Legalities — Bowles Rice LLP

What part can the county board play in the choice of candidates to fill vacant professional and service positions of employment?

By Howard E. Seufer Jr.

When we teach school board members and administrators about the respective roles of the county board and superintendent in filling personnel vacancies, we regularly advise that the board should not involve itself in the process of selecting a candidate until after the superintendent settles upon a person to recommend to the board.  

We teach this, not because it seems like a good idea, but because it appears to be required by the relevant statutes enacted by the Legislature, and by decisions of the Grievance Board and courts that uniformly require school boards and school board members to refrain from participating in the superintendent's nomination of candidates for posted jobs.

Generally speaking, once the superintendent has recommended that the county board appoint a particular person to fill a professional vacancy, the county board as a board (and not as individual board members outside of a meeting) may review documentation which is relevant under the hiring statutes to the choice of a candidate to fill a vacancy.

In the case of a professional vacancy, this might include the names of applicants and any matrix which school officials created to reflect applicants’ credentials under the qualification criteria set out in the professional vacancy-filling statute, W. Va. Code § 18A-4-7a. It might also cover documents reflecting the candidates’ relative qualifications and the fairness of the selection process itself.

In the case of a service personnel vacancy, this might include the applicants’ names and current employment status, information about their relevant qualifications, their seniorities and, where relevant, their performance evaluations.

The division of responsibilities between the superintendent and board sometimes causes board members to question whether they have any involvement in the hiring process at all, or whether, instead, they are simply rubber stamps. We teach that the board as a board does have a crucial role, but that the role occurs after the superintendent has informed the county board of the superintendent’s choice or intended choice of a candidate. We recommend that after the superintendent has so informed the board, the board should raise with the superintendent, in executive session, any questions it has about the superintendent’s choice.

This makes sense, since the board, like the superintendent, is responsible for hiring the most qualified candidate for a professional vacancy in accordance with the governing laws, and the candidate for a service personnel vacancy who prevails under the criteria of the service vacancy-filling statute, W. Va. Code § 18A-4-8b. The discussion may include any questions the board members have about the process the superintendent followed in generating the recommendation, the reasons why other of the candidates were not recommended, the true credentials of the recommended candidate or other candidates, etc.

If, once the superintendent makes a recommendation, a board member asks for such information and the superintendent refuses, it is up to a majority of the board whether to direct the superintendent to disclose the information to the board members. (One board member, alone, cannot require anything of the superintendent in this situation; the board can act only as a board.) So, if push comes to shove, the board needs to return to open session to entertain a motion to require the superintendent to share certain relevant documents or information with the board.

Rakes v. Raleigh County Board of Education, Docket No. 93‑41‑448 (March 17, 1994), was the first Grievance Board decision to discuss in any detail the relationship of the superintendent’s personnel recommendation to the school board’s action on the recommendation. The Rakes opinion requires that the respective roles of the superintendent and the board remain distinct. Both the board and the superintendent play crucial roles in filling vacancies. The Grievance Board’s decision in the case was upheld upon appeal to Circuit Court.

The Grievance Board’s subsequent 1994 opinion in the case of Gore v. Monroe County Board of Education ruled that the school board is, by law, prohibited from participating in the process by which the superintendent decides whom to nominate to fill a posted vacancy. Like the Grievance Board’s decision in the Rakes case, the Gore opinion explains the legal requirements of the superintendent-board relationship as regards the hiring of professional employees.

There are other Grievance Board opinions that illustrate the bifurcated nature of the hiring process and the respective roles of the superintendent and Board. Illustratively, the Grievance Board, in Smith v. Cabell County Board of Education, Docket No. 03‑06‑312 (December 17, 2004), and in Oldham v. Cabell County Board of Education, Docket No. 03‑06‑269 (February 27, 2004), reiterated and reaffirmed the analysis of the Rakes and Gore cases. The Smith and Oldham decisions were both upheld upon appeal to Circuit Court.

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— Mr. Seufer is WVSBA counsel, a position he has held since 1986. He is also partner in the Bowles Rice LLP law firm in their Parkersburg WV office where he leads their Education Practice Group.

 

School Board Finances, Special Education Litigation, & Independent Educational Evaluations for Special Needs Students

By Rick Boothby, Esq.

Finances are tighter than ever for many West Virginia school boards. Among other things, school boards need to be vigilant in anticipating and avoiding large and sudden expenses where possible.  One such expense, potentially an enormous one, is paying for independent educational evaluations for special education students and parents’ attorney fees in related special education litigation.

Under the Individuals with Disabilities Education Act (“IDEA”), parents and adult students have the right to file due process complaints against school boards for allegedly failing to comply with the IDEA. In essence, the parent or adult student sues the school board through an administrative procedure instead of a court of law and asks that the school system’s alleged failings be remedied. Often the remedy will consist of additional hours of education or the provision of special equipment or services. While expenses related to these remedies can be considerable, they are fixed and usually manageable.  Paying for the parents’ attorney fees is a different matter altogether. 

Among the IDEA’s provisions is the parents’/students’ right to have the school board pay their attorney fees if they prevail against the school board in special education litigation. This practice is common with civil rights laws and many courts view the IDEA as just that. Troublingly though, obtaining “prevailing party” status is not that difficult. Parents do not even need to succeed on their central claims to be a prevailing party. Just about any significant change in the relationship between the parents and the school system as a result of special education litigation will cause a court to conclude that the parents were a prevailing party entitled to an award of attorney fees.  School systems outside of West Virginia routinely, if not daily, find themselves defending against special education due process claims and paying parents’ attorney fees. These fees can and do reach into the hundreds of thousands of dollars for a single case—amounts that are not easily managed and must be paid from the school board’s general fund account.  Federal special education dollars cannot be used to pay for parents’ attorney fees when the school board loses or settles a due process complaint.  

Why is this problem just now emerging?  In the past, it was quite unusual for a West Virginia parent or adult student to be represented by a lawyer in a due process complaint.  Even those who did have an attorney rarely had one with any experience in special education litigation.  Times have changed.  There are now at least five highly-competent attorneys in West Virginia who represent parents and students in special education due process complaints.  Attorneys in nearby states also file due process complaints here on behalf of West Virginia parents and students.  And all of these attorneys demand that the school board pay their reasonable fees when they get results for their clients.  School systems that refuse to pay reasonable fees can expect further litigation in federal and state courts which will only add to the parents’ legal bill—a bill that the school system will eventually have to pay.  Unreasonable requests for attorney fees, on the other hand, should and must be challenged to avoid encouraging more litigation. 

As these special education attorneys have started achieving some financial success in West Virginia, they can naturally be expected to pursue more and more of these claims.  Other West Virginia attorneys are sure to join their ranks once they too realize that representing parents and students in special education complaints can be a source of substantial income.

So what can you do as board member? 

Special education litigation is complex.  There are as many kinds of claims against school boards as there are special education students.  But there are some claims that school boards can do something about before they happen.  One such claim is the parents’ claim for an independent educational evaluation (IEE).  In a nutshell, if the parents disagree with the school system’s educational evaluation of their child, they can allege that the evaluation was inappropriate and demand that their child be evaluated by a professional they choose at school board expense.  When a school system, usually the special education director, receives a parent’s demand for an IEE, by law there are only two possible responses:  1) agree to pay for the IEE, or 2) file a due process complaint on behalf of the school system and defend the evaluation it already performed.  Many school systems will pay for an IEE just to avoid the cost of litigation—whether the parents were legally entitled to one or not.  Oftentimes, though not always, this approach makes economic sense.  But avoiding the cost of litigation does nothing to avoid the cost of the IEE itself. 

What if the parents want an expert in St. Louis to perform the IEE at a cost of $25,000?  Must the school board pay for this?  The answer will almost always be yes, unless the school board has published its own IEE criteria document that places reasonable limits on the types of evaluations, the geographic locations of the evaluators, and the maximum reimbursement it will pay for various kinds of evaluations.  These published IEE criteria can limit the parents to evaluations that are no different or more expensive than those the school system itself uses to evaluate children.  There are exceptions to these limitations under rare circumstances.  But the courts have been clear about one thing:  if the school board does not have its own published IEE criteria, the parents are free to get whatever evaluation they deem appropriate, wherever they like, and without regard to cost. 

Many West Virginia special education departments are not aware of this lurking problem because, in the past, no parent ever challenged them about this issue—let alone a parent’s special education attorney who will only get paid if he or she wins.  It is a safe bet that those days are nearly over.  Expect more challenges from parents about the kinds of IEEs to which their children are entitled.  Prepare now by working with your special education departments to create your school board’s own published IEE criteria.