-2a does not provide that the currently employed professional educator has to be an employee of the county in which the job is posted in order to have hiring priority, but must merely be “currently employed". However, the out-of-county teacher must be able to meet the scheduling demands of the coaching position in order to be hired for it. State Superintendent Interpretation, June 3, 2003.

In sum, up to this point, county boards of education have long followed the principle that a certified professional educator has priority in coaching vacancies over all other applicants (such as a citizen coach, certified through the WVSSAC, who is not a certified professional educator).

The basis for the long standing principle that a certified professional educator has priority, addressed in the grievance decisions above, has been found in W. Va. Code 18A-3-2a for many years, which statute currently provides as follows (emphasis added):

(3) Within the category of other certificates and permits, the State Superintendent may issue certificates for persons to serve in the public schools as athletic coaches or coaches of other extracurricular activities, whose duties may include the supervision of students, subject to the following limitations:

(A) The person is employed under a contract with the county board of education.

(i) The contract specifies the duties to be performed, specifies a rate of pay that is equivalent to the rate of pay for professional educators in the district who accept similar duties as extra duty assignments, and provides for liability insurance associated with the activity; and

(ii) The person holding this certificate is not considered an employee of the board for salary and benefit purposes other than as specified in the contract.

(B) A currently employed certified professional educator has not applied for the position; and

(C) The person completes an orientation program designed and approved in accordance with State Board rules.

House Bill 2005, however, will change the selection priority of hiring coaches for county boards of education. No longer will certified professional educators have statutory priority. HB 2005 amended W. Va. Code 18A-3-2a and effective June 12, 2015, will read as follows:

(1) Other certificates and permits may be issued, subject to the approval of the State Board, to persons who do not qualify for the professional or paraprofessional certificate.

(2) A certificate or permit may not be given permanent status and a person holding one of these credentials shall meet renewal requirements provided by law and by regulation, unless the State Board declares certain of these certificates to be the equivalent of the professional certificate.

(3) Within the category of other certificates and permits, the State Superintendent may issue certificates for persons to serve in the public schools as athletic coaches or coaches of other extracurricular activities, whose duties may include the supervision of students, subject to the following limitations:

(A) The person is employed under a contract with the county board of education.

(i) The contract specifies the duties to be performed, specifies a rate of pay that is equivalent to the rate of pay for professional educators in the district who accept similar duties as extra duty assignments, and provides for liability insurance associated with the activity; and

(ii) The person holding this certificate is not considered an employee of the board for salary and benefit purposes other than as specified in the contract.

(B) The person completes an orientation program designed and approved in accordance with State Board rules.

Noticeably absent from the law that will take effect on June 12, 2015, is the provision that a currently employed certified professional educator has not applied for the position. As such, the applicable statutory provisions now allow for the issuance of a certificate or permit to a non-certified professional educator even if a currently employed certified professional educator has applied for the position. That being said, if a currently employed certified professional educator is not awarded the position, it appears the coaching position would still be posted each year given that “a certificate or permit may not be given permanent status” (making them one-year extracurricular contracts). However, the selection of coaches will continue to be governed by the arbitrary and capricious standard. Chaffin v. Wayne County Bd. of Educ., Docket No. 92-50-398 (July 27, 1993); Hedinger v. Wyoming County Bd. of Educ., Docket No. 2010-0598-WYOED (March 4, 2011).