The requirements for competency testing by county boards of
education are set forth in West Virginia Code 18A-4-8e, which defines the
purpose of the tests as "to provide county boards of education
a uniform means of determining whether . . . employees who do not
hold a classification title . . . meet the definition of the
classification title." An issue often arises as to whether a
county board of education is required to provide competency testing
to existing regularly employed service personnel outside of the
classification vacancy when others who have previously tested and
passed have also applied.
For example, assume Employee "A" has been a regular
employed custodian for 14 years. The county board of education
posts a vacancy for a General Maintenance/Plumber II/Sanitation
Plant Operator. At the time of the posting, Employee "A"
is not qualified, as he has not passed the competency test for
these classifications. However, Employee "B", currently a
regularly employed Cook, has previously qualified for all of the
classifications in the posting by successfully passing the
competency tests. Both Employee "A" and "B"
apply for the vacancy.
Of course we all know that there is a "hiring priority"
set forth in West Virginia Code 18A-4-8b, whereby regular
employees who "hold" the classification title of the
posted position are entitled to be hired over all others.
So, does the county board of education have to provide
Employee "A" with an opportunity to take the necessary
competency tests (with required in-service preparation), so that he
can attempt to qualify for the position?
The answer is "no". A county board of education is under
no obligation to wait to fill a position while a regularly employed
service employee attempts to obtain the qualifications for the
position, when others have previously qualified. West Virginia Code 18A-4-8b(a) provides that a
board of education is required to "make decisions affecting .
. . the filling of any service personnel positions . . . on the
basis of seniority, qualifications and evaluation of past
service." In turn, the same statute defines
"qualifications" as meaning that "the applicant
holds the classification title in his or her category of employment
. . . and shall be given first opportunity for . . . filling
vacancies."
In turn, West Virginia Code 18A-4-8e contains several
provisions which make it clear that, once an applicant has passed
the applicable competency test, they are then qualified for any
future vacancies in that classification. Therefore, since the
statutory purpose of competency testing is to determine
qualifications of applicants who do not "hold" the
classification title, an applicant who has previously passed the
test, but is not currently working in that job classification, is
still considered to be one who "holds" the class title,
having previously qualified.
These provisions have been interpreted by the Grievance Board to
mean that "only if no qualified individuals apply, i.e., no
applicants hold the class titles in question or have
successfully completed the competency test, is the board
obligated to offer competency testing in order for other employees
to be deemed qualified through successful completion of the
examination." Fuccy v. Hancock, 2008-0264-HanED. As also
stated in West Virginia Code 18A-4-8e, if no applicants
are qualified, "other employees then shall be considered and
shall qualify by meeting the definition of the job title,"
i.e., be allowed to take the applicable competency test.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
