Senate Bill No. 470
(By Senators Burdette, Mr. President, and Boley,
By Request of the Executive)
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[Introduced March 22, 1993; referred to the Committee
on Education.]
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A BILL to amend and reenact section five, article twenty-nine,
chapter eighteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
section seven, article six, chapter twenty-nine of said
code; and to amend and reenact sections four, five, six and
seven, article six-a of said chapter, all relating to the
education employees grievance board; the director of
personnel; and the grievance procedure for state employees.
Be it enacted by the Legislature of West Virginia:
That section five, article twenty-nine, chapter eighteen of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; that section seven, article
six, chapter of said code be amended and reenacted; and that
sections four, five, six and seven, article six-a of said chapter
twenty-nine be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 29. GRIEVANCE PROCEDURE.
§18-29-5. Education employees grievance board; hearing
examiners.
(a) There is hereby created and shall be an education
employees grievance board which shall consist of
five three
members who shall be citizens of the state appointed by the
governor by and with the advice and consent of the Senate for
overlapping terms of three years, except that the original
appointments shall be for a period of one, two and three years,
respectively, commencing on the first day of July, one thousand
nine hundred eighty-five. No
three two members shall be from the
same congressional district, and no more than
three two of the
appointed members shall be from the same political party,
and at
least one member shall be a nonsupervisory public employee. No
person shall be appointed to membership on the board who is a
member of any political party executive committee or holds any
elected or appointed other public office.
or public employment
under the federal government or under the government of this
state Members shall be eligible for reappointment, and any
vacancy on the board shall be filled within thirty days of the
vacancy by the governor by appointment for the unexpired term.
A member of the board may not be removed from office except
for official misconduct, incompetence, neglect of duty, gross
immorality or malfeasance, and then only in the manner prescribed
in article six, chapter six of this code for the removal by the
governor of the state elected officers.
The board shall hold at least two meetings yearly at suchtimes and places as it may prescribe and may meet at such other
times as may be necessary, such meetings to be agreed to in
writing by at least two of the members. Members of the board
shall each be paid seventy-five dollars for each calendar day
devoted to the work of the board, but not more than seven hundred
fifty dollars during any one fiscal year. Each member shall be
reimbursed for all reasonable and necessary expenses actually
incurred in the performance of board duties, but shall submit a
request therefor upon sworn itemized statement.
The board is hereby authorized and required to administer
the grievance procedure at level four as provided for in section
four of this article and shall employ at least two full-time
hearing examiners on an annual basis and such clerical help as is
necessary to implement the legislative intent expressed in
section one of this article.
The board shall hire hearing examiners who reside in
different regional educational service agency areas unless and
until the number of hearing examiners exceeds the number of such
areas, at which time two hearing examiners may be from the same
such area. If a grievant previously before a hearing examiner
again brings a grievance, a different hearing examiner shall be
required to hear the grievance upon written request therefor by
any party to the grievance. These hearing examiners shall serve
at the will and pleasure of the board.
The board shall submit a yearly budget and shall report
annually to the governor and Legislature regarding receipts andexpenditures, number of level four hearings conducted, synopses
of hearing outcomes and such other information as the board may
deem appropriate. The board shall further evaluate on an annual
basis the level four grievance process and the performance of all
hearing examiners and include such evaluation in the annual
report to the governor and Legislature. In making such
evaluation, the board shall notify all institutions, employee
organizations and all grievants participating in level four
grievances in the year for which evaluation is being made and
shall provide for the submission of written comment and/or the
hearing of testimony regarding the grievance process. The board
shall provide suitable office space for all hearing examiners in
space other than that utilized by any institution as defined in
section two of this article and shall ensure that reference
materials are generally available.
The board is authorized to promulgate rules and regulations
consistent with the provisions of this article, such rules and
regulations to be adopted in accordance with chapter twenty-nine-
a of this code.
(b) Hearing examiners are hereby authorized and shall have
the power to consolidate grievances, allocate costs among the
parties in accordance with section eight of this article,
subpoena witnesses and documents in accordance with the
provisions of section one, article five, chapter twenty-nine-a of
this code, provide such relief as is deemed fair and equitable in
accordance with the provisions of this article, and such otherpowers as will provide for the effective resolution of grievances
not inconsistent with any rules or regulations of the board or
the provisions of this article.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 6. CIVIL SERVICE SYSTEM.
§29-6-7. Director of personnel; appointment; qualifications;
powers and duties.
(a)
Notwithstanding any other provision of this code,
including the provisions of section two-a, article seven, chapter
six of this code, to the contrary, the secretary of the
department of administration,
subject to the approval of the
governor, shall appoint the director
and shall set all terms and
conditions of the director's employment, including the director's
compensation to the extent that the salary component of such
compensation does not exceed sixty-five thousand dollars per
calendar year. The director shall serve at the will and pleasure
of the governor. The director shall be a person knowledgeable of
the application of the merit principles in public employment as
evidenced by the obtainment of a degree in business
administration, personnel administration, public administration
or the equivalent and at least five years of administrative
experience in personnel administration.
(b) The director shall:
(1) Consistent with the provisions of this article
administer the operations of the division, allocating the
functions and activities of the division among sections as thedirector may establish;
(2) Maintain a personnel management information system
necessary to carry out the provisions of this article;
(3) Supervise payrolls and audit payrolls, reports or
transactions for conformity with the provisions of this article;
(4) Plan, evaluate, administer and implement personnel
programs and policies in state government and to political
subdivisions after agreement by the parties;
(5) Supervise the employee selection process and employ
performance evaluation procedures;
(6) Develop programs to improve efficiency and effectiveness
of the public service, including, but not limited to, employee
training, development, assistance and incentives;
(7) Establish pilot programs and other projects for a
maximum of one year outside of the provisions of this article,
subject to approval by the board, to be included in the annual
report;
(8) Establish and provide for a public employee interchange
program and may provide for a voluntary employee interchange
program between public and private sector employees;
(9) Establish an internship program;
(10) Assist the governor and secretary of the department of
administration in general work force planning and other personnel
matters;
(11) Make an annual report to the governor and Legislature
and all other special or periodic reports as may be required;
(12) Assess cost for special or other services;
(13) Recommend rules to the board for implementation of this
article; and
(14) Conduct schools, seminars or classes for supervisory
employees of the state regarding handling of complaints and
disciplinary matters and the operation of the state personnel
system.
The director, or his or her designee, shall have the
authority to initiate and conduct investigations, inquiries, and
hearings. In pursuing any such investigation, the director or
his or her designee shall have the authority to swear oaths and
affirmations, to issue subpoenas, subpoenas duces tecum, take
affidavits and summon witnesses to give testimony under oath or
affirmation on any matter upon which any witness may be lawfully
interrogated, require the production of relevant books, accounts,
papers, records, and documents pertaining to any matter covered
by the provisions of this article and the rules, regulations and
policies thereof, and the provisions of article one, chapter six-
c of this code. Any person who wilfully swears or testifies
falsely, under an oath or affirmation lawfully administered
pursuant to the provisions of this section, or any person who
counsels, advises, aids or abets another in the commission of
false swearing shall be subject to immediate dismissal, as well
as any other applicable penalties. Notwithstanding the
provisions of article one, chapter twenty-nine-b of this code to
the contrary, information obtained in the course of aninvestigation conducted pursuant to the provisions of this
section shall not be published or be open to public inspection,
including internal investigative reports, memoranda, letters,
affidavits, statements, notes, draft materials, audio and video
recordings, transcripts and other documentary evidence generated
during any such investigation. The director, his or her
designee, and any other person working at their direction on an
investigation conducted pursuant to the provisions of this
section, shall be immune from civil and criminal liability for
any action taken or statement made by them during the course of
such investigation, or after the conclusion of such
investigation, unless such action or statement is proven to have
been taken or made with malice.
ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.
§29-6A-4. Procedural levels and procedure at each level.
(a)
Level one.
Within ten days following the occurrence of the event upon
which the grievance is based, or within ten days of the date on
which the event became known to the grievant, or within ten days
of the most recent occurrence of a continuing practice giving
rise to a grievance, the grievant or the designated
representative, or both, may file a written grievance with the
immediate supervisor of the grievant. At the request of the
grievant or the immediate supervisor, an informal conference
shall be held to discuss the grievance within three days of the
receipt of the written grievance. The immediate supervisor shallissue a written decision within six days of the receipt of the
written grievance.
(b)
Level two.
Within five days of receiving the decision of the immediate
supervisor, the grievant may file a written appeal to the
administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department,
board, commission or agency. The administrator or his designee
shall hold a conference within five days of the receipt of the
appeal and issue a written decision upon the appeal within five
days of the conference.
(c)
Level three.
Within five days of receiving the decision of the
administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department,
board, commission or agency, the grievant may file a written
appeal of the decision with the chief administrator of the
grievant's employing department, board, commission or agency. A
copy of the appeal and the level two decision shall be served
upon the personnel director of the state civil service commission
by the grievant.
The chief administrator or his designee shall hold a hearing
in accordance with section six of this article within seven days
of receiving the appeal. The personnel director of the state
civil service commission or his designee may appear at such
hearing and submit oral or written evidence upon the matters inthe hearing.
The chief administrator or his designee shall issue a
written decision affirming, modifying or reversing the level two
decision within five days of such hearing.
(d)
Level four.
(1) If the grievant is not satisfied with the action taken
by the chief administrator or his designee, within five days of
the written decision the grievant may request, in writing, on a
form furnished by the employer, that the grievance be submitted
to a hearing examiner as provided for in section five of this
article, such hearing to be conducted in accordance with section
six of this article within fifteen days following the request
therefor:
Provided,
That such hearing may be held within thirty
days following the request, or within such time as is mutually
agreed upon by the parties, if the hearing examiner gives
reasonable cause, in writing, as to the necessity for such delay.
A copy of the appeal shall be served by the grievant upon the
director of personnel of the division of personnel. state civil
service commission The director of personnel of the division of
personnel, state civil service commission or his designee, may
appear at such hearing and submit oral or written evidence upon
the matters in the hearing:
Provided, however,
That when the
hearing examiner determines that the findings of facts in the
case are not in dispute, such hearing may be waived by the
hearing examiner and a summary decision may be issued.
(2) Within thirty days following the hearing, the hearingexaminer shall render a decision in writing to all parties
setting forth findings and conclusions on the issues submitted.
Subject to the provisions of section seven of this article The
decision of the hearing examiner shall be final upon the parties
and shall be enforced and reviewed in accordance with the
provisions of subsection (e) of this section or section seven of
this article. enforceable in circuit court
(e) Upon written petition to the board by either party to a
level four decision, which petition shall be filed with and
received by the board within ten days of the issuance of the
written decision rendered by the hearing examiner in such
grievance, the board may review such decision which review shall
be in lieu of the right of appeal by any party to such decision
to circuit court as set forth in section seven of this article.
Any party to the level four decision may file a response to said
petition, and the party filing the original petition for review
may file a reply to any such response. Any review by the board
of a level four decision shall be limited to the legal and
factual issues raised and argued in the petition for such review,
and to the legal and factual issues raised and argued in the
applicable responses and replies.
(e) (f)
Expedited grievance process.
An employee may grieve a final action of the employer
involving a dismissal, demotion or suspension exceeding twenty
days directly to the hearing examiner. The expedited grievance
shall be in writing and must be filed within ten days of the dateof the final action with the chief administrator and the director
of personnel of the state civil service commission.
§29-6A-5. Education and state employees grievance board; hearing
examiners.
(a) The education employees grievance board, created by
virtue of the provisions of section five, article twenty-nine,
chapter eighteen of this code, shall be hereafter known and
referred to as the education and state employees grievance board
and, in addition to those duties set forth in said chapter
eighteen, is hereby authorized and required to administer the
grievance procedure at level four as provided for in section four
of this article. The board shall employ, in addition to those
persons employed as hearing examiners for educational employee
grievances, at least two full-time hearing examiners for the
purpose of conducting hearings at level four as provided in
section four of this article. Such hearing examiners shall be
employed on an annual basis along with such clerical help as is
necessary to implement the legislative intent expressed in
section one of this article.
In addition to the budget required for submission to the
Legislature by virtue of the provisions of section five, article
twenty-nine, chapter eighteen of this code, the board shall
submit a yearly budget and shall report annually to the governor
and the Legislature regarding proceedings conducted under this
article, including receipts and expenditures, number of level
four hearings conducted, synopses of hearing outcomes and suchother information as the board may deem appropriate. The board
shall further evaluate on an annual basis the level four
grievance process and the performance of all hearing examiners
and include such evaluation in the annual report to the governor
and the Legislature. In making such evaluation the board shall
notify all employers, employee organizations, the director of
personnel of the state civil service commission and all grievants
participating in level four grievances in the year for which
evaluation is being made and shall provide for the submission of
written comment and/or the hearing of testimony regarding the
grievance process.
The board shall provide suitable office space for all
hearing examiners in space other than that utilized by any
employer as defined in section two of this article and shall
ensure that reference materials are generally available. The
board shall provide forms for filing grievances, giving notice,
taking appeals, making reports and recommendations and such other
documents as the board deems necessary for any stage of a
grievance under this article.
The board is authorized to promulgate rules and regulations
consistent with the provisions of this article, such rules and
regulations to be adopted in accordance with chapter twenty-nine-
a of this code.
(b) Hearing examiners are hereby authorized and shall have
the power to consolidate grievances, issue summary decisions,
allocate costs among the parties in accordance with section eightof this article, subpoena witnesses and documents in accordance
with the provisions of section one, article five, chapter
twenty-nine-a of this code, provide such relief as is deemed fair
and equitable in accordance with the provisions of this article,
and such other powers as will provide for the effective
resolution of grievances not inconsistent with any rules and
regulations of the board or the provisions of this article:
Provided,
That in all cases the hearing examiner shall have the
authority to provide appropriate remedies including, but not
limited to, making the employee whole.
§29-6A-6. Hearings generally.
The chief administrator or his designee acting as a
grievance evaluator or the hearing examiner shall conduct all
hearings in an impartial manner and shall ensure that all parties
are accorded procedural and substantive due process. All parties
shall have an opportunity to present evidence and argument with
respect to the matters and issues involved, to cross-examine and
to rebut evidence. Reasonable notice of a hearing shall be sent
prior to the hearing to all parties and their named
representative and shall include the date, time and place of the
hearing. Level one, level two and level three hearings shall be
at a convenient place accessible to the aggrieved employee. All
such hearings shall be held on the employer's premises or on
other premises mutually agreeable to the parties and within
regular working hours:
Provided,
That any such hearing might
continue beyond normal working hours. Level four hearings shallbe at a place to be designated by the hearing examiner.
The employer that is party to the grievance shall produce
prior to such hearing any documents, not privileged, and which
are relevant to the subject matter involved in the pending
grievance, that have been requested by the grievant, in writing.
Prior to such hearing the hearing examiner may require proposed
findings of fact and conclusions of law from all parties, and if
the hearing examiner finds that the relevant facts in the
grievance are not in dispute as between and among the parties to
the grievance, then the hearing examiner shall have the
discretion to issue a summary final decision on the grievance
which decision is based on such relevant facts.
The chief administrator or his designee or the hearing
examiner shall have the power to (1) administer oaths and
affirmations, (2) subpoena witnesses, (3) regulate the course of
the hearing, (4) hold conferences for the settlement or
simplification of the issues by consent of the parties, (5)
exclude immaterial, irrelevant or repetitious evidence, (6)
sequester witnesses, (7) restrict the number of advocates, and
take any other action not inconsistent with the rules and
regulations of the board or the provisions of this article.
All the testimony and evidence at any level three or level
four hearing shall be recorded by mechanical means, and all
recorded testimony and evidence at such hearing shall be
transcribed and certified by affidavit. The chief administrator
shall be responsible for promptly providing a copy of thecertified transcript of a level three hearing to any party to
that hearing who requests such transcript. The hearing examiner
may also request and be provided a transcript upon appeal to
level four and allocate the costs therefor as prescribed in
section eight of this article. The board shall be responsible
for promptly providing a copy of the certified transcript of a
level four hearing to any party to that hearing who requests such
transcript.
Formal rules of evidence shall not be applied, but parties
shall be bound by the rules of privilege recognized by law. No
employee shall be compelled to testify against himself or herself
in a grievance involving disciplinary action. The burden of
proof shall rest with the employer in disciplinary matters.
All materials submitted in accordance with section three of
this article; the mechanical recording of all testimony and
evidence or the transcription thereof, if any; the decision and
any other materials considered in reaching the decision shall be
made a part and shall constitute the record of a grievance. Such
record shall be submitted to any level at which appeal has been
made, and such record shall be considered, but the development of
such record shall not be limited thereby.
Every decision pursuant to a hearing shall be in writing and
shall be accompanied by findings of fact and conclusions of law.
Prior to such decision any party may propose findings of
fact and conclusions of law.
§29-6A-7. Enforcement and reviewability; costs; good faith.
The decision of the hearing examiner shall be final upon the
parties: and shall be enforceable in circuit court
Provided,
That either party or the division of personnel state civil
service commission may appeal to the circuit court of the county
in which the grievance occurred on the grounds that the hearing
examiner's decision (1) was contrary to law or a lawfully adopted
rule, regulation or written policy of the employer, (2) exceeded
the hearing examiner's statutory authority, (3) was the result of
fraud or deceit, (4) was clearly wrong in view of the reliable,
probative and substantial evidence on the whole record, or (5)
was arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion:
Provided, however,
That either party may seek a review of the
decision of the hearing examiner pursuant to the provision of
subsection (e) of section four of this article in lieu of any
appeal to circuit court. Such Any appeal to a circuit court
shall be filed in the circuit court of the county in which the
grievance occurred within thirty days of receipt of the hearing
examiner's decision. The decision of the hearing examiner shall
not be stayed, automatically, upon the filing of an appeal, but
a stay may be granted by the circuit court upon separate motion
therefor.
The court's ruling shall be upon the entire record made
before the hearing examiner, and the court may hear oral
arguments and require written briefs. The court may reverse,
vacate or modify the decision of the hearing examiner or mayremand the grievance, with or without findings of law or fact by
the court, to the appropriate chief administrator, to the
relevant hearing examiner, or to the board for further
proceedings consistent with the rulings of the court.
Both employer and employee shall at all times act in good
faith and make every possible effort to resolve disputes at the
lowest level of the grievance procedure. The hearing examiner
may make a determination of bad faith and in extreme instances
allocate the cost of the hearing to the party found to be acting
in bad faith. Such allocation of costs shall be based on the
relative ability of the party to pay such costs.
NOTE: The purpose of this bill is to reform various
provisions of the code related to the division of personnel and
the grievance process.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.