For Tuesday's Board Meeting to Save our Schools From Committing a Crime

 

• The statutory authority a board member needs to argue that the previous decision was legally void and must be reversed. Because school boards are creations of the state legislature, they cannot validly vote to violate state statute.

  To reverse this decision before or during the ratification of minutes, the board member should present the following legal impediments that render the previous vote unenforceable:

  1. Assert that the Vote Violates State Mandates The board member should inform the body that the vote to abolish the position is null because it violates a statutory requirement.

• The Mandate: West Virginia law currently mandates that "every public school have at least one professional counselor".
• The Argument: A local board cannot vote to override state code. By abolishing the position, the board is in direct noncompliance with the legislative requirement to provide these services to "every pupil enrolled".

2. Demonstrate the Financial Impossibility of the Decision If the board intended to save money or have other staff cover these duties, the board member can prove this is legally impossible to fund.

• The Payment Ban: Citing West Virginia Code §18A-3-2, the member should note that the board is prohibited from paying any individual to perform counseling duties if they do not hold the specific Student Support Certificate.
• The Three-Month Cap: If the board attempts to pay a non-certified employee to fill the void left by the abolished position, they are legally barred from paying that individual for a period exceeding three school months.

3. Highlight the Immediate Loss of Liability Insurance The board member should argue that the decision to abolish the certified position immediately exposes the board members and the district to uninsured lawsuits.

• Voiding Coverage: The district’s insurance (BRIM) generally requires employees to be "duly licensed" to qualify for indemnification.
• Duty to Defend: If a student is harmed and the district has assigned an uncertified person to cover counseling duties, the insurer may refuse to defend the board or pay the judgment because the employee was acting outside their legal scope.

4. Warn of Criminal Solicitation The board member should remind the board that implementing this decision requires them to solicit criminal behavior from staff.

• Misdemeanor Offense: It is a misdemeanor for any person (such as a teacher or administrator) to practice professional counseling without a license.
• Solicitation: By voting to abolish the certified position while still requiring the duties to be performed, the board is effectively requiring staff to commit a crime punishable by fines and jail time.

5. Threaten the Loss of State Funding Finally, the board member should note that this decision invites state-level financial penalties.

• Discretionary Funding: County boards found to be in noncompliance with state personnel laws (such as the requirement to employ a counselor) may be denied discretionary state funding.