COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 520
(By Senators Craigo, Wooton, Wagner, and Macnaughtan)
____________
[Originating in the Committee on Government Organization;
reported March 2, 1995.]
____________
A BILL to amend and reenact section ten, article six, chapter
twenty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to the consideration of
public employees' levels of seniority as a factor when awarding
benefits or withdrawing benefits under the classified service.
Be it enacted by the Legislature of West Virginia:
That section ten, article six, chapter twenty-nine of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to
read as follows:
ARTICLE 6. CIVIL SERVICE SYSTEM.
29-6-10. Rules of Division.
The board shall have the authority to promulgate, amend or repeal rules, in accordance with chapter twenty-nine-a of this
code, to implement the provisions of this article.
(1) For the preparation, maintenance and revision of a
position classification plan for all positions in the classified
service and a positions in the classification exempt service based
upon similarities of duties performed and responsibilities
assumed, so that the same qualifications may reasonably be
required for and the same schedule of pay may be equitably applied
to all positions in the same class. Except for persons employed
by the governing boards of Higher Education, all persons receiving
compensation as a wage or salary, funded either in part or in
whole by the state, are included in either the position
classification plan for classified service or classified-exempt
service. After each classification plan has been approved by the
board, the director shall allocate the position of every employee
in the classified service to one of the classes in the classified
plan and the position of every employee in the classified-exempt
service to one of the positions in the classified-exempt plan. Any
employee affected by the allocation of a position to a class
shall, after filing with the director of personnel a written
request for reconsideration thereof in such manner and form as the director may prescribe, be given a reasonable opportunity to be
heard thereon by the director. The interested appointing authority
shall be given like opportunity to be heard.
(2) For a pay plan for all employees in the classified
service, after consultation with appointing authorities and the
state fiscal officers, and after a public hearing held by the
board. Such pay plan shall become effective only after it has been
approved by the Governor after submission to him by the board.
Amendments to the pay plan may be made in the same manner. Each
employee shall be paid at one of the rates set forth in the pay
plan for the class of position in which he is employed. The
principle of equal pay for equal work in the several agencies of
the state government shall be followed in the pay plan as
established hereby.
(3) For open competitive examinations to test the relative
fitness of applicants for the respective positions in the
classified service. Such examinations need not be held until after
the rules have been adopted, the service classified and a pay plan
established, but shall be held not later than one year after this
article takes effect. Such examinations shall be announced
publicly at least fifteen days in advance of the date fixed for the filing of applications therefore, and may be advertised
through the press, radio and other media. The director may,
however, in his or her discretion, continue to receive
applications and examine candidates long enough to assure a
sufficient number of eligibles to meet the needs of the service
and may add the names of successful candidates to existing
eligible lists in accordance with their respective ratings.
An additional five points shall be awarded to the score of
any examination successfully completed by a veteran. A disabled
veteran shall be entitled to an additional ten points, rather than
five points as aforesaid, upon successful completion of any
examination.
(4) For promotions within the classified service which shall
give appropriate consideration to the applicant's qualifications,
record of performance, seniority, and his or her score on a
written examination, when such examination is practicable. An
advancement in rank or grade or an increase in salary beyond the
maximum fixed for the class shall constitute a promotion. When any
benefit such as a promotion, wage increase or transfer is to be
awarded, or when a withdrawal of a benefit such as a reduction in
pay, a layoff or job termination is to be made, and a choice is required between two or more employees in the classified service
as to who will receive the benefit or have the benefit withdrawn,
and if some or all of the eligible employees have substantially
equal or similar qualifications, consideration shall be given to
the level of seniority of each of the respective employees as a
factor in determining which of the employees will receive or have
the benefit withdrawn, as the case may be.
(5) For layoffs by classification for reason of lack of funds
or work, or abolition of a position, or material changes in duties
or organization, or any loss of position because of the provisions
of this subdivision and for recall of employees so laid off,
consideration shall be given to an employee's seniority as
measured by permanent employment in the classified service or
state agency. In the event that the agency wishes to lay off a
more senior employee, the agency must demonstrate that the senior
employee cannot perform any other job duties held by less senior
employees within that agency in the job class, or any other
equivalent or lower job class for which the senior employee is
qualified: Provided, that if an employee refuses to accept a
position in a lower job class, such employee shall retain all
rights of recall as hereinafter provided.
(6) For recall of employees, recall shall be by reverse order
of layoff to any job class that the employee has previously held
or a lower class in the series within the agency as that job class
becomes vacant. An employee will retain his or her place on the
recall list for the same period of time as his or her seniority
on the date of his or her layoff, or for a period of two years,
whichever is less. No new employees shall be hired for any vacancy
in his or her job class or in a lower job class in the series
until all eligible employees on layoff are given the opportunity
to refuse that job class. An employee shall be recalled onto jobs
within the county wherein his or her last place of employment is
located or within a county contiguous thereto. Any laid-off
employee who is eligible for a vacant position shall be notified
by certified mail of the vacancy. It shall be the responsibility
of the employee to notify the agency of any change in his or her
address. Notwithstanding any other provision of the code to the
contrary, except for the provisions of section seven, article two,
chapter five-b of this code, when filling vacancies at state
agencies the director's of state agencies shall, for a period of
twelve months after the layoff of a permanent classified employee
in another agency, give preference to qualified permanent classified employees based on seniority and fitness over all but
existing employees of the agency or its facilities: Provided, That
employment of these persons who are qualified and who were
permanently employed immediately prior to their layoff shall not
supersede the recall rights of employees who have been laid off
in such agency or facility.
(7) For the establishment of eligible lists for appointment
and promotion within the classified service, upon which lists
shall be placed the names of successful candidates in the order
of their relative excellence in the respective examinations.
Eligibility for appointment from any such list shall continue not
longer than three years. An appointing authority shall make his
selection from the top ten names on the appropriate lists of
eligible, or may choose any person scoring at or above the
ninetieth percentile on the examination.
For the establishment of eligible lists for preference as
provided in subdivision (6) of this section, a list shall be
provided according to seniority. An appointed authority shall make
the selection of most senior qualified person: Provided, that
eligibility for appointment from any such list shall continue not
longer than one year and shall cease immediately upon appointment to a classified position.
(8) For the rejection of candidates or eligibles within the
classified service who fail to comply with reasonable requirements
in regard to such factors as age, physical condition, character,
training and experience, who are addicted to alcohol or narcotics,
or who have attempted any deception or fraud in connection with
an examination.
(9) For a period of probation not to exceed one year before
appointment or promotion may be made complete within the
classified service.
(10) For provisional employment without competitive
examination within the classified service when there is no
appropriate eligible list available. No such provisional
employment may continue longer than six months, nor shall
successive provisional appointments be allowed, except during the
first year after the effective date of this article, in order to
avoid stoppage of orderly conduct of the business of the state.
(11) For keeping records of performance of all employees in
the classified service, which service records may be considered
in determining the salary increases and decreases provided in the
pay plan; as a factor in promotion tests; as a factor in determining the order of layoffs because of lack of funds or work
and in reinstatement; and as a factor in demotions, discharges and
transfers.
(12) For discharge or reduction in rank or grade only for
cause of employees in the classified service. Discharge or
reduction of these employees shall take place only after the
person to be discharged or reduced has been presented with the
reasons for such discharge or reduction stated in writing, and has
been allowed a reasonable time to reply thereto in writing, or
upon request to appear personally and reply to the appointing
authority or his or her deputy. The statement of reasons and the
reply shall be filed as a public record with the director.
Notwithstanding the foregoing provisions of this subdivision, no
permanent employee shall be discharged from the classified service
for absenteeism upon using all entitlement or annual leave and
sick leave when such use has been due to illness or injury as
verified by a physician's certification or for other extenuating
circumstances beyond the employee's control unless his or her
disability is of such a nature as to permanently incapacitate him
or her from the performance of the duties of his or her position.
Upon exhaustion of annual leave and sick leave credits for the reasons specified herein and with certification by a physician
that the employee is unable to perform his or her duties, a
permanent employee shall be granted a leave of absence without pay
for a period not to exceed six months if such employee is not
permanently unable to satisfactorily perform the duties of his or
her position.
(13) For such other rules and administrative regulations, not
inconsistent with this article, as may be proper and necessary for
its enforcement.
(14) The board shall review and approve by rules the
establishment of all classified-exempt positions to assure
consistent interpretation of the provision of this article.
The provisions of this section are subject to any
modifications contained in chapter five-f of this code. The board
may include in the rules provided for in this article such
provision as are necessary to conform to regulations and standards
of any federal agency governing the receipt and use of federal
grants-in-aid by any state agency, anything in this article to the
contrary notwithstanding. The board and the director shall see the
rules and practices meeting such standards are in effect
continuously after the effective date of this article.