State Sup't Sends Letter About Walkout

By: Mike Waterhouse Email
By: Mike Waterhouse Email

West Virginia State Superintendent of Schools Dr. Steve Paine sent a letter to all county superintendents Tuesday regarding possible a possible teacher walkout Wednesday.

Boone County Superintendent Steve Pauley also sent a letter out to the administrators in his district. Click here to read the memo.
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Here is the letter from Dr Paine:



Dear Superintendents;

In light of the recent discussion of a possible work stoppage by West Virginia Education Association members on Wednesday, March 14, 2007, the State Superintendent’s Office is providing this guidance document in three parts: status report, legal update and recommendations.

I. STATUS
Our first concern must be for our students and their safety. I am opposed to any sort of work stoppage. Teachers need to be in classrooms teaching their students.

The State Legislature and the Governor have continued to supply salary increases. The Governor’s Office has provided documentation on the teacher salary schedule including the 3.5 percent pay raise, other salary supplements and additional funding for the teacher retirement system. This documentation can be found by clicking the following link: http://www.wvgov.org/.

I encourage you to meet with your principals, faculty senate representatives and teacher and service personnel representatives immediately and share the aforementioned documentation. In addition, I strongly recommend that you meet with your county board of education and update the members in a public meeting.

Through communication with counties, it my understanding that less than half of our county school districts intend to conduct a work stoppage. In addition, the West Virginia American Federation of Teachers and the West Virginia School Service Personnel Association do not plan on participating in the work stoppage.

Nevertheless, our state school system must to be prepared for a work stoppage to ensure our students and staff are safe.

II. LEGAL BACKGROUND
As State Superintendent, I have a constitutional duty to ensure that the children of this state have access to a thorough and efficient system of free public schools. As such, I must advise counties to take every possible step to ensure that schools are not closed as a result of a work stoppage.

Because teachers and service personnel are employed by county boards of education, not by the State Superintendent or State Department of Education, each county board of education and its superintendent will need to develop a plan of action to deal with the potential work stoppage. I have included, below, a number of legal resources to assist counties in navigating the potential problems that may arise as a result of a threatened work stoppage.

Work stoppages by teachers and service personnel are illegal.

Both the West Virginia Supreme Court of Appeals and the West Virginia Attorney General have affirmatively stated that public employees, including teachers and service personnel, have no right to strike. I have attached a copy of both opinions.

The opinion of the Attorney General clarifies that any employee participating in a strike or work stoppage is guilty of both willful neglect of duty and insubordination and is failing to fulfill his or her contract. The opinion goes into some detail as to the possible ramifications a striking employee may face including loss of pay, suspension, and/or dismissal.

No personal leave may be used during a work stoppage.

In referring to leave without cause days, West Virginia Code §18A-4-10 provides that “such leave shall not be used in connection with a concerted work stoppage or strike.” Therefore, when a work stoppage is threatened, it is appropriate for a county to announce that no personal leave for a given day will be permitted unless the employee can produce written documentation of a legitimate reason to be absent from work (such as an unplanned family or household emergency like a flood or other substantial damage to the home which can be documented).

Further, when a work stoppage is threatened, it is appropriate for a county board of education to require any employee calling in sick on the strike day to provide some type of written confirmation for the need to use sick leave, such as a doctor’s excuse or a signed affirmation stating that the employee was precluded from working due to illness. These actions may be taken by the county board even when the county’s usual policy on sick/personal leave does not require an excuse for one day of leave.

It is recommended that this information be communicated to employees in advance of the day planned for strike activities.

No seniority is earned during a work stoppage.

West Virginia Code §18A-4-8g(a) provides, in pertinent part, that “[s]eniority of a regular or substitute employee shall continue to accumulate except during the time when an employee is willfully absent from employment duties because of a concerted work stoppage or strike or is suspended without pay.” See also, West Virginia Code §18A-4-8g(d), regarding the calculation of seniority for service personnel who have had a break in accumulation of seniority as a result of a work stoppage.

Though not specifically addressed in statute, this same rule also applies to professional personnel. See, Lafon v. Cabell County Bd. of Educ., Docket No. 91-06-334 (Feb. 18, 1992).

(http://www.state.wv.us/admin/grievanc/decision/dec1992/lafon.htm)

Violent or threatening behavior by picketers will not be tolerated.

In the event that employees form a picket line outside a school, it is the duty of the school principal to take reasonable steps to ensure that the assembly is peaceable and devoid of any actual threat or intimidation. If it appears that the picketers are attempting to prevent other employees and/or students from accessing school grounds, I strongly advise that law enforcement assistance be requested. If county administrators receive, in advance, information that gives them reason to believe that picketers will be violent or confrontational, law enforcement assistance should be requested prior to the formation of the picket line. Any employee who is guilty of threatening, assaulting, and/or battering other employees, students, or parents who attempt to cross a picket line shall be either suspended or terminated by the county board.

Employees who are prevented from working due to actual physical threats, intimidation and violence and who can provide substantiation of the same should be paid as though they had reported to work. However, the mere presence of a picket line is not sufficient to excuse an employee from reporting to work. See, Prince v. Wayne Co. Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).

http://www.state.wv.us/admin/grievanc/decision/dec1991/prince.htm

Open Meetings

In discussing the possible ramifications of a work stoppage, a county board may hold an emergency meeting. The notice of an emergency meeting must state the date, time, place and specific purpose of the meeting, as well as the facts and circumstances constituting the emergency. The minutes of the emergency meeting must explain the facts and circumstances constituting the emergency. Discussions regarding steps a county may take in reaction to a work stoppage are considered general personnel policy issues and may not be discussed in executive session as per West Virginia Code §6-9A-4(b)(2)(B).

III. RECOMMENDATIONS

Monday / Tuesday

As soon as possible, county superintendents should meet with principals, faculty senate representatives and teacher and service personnel representatives to provide an update on the potential activity in their respective counties.

Determine the potential for a teacher work stoppage by school personnel on Wednesday and inform the State Superintendent of Schools by email or phone.

If there is the potential of a work stoppage by school personnel on Wednesday, call for a 2-hour delay of school. Staff members are to report at the regular time.

If there is the potential of a work stoppage, inform all staff members in advance of possible action by the local board of education. Remember to follow county board policy and the legal advice provided in this document.

Wednesday

If you do not have the threat of a work stoppage, conduct school at the regular time.

If you have a 2-hour delay, assess the number of schools where you have sufficient teachers to have school. Please have school where you can, but close school if you do not have sufficient staff to ensure the safety of students.

The county superintendent and the local board must determine the course of action in dealing with employee absences on this day.

All action taken by the superintendent and the local board should be consistent with the information provided to the staff members earlier in the week.

Feel free to contact me, Dr. McClanahan or Heather Deskins if we can be of assistance to you during this time.


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