H. B. 2030


(By Delegate Love)

[Introduced January 16, 1995 ; referred to the

Committee on the Judiciary then Finance.]





A BILL to amend chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article fourteen-c, relating to civil service status for sheriff's radio dispatchers; and providing criminal penalties for violations of article.

Be it enacted by the Legislature of West Virginia:
That chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article fourteen-c, to read as follows:
ARTICLE 14C. CIVIL SERVICE FOR RADIO DISPATCHERS.

§7-14C-1. Appointments and promotions of radio dispatchers.

Notwithstanding the provisions of article seven, chapter seven of this code, all appointments and promotions of full-time radio dispatchers, as defined in section two of this article, in the offices of sheriffs of counties of twenty-five thousand population or more, shall be made only according to qualifications and fitness to be ascertained by examination. So far as practicable, those examinations shall be competitive, as herein provided. On and after the effective date of this article, no such full-time radio dispatcher in any county shall be appointed, promoted, reinstated, removed, discharged, suspended or reduced in status or pay in any manner or by any means other than those prescribed in this article.
§7-14C-2. Definitions; population.

(a) For the purpose of this article:
(1) "Appointing officer" or "appointing sheriff" means the sheriff of the county in which the appointment of a radio dispatcher shall be made, pursuant to this article; and
(2) "Radio dispatcher" means persons appointed by a sheriff whose sole duties as such radio dispatcher are within the scope of active operation and management of the sheriff's telecommunications radio dispatching.
(b) For the purpose of this article, population shall be determined by reference to the last preceding census taken under the authority of the United States or of the Legislature of West Virginia.
§7-14C-3. Civil service commission.

The civil service commission appointed in each county having a population of twenty-five thousand or more for correctional officers under section three, article fourteen-b of this chapter, shall be the designated civil service commission for radio dispatchers with like powers and duties as are hereinafter set forth.
§7-14C-4. Clerk of commission.

The clerk of the county commission shall be ex officio clerk of the civil service commission and shall supply to the commission all necessary clerical and stenographic services for the work of the civil service commission.
§7-14C-5. Office and supplies for commission; appropriations required.

It shall be the duty of the county commission of every such county to cause suitable and convenient rooms and accommodations to be assigned and provided, furnished, heated and lighted for carrying on the work and examinations of the civil service commission. The civil service commission may order for its official use from the proper authorities necessary stationery, postage stamps, official seal and other articles and printing services. The county commission and other county officials of every such county shall aid the civil service commission in all proper ways in carrying out the provisions of this article, in allowing the reasonable use of public buildings, in heating and lighting and in all proper ways, facilitating the conduct of examinations and investigations.
The county commission of each such county is hereby required to appropriate sufficient funds for the purpose of carrying out the provisions of this article.
§7-14C-6. Powers and duties of commission.

The civil service commission in each such county shall:
(a) Promulgate and enforce rules for carrying into effect the provisions of this article. All rules so prescribed may, from time to time, be added to, amended or rescinded.
(b) Keep minutes of its own proceedings and records of its examinations and other official actions. All recommendations of applicants for the position of radio dispatcher received by the commission or by the sheriff shall be preserved for a period of ten years, except for recommendations of former employees, all such records and all written causes of removal filed with the commission, shall be open to public inspection, subject to reasonable rule.
(c) Either sitting as a body or through a single commissioner, investigate all matters touching the enforcement and effect of the provisions of this article, the rules promulgated hereunder, or the action of any examiner or subordinate of the commission or of any person in the public service with respect to the execution of this article. In the course of such investigations, each commissioner shall have the power to administer oaths and affirmations and to take testimony.
(d) Have power to subpoena and require the attendance of witnesses and the production and examination of books and papers and any public records necessary for the investigations and inquiries herein authorized. The fee for travel and attendance by such witnesses shall be the same as for witnesses before the circuit courts of this state and shall be paid from the appropriation for the incidental expenses of the commission. All officers in the public service and their deputies, clerks, subordinates and employees shall attend and testify when required to do so by the commission. Disobedience or neglect of any subpoena issued by a commissioner shall be held to be contempt of court and punished by the circuit court of the county in which the civil service commission is located, or the judge thereof in vacation, as if the subpoena has been issued by the court itself. On application by a commissioner in any such case the judge of the circuit court shall compel any person or persons disobeying or neglecting any such subpoena to appear and testify before any commissioner. The court shall have the power to punish any such contempt.
(e) Prepare a position classification and promotion plan.
(f) Make an annual report to the county commission and sheriff showing the civil service commission's own actions, its rules and exceptions and their practical effects and the commission's suggestions for the more effectual accomplishment of the purposes of this article. The report shall be available for public inspection five days after its delivery to the county commission and sheriff.
§7-14C-7. Rules of commission; notice and distribution thereof; probationary period for appointees.

The civil service commission in each such county shall promulgate rules providing for competitive examinations for the position of radio dispatcher in each such county subject to the provisions of this article, for appointments to the position of radio dispatcher and for promotions, and for such other matters as are necessary to carry out the purposes of this article. Due notice of the contents of all rules and of their modifications shall be mailed in due season to the appointing officer, and said rules and modifications shall also be printed for public distribution. On and after the effective date of this article, all original appointments to any position of radio dispatcher in any county subject to the provisions of this article shall be for a probationary period of one year: Provided, That at any time during the probationary period the probationer may be discharged for just cause in the manner and under the limitations provided in sections fifteen and seventeen of this article. If the conduct or capacity of the probationer has not been satisfactory to the appointing sheriff by the close of such period, the probationer shall be notified in writing that he will not receive absolute appointment. His employment shall then cease. Otherwise, his retention in the position of radio dispatcher beyond the probationary term shall be equivalent to his absolute appointment.
§7-14C-8. Form of application; age requirement.

The civil service commission in each such county shall require applicants for admission to any competitive examination provided for under this article or under the rules of the commission to file in its office within a reasonable time prior to such examination, a formal application. Each applicant shall in the application state under oath or affirmation:
(a) His or her full name, residence and post-office address;
(b) His or her United States citizenship, age and place and date of birth;
(c) His or her health and physical capacity for the position of radio dispatcher;
(d) His or her business, employments and residences for at least three previous years; and
(e) Such other information as may reasonably be required, relative to the applicant's qualifications and fitness for the position of radio dispatcher.
Blank forms for such applications shall be furnished by the commission, without charge, to all persons requesting the same. In connection with the application, the commission may request certification by citizens as to such information concerning the applicant as the good of the service may require.
No application for original appointment shall be accepted on and after the effective date of this article, if the applicant is less than eighteen years of age as of the date of application.
§7-14C-9. Character and notice of competitive examinations; qualifications of applicants; competitive examinations to be prescribed by state civil service commission; posting eligible list; exceptions as to and training of radio dispatchers serving on effective date of article.

All competitive examinations for appointments or promotions of radio dispatchers shall be practical in their character, and shall fairly and fully test comparative merit and fitness of the applicant to discharge the duties of the position sought. From time to time the state civil service commission shall prepare and prescribe the competitive examination to be given by the civil service commission of each such county. All competitive examinations shall be open to all applicants who have fulfilled the preliminary requirements specified in other sections of this article.
Adequate public notice of the date, time and place of every competitive examination held under the provisions of this article, together with information as to the position to be filled, shall be given at least two weeks prior to such competitive examination. In a publicly conspicuous place at its office, the civil service commission shall post a list of the names and grades of those who have passed such competitive examinations for positions as radio dispatcher, under this article, and shall indicate thereon such appointments as may be made from said list.
All radio dispatchers who are employed as radio dispatchers on the effective date of this article, shall be considered to have been appointed under the provisions of this article, without regard to their age and without their competitive examination.
§7-14C-10. Refusal to examine or certify; review thereof.

The commission may refuse to examine an applicant or after an examination refuse to certify as eligible one who is found not to fulfill the established preliminary requirements for the examination or position for which the applicant has applied; or who is addicted to the habitual use of intoxicating liquors or drugs; or who has been convicted of a felony; or who has been dismissed from public service for delinquency or misconduct; or who has made a false statement of any material fact, or practiced or attempted to practice any deception or fraud in preparing the application, in any such examination, or in securing the applicant's eligibility; or who refuses to comply with the rules of the commission.
If any applicant feels aggrieved by the action of the commission in refusing to examine the applicant or after examination, in refusing to certify the applicant as eligible, the commission shall, at the request of such applicant, appoint a date, time and place for a public hearing. The applicant may appear individually, by counsel or in person, accompanied by counsel. The commission shall then review its refusal to make such examination or certification and shall hear testimony. The commission shall subpoena any competent witnesses requested by the applicant. After its review of all testimony the commission shall record and file records of such testimony along with its findings of fact, and shall therefrom make a decision by written order. The decision shall be subject to judicial review in the circuit court of the county wherein the commission sits. In the case of a refusal to examine an applicant for promotion or to certify an applicant as eligible for promotion, this article may not be construed as depriving the applicant of his or her right to seek a writ of mandamus, if the application for such writ is made within twenty days from the date of the posthearing order refusing to examine or to certify the applicant as eligible for promotion.
§7-14C-11. Appointments from eligible list.

Unless it is filled by promotion, reinstatement or reduction, every position of radio dispatcher shall be filled only in the manner specified in this section. The appointing sheriff shall notify the civil service commission of any vacancy in a position of radio dispatcher which the sheriff desires to fill and shall request the certification of eligibles. From the list of eligibles, the commission shall certify the names of the three persons who received the highest average scores on preceding competitive examinations that were held under the provisions of this article within the three years preceding the date of the opening. With reference solely to candidates' merit and fitness, the appointing sheriff shall then make an appointment from the three names so certified: Provided, That should the sheriff make objection to the commission to one or more of these persons for any of the reasons stated in section ten of this article; and should the commission sustain such objection following a public hearing in the manner prescribed in that section if any such hearing has been requested, the commission shall thereupon strike the name of that person from the eligible list and certify instead the next highest name. As each subsequent vacancy occurs, precisely the same procedure shall be followed: Provided, however, That after any name has been three times rejected for the same position in favor of a name or names below it on the same list, the name shall be stricken from the list. An appointment under the provisions of this section shall be made initially for the probationary period of twelve months, as provided in section seven of this article.
§7-14C-12. Noncompetitive examination for filling vacancy; provisional appointment.

Whenever there are urgent reasons for filling a vacancy in the position of radio dispatcher and there is no list of persons eligible for appointment after a competitive examination, the appointing sheriff may nominate a person to the civil service commission for noncompetitive examination; and if such nominee shall thus be certified by the commission as qualified, after such noncompetitive examination, the nominee may be appointed provisionally to fill such vacancy until a selection and appointment can be made by competitive examination, in the manner prescribed in section eleven of this article. The provisional appointment shall not continue for a longer period than three months, nor shall successive provisional appointments be made to the same position under the provisions of this section.
§7-14C-13. Vacancies filled by promotions; eligibility for promotion.

Vacancies in positions of radio dispatcher that open on and after the effective date of this article, shall be filled, so far as practicable, by promotion from among persons holding positions in the next lower grade. Promotions shall be based upon merit and fitness to be ascertained by competitive examinations to be provided by the civil service commission and upon the superior qualifications of the persons promoted, as shown by their previous service and experience: Provided, That no person shall be eligible for promotion from the lower grade to the next higher grade until such person shall have completed at least two years' service in the next lower grade.
§7-14C-14. No inquiry shall be made concerning political or religious opinions or affiliations of applicants, etc.

No question in any examination or application form shall be so framed as to elicit information concerning the political or religious opinions or affiliations of any applicant; nor shall inquiry be made concerning such opinions or affiliations; and all disclosures thereof shall be discountenanced. No discrimination shall be exercised, threatened, or promised by any person in the sheriff's office against, or in favor of, an eligible applicant or radio dispatcher in the office of any sheriff of any county subject to the provisions of this article, because of the applicant's political or religious opinions or affiliations.
§7-14C-15. Political activity of radio dispatchers prohibited; petition for vacating appointment; action on petition; appeal.

(a) On and after the effective date of this article, no radio dispatcher covered by the provisions of this article shall act as an election official in any municipal, county or state election or engage in any political activity of any kind whatsoever, except to cast his or her vote at any election. Any radio dispatcher violating the provisions of this section shall have his or her appointment vacated and the dispatcher shall be removed, in accordance with the pertinent provisions of this section.
(b) Any three residents of the county in which a violation occurs may file their written petition with the civil service commission thereof, setting out therein the grounds upon which a radio dispatcher of such county should be removed for a violation of subsection (a) of this section. Notice of the filing of such petition shall be given by the commission to the accused radio dispatcher, who shall therein be required to file a written answer to the charges set out in the petition within thirty days of receipt of such notice. The petition and any answer thereto shall be entered in the records of the civil service commission. If the answer is not filed within the time stated, or within any extension of such time granted by the civil service commission, the commission may issue an order declaring the appointment of the radio dispatcher to be vacated. If such answer is filed within such time, the accused radio dispatcher may demand a public hearing on the charges. In the absence of such demand, the civil service commission may, in its discretion, set a date and time for a public hearing on the charges. This hearing shall be held within thirty days of the filing of said answer or demand upon a continuance granted in the discretion of the civil service commission. A written record of all testimony taken at such hearing shall be made, kept and preserved by the civil service commission. This record shall be sealed and not be open to public inspection if no appeal be taken from the action of the commission. At the conclusion of the hearing or as soon as possible, but not later than fifteen days thereafter, the commission shall make findings of fact and shall enter an order setting forth its findings and decision. If charges are sustained, the order shall also declare the appointment of such radio dispatcher to be vacated. The sheriff shall immediately then remove the radio dispatcher from office and from the payroll of the county. Notice of the action of the commission shall be given by registered letter to the radio dispatcher, the county commission and the sheriff. If the sheriff fails to immediately comply with the order of the commission, the sheriff shall be punished for contempt, upon application of the commission to the circuit court of the county.
(c) An appeal from the ruling of the commission may be brought in the same manner and within the same time as those specified in section seventeen of this article, after a hearing has been held in accordance with the provisions of this section and section seventeen.
§7-14C-16. Removal, discharge, suspension or reduction in rank or pay; appeal; reduction in force.

(a) On and after the effective date of this article, no radio dispatcher of any county shall be removed, discharged, suspended or reduced in rank or pay except for just cause, which shall not be religious or political, except as provided in section fifteen of this article. No such radio dispatcher shall then be removed, discharged, suspended or reduced, except as provided in this article; and in no event, until the radio dispatcher has been furnished with a written statement of the reasons for such action. If a radio dispatcher wishes to file a written answer to a discharge, suspension or reduction, a copy of the statement of reasons therefor and of the written answer thereto shall be furnished to the civil service commission and entered upon its records. If the radio dispatcher sought to be removed, discharged, suspended or reduced shall demand it, the civil service commission shall grant the radio dispatcher a public hearing, which shall be held within a period of ten days from the filing and notice of the charges in writing or the written answer thereto, whichever shall last occur. At such hearing the burden shall be upon the removing, discharging, suspending or reducing sheriff, hereinafter termed "removing sheriff," to justify his or her action. In the event the removing sheriff fails to justify his or her action before the commission, then the radio dispatcher removed, discharged, suspended or reduced shall be reinstated with full pay, forthwith and without any additional order, for the entire period during which he or she may have been prevented from performing his or her usual employment; and no charges shall be officially or unofficially recorded against such radio dispatcher's record. If reinstated or exonerated, a radio dispatcher represented by legal counsel shall be awarded an attorney fee of two hundred fifty dollars by the commission and paid by the removing sheriff from county funds. The commission shall make findings of fact, and a written record of all testimony shall be taken at such hearing and be kept and reserved by the civil service commission. This record shall be sealed and not be open to public inspection, if no appeal be taken from the action of the commission.
(b) In the event that the civil service commission shall sustain the action of the removing sheriff, the radio dispatcher removed, discharged, suspended or reduced, shall have an immediate right of appeal to the circuit court of the county where employed. In the event that the commission shall reinstate the radio dispatcher, the removing sheriff shall have an immediate right of appeal to said circuit court. Any appeal must be taken within ninety days from the date of entry by the civil service commission of its final order. Upon the taking and docketing of an appeal by the clerk of the circuit court of said county, the circuit court shall proceed to hear the appeal upon the original record made before the commission. No additional proof shall be permitted to be introduced, unless justice shall require it. The circuit court's decision shall be final, but either the radio dispatcher or removing sheriff against whom the decision of the circuit court is rendered shall have the right, as in other civil cases, to petition the supreme court of appeals for a review of the circuit court's decision. Such radio dispatcher or removing sheriff shall also have the right to seek a writ of mandamus in lieu of an appeal, when appropriate. If reinstated or exonerated by the circuit court and represented by legal counsel, the radio dispatcher shall be awarded an attorney fee of two hundred fifty dollars; and if reinstated or exonerated by the supreme court of appeals, an attorney fee of five hundred dollars. Such fees shall be paid by the removing sheriff from county funds: Provided, That the aggregate amount of attorney fees awarded by the commission, the circuit court and the supreme court of appeals, shall not exceed one thousand dollars for any member litigant.
(c) At all times, the removing sheriff and the radio dispatcher sought to be removed, discharged, suspended or reduced, shall be given the right to employ counsel to represent them, both before the civil service commission and upon appeal.
(d) If for economic or other reasons of economy or other reasons, any appointing sheriff shall deem it necessary to reduce the number of his radio dispatchers, he shall follow the procedure set forth in this subsection. The reduction in the numbers of the radio dispatchers of the county shall be effected by suspending the most recently appointed radio dispatchers, including probationers: Provided, That in the event the number of radio dispatchers shall again be increased in numbers to the strength existing prior to such reduction of radio dispatchers, the radio dispatchers suspended under the terms of this subsection shall first be reinstated in the inverse order of their suspension before any new appointments of radio dispatchers in the county shall be made.
§7-14C-17. Vacations for radio dispatchers.

The county commission of each county shall allow the radio dispatchers in its employ vacation time accrued in the following manner: For radio dispatchers with less than five years of service, vacation time shall be accrued at the rate of one and one-quarter days for each calendar month of service; for radio dispatchers with five to ten years of service, at the rate of one and one-half days for each calendar month of service; for radio dispatchers with ten to fifteen years of service, at the rate of one and three-quarters days for each calendar month of service; and for radio dispatchers with fifteen or more years of service, at the rate of two days for each calendar month of service.
Each radio dispatcher shall only receive vacation time for each month in which he or she shall have worked for one hour more than one half the number of working hours deemed by the sheriff to be normal working hours.
Accrued vacation time may be carried forward from one calendar year to the next.
§7-14C-18. Sick leave.

(a) The county commission of each county shall allow the radio dispatcher sick leave with pay, to be computed as follows: Radio dispatchers shall be entitled to one and one-half days sick leave for each calendar month worked, or for the greater part thereof.
(b) Sick leave shall be granted only when illness on the part of or injury to the radio dispatcher incapacitates him or her for duty: Provided, That the sheriff of the county in which the radio dispatcher is employed shall have the authority to require the radio dispatcher to produce a statement from an attending physician for each day of sick leave beyond three days. This statement shall include dates of treatment and also shall state that the radio dispatcher was unable to work. In the absence of the required physician's statement, annual leave shall be charged for the entire period.
(c) Radio dispatchers may accumulate yearly sick leave in accordance with a policy to be established by the county commission.
(d) In the event of illness, a radio dispatcher may take emergency sick leave without pay after all accrued sick leave, annual leave and compensatory time available to such full-time radio dispatcher has been exhausted: Provided, That the total number of days sick leave and emergency sick leave used during such illness shall not exceed the total number of days of sick leave which may be accumulated under the provisions of subsection (c) of this section by any radio dispatcher with the same number of years of service.
§7-14C-19. Offenses and penalties.

Any person who makes an appointment or promotion to any position; or who selects an employee in a manner contrary to the provisions of this article; or who willfully refuses or neglects otherwise to comply with, or to conform to any of the provisions of this article; or who violates any of such provisions, shall be deemed guilty of a misdemeanor.
Any commissioner, examiner, or any other person who shall willfully, by himself or in cooperation with one or more persons, defeat, deceive or obstruct any person with respect to such person's right of examination or registration according to this article, or to any rules promulgated pursuant thereto; or who shall willfully or corruptly, falsely mark, grade, estimate or report upon such examination or proper standing of any person so examined, registered, or certified, pursuant to the provisions of this article, or aid in so doing; or who shall willfully or corruptly furnish to any person any special or secret information, for the purpose of either improving or injuring the prospects or chances of appointment or promotion to any position of a person so examined, registered or certified, or to be so examined, registered or certified; or who shall impersonate any other person, or permit or aid in any manner any other person to impersonate him or her, in connection with any examination or registration, or application or request to be examined or registered, shall, for each offense, be deemed guilty of a misdemeanor.
Any person convicted of any such misdemeanor offense shall be fined not less than fifty nor more than one thousand dollars, or imprisoned in the county jail not more than one year, or both fined and imprisoned, in the discretion of the court.
§7-14C-20. County commission of counties with a population of less than twenty-five thousand may place radio dispatchers under civil service; protest and election with respect thereto.

The county commission of any county having a population less than twenty-five thousand may by order entered of record provide that authorization by this article, for civil service for radio dispatchers, shall apply to such county on and after the effective date of this article. A copy of such order, together with a notice advising the qualified voters of such county of their right to protest the placing of radio dispatchers of such county under civil service, shall be published as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county.
In the event fifteen percent of the qualified voters of such county protest such order by petition duly signed by them in their own handwriting (which petition may be signed in any number of counterparts) and filed with the county clerk of such county within sixty days after publication of such copy and notice; such order shall not become effective unless and until it is ratified by a majority of the legal votes cast with respect to the question of civil service coverage for the radio dispatchers of such county by the qualified voters of such county at a regular or special election. Any such election shall be conducted and superintended and the results thereof ascertained as provided by law for regular or special elections, as appropriate.
Whenever the radio dispatchers of any county are placed under civil service pursuant to the provisions of this section, such civil service system for the radio dispatchers of such county shall thereupon become mandatory. All of the provisions of this article shall apply to the radio dispatchers of such county with like effect as if said county had a population of twenty-five thousand or more.
§7-14C-21. Inconsistent acts repealed; once established civil service remains mandatory.

All acts and parts of acts of the Legislature, whether general, special or local, in relation to radio dispatchers inconsistent with the provisions of this article shall be, and the same are, hereby repealed to the extent of such inconsistency.
Any civil service system for radio dispatchers in any county with a population of twenty-five thousand or more shall remain mandatory and shall be governed by the provisions of this article even if the population of such county shall at any time decrease below twenty-five thousand.


NOTE: The purpose of this bill is to place radio dispatchers in the sheriff's office under civil service.


Article 14C is new; therefore, strike-throughs and underscoring have been omitted.