As the 2018-19 personnel season closes, a frequent issue that comes up is the handling of personnel decisions for classroom teachers on the preferred recall list. For example, does a qualified applicant on preferred recall have priority over all qualified out-of-county applicants? Does a qualified in-house applicant have priority over a qualified applicant on preferred recall? Does a qualified applicant on preferred recall have priority over a qualified in-house applicant? If a qualified in-house applicant and a qualified preferred recall applicant apply, what hiring factors are considered? What if the applicants are only qualified classroom teachers on the preferred recall list?

We all know W. Va. Code 18A-4-7a(n) provides the following:

All professional personnel whose seniority with the county board is insufficient to allow their retention by the county board during a reduction in work force shall be placed upon a preferred recall list. As to any professional position opening within the area where they had previously been employed or to any lateral area for which they have certification, licensure or both, the employee shall be recalled on the basis of seniority if no regular, full-time professional personnel, or those returning from leaves of absence with greater seniority, are qualified, apply for and accept the position.

W. Va. Code 18A-2-2 provides the following:

In case of dismissal for lack of need, a dismissed teacher shall be placed upon a preferred list in the order of their length of service with that board. No teacher may be employed by the board until each qualified teacher upon the preferred list, in order, has been offered the opportunity for reemployment in a position for which he or she is qualified, not including a teacher who has accepted a teaching position elsewhere.

Based upon the applicable code provisions above, the following can help guide you in determining the rights of classroom teachers on preferred recall.

• No non-employee shall be employed for a teaching position by a hiring board of education until each qualified teacher on the preferred recall list has been offered the opportunity for reemployment in a position for which he or she is qualified.
• If the only qualified applicants for a classroom teaching position are those on preferred recall, the qualified applicant with the greatest seniority is entitled to the position.
• If a classroom teaching position is posted, and the candidate pool includes qualified employees on preferred recall and qualified current regular employees, utilize the 11 factors of WVDE Policy 5000, giving equal weight to all with the exception of the principal and faculty senate points consisting of two points each. An applicant on preferred recall may, in fact, be the most qualified versus a qualified in-house applicant (and the applicant on preferred recall might have less seniority than others on the preferred recall list).
• Before the board can fill professional personnel openings expected to extend for at least 20 consecutive employment days, the board will be required to notify all qualified professional personnel on the preferred list and give them an opportunity to apply. Failure to apply shall not cause the employee to forfeit any right to recall. The notice should be sent by certified mail to the last known address of the employee, and it is the duty of each professional personnel to notify the board of continued availability annually, of any change in address, or of any change in certification, licensure or both.

Should you have any questions on this issue or others, please contact a member of Dinsmore & Shohl's Education Law Practice Group.