WVSBA The Legislature

October 31, 2006 - Volume 25 / Issue 21

Overview Info

Stats

2006 Regular Session Adjourned Sine Die
Days Until 2007 Regular Session 70
Intermin Session Remaining November 2006 -
January 2007

Inside

Quote: "It takes a pretty high threshold to overturn an Administrative Law Judge's opinion…So that tells us that, in terms of the fairness issue, it is flawed. Employees certainly do not feel they are getting a fair shake." – WV-AFT President Judy Hale discussing possible changes in the state's Education and State Employees Grievance Procedure as part of the West Virginia School Boards Association Conference '06 held September 22/23 in Charleston.

 

News

Raleigh County Board of Education President Kim Cooper on Sept. 23 was elected president of the West Virginia School Boards Association for fiscal year 2006.

Cooper was one of four executive officers elected to the WVSBA Executive Board, a 26-member board that governs the organization.

Sally Cann (Harrison) was elected President-Elect along with Steve Cook (Monongalia), who was elected Vice President. Putnam County Board of Education President Debbie Phillips was elected financial officer.

Regional officers elected at the 2006 Delegate Assembly include:

Region I
Mike Mitchem (McDowell), regional director; Patricia Waddell (Raleigh), associate director.

Region II
Ted Barr (Cabell), regional director; Allison Lambert (Logan), associate director.

Region III
Jim Crawford (Kanawha), regional director; Beth Cercone (Clay), associate director.

Region IV
Kenny Vance (Pendleton), regional director; Barbara Taylor (Nicholas), associate director.

Region V
Carolyn Bowie (Ritchie), regional director; Jim Fox (Wood), associate director.

Region VI
Mary Ellen Komorowski, Ph. D. (Marshall), regional director; Howard Corcoran (Ohio), associate director.

Region VII
Bob Duckworth (Taylor), regional director; Denver Burnside (Doddridge), associate director.

Region VIII
Todd Beckwith (Berkeley), regional director; Bob Shook (Mineral), associate director.

Lambert, Cercone, Taylor, Fox, Corcoran, Burnside, Duckworth and Shook are newly elected members to the board.

Past presidents serving on the Executive Board include Steve Chancey (Jackson), Pete Dougherty (Jefferson), Arnold Harless (Wyoming), Bill Raglin (Kanawha) and Dr. Rodney Thompson (Wayne).

WVSBA Executive Director Howard M. O'Cull, Ed.D., is an ex officio, non-voting member of the board who also serves as board secretary.

Officers' positions became effective immediately.

Several officers' positions were vacant following their defeats in the 2006 Primary Election, including former President Debbie Thompson (Pleasants).

"We now have a full board compliment and can best proceed with advancing the association's varied agenda," Cooper said.

O'Cull, who has been employed by WVSBA since 1979, said this was the greatest turnover in officers in the past 27 years.

Nearly 200 attend Fall Conference workshops and panel discussions

In other action at the Fall Conference, delegates received information about proposed changes in the state's employee grievance procedure and they discussed the 2007 regular legislative session. They also reviewed the status of a lawsuit filed against the association by West Virginia chapter of the American Federation of Teachers in 2003. AFT-WV officials have asked Kanawha Circuit Judge Paul Zakaib to rule in the matter – the fourth such written request made by the teachers' union.

AFT-WV claims the school board association is statutorily chartered only to provide training and development programs for county board members since any legislative representation the association would do for school boards is not specifically authorized in state Code.

In challenging the suit, the school boards association pointed out the array of services it provides, including several statutes that are not training-specific and which are cited in statute.

In a 2004 hearing, Zakaib asked AFT-WV attorneys how county board members, as well as other elected officials, would be represented in the Legislature if they had no association to carry out those and other advocacy tasks.

In other fall conference programming, Earl W. Maxwell, executive director of the Education and State Employees Grievance Board, discussed pending changes in the state's grievance procedure. Maxwell discussed possible changes being contemplated by a "working group" assembled by Gov. Joe Manchin. (See "Grievance Panel" story in this issue of the newsletter.)

That working group has been meeting the past several months. A report on possible grievance revisions, including recommendations for binding arbitration, is expected before the 2007 regular session.

Maxwell said any proposals the working group recommends will be cleared through an interim legislative committee that has been studying the grievance procedure the past few years.

"We now have a full board compliment and can best proceed with advancing the association's varied agenda." WVSBA President Kim Cooper (Raleigh)

Several panelists, including Judy Hale, AFT-WV president, Bob Brown, president of the state School Service Personnel Association, and Rick Boothby, a WVSBA associate counsel from Bowles Rice McDavid Graff & Love, responded to Maxwell's remarks.

The program also featured public education advocate Jamie Vollmer, who discussed ways and reasons why county board members, as elected officials, can promote public education.

Vollmer, a nationally recognized speaker, is best remembered as a successful businessman and former public school critic who, through closer examination of public education aims, successes and difficulties, now champions public education.

Workshops included a participant-led program facilitated by O'Cull, a session about wellness and the state Board of Education's wellness policy, and a meeting for county boards under state takeover – the first of such sessions being considered for statewide meetings.

The takeover session was conducted by association counsel Howard E. Seufer Jr. of Bowles Rice McDavid Graff and Love, and was well-received based on conference evaluations. About 200 attended the fall conference according to Shirley Davidson, WVSBA administrative assistant.

State Superintendent of Schools Steven L. Paine, Ed.D., recently announced that at least two county boards – Hampshire and McDowell – may regain local control status, but he did not establish an official timeline.

Based on available records, the first "fall conference" was in 1967.

 

The West Virginia School Boards Association Executive Board will meet Saturday, Nov. 4, 2006, in conjunction with the "school safety" drive-in workshop.

About 120 county board members, county superintendents and school administrators are registered for that conference at the Embassy Suites Hotel in Charleston.

Executive Board meeting items include:

The board meeting is open to conference attendees and the public.

The association's Committee on Legislation (Committee of 55) will meet in conjunction with the conference to consider legislative recommendations for the Legislature's 2007 regular session.

COL members have received information describing legislative recommendations, legislative priorities and philosophies first discussed in the group's Sept. 22 meeting in Charleston. The meeting begins at 9 a.m.

Other committees meeting in conjunction with the conference include the Committee on Finance chaired by Debbie Phillips (Putnam) and the Committee on Communications chaired by Jean Westfall (Ritchie). These committees also will meet at 9 a.m.

Phillips is WVSBA'S financial officer.

All committee meetings are open to conference attendees and the public.

If you did not receive the COL mailing, or for more information about committee meetings, please contact President Kim Cooper (Raleigh) or WVSBA Executive Director Howard M. O'Cull.

O'Cull may be reached by e-mail at hocull@wvsba.org or
by telephone: 304-346-0571 (office); 304-345-3614 (home); 304-549-9463 (mobile)

Cooper may be reached by e-mail at dukecoop77@yahoo.com or
by telephone: 304-255-5068 or 304-926-2448 (home)

 

About 50 county board presidents, vice presidents and board members attended the West Virginia School Boards Association's President's Retreat at Snowshoe Mountain Resort on Oct. 6-7.

The program featured a free-ranging discussion about roles and responsibilities of county board presidents. The discussion included a review of emergent issues county boards are facing, and a showcase of counties in which participants discussed initiatives, programs and services in their counties.

"The showcase of counties is becoming a most-important segment of the presidents' retreat since we began it last year," said WVSBA Executive Director Howard M. O'Cull, Ed.D. "Given our usual meeting format, we don't get to hear, at least from the county board member perspective, about the programming occurring in the counties.

"This President's Retreat segment gives everyone a chance to discuss their successes, any glitches in programming and ideas for future initiatives. We learn from each other through a cross-pollenization of ideas."

Bowles Rice McDavid Graff & Love attorney Norwood Bentley conducted the first general session about county board presidents' roles and responsibilities as itemized by statute or through state Board of Education policies, rules and regulations.

Bentley is a member of the Bowles Rice education group.

The President's Retreat is underwritten through funds from the Legislature's School Board Effectiveness Project (WVSBEP). Those dollars flow to the association from the state Department of Education. The program has been operating since 1989.

The WVSBEP also pays for a five-year study of school board minutes which the association is undertaking with Mike Cunningham, Ed.D., and Jane Hange, Ph. D.

Results of that study determine school board member training needs, to discern areas of school board focus during the past five years, and to inform additional research and studies, including educational dissertations.

The first such study was conducted in 1990.

For more information on the minutes study or the WVSBEP, please contact O'Cull at hocull@wvsba.org.

Editor's Note: On Oct. 18, the governor's work group considering revisions to West Virginia's Education and State Employees Grievance process discussed "causes of actions" for grievances or the matters that should or could be included in a revised grievance procedure and which employees should be covered under the grievance process.

A draft of the proposed steps was distributed for the group's review.

No motion, however, was made to accept the proposal as the group could not agree on binding arbitration. As a result, the group established a subcommittee to discuss binding arbitration and to make a recommendation to the full committee.

Additionally, group members received a handout about what is and what should not be "grievable." There was considerable discussion about "RIFs" or reductions-in-force as relating to public elementary and secondary educators and school service personnel.

Bill McGinley, a panel member who represents the West Virginia Education Association, was successful in retaining current statutory language as to what is grievable for public education employees, effectively recommending no statutory changes in these sections of law.

No other motions were made. The next meeting will be scheduled pending the report from the subcommittee.

Subcommittee members include McGinley; Elaine Harris who represents AFL-CIO communications workers; Ed Hartman, American Federation of State, County and Municipal Employees; Joe Smith, special assistant to Gov. Joe Manchin; Mark Carter, West Virginia Chamber of Commerce; and Lew Brewer, executive director of the state Ethics Commission.

Smith is the former state director of personnel.

The grievance process was discussed at the West Virginia School Boards Association's Fall Conference in September in Charleston.

This is a report of that presentation, which included a panel discussion.

 

By Jim Wallace

Many people agree the grievance process for education personnel and other public employees needs reformed, and they have proposals for doing that. The difficulty is they don't all agree on what should be done.

If that wasn't clear beforehand, it certainly became clear during a panel discussion during the West Virginia School Boards Association conference on Sept. 22.

Earl Maxwell, executive director of the Education and State Employees Grievance Board, laid out the many criticisms of the process. Those criticisms are that it is: too rigid, inefficient, lacking in finality (because decisions can be appealed to circuit court), wasteful, expensive, very legalistic and hard to understand.

A review of the process began about three years ago, but Maxwell said more energy has been infused into that reform effort this year, partly because Gov. Joe Manchin wants a system that will show more respect to employees. Maxwell has been on the job since January.

He has made some administrative improvements. For example, with each new case, a conference call is set up among an administrative law judge and the parties in the dispute to get everyone talking as soon as possible. Administrative law judges now go anywhere in the state for hearings instead of having the opposing parties come to them. In addition, all administrative law judges have received advanced mediation training, and mediation is encouraged at all levels of the grievance process.

"Mediation is strictly a third party coming and helping you negotiate," Maxwell said. "We do not decide the case at that point. We do not involve ourselves with anything about the merits. We just facilitate the communication between the parties that are negotiating."

But there are still problems with the grievance process. Both a legislative interim subcommittee, Government Organization Subcommittee C, and a work group appointed by Manchin have been working on reform proposals that could be taken up by the Legislature in 2007.

Although the grievance process formally has four levels, they are not all typically used in education disputes. Level III involves a hearing before the county board of education, in which the board "sits as the law and fact-finder, as a tribunal," Maxwell said.

"You actually have the superintendent as a party to a suit that the board is hearing," he said. "So you have to treat the superintendent as a party, as a judge would treat a plaintiff or defendant in a case and on the other side is the grievant. This level is typically waived because of the complexities and some of the discomforts the boards of education have with that role."

That's one reason why the grievance board proposed reducing the levels of the grievance process to three. The first level would be a meeting between an employee with a grievance and that employee's supervisor. The second level would go to the superintendent, and the third level would be a hearing before an administrative law judge.

An alternative proposal is still being drafted by the working group, but Maxwell revealed some details that seem to be emerging.

Working group favors establishing grievance ombudsman

"The general concept is not to have levels," he said. "It essentially has stages through which an employee dispute must go through, step by step by step."

The first step would be negotiation between the employee and a supervisor who has the authority to take action, if necessary. Among members of the working group, there is also support for an ombudsman program, which would operate at that first stage.

"State Code says the grievance procedure was established to effectuate a fair system of expeditious administrative procedure, and it's my opinion that it is no longer any of the above. It's not fair, it's not expeditious and it's certainly not simple." - Bob Brown, executive director of the West Virginia School Service Personnel Association

"An ombudsman would be an individual who would act independently within the agency, in this case the state school system, who would be available for employees to call with complaints and problems," Maxwell said. "The ombudsman would clarify, by talking to the employee, what the problem is and would know where to take that problem in the school system to see that it got addressed. It could be done directly or confidentially on behalf of the employee."

If an employee would not receive a satisfactory response at the first stage, that employee could request mandatory mediation or possibly arbitration in the second stage. The third stage would be adjudication through a yet-undefined process.

"There's discussion of arbitration," Maxwell said. "There's discussion of keeping the administrative law judge. There are a lot of different alternatives floating around out there."

Bob Brown, executive director of the West Virginia School Service Personnel Association, noted that the state Code says the grievance procedure was established "to effectuate a fair system of expeditious administrative procedure, and it's my opinion that it is no longer any of the above. It's not fair, it's not expeditious and it's certainly not simple."

Labor groups agree reform is needed, hope for binding arbitration

All of the labor groups who represent public employees agreed last year that reform was necessary, he said, because disputes were not being resolved in a timely manner, the process had turned into "a legal quagmire" and the system was not fair. In regard to fairness, Brown said, school service workers won only 9 percent of their grievances that reached Level IV, "so at least there is a perception among employees that they're not getting a fair shake at Level IV."

Those groups developed legislation, Senate Bill 417, that came close to getting through the Senate during this year's regular legislative session but died when it fell short of the four-fifths majority needed for a final reading on the last day the Senate could consider its own bills. Brown said that bill would have streamlined the grievance process and made it fairer, but it "raised some hackles" by proposing independent arbitration instead of a hearing examiner at Level IV.

"There's discussion of arbitration. There's discussion of keeping the administrative law judge. There are a lot of different alternatives floating around out there." - Earl Maxwell, executive director of the Education and State Employees Grievance Board

"The perception is that the hearing examiners are employed by the state of West Virginia, and for them to rule in favor of an employee means they have to rule against their employer," he said. "So there at least is an impression that you can't get a fair shake here."

Along with arbitration, the labor groups wanted judicial review to be available only under three conditions: 1) if the decision was based on fraudulent information; 2) if the arbitrator had conflict of interest not revealed before rendering the decision; or 3) if the arbitrator clearly ruled outside of his or her authority.

An advantage of such a system, Brown said, is that it would drive people to the negotiating table at lower levels of the process, because they would know there was little likelihood of judicial review.

As an incentive for that system to be adopted, the labor groups agreed that they would share the costs of arbitrators, which Brown placed in the range of $2,500 to $4,000. He said the costs of taking cases to circuit court are much higher.

Monroe superintendent says current process requires too much time
Monroe County Schools Superintendent Lyn Guy said she has an emotional reaction to the grievance process because it ties up so much of her time when she least has the time to devote to it. However, because she has spent a good deal of time working with employees on their disputes, she has had some success in resolving them without having to go through the legal process.

"If we can sit down and talk about issues, I think we'd be a lot better off," Guy said, but sometimes it's hard to find the time needed to do that.

"The problem is I am a person who will play by the rules if I know what those rules are. But it takes a lot of study, and sometimes the advice of an attorney, to understand what the rules are. I think also one of the problems is the employees don’t know the rules." - Monroe County Superintendent Lyn Guy

"The problem is I am a person who will play by the rules if I know what those rules are," she said, but it takes a lot of study, and sometimes the advice of an attorney, to understand what the rules are. "I think also one of the problems is the employees don't know the rules."

One way Guy handles that problem now is to meet with new teachers during the course of the school year and go through the grievance procedure. Sometimes, she has driven with a grievant for a hearing in Charleston not because they were adversarial but because they needed to have a legal question resolved.

"There's got to be a change to this," Guy said. "There absolutely has to be a change to it, because right now, when that grievance is filed, those deadlines are triggered, I'm pretty busy, the employee wants an answer, and there needs to be a way to come quicker to a resolution."

Mark Carter, a Charleston lawyer, brought the viewpoint of someone who has worked on the grievance process on both the state and federal levels. He has been appointed twice by President Bush to the Federal Service Impasses Panel, which resolves collective bargaining disputes between unions representing federal employees and government agencies. He also serves on the state's grievance process work group.

Carter endorsed the creation of an ombudsman position. That person would serve as a neutral resource to help employees assess their grievances and get them properly addressed. The ombudsman would also have credibility with the administration to recommend when it would be in an agency's best interest to resolve a dispute.

When an ombudsman cannot help the parties reach a resolution, Carter said, mediation should be used. Mediators should have credibility with both sides, so they can reach an amicable resolution and minimize hostilities.

Carter also said it would help both employers and employees to have better understanding of their duties and rights. But it is difficult for both sides to reach that understanding when grievances can be based not only on all written policies but also all unwritten policies of a school system or other government agency. The working group is trying to address that problem, he said.

Teachers' union favors binding arbitration
Judy Hale, president of the West Virginia chapter of the American Federation of Teachers, said reform is needed because the current grievance process is inefficient, wasteful, legalistic and not fair.

As evidence of the system's unfairness, she said teachers win no more than 17 percent of disputes at Level IV during a year, which is better than the record of other employee groups but still not very good. However, when those cases get to circuit court, the teachers win about 60 percent of them.

"It takes a pretty high threshold to overturn an ALJ's opinion," Hale said. "So that tells us that, in terms of the fairness issue, it is flawed. Employees certainly do not feel they are getting a fair shake."

The perception among teachers, she said, is that the problem is with the administrative law judges.

"ALJs are paid for by the government and appointed by people who have no allegiance to employees," Hale said. "We don't feel that we have any fair shake when it comes to ALJs. They don't work for us. We have no input as to who is appointed as an ALJ."

Teachers also are concerned about the proposal for an ombudsman system, she said, because an ombudsman would not be truly independent if that person were hired by the government.

"I guess that my concern is whoever makes the final decision has to be somebody who is totally independent if employees are going to feel that they are getting a fair shake," Hale said. "And that is why the AFT's position is that we have independent arbitrators and that it be a binding arbitration."

Binding arbitration would avoid having cases go to court, so it would avoid the higher costs associated with circuit court, she said.

About three years ago, the Federation of Teachers filed Freedom of Information Act requests with all 55 county school boards to find out how much they spent on the grievance process. Hale said that effort determined that the boards were spending about $7.3 million in attorney fees for grievances.

"That's money that you need for other things," she said.

Among the changes in the grievance process that Hale endorsed was the elimination of Level III.

"Most school boards don't use it anyway," she said. "Where the rubber meets the road, I think, is what we do at what we now call Level IV, and what we might do after that."

Hale said what teachers want is a process that is less expensive and more streamlined. "Our main concern is that we want a process that is fair," she said.

WVSBA attorney predicts little change to procedure
Like the other panel members, Richard Boothby, an attorney for the School Boards Association, said the grievance process does need reform, but unlike them, he offered little hope that it would see great improvement.

"What's probably going to happen is this process is going to be streamlined a little bit and you'll get things done faster, and I think that's the best we can hope for," he said. "When you are talking about due process rights of employees, you will never get a simple process, because the employees' rights require that you take your time and treat them fairly."

Boothby cast doubt on Hale's figure that attorneys' fees for grievance cases cost school boards $7.3 million. He also refuted the assertions of some people that school boards involve attorneys too much in grievance cases.

"During some of these working group meetings, there have been some people who have said, ‘You spend so much money on attorneys because you can. You spend so much money on attorneys because you want to stick it to the employees and you can afford to,'" Boothby said. "I don't believe that."

Reasonable people want to get along, he said, but the state Code's strict requirements for dealing with employee disputes make it hard for school boards not to involve lawyers in the grievance process.

"If you fail to get a piece of paper to the right person at the right time, you lose," Boothby said. "Now why would you want to hire an attorney to protect you in that situation? Because if you don't get it done right, you lose."

Changing the grievance process could even make it worse, he said.

" . . . my concern is whoever makes the final decision has to be somebody who is totally independent if employees are going to feel that they are getting a fair shake. And that is why the AFT's position is that we have independent arbitrators and that it be a binding arbitration." - Judy Hale, president of the West Virginia chapter of the American Federation of Teachers

"That's a real possibility," Boothby said. "Right now, there is predictability. We know what the system is."

Like others, he endorsed the removal of Level III. He also gave a limited endorsement to the use of mediation.

Boothby said mediation works great in cases involving hurt feelings, but it does little good in cases involving zero-sum gains, such as when someone's job is on the line.

Another change that would help, he said, would be to allow summary judgment. If a grievance involves an issue that has previously been decided in another case, a judge could rule that way and shorten the legal process. Boothby said that would eliminate some frivolous grievances.

"I do see a lot of frivolous grievances," he said, because it costs nothing to file a grievance, although it costs a school board a lot to defend the school system against the grievance.

In regard to the statistics cited earlier that indicated the grievance process, especially at the administrative law judge level, is biased against employees, Boothby said, "Statistics can be twisted." He said he had seen no evidence that administrative law judges are unfair toward any group.

"I have to read through opinions from Supreme Court justices and circuit court judges on a regular basis," Boothby said. "I would put the opinions written by our ALJs up against any of those opinions any day. They're easy to read, you can understand them and you can see how they applied the law to the facts. Every time I've lost, I haven't gotten angry or felt I had been cheated, I've felt like I lost. I understood why I lost, and may have disagreed with it, but it was a fair process in the sense that I knew why I lost."

Proposed reforms won't remove school boards from grievance process
When the panel took questions, one county school board member expressed concern that some of the suggested reforms would take school board members out of the process. "Taking elected officials out of the process is no way to streamline," he said.

Brown responded that the labor groups don't want to take school boards out of the process. The legislation they almost got the Senate to approve would have eliminated Level I, not Level III, from the process.

Maxwell added that neither of the proposed bills now under consideration by the working group would eliminate school boards from the process, but they would no longer decide cases the way courts do.

"What’s probably going to happen is this process is going to be streamlined a little bit and you’ll get things done faster, and I think that’s the best we can hope for. When you are talking about due process rights of employees, you will never get a simple process because the employees' rights require that you take your time and treat them fairly." - Richard Boothby, an attorney for the West Virginia School Boards Association

Another county school board member picked up on Hale's comment that administrative law judges have no allegiance to employees. The member said they don't have any allegiance to the school boards either.

That person said frivolous grievances are the main problem that school boards face and suggested that some "financial responsibility" should be imposed on people who file grievances. But Boothby responded that establishing a system in which the loser pays "is not going to happen." A better solution, he said, would be to allow judges to summarily dismiss grievances that lack merit.

Maxwell said that no matter what changes are made in the grievance process, the system must treat employees with respect.

Jim Wallace is a former government reporter for the Charleston Daily Mail and former news director of West Virginia Public Radio. He now writes for several national and West Virginia publications.

 

By Jim Wallace

State Superintendent Steven L. Paine, Ed.D., told lawmakers at the Sept. 12 meeting of the Legislative Oversight Commission for Education Accountability the state is making progress toward getting national board certification for more West Virginia teachers.

The Education Department has recruited about 200 teachers to sign up to begin the process in December. If they progress and get their certification, Paine said, the department will ask lawmakers to provide additional funds to cover the increased salaries they will earn. About 250 teachers in the state already have national board certification.

"That process, I really believe, helps us get at the teaching of higher-level skills, which will fulfill the goals of the 21st century environment," Paine said.

On content standards and objectives, he said the department has sent out revisions suggested by teachers. They went to businesses who are the department's partners in the 21st Century Skills program, as well as research assistants and others.

"So the Intels and Microsofts and Dells and the others that comprise this partnership have actually sat down and reviewed our curriculum and have returned that curriculum to us now with their suggestions," Paine said. "What we asked them to do was to give us a curriculum that you think puts us on the map with anyone in the world. So you're going to see the rigor in our curriculum increase by 2008."

"What we asked them to do was to give us a curriculum that you think puts us on the map with anyone in the world. So you're going to see the rigor in our curriculum increase by 2008." – State Superintendent Steve Paine

Corresponding assessments also would be developed by 2008, he said. Last year, lawmakers granted the department's request to delay the development of those assessments so they could be aligned with the new curriculum standards.

On Project Lead the Way, a pre-engineering curriculum, Paine said six pilot sites have been in place and a seventh has just been added in Fayette County.

"We're really pleased with how we're progressing with the integration of pre-engineering curriculum with math and science instruction," he said. "The national Business Roundtable, as you will recall, by 2015, called for tripling the number of engineers in our country."

Paine promised lawmakers he would have more information for them in the future about progress toward aligning the curricula of the public schools with those of the state's colleges and universities. He said the Education Department and the Higher Education Policy Commission made more progress on that subject in the previous three weeks than in the prior three years. One goal is to provide a "seamless transition" for students from high school to college with less need for remedial courses.

Paine to remind superintendents about provision allowing student transfers

Delegate David Perry, D-Fayette, expressed concern about whether the statute allowing students to transfer from district to district across county lines was being applied properly. Paine called that "a legitimate concern" and said some counties have refused to let students go to a neighboring county because of worries about losing state funding.

Paine said he would have more information in the future about aligning the curricula of the public schools with those of the state's colleges and universities. One goal is to provide a "seamless transition" for students from high school to college with less need for remedial courses.

Joe Panetta, executive director of the Office of School Finance, said there is a provision in the School Aid Formula to give districts an incentive to let students transfer to neighboring districts for better use of facilities. The state school board has approved two such agreements in the state, he said. One is between Logan and Lincoln counties, allowing students from the Harts area to go to school in Chapmanville. The other agreement allows some Taylor County students to go to Harrison County schools.

Perry wondered what would happen if two counties could not agree on such a transfer. Panetta said the case would then go to the state superintendent for a decision.

Paine said he would make sure county superintendents are aware of the provision, because it likely will be needed more in the future. If the provision is not working, he said the state department would return to lawmakers with suggestions for alternatives.

Senator wants lawmakers to be creative in financing of education

Sen. John Unger, D-Berkeley, wanted to know whether the Education Department was taking an active role in the tax reform proposals being considered by the Manchin administration. Gov. Manchin is expected to have lawmakers consider those proposals during a special legislative session in November.

Panetta said he is a member of the subcommittee on property tax, and he and Paine had participated in general sessions of tax reform meetings. They also had two key advisors to the reform process, Cal Kent of Marshall University and Tom Witt of West Virginia University, address a meeting of county superintendents.

Unger said he was concerned administration reformers might be putting education funding automatically into the property tax box instead of thinking outside the box, considering other possibilities.

"It's important because I'm convinced whatever comes out of the tax review will basically drive the formula," he said. "So the real debate or discussion is going to occur around the tax review of how we finance education."

Unger said the Recht decision, a 1982 court decision calling for more equity in funding among school districts, limits how the state allocates education funding, so he wondered if lawmakers should consider a constitutional amendment or a legislative override of that decision.

". . . I'm convinced whatever comes out of the tax review will basically drive the [School Aid] formula. So the real debate or discussion is going to occur around the tax review of how we finance education." – Sen John Unger, D-Berkeley

"I'm just wondering how much are we able to think outside of the so-called parameters of the Recht decision in order to be creative as far as the financing of education," he said.

Paine responded, "We were glad to settle the Recht decision, so I haven't looked for ways to get out of the box to avoid the Recht decision." But he added that making some changes in the size of the local share might address problems that school districts in the Eastern Panhandle are facing in competing with schools in Maryland and Virginia.

Perry and Unger also pressed Paine for suggestions on how the state might deal with shortages of teachers with certain certifications. Paine said he has been meeting with officials at WVU, Marshall and Fairmont State University about that problem.

The state is considering one model program from the National Science Foundation to provide Web-based professional development for middle school teachers, and some teachers "are very interested in that," he said. Unger said online education is not for everyone but it might be good for teachers.

However, he said, one reason many Eastern Panhandle teachers go to districts in other states, in addition to higher salaries, is that those out-of-state districts pay for them to get their master's degrees. Unger suggested that the Education Department should look into getting Workforce Development funds to help teachers with higher education expenses.

Jim Wallace is a former government reporter for the Charleston Daily Mail and former news director of West Virginia Public Radio. He now works for TSG Consulting in Charleston and writes for several national and West Virginia publications.

 

By Jim Wallace

Members of a legislative interim subcommittee studying the School Aid Formula learned at their latest meeting that West Virginia is out of line with most other states in the way it allocates funding to school districts for special education students.

Under the state's Public School Support Program, special education students are assigned a weight of two, so that school systems receive twice as much funding for each of them than they do for other students.

Cal Kent of the Center for Business and Economic Research at Marshall University told the lawmakers Oct. 16 that West Virginia is "an anomaly" in using that system. Oregon is the only other state that uses the same system. He said the system does not recognize the differences in costs for providing special education to students with different disabilities, and it might encourage districts to classify students as needing special education to obtain additional funding.

Among the special education students in West Virginia, more than 75 percent are classified as being "speech/language impaired" or "mildly mentally impaired" or having "specific learning disabilities." Kent said those are considered to be among the least expensive exceptionalities that schools must manage.

Marshall University economics researcher Cal Kent said the current system does not recognize the differences in costs for providing special education to students with different disabilities, and it might encourage districts to classify students as needing special education to obtain additional funding.

It is the responsibility of each local school district to provide the necessary services to address each child's disability, which means the costs of providing those services can vary greatly from student to student based on the extent of disability and the required treatment.

Kent said the cost of providing necessary services for a severely disabled child often runs into six figures annually. Smaller districts with limited financial resources might not be able to bear those costs without cutting back on other programs, he said.

Tom Witt of West Virginia University's Bureau of Business and Economic Research said, "That's the biggest fear of many superintendents."

Kent said he has heard examples of school districts that have eliminated high school-level classes to provide special education services.

Delegate Bob Tabb, D-Jefferson, suggested providing special education on a regional basis with state funding to take the burden off of individual counties. But Delegate David Perry, D-Fayette, said sending special education students to certain schools could violate federal law.

Kent agreed. He said two federal laws, the Individuals with Disabilities Education Act and the Americans with Disabilities Act, require every school to be equipped to handle students with disabilities.

Most of the 19 states that use per-pupil weighted formulas use different weights based on the costs of providing services to particular types of special education students, he said. For example, Florida uses a five-tier system ranging in weights from 1.341 to 6.860, in which districts' property tax bases, cost of living and student sparseness are taken into account in addition to levels of disability. Oklahoma uses a different weight for each disability classification.

Kent said that if West Virginia would switch to a multi-tiered formula, it would be necessary to conduct a comprehensive study first.

The federal government and 10 states use a census-based approach, which allocates money on the basis of total student enrollment without reference to the number of special education students. It's a simpler system, but it has faced court challenges. In Kentucky and three other states, courts have rejected this approach on constitutional grounds.

Six states use cost-based formulas, which reimburse districts for a percentage of special education costs. Those reimbursements range from 20 percent to 80 percent.

Seven states use flat or variable block grants, which are outside the state aid formula. Flat grants are criticized as failing to recognize cost differentials associated with different disabilities. Variable grants are criticized as encouraging districts to over-classify students to get more funding.

Another alternative is to use a resource-based formula, in which the amount of aid per classroom varies with the wealth of the district or its ability to support special education.

Some lawmakers, including Senate Education Chairman Bob Plymale, D-Wayne, expressed concern that some people have moved to West Virginia from neighboring states or from one county to another within West Virginia to get better services for children with disabilities.

"The biggest fear of many superintendents," according to West Virginia University economics researcher Tom Witt is that the cost of providing necessary services for a severely disabled child might force smaller districts to cut back on other programs.

Senator John Unger, D-Berkeley, said he would like to find out why some counties have higher levels of students with disabilities than others. "I would like to look at what the trends are to better direct our resources," he said. Plymale and Kent both endorsed that as a good idea.

"I don't think we really understand what all is happening there," Plymale said.

Kent noted that the classifications of students are done by committees in each county and not by the state, so it's understandable that those classifications would not be consistent from county to county.

Before the meeting ended, Plymale reminded his colleagues that the committee was nearing the end of its two-year assignment to examine the School Aid Formula, so they would have to put together a report within the next few months.

Jim Wallace is a former government reporter for the Charleston Daily Mail and former news director of West Virginia Public Radio. He now works for TSG Consulting in Charleston and writes for several national and West Virginia publications.

 

WVSBA Briefs

The Barbour County Board of Education has contracted with the West Virginia School Boards Association to conduct a search to replace departing superintendent Matthew R. Kittle, who has taken a position with the state Department of Education.

The Barbour County board will interview four candidates Nov. 4. The applicants include, in order randomly selected for interviews:

As part of the search process, WVSBA initiated an Oct. 26 meeting with Barbour County education groups and representatives of the school system's nine local school improvement councils.

The organization also asked citizens, through area newspaper ads, to identify the qualities the new superintendent should have.

WVSBA has conducted two superintendent searches this year, including one in Pleasants County.

Joe Super, Ed.D., became Pleasants County superintendent late last summer. He is a former Randolph County Schools central office administrator. The Pleasants County position became vacant when Tom Long, former superintendent, took a position with a Virginia school district.

Kittle, a Kanawha County native, will become director of the state Education Department's Office of Institutional Education Programs. He replaces Frank Andrews, who recently retired.

"As we worked on the handbook within the context of Orientation and two recent conferences, we realized there were several matters that needed to be added, especially along the lines of personnel and related legal considerations," said WVSBA Executive Director Howard M. O'Cull, Ed.D. "So we decided to make the handbook more timely and comprehensive, although this has delayed it being placed in members' hands."

Handbook committee chairman Gene Bailey (Mercer) and his committee members will receive a final handbook draft by early November.

"We're still getting requests for handbook material, including a request to address the issue of ‘rogue members,' which I attempted to do at the Presidents' Retreat," O'Cull said. "I'm speaking in jest, of course, when I say there are no rogue school board members in West Virginia.

"Just ask any county superintendent. He or she will easily verify what I've said."

The handbook is made possible through the state School Board Effectiveness Project (WVSBEP) funded by the Legislature.

This issue of the newsletter features threehandbook-related articles. One article discusses voting in executive session in considering personnel matters and the other two segments cover "required' employment of school personnel and what board members can do if they feel they have "negative" information regarding an individual recommended by the county superintendent for an employment position. .

The last handbook was distributed in 2004.

Nicholas County Board of Education executive secretary Betty Lewis first suggested many of the items that were included in the 2004 handbook, after beginning work on a similar manual.

 

Resources

Web site provides detailed listing of county superintendent responsibilities

Association counsel Howard E. Seufer Jr., from the law firm of Bowles Rice McDavid Graff & Love, recently completed a detailed listing of county superintendent roles and responsibilities as outlined in state Code.

This information is posted on the West Virginia School Boards Association's Web site, www.wvsba.org

Seufer also wrote an article about school personnel employment that addresses whether county boards"must" employ professional personnel recommended by the county superintendent. Additionally, he has authored a piece concerning what county board members can do if they discover negative information about employees recommended by the county superintendent.

Those articles are printed below, along with an article by Lew Brewer, executive director of the state Ethics Commission. Brewer's article outlines two Ethics Commission decisions about whether county boards can vote in executive sessions regarding some student personnel matters.

WVSBA Executive Director Howard M. O'Cull said both of those matters were discussed at length at the President's Retreat and fall conference. "I am pleased we can address them in this format for all members and that we can include the information in the association handbook," he said.

Seufer and Brewer welcome questions about these subjects. Seufer may be reached at 304-347-1776 and Brewer may be reached at 304-558-0664.

Disagreements between the board and the superintendent regarding who should be appointed to fail a posted vacancy in a regular professional position of employment

By Howard Seufer, Jr.

Question: Occasionally a county board disagrees with its superintendent's nomination of someone to fill a posted job vacancy in a regular professional job. Does the board have the right to refuse to approve the superintendent's nominee? What happens in such a case? If the superintendent subsequently nominates a different candidate to fill the vacancy, can the applicant whose nomination was not approved file a grievance to obtain the position?

Answer: Yes, a county board does have the right to refuse to approve its superintendent's nominee to fill a vacancy. If that happens, the superintendent is required by law to submit another name at such time as the board directs. However, if the superintendent's initial nominee pursues a grievance or court case, and if the evidence shows that he or she was the most qualified person for the professional position as measured by the seven-factor test of W. Va. Code § 18A-4-7a, then the Grievance Board and the courts will likely grant the grievance and award the job to the person initially nominated by the superintendent.

Discussion

By law, a county board cannot act to fill a posted professional vacancy except in response to a recommendation from the superintendent. The school statutes provides that "no person or persons shall be employed except on the nomination of the county superintendent." The school law also requires the superintendent to assign, transfer, and promote employees, but only with board approval. Thus a board cannot appoint someone to fill a posted regular professional position unless and until that person is first nominated by the superintendent.

Under the school laws, the superintendent's duty to make personnel recommendations is distinct from the board's power to accept or reject them. Boards must be careful not to take actions that step over that line and interfere with the superintendent's duty. For example, the Grievance Board has ruled that a board acted unlawfully when it insisted that board members participate on an interview committee appointed by the superintendent to help the superintendent decide which candidate to recommend. Similarly, the Grievance Board has ruled that a board cannot require the superintendent's interview committee to ask certain questions of the nominees, or direct the superintendent to exclude certain applicants from consideration.

Only when the superintendent recommends a particular individual to the board may the board may then exercise its power to approve or refuse the superintendent's nominee. The Grievance Board and the courts have ruled that in exercising this power, it is the duty of the county board to consider the candidate recommended by the superintendent in a thoughtful manner, with the best interest of the schools in mind. A board's rejection of a superintendent's nominee must not be arbitrary and capricious or demonstrate an abuse of discretion. It has been said that this "arbitrary and capricious" standard is "a high one, requiring willful and unreasonable action and disregard of known facts."

When a board refuses to approve the superintendent's recommendation, the school laws specify that "the superintendent shall nominate others and submit the same to the board at such time as the board may direct." The superintendent has no choice, even if the superintendent is of the opinion that the rejected nominee was the most qualified.

A crucial point to remember, however, is that the legislature has decreed that, in the end, the posted regular professional position must be awarded the one person who is the most qualified of all the candidates. The applicable school law, W. Va. Code § 18A 4-7a, requires that the determination of the most qualified candidate be made on the basis of a seven-factor test (except in the rare case of school consolidations and mergers when, under certain circumstances, the judgment must be based solely upon certification and seniority).

For most classroom teaching vacancies, the seven-factor test consists of objective factors, all of which must be considered and equally weighted, leaving virtually no leeway to the superintendent or the board. Indeed, it has been suggested that a computer could make the correct decision under this set of factors, as there is no room for the exercise of discretion.

In the case of most administrative vacancies, a different seven-factor test must be applied. All seven of the factors must be considered, but they need not be equally weighted. Moreover one component of this set of seven factors, "other measures or indicators upon which the relative qualifications of the applicant may fairly be judged," allows the school district to take into consideration reasonable qualification-related criteria of its own. Understandably, there is room for the exercise of some discretion under this test.

But regardless of which seven-factor test applies, and regardless of whether the board accepts the superintendent's initial nominee or a subsequent nominee, a disappointed applicant who feels that he or she was the most qualified candidate may bring a grievance, or file a lawsuit, challenging the result. If the Grievance Board or the court finds that the disappointed candidate establishes, on the basis of the seven-factor test, that he or she was indeed the most qualified candidate under the proper seven-factor test, then the school district will typically be ordered to award the job to the disappointed person, along with any back pay, benefits, and interest. If the ultimate ruling in favor of the disappointed candidate is made in the courts, the school district may also be ordered to pay his or her reasonable attorney fees and costs.

Thus superintendents and boards must always be mindful of the legislature's command that the most qualified candidate must be appointed and that the most qualified candidate must be identified using only the criteria set forth in the hiring statute. Otherwise, in the end it may not matter who the superintendent recommended, or whether the board accepted or rejected the superintendent's nominee. If the individual ultimately selected was not the most qualified candidate under § 18A 4-7a, none of that will matter.

What county board members may do if they believe they have "significant negative information" regarding individuals recommended for employment positions

By Howard Seufer, Jr.

You have asked what a board member should do if he genuinely and in good faith believes that he has what is or may be significant negative information pertaining to the qualifications of an individual whom the Superintendent is asking the Board to approve for a position of employment.

A practice that I have witnessed on a number of occasions is that the concerned Board member, at the meeting where the Superintendent is going to make the nomination, makes a motion -- before the Board acts upon the nomination -- to go into executive session "to consider a matter regarding the appointment of a public employee." If this motion is properly seconded and passes, then once the Board and Superintendent are in the privacy of executive session, the Board member may raise his concerns and the Board and Superintendent may discuss them.

Although no decisions can be made in executive decision, the discussion may have the effect of:

(a) satisfying the Board member that the negative information is incorrect, blown out of proportion, in error, or legally irrelevant, in which case, upon returning to open session, the Superintendent may proceed with the nomination and the Board may act upon it; or

(b) convincing the Superintendent, who may previously have been unaware of the negative information or its gravity, that the nomination should not be made on account of the negative information, in which case, upon returning to open session, the Superintendent may decline to make the nomination at that time (announcing that he wishes to bypass the matter until the next meeting) or, if the nomination is nevertheless made, the Board may decide whether to approve; or

(c) persuading the Superintendent of the wisdom of postponing the nomination until the next meeting, giving him time to investigate the matter and possibly reconsider his original intention to nominate the individual in question, in which case, when the meeting resumes in open session, the Superintendent will decline to make the nomination, announcing that he wishes to bypass filling the vacancy until the next meeting. (If the Board is one of the boards that places all personnel recommendations on a "consent agenda" for meetings, then it may be advisable or even necessary, depending upon the circumstances, to remove the particular personnel recommendation from the consent agenda before exercising these alternatives.)

In any event, the Board members and Superintendent should not, following the executive session, discuss or refer to the negative information publicly, at least unless and until they are satisfied that they may do so without inviting legal action by the individual in question. Consideration should thus be given to consulting with legal counsel, especially before involving other people in any investigation into the information about the candidate.

Also, there is case law on the issue of using negative information about a candidate to deny him a nomination or appointment, especially if the candidate has not first been properly apprised of the negative information and given an opportunity to respond. Additionally, depending upon the nature of the vacant position to be filled, the school statutes may prohibit consideration of verified negative information altogether, or limit the extent to which it can enter into the decisions of the Superintendent and Board.

Depending upon the nature of the information, the Superintendent may be under a legal obligation, regardless of who ultimately receives the vacancy, to report the information to the State Superintendent of Schools and/or, if the individual in question is a Board employee, take steps that affect the person's current assignment.

Our advice about the executive session assumes that the Board member was for some reason unable to earlier discuss the issue privately and in confidence with the Superintendent. In other words, we are assuming that the Board member was not aware that the individual even applied for the vacancy, or that the Superintendent was going to nominate him, until the meeting agenda was already published. Otherwise, the Board member would have been well advised to discretely bring the concern to the attention of the Superintendent in time to avoid the awkwardness of having to back away from a nominee whose name has already been telegraphed to the public and the news media in the posted agenda.

Student disciplinary proceedings and the Open Meetings Act

By Lew Brewer

Generally, the Open Meetings Act requires that school boards take official action on all matters during a properly noticed meeting that is open to the public and media. However, the Legislature recognized that not all issues a school board, or any other governing body, must address are suitable for discussion in a public forum.

Therefore, the Act contains certain exceptions, authorizing a board to convene in executive session to address particular subjects, provided a majority of the members vote to do so.

One of the exceptions in the Act allows a governing body to hold an executive session to "decide upon disciplining, suspension or expulsion of any student in any public school . . . ." W. Va. Code § 6-9A-4(b)(3).

In 1999, the West Virginia Ethics Commission's Committee on Open Governmental Meetings issued Open Meetings Advisory Opinion 99-05 to the Cabell County Board of Education in response to an inquiry regarding student disciplinary proceedings. In that opinion, the committee concluded that the specific language in § 4(b)(3), allowing a governing body to "decide upon" a disciplinary matter in an executive session, prevailed over the general requirement in § 4(a) that no decision be made in executive session.

The committee recently followed this approach in an opinion it issued to the Jefferson County Board of Education. Open Meetings Advisory Opinion 2005-04 stated that "student disciplinary matters may be considered and decided in executive session." Of course, the Act gives the student and his or her parents the option to request that the matter be addressed in a public meeting.

Because these Open Meetings Advisory Opinions were issued prior to June 9, 2006, they only provide immunity to the two county boards named in those opinions. However, it is expected that the committee would render a similar precedential opinion applicable to all school boards if a board member were to submit a written request for a formal opinion.

Brewer is executive director of the West Virginia Ethics Commission.

Deadline for entries is March 17, 2007

West Virginia students will remember the tragedies of the Holocaust as part of the Holocaust Arts and Writing Contest. This year's topic focuses on the contributions of those 25 years old and younger with the theme "Courage to Act: Young Heroes of the Holocaust."

The contest is open to all West Virginia students in grades five through 12. Teachers with large numbers of students who wish to enter are encouraged to provide a selection process and submit no more than three entries in each of the categories: Essays, art work and poetry. Entrants must reference copyrighted images or written materials, and all entries become the property of the West Virginia Holocaust Education Center.

Essays must be 500 to 1,000 words long, legibly written or preferably typed or written on a computer using a 14-point font. Poetry will be judged separately from essays. All forms of poems will be accepted but they must be at least one page long and clearly demonstrate the contestant's sensitivity to the subject.

Paintings, drawings, computer generated graphics, crafts, displays, posters and models can be submitted as works of art. Those entries should include a written explanation of how the piece relates to the theme. Models should not exceed 24 inches.

Entries should be completed during the 2006-2007 academic school year and submitted with a completed entry form and postmarked by March 17, 2007. Winners will be notified shortly after the March 26, 2007 judging date and presented on April 29, 2007 at Fairmont State University.

Official rules and contest entry form may be downloaded from http://wvde.state.wv.us/tt/2006/2007artandwriting.doc.

Entries can be mailed to: WV Holocaust Education Council, 2007 Arts and Writing Competition, P.O. Box 1125, Morgantown, WV 26507-1125. Delivery of large items can be arranged by calling the West Virginia Holocaust Education Center at 304-291-3732.

From the West Virginia Department of Education, originally posted Oct. 16, 2006.

Deadline for students is Dec. 1

The West Virginia Martin Luther King Jr. Holiday Commission is accepting applications for its 22nd annual poster competition. Students in grades one through 12 in a public, private or home school in West Virginia may participate.

Students who have a dream for themselves, are aware of Dr. Martin Luther King's dream for America and can express their dreams artistically are encouraged to apply.

The deadline for all submissions is Dec. 1, 2006. The theme for this year's competition is "I Have a Dream," which focuses on King's mission and the messages he delivered in his most-famous speech. The West Virginia Martin Luther King Jr. Holiday Commission hopes to further King's vision through the competition.

The speech is available online at http://www.freewebs.com/btmoore/martin.htm.

All entries should be mailed or delivered to: Martin Luther King Jr. Poster Contest, West Virginia Holiday Commission, West Virginia State University, 616 Wallace Hall, Institute, WV 25112-1000, Attn: Patricia Wilson. Official rules are available at www.wvmlkholidaycommission.org.

For more information about the poster contest, please contact Patricia Wilson at 304-768-3448 or by e-mail at wilsonpat@wvstateu.edu.

Several county board members have inquired about §6-5-12, a section of law that allows "leave of absence for public officials for performing public duties." The statute reads as follows:

"Any person elected to a part-time public office or appointed to a part-time elected public office shall be entitled to a leave of absence from his or her private employment except when such employment is with an employer employing five or fewer persons on a full-time basis on the days or portions of any day during which he or she is engaged in performing the duties of his or her public office. The leave of absence shall not result in any penalty being imposed upon the persons entitled to the leave of absence: Provided, That such leave of absence may be without pay by the private employer."

According to West Virginia School Boards Association counsel, the leave may apply to county board training because it is required by statute. However, legal counsel points out that the leave has certain restrictions based on the size of the firm employing the county board member and that it may be without pay.

For more detailed information, please contact WVSBA Executive Director Howard M. O'Cull, Ed.D., or counsel Howard E. Seufer Jr., Esq., Bowles Rice McDavid Graff & Love. Seufer's telephone number

 

Commentary

By Chuck Nichols

Defined in federal legislation (No Child Left Behind Act of 2001), Education Service Agencies (ESAs) are legally constituted units of school government intended to serve the needs of both local districts and the state education agency. Most ESAs are governed by state offices of education, local boards of education or advisory committees. West Virginia Regional Education Service Agencies (RESAs) are the only ESAs in the country currently governed by a State Board of Education.

Recent research on ESAs highlight the need for them to play an important role in turning around failing schools; improving student achievement; and, becoming centers of excellence and quality. In 2003, the U.S. Secretary of Education encouraged each state to use their ESAs in implementing No Child Left Behind.

How well are the WV RESAs accomplishing their legislative mandate? During the 2006 West Virginia Legislative Session, Senate Bill 127 was enacted charging the State Superintendent to conduct a comprehensive study of the programs, governance and administration of the state's eight RESAs. Further, the State Superintendent of Schools was charged to report the findings generated by the study, together with recommendations and any legislation necessary to effectuate the recommendations, to the Legislative Oversight Commission on Education Accountability (LOCEA) by December 1, 2006.

In April of 2006, the State Superintendent met with West Virginia Department of Education (WVDE) staff to determine the process to be used to conduct the study. It was determined a Task Force should be assembled and their study should include:

Task Force members were identified and invited to serve in May 2006. Data and documents were collected to provide important information to the Task Force. Members of the Task Force represented county superintendents; RESAs; county boards of education; county and RESA specialists in staff development, finance and technology; staff from the WV Senate and House Education Committees; the state auditor's office; and WVDE staff, who served as facilitators of Task Force subcommittees

The WV Task Force for WV Senate Bill 127- A Comprehensive Study of WV Regional Education Service Agencies was convened on June 14, 2006 and presented with their charge and timeline by the State Superintendent. Following the initial meeting of the entire task force, subcommittees met throughout June, July and August to review data, documents, policy/code and to formulate their findings and recommendations. The Task Force reconvened on September 7, 2006, to discuss subcommittee recommendations to be considered for inclusion in the final report to LOCEA and the WVBE.

The report will serve as the State Superintendent's official response to SB 127 and will provide a vision for WV RESAs in becoming centers of excellence for teaching and learning; having a value added impact on student achievement; and being accountable to measures for efficiency, quality and effectiveness. The report will be organized according to the five subcommittees represented on the Task Force:

The final report is scheduled to be presented to the WVBE at their regularly scheduled November meeting and to LOCEA during the November Legislative Interim Session.

- Nichols is RESA III Executive Director. He serves as a spokesperson for the RESAs and RESA Executive Directors.

 

From the West Virginia Department of Education

Editor's Note: State Superintendent of Schools Steven L. Paine, Ed.D., discussed his recent trip to China at the West Virginia School Boards Association Conference '06 on Sept. 22 in Charleston.

The following article, provided by the state Department of Education in August, details Paine's impressions of China based on his travel there.

Wood County Board of Education member Rick Olcott has written about his work in China, based on his employment with a multinational corporation located near Parkersburg. Olcott's article is featured in "The Last Word" section of this newsletter.

More than 24 hours after boarding a plane in West Virginia, state Superintendent of Schools Steve Paine found himself in one of the world's largest English speaking countries and it wasn't the United States. It was China.

With China poised to become the next global economic superpower, forward-thinking educators like Paine believe it's essential that American schools expand their Chinese studies.

"The most impressive thing was I didn't talk to any kid that didn't speak or understand some English. Whether we like it or not China will play an important part in how we do business and the stark reality is we must get our kids prepared for that." -- Bill Walton, South Charleston High School principal

"Children in China begin studying English in the first grade," Paine said. "The joke is there are more people learning English in China than speak English in the United States. I'm convinced that of all the nations in the world, China will have the most profound impact on our children's future."

Paine, along with South Charleston High School Principal Bill Walton, were among 400 American educators who traveled to China this summer as part of a program to encourage that more Chinese languages are taught in U.S. schools. Paine was the only state superintendent to be invited.

"I was very impressed," Paine said. "They go to school from 7:30 in the morning until 9:30 at night. And when you ask the kids where they want to go to college, they all say Harvard, Yale and Stanford."

During the trip, educators had the opportunity to meet with Chinese education leaders, visit schools, build ties and network with other U.S. education leaders.

They also saw cultural sites, including the Great Wall and made a rare visit to the Great Hall of the People at the edge of Tiananmen Square. Paine also met with top education officials, including Education Minister Dr. Zhou Ji, Dr. Qi Tao, director general of China's Shandong Province, and Dr. Sun Zuxing, deputy commissioner of international relations.

"The most impressive thing was I didn't talk to any kid that didn't speak or understand some English," Walton said. "Whether we like it or not China will play an important part in how we do business and the stark reality is we must get our kids prepared for that."

The trip was sponsored by China's National Office for Teaching Chinese as a Foreign Language, also called Hanban, in partnership with the College Board, the Chinese Language Association of Secondary-Elementary Schools (CLASS), and the National Council of State Supervisors for Languages (NCSSFL).

Former West Virginia Gov. Gaston Caperton, who is president of the College Board, in April announced the partnership, which aims to place 250 guest teachers from China in American classrooms over the next three years.

"At a time when more than 200 million children in China are studying English, only 24,000 children in the United States are studying Chinese," Caperton said.

Although there are many English speakers in China, Chinese remains the national language of about 1.5 billion Chinese inhabitants and millions more around the globe. Chinese is projected to top English as the most used language on the Internet by next year, according to forecasts by the World Intellectual Property Organization.

And by 2040, China's rapidly growing economy is expected to surpass that of the United States. Already, China makes two-thirds of the world's copiers, microwave ovens, DVD players, toys and shoes.

"At a time when more than 200 million children in China are studying English, only 24,000 children in the United States are studying Chinese." – Gaston Caperton, president of the College Board and former West Virginia

"As Americans and West Virginians, we cannot afford to ignore what is happening in China and the rest of the world," Paine said.

West Virginia has recognized the importance of global awareness in today's digital world. Last year, West Virginia became only the second state in the nation after North Carolina to enter into the Partnership for 21st Century Skills, which emphasizes global awareness, critical thinking, problem solving, technology literacy as well as business, economic and civic literacy in schools.

"The trip reinforced that we're on the right track in West Virginia," Paine said. "The world is no longer round; it's flat."

In an Advanced Placement Program survey conducted in 2004, nearly 2,400 high schools expressed an interest in offering an AP Chinese course. Sissonville High School will offer a class this fall and Walton hopes to add one at South Charleston soon.

"I came back with a better understanding that globalization is taking place," Walton said. "They want what we already have and are willing to work hard for it. It was a real eye-opener and made me realize Dr. Paine has a real handle on what's happening and that will put West Virginia in the forefront."

 

By Hazel K. Palmer, Ed.D.
President and CEO of The Education Alliance

Standing in the House of Delegate chambers explaining the School Aid Formula to the assembled delegates, I had to laugh at myself because for a long time I didn't "do" math. I was "taught" geometry by the football coach my sophomore year in high school. After nine months, the coach still didn't know my name and certainly didn't care what I had learned.

After that experience, I decided I couldn't do math and entered into Algebra II with a very poor attitude. Luckily for me, my algebra teacher absolutely would not give up on me or allow me to give up on myself. He hung in there, trying various teaching approaches until I was performing at a solid "B" level.

Teachers make a critical difference in the learning process, but even the most influential and innovative teachers are not born with an automatic knowledge of the best way to teach a subject or individual student.

"Teachers make a critical difference in the learning process, but even the most influential and innovative teachers are not born with an automatic knowledge of the best way to teach a subject or individual student."

From calculating change for a $20 bill to balancing a checkbook, a basic proficiency in mathematics is used in everyday life. We can agree that these are fundamental skills grounded in the curriculum, structure and availability of math courses that engage kindergarten through 12th-grade students.

As we challenge these students in West Virginia to achieve excellence, we also must offer our teachers the tools and resources needed to guide each of their students toward greater levels of knowledge and success. As these objectives relate to the subject of mathematics in secondary schools, The Education Alliance released, in summer 2006, a compilation of previous research findings and recommended best practices for curriculum design, professional development for teachers, technology, manipulatives, instructional strategies and assessment.

This latest research summary titled "Closing the Achievement Gap: Best Practices in Teaching Mathematics" steers West Virginia teachers and school systems toward effective standards-based mathematics instruction and recommendations. This newer teaching method, standards-based mathematics, is considered the product of the mathematics reform movement of the mid-1980s and focuses on problem solving, mathematical reasoning, justifying ideas, making sense of complex situations and independently learning new ideas.

Just as I toiled through that Algebra II class, math is still a challenge for many students. The 2005 math scores recently released by the National Assessment of Educational Progress (NAEP) found 30 percent of eighth graders in the United States to be proficient in the achievement areas of measurement, geometry, data analysis, probability and algebra. Results further indicated that, although it reflected an increase from past assessments, only 69 percent of all eighth graders demonstrated a basic skills level on the NAEP.

Other findings suggest that the more mathematical topics introduced to a student before he or she reaches the eighth-grade level, the more likely that that student will experience achievement gains in that subject area. Likewise, the U.S. Department of Education found that "taking a full schedule of academically demanding courses in high school, including mathematics beyond Algebra II, was the single most significant pre-collegiate variable in determining if students graduated from college."

Only 69 percent of all eighth graders demonstrated a basic math skills level on the National Assessment of Educational Progress, and only 30 percent were proficient in measurement, geometry, data analysis, probability and algebra.

Supporting literature, however, does caution states moving to increase unit requirements for graduation, asserting that they must also attend to content requirements if they expect to make a difference in student performance, the math summary notes.

"Teachers and students have been placed under tremendous pressure to prepare students for the accountability measures and standardized tests required by No Child Left Behind legislation. Despite these pressures, mathematics teachers must resist the tendency to rely only on the results of standardized tests to measure student performance in mathematics," according to the math summary.

Based on the framework of literature reviewed in our summary, we highlighted a handful of best practices for administrators implementing new approaches system-wide and teachers integrating them on the front lines.

Curriculum should be designed to be challenging, standards-based and can be clearly identified and understood by both the teacher and the student. Manipulatives should be used to develop an understanding of mathematical concepts and demonstrate word problems. Similarly, assessment techniques should align with standards and concepts to monitor both the student's progress and teacher's effectiveness.

Instructional strategies should use differentiated instruction through group work, varying question levels and tiered assignments; ensure that instructional activities are learner-centered with an emphasis on problem-solving; build on prior knowledge and experience; make real-life connections; and ask probing questions that require students to justify their responses.

Within the realm of professional development for teachers, training should be focused on the knowledge and understanding of standards and how to use the standards in instructional planning, integrate best practices into classroom teaching and identify multiple approaches to assessment. Successful professional development techniques also supply instructional support materials such as curriculum maps and pacing guides for teachers and develop math leadership teams and coaches in efforts to aid other teachers.

Teachers are offered, through professional development, the use of instructional technology tools, and students can access these tools as well. Additionally, the use of technology should be integrated into all mathematics curricula and course work.

"Although I'll be the first to admit I don't think about all my math classes as I develop budgets, review monthly financial statements or work with auditors, the knowledge I gained in those classes is still an integral part of my personal and work life. Our hope in publishing this best practices summary is that all students will have the tools to become confident and competent in thinking mathematically."

This research not only offers a glimpse into the current state of mathematic achievement and practices across the country but also acts as a call for the thorough evaluation of current practices being employed by public schools in West Virginia.

Although I'll be the first to admit I don't think about all my math classes as I develop budgets, review monthly financial statements or work with auditors, the knowledge I gained in those classes is still an integral part of my personal and work life. Our hope in publishing this best practices summary is that all students will have the tools to become confident and competent in thinking mathematically.

The math study is one in a series of achievement gap summaries and policy recommendations published by The Education Alliance. This area of study became our platform for research beginning in 2004. Other studies have included focuses on rural and at-risk schools, policy implications and integrating technology, which can all be accessed through our Web site, www.educationalliance.org. The current math best practices summary serves as yet another step in the Alliance's efforts to address closing the achievement gap for all West Virginia students.

Reflections on 21st century skills and experiences in China presentation

The Education Alliance, established in 1983, is West Virginia's public education fund. It was the first statewide education fund in the United States and the first to link 100 percent of a state's public schools with at least one business partner. The nonprofit organization's mission is to create positive, systemic change in public education through various programs such as Partnerships in Education, Family Involvement Grant, Mini-Grants for Classroom Projects, State Scholars Initiative and Family Literacy, and research such as the math study.

 

Recently I had several conversations with county board presidents, board members and superintendents who want me to give them advice regarding "rogue" members.

Recalling my three decades of working with school boards, I have seen hordes of rogue members. Some were tagged as rogue because they asked questions – hard questions of other board members, superintendents or administrators – few others would ask. Thus, they acquired the rogue label for what amounts to questioning the status quo.

Some rogues earned the moniker because, in addition to questioning the status quo, they did their homework and validated in at least their own minds, their take on issues everyone else was willing to sweep under the rug. More often than not this approach typifies the rogue members' mindset toward issues concerning them or pet projects.

Some rogue members, however, became so integrated into their boards that they became inseparable from the very systems to which they had been elected or initially chose to oppose. In fact, within a few years many became board presidents – presidents dealing with their own rogue members.

Some rogue members may never become integrated into the board for whatever reasons, preferring to buck the system and usually questioning the superintendent's every recommendation or questioning "complacent" board members.

There, however, is a difference between members, especially new members, who question things and rogue members. The difference is in terms of style.

Here's the rub: The rogue member gains his or her stature or status because of how he or she approaches issues. The real kicker is when a rogue member can impede the board's progress by disrupting meetings, constraining board function – most often displayed in meetings – and by undermining board actions, especially efforts to undo something the board has acted upon.

Given this consideration, board presidents and sometimes superintendents often ask me if they can censure a rogue member and how to go about it.

First of all, you literally can't censure a rogue member. Even if a rogue member spills the beans about an executive session – a frequent complaint I hear -- or packs the board room with people sharing his or her affinity or seeks to badmouth other members or board actions before or after meetings, one simply can't prosecute the rogue member for those actions. Although the member may be liable for comments made about an individual in an executive session.

While a board could attempt to remove a member, which is another rogue member remedy I hear, this may be easier said than done unless the public becomes involved. Even then board member removal is not easy.

In the last few years, more public petitions are being brought against board members. Recall what happened in Hampshire and Tucker counties a few years ago. Those petitions were initiated by citizens although some members of those boards may have had their own tacit thoughts about the "other" members cited in petitions for removal from office.

A third consideration is to ostracize the member. This frequently works to the rogue member's advantage because the shunning proves his or her contention they are being locked out by the board majority, especially the county superintendent.

A last consideration is when the board tries to work with the rogue member with the hope of integrating him or her into the board. Tread lightly here because this may actually work to the rogue member's advantage. He or she may see this approach as a sign of weakness.

Of course, if the rogue member starts working with the board and board majority so he or she gets their agendas considered, the rogue tendency may abate on some issues.

Learning what makes a rogue member tick

Five tips to deal with rogue members

  1. Give him the information he wants. Provide the rogue member the information he or she requests as long as it has some sort of board blessing. Sometimes the information will prove useful or enlightening to the entire board. The only board directive may relate to the intensity and effort needed to gather and assemble the information. In the least, set parameters about acquiring information – the format and process – that will address time intensity so the rogue member can acquire the information he or she wants. Let them have the information unless its release would violate privacy laws, federal or state regulations or the like. Secondly, give the rogue member information and data in an easily usable format. I once heard about a rogue member who wanted to know a certain detail about a county program. Rather than extracting out that precise information – the exact same information later presented to the board by the administration – the member was given several pages of data that had to be hand-combed to glean what the member wanted. This is bad form and practice, giving the rogue member another advantage. Rogue members flourish in environments where they can play the sanctity card.
  2. Manage the meeting procedure well. Board presidents should use good meeting management techniques approved in advance by the board. These approaches, which must be fair and not disingenuous, should allow rogue members to express themselves but not at the expense of meeting decorum. Unless the rogue member hops atop the board meeting table or takes similar stances, let her have her say in board meetings, no matter how uncomfortable you are about what they're saying. If central office administrators are present, tell them to bone up on survival skills as they often are the rogue member's targets. Additionally, there is usually a grain of truth in rogue members' pronouncements. Their style or technique may be the problem in terms of meeting management. Rogue members should not be able to address questions directly to central office administrators. They should go through the superintendent, who might be able to blunt negative questioning. Not all members see meetings alike. To some, the board meeting is a place whereby the public meets with the board. Some see the board meeting more like the corporate board model and some may see it as a way to concentrate on issues important to them but as part of doing the board's business. To the rogue member, the board meeting is a platform on which to address their issues and dissent. Expressing dissent does not make one a rogue member, however. The rogue member often disrupts the meeting through appeals to the audience or by attempting to thwart meeting business or by approaches that belittle other members or central office personnel. In these cases, the board – as a whole – is responsible for ensuring proper meeting decorum.
  3. Let her become an expert on her topic. Give the rogue member chores. If the member has a penchant for certain topics and tasks, let him become the expert in this or these areas as long as he or she understands the context of the corporate board. Even if you disagree with his or her conclusions, put the rogue member to work, giving him or her some legitimacy and a legitimate platform.
  4. Define board members' roles. Stress the corporate nature of the board. While it is true county board members only have authority in "duly called meetings," no worthy board member fully subscribes to this notion. Procedures and guidelines should be developed about members' roles outside of meetings. Develop these guidelines at a retreat setting to determine board norms and expectations.
  5. Don't forget rogue members are elected, too. Finally, and most importantly, respect the rogue member either for the role he or she plays or because he or she – just like other members of the board – received the public's stamp of approval via the ballot box. Attempts to quash the rogue member's input, given this factor, often fail partly because they have a bevy of supporters.

The bottom line is rogue members are here to stay. Unless they disrupt the civility of the board meeting to the point the board cannot function, abide by them.

I first approached this issue in 1994 with a column titled, "Get a life – even with strife."

Boards can learn to live with rogue members but other members must not compromise their principles and sanctity of the board position to control rogue members. Agree to disagree on some issues while maintaining board function.

Often boards try to control the rogue member, which actually allows the rogue member to take the higher road in that he or she is perceived as genuine while the disciplining board or members will be seen as censors.

Additionally, attempts to corral rogue members often lead down the path to the personal attacks. This is a trump card the rogue member always has at his or her disposal.

Those who attempt to curb the rogue member's penchant to make things personal often end up just where the rogue member wants them. It's easier to make an issue personal than to discuss its policy aspects. It's easy for rogue members to become sainted, especially through beatification by other members of the board or the superintendent who are seen as taking advantage over the rogue member.

The key is developing a balance in regard to the rogue member's contributions to the board with no weakening of board function because of the rogue's agenda.

It's really about how seriously the rogue member is taken and how that seriousness is displayed by other members of the board. If it's the constant eye-rolling, under-the-breath comments, and deflection, the rogue member has you just where he or she wants you.

- By Howard M. O'Cull, Ed. D., WVSBA Excutive Directory

 

ETC.

"I am very optimistic, because of the assurances that I have received, that this is just the first verse of a long song…" – Marshall University researcher Cal Kent discussing the tax reform proposals state lawmakers will address next week in a special legislative session called by Gov. Joe Manchin

"You don't have to be a Ph.D. in political science to see what this is…. He's made a masterful political stroke here. Whether it's morally or ethically correct is another question." – State Republican Party Chairman Doug McKinney discussing the upcoming special session on taxation called by the governor.

 

The Chicago Public School system is thinking of dropping its requirement that blind students take driver's education.

Under the current system, no student can graduate without passing driver's education, regardless of whether they'll be able to drive an automobile.

Some vision-impaired students are complaining that for them the class is useless and depressing.

"In other classes, you don't really feel different," said 16-year-old Mayra Ramirez. "But driver's education brought me down, because it reminds me of something I can't do."

From The Week, March 14, 2006

 

"The biggest tears shed over graves are for words left unsaid and deeds left undone."

- Harriet Beecher Stowe, American writer (1811-1896)

 

"It's probably one of the more important parts of the tax reform proposal as it relates to older West Virginians. It's a good thing." -- Ginger Thompson McDaniel, associate director of the West Virginia chapter of the American Association of Retired Persons, discussing the governor's proposal to double the state's homestead tax exemption for senior citizens.

"I'm glad to see all the windows and the brightness and . . . I think where ever they can, they made the hallways wider in strategic locations with the lockers and so forth. It's great. The physical ease of getting around in the school has been tremendously improved." -- Del. Bob Tabb, D-Jefferson, discussing multimillion dollar renovations at Jefferson High School during an Oct. 28 tour.

 

Last Word

Richard L. "Rick" Olcott, CPIM

What an exciting and challenging time for education in West Virginia was the resounding theme felt upon departing Charleston following the WVSBA training event in late September. My mind was both reassured of the promise for the future, but also troubled by the reception of new ideas and experiences of others as reflected through comments by attendees.

We are blessed to live in a wonderful state with tremendous education professionals whom have continued to be leaders in educational transformation. It is with that spirit that I believe State Superintendent of Schools Steven L. Paine, Ed.D., shared his experience in China, and it gave cause for me to make the time to reflect on what I have observed in my past several years in the private sector. My perspective as a global supply chain manager in a joint venture with a firm in China for the last two and half years, having previously served in global roles with other businesses whose operations were in China, other Asian countries, and Europe, has afforded me broad cultural exposure.

It is my opinion that our goal is never to be like another culture, but rather to more fully understand the diversity that exists, then learn and adapt what we are exposed to into a form that can be transforming to the culture we are a part of. That is the central message of not only what Paine was exposed to in China, but also what I believe to be the essence of 21st Century Skills. What industry needs for the future is the unending development of the whole person. In order to position businesses to be successful in a global economy, we must provide human assets that can function with a fundamentally different mindset and approach in all aspects of life.

What do we mean by the whole person? We have efforts to leave no child behind, to reestablish our strength in the sciences as we retain our foundation of reading, writing and arithmetic, and to continually raise the bar required moving to the next level. Those strategies do focus on academic excellence, but do not necessarily provide excellence in the diverse global marketplace. The complimentary skills needed for the 21st Century are seen in people with the academic foundation who can function in a very different way with others in a dynamic environment. The attributes include, but are not limited to:

The question we must ask ourselves as board members, educational leaders, and as an extended community is in what way are we preparing our children to be successful Americans in a world economy?

It does begin at home, but we must also challenge ourselves as leaders to answer how will we transform the curriculum and the comprehensive delivery models in our educational system to provide the right type of young adults into society? The answers are not fully developed yet, but we can start with asking simple questions. Do our classroom processes reflect an environment that encourages development of the attributes desired? Do our curriculums encourage the development of the whole person? Do our employees emulate the attributes desired as examples for our students?

In organizations, people tend to go no further than the leadership figures will take them. People are either enabled by or limited by the leadership figures. Do we know where our staff and students are functionally today? These questions should energize us to seek information. With that information will come knowledge and understanding. Our mission is to truly understand the things we cannot change, the fortitude to change the things we can, and the wisdom to know the difference. Are we ready to transform ourselves into being a part of the solution and not a part of the problem?

- Olcott is global supply chain manager for a large multinational corporation.

 

 

The Legislature is published by the West Virginia School Boards Association. It provides county board of education members, state policymakers, school administrators and the education community information and opinions regarding West Virginia legislative issues. The views expressed in this publication do not necessarily reflect official opinion or policies of the WVSBA, unless specifically stated.

West Virginia School Boards Association
PO Box 1008
Charleston, WV 25324
Phone (304) 346-0571 • Fax (304) 346-0572 WVSBA.ORG

Kim Cooper (Raleigh), President
dukecoop77@yahoo.com

Jean Westfall (Ritchie County), Chairman
WVSBA Committee on Communications*
Ljwm1108@ruralnet.org

Howard M. O’Cull, Ed. D., Executive Director, Editor
hocull@wvsba.org

Shirley M. Davidson, Administrative Assistant,
Production and Circulation
sdavidson@wvsba.org

* Committee on Communications: Judi Almond (Raleigh), Beth
Cercone (Clay), Bob Duckworth (Taylor), David McCutcheon (Roane),
Mike Mitchem (McDowell), Nancy Walker
(Monongalia), Don Tuttle (Wetzel)

Vincit omnia veritas
“Truth conquers all”