Homeroom Teachers Performing the Duties of a Certified School Counselor

 

Based on the "Jurisprudential and Regulatory Analysis of High School Counseling in the West Virginia Public Education System," a homeroom teacher performing the duties of a certified school counselor without the appropriate licensure faces significant legal, financial, and professional liabilities.

1. Criminal Liability for Unauthorized Practice The most severe liability is criminal. Under West Virginia Code §30-31-1 et seq., it is unlawful for any person to practice or offer to practice professional counseling without a license.

• Misdemeanor Charge: Practicing without a license is classified as a misdemeanor.
• Penalties: Upon conviction, the individual may face fines up to $5,000 or confinement in jail for up to 90 days. Subsequent offenses carry harsher penalties.

2. Loss of Legal Immunity (Tort Liability) School employees generally benefit from the "Governmental Tort Claims and Insurance Reform Act," which provides immunity from civil liability for acts committed within the scope of employment. However, a teacher acting as a counselor may lose this protection:

• Scope of Employment: Immunity is void if an employee's acts are "manifestly outside the scope of their employment or official responsibilities". Since the law defines "school counselor" and "classroom teacher" as distinct classifications with different duties,, a teacher performing clinical counseling tasks could be deemed to be acting outside their scope.
• Personal Liability: If immunity is lost, the teacher could be personally liable for damages resulting from their counseling advice or interventions, rather than being protected by the school district.

3. Loss of Insurance Coverage and Indemnification If a teacher is sued for acts committed while unlawfully functioning as a counselor, the school district's insurance may not cover them.

• Indemnification Requirements: County boards are required to indemnify employees, but insurance policies often require employees to be "duly licensed" to qualify for coverage.
• Duty to Defend: If the teacher is practicing outside their legal authority (i.e., without a counseling certificate), the board's insurer may refuse to provide for the teacher's defense or pay any resulting judgments,.

4. Prohibition on Compensation There are strict statutory limits on paying individuals for work they are not certified to perform.

• Payment Ban: West Virginia Code §18A-3-2 prohibits a county board from paying an individual who is found to be ineligible for the specific certificate required for their role.
• Three-Month Limit: If a teacher is employed in good faith as a counselor but lacks the certificate, the board is legally prohibited from paying them for a period exceeding three school months.

5. Professional Disciplinary Action Performing duties for which one is not certified can jeopardize the teacher's existing teaching license.

• Revocation of Certificate: The State Superintendent may revoke a certificate for "neglect of duty" or "immorality". Practicing another profession unlawfully (counseling without a license) could potentially be interpreted as a moral defect or a violation of professional standards.
• Negligence regarding Clinical Standards: Certified counselors are trained in specific clinical areas such as the "permissive duty to warn" regarding violent threats and mental health crisis response. A teacher lacking this specific training (verified by the Praxis II and internship), is at high risk of mishandling critical situations, potentially leading to claims of negligence or bad faith, which are further grounds for losing immunity.