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.