Dismissal for Poor Performance: West Virginia

Analysis of West Virginia's policies

In West Virginia, tenured teachers who are terminated have multiple opportunities to appeal. After receiving written notice of dismissal, the teacher may—within five days—request a level three hearing. The state does not specify a time frame for the hearing, just that the administrative law judge must issue a decision within 30 days of the hearing's conclusion. The decision may be appealed to the circuit court.

West Virginia does not distinguish the due process rights of teachers dismissed for ineffective performance from those facing other charges commonly associated with license revocation, such as a felony and/or morality violations. The process is the same regardless of the grounds for cancellation, which include: "immorality, incompetency, cruelty, insubordination, intemperance, willful neglect of duty, unsatisfactory performance, the conviction of a felony or a guilty plea or a plea of nolo contendere to a felony charge." The state does stipulate that "a charge of unsatisfactory performance shall not be made except as the result of an employee performance evaluation."

Citation

West Virginia Code 6C-2-4 18A-2-8

Recommendations for West Virginia

Ensure that teachers terminated for poor performance have the opportunity to appeal within a reasonable time frame.
Nonprobationary teachers who are dismissed for any grounds, including ineffectiveness, are entitled to due process. However, cases that drag on for years drain resources from school districts and create a disincentive for districts to attempt to terminate poor performers. Therefore, the state must ensure that the opportunity to appeal occurs only once and only at the district level. It is in the best interest of both the teacher and the district that a conclusion be reached within a reasonable time frame. 

Distinguish the process and accompanying due process rights between dismissal for classroom ineffectiveness and dismissal for morality violations, felonies or dereliction of duty.
While nonprobationary teachers should have due process for any termination, it is important to differentiate between loss of employment and issues with far-reaching consequences that could permanently impact a teacher's right to practice. West Virginia should ensure that appeals related to classroom effectiveness are only decided by those with educational expertise.  

State response to our analysis

West Virginia was helpful in providing NCTQ with the facts necessary for this analysis. 
In addition, the state noted that NCTQ made certain assumptions based upon the wording of Section 18A-2-8, which is admittedly less than clear, and that appeals of teacher terminations are governed by statutes enacted by the Legislature. The West Virginia Board of Education and the West Virginia Department of Education have no input or governance authority. They are simply employers subject to the same grievance procedures as are the county boards of education.  
The state also pointed out that the typical process for termination of a teacher employed by a county board of education is that the teacher is provided notice that the county superintendent will recommend to the county board of education that he or she be terminated.  The teacher has a right to have a hearing before the county board of education.  It is usually held within two weeks. The county board votes on the superintendent's recommendation at the conclusion of the hearing. The vote is memorialized in a letter sent by the county superintendent.

The state added that regardless of whether the teacher requested a hearing before the county board, the terminated teacher then has a statutory right to file a grievance and almost always proceeds directly to a level three hearing, which is heard de novo. The Grievance Board has the authority to issue subpoenas and there is an opportunity to conduct limited discovery, unlike the hearing before the county board of education.  There has been an effort in recent years to employ more hearing officers to expedite the process.

In addition, West Virginia pointed out that it is true that all grievance decisions are appealable to the Circuit Court of Kanawha County, where the State Capitol is located.  But the Circuit Court reviews the record; it does not take any evidence. Often times, the parties submit briefs and do not make oral argument.

Finally, the state said that "the West Virginia Department of Education doubts whether the Legislature politically could carve out an exception to the grievance process for professional personnel being terminated for incompetence or unsatisfactory performance and give them less due process than a teacher being terminated for something more serious, such as cruelty, or a school custodian being terminated for any reason.  Even if it did, the Department anticipates that the Supreme Court of Appeals of West Virginia would regard such a differentiation as a denial of due process. The expeditious process that NCTQ envisions could only come about if the Legislature abolished the entire Public Employees Grievance Board system and the Supreme Court abolished the common law concepts of writs of mandamus and prohibition (basically an appeal to a Circuit Court from a public agency if the petitioner has no avenue of direct appeal)."

Last word

The issue of long, protracted dismissal processes that cost districts hundreds of thousands of dollars has earned national attention.  It has recently been addressed by a number of states, including Florida, Indiana and Oklahoma.  West Virginia may find its legislature more willing to revisit this issue than it believes.