H. B. 2730


(By Mr. Speaker, Mr. Kiss, By Request)
[Introduced March 25, 1997; referred to the
Committee on Education then the Judiciary.]




A BILL to amend and reenact section one, article two, chapter five-f of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section five, article twenty-nine, chapter eighteen of said code; to amend and reenact sections three, five, six, seven and ten, article six-a, chapter twenty-nine of said code; and to further amend said article by adding thereto a new section, designated section twelve, all relating to education and public employees grievance board; removing the board from the department of administration; expanding the jurisdiction of the board; changing the default provisions; giving board jurisdiction at levels two, three and four; requiring mediation at the request of any party; allowing appeals to be filed in the circuit court of Kanawha County; and removing the cap on attorney's fees for prevailing grievants.

Be it enacted by the Legislature of West Virginia:
That section one, article two, chapter five-f of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section five, article twenty-nine, chapter eighteen of said code be amended and reenacted; that sections three, five, six, seven and ten, article six-a, chapter twenty-nine of said code be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section twelve, all to read as follows:
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH

OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.

 §5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any such agency or board, are hereby transferred to and incorporated in and shall be administered as a part of the department of administration:
(1) Building commission provided for in article six, chapter five of this code;
(2) Public employees insurance agency and public employees insurance agency advisory board provided for in article sixteen, chapter five of this code;
(3) Council of finance and administration provided for in article one, chapter five-a of this code;
(4) Employee suggestion award board provided for in article one-a, chapter five-a of this code;
(5) Governor's mansion advisory committee provided for in article five, chapter five-a of this code;
(6) Commission on uniform state laws provided for in article one-a, chapter twenty-nine of this code;
(7) Education and state employees grievance board provided for in article twenty-nine, chapter eighteen of this code and article six-a, chapter twenty-nine of this code;
(8) (7) Board of risk and insurance management provided for in article twelve, chapter twenty-nine of this code;
(9) (8) Boundary commission provided for in article twenty-three, chapter twenty-nine of this code;
(10) (9) Public defender services provided for in article twenty-one, chapter twenty-nine of this code;
(11) (10) Division of personnel provided for in article six, chapter twenty-nine of this code;
(12) (11) The West Virginia ethics commission provided for in article two, chapter six-b of this code;
(13) (12) Consolidated public retirement board provided for in article ten-d, chapter five of this code; and
(14) (13) The child support enforcement division designated in chapter forty-eight-a of this code.
(b) The department of commerce, labor and environmental resources and the office of secretary of the department of commerce, labor and environmental resources are hereby abolished. For purposes of administrative support and liaison with the office of the governor, the following agencies and boards, including all allied, advisory and affiliated entities shall be grouped under three bureaus as follows:
(1) Bureau of commerce:
(A) Division of labor provided for in article one, chapter twenty-one of this code, which shall include:
(i) Occupational safety and health review commission provided for in article three-a, chapter twenty-one of this code; and
(ii) Board of manufactured housing construction and safety provided for in article nine, chapter twenty-one of this code;
(B) Office of miners' health, safety and training provided for in article one, chapter twenty-two-a of this code. The following boards are transferred to the office of miners' health, safety and training for purposes of administrative support and liaison with the office of the governor:
(i) Board of coal mine health and safety and coal mine safety and technical review committee provided for in article six, chapter twenty-two-a of this code;
(ii) Board of miner training, education and certification provided for in article seven, chapter twenty-two-a of this code; and
(iii) Mine inspectors' examining board provided for in article nine, chapter twenty-two-a of this code;
(C) The West Virginia development office provided for in article two, chapter five-b of this code, which shall include:
(i) Enterprise zone authority provided for in article two-b, chapter five-b of this code; and
(ii) Economic development authority provided for in article fifteen, chapter thirty-one of this code;
(D) Division of natural resources and natural resources commission provided for in article one, chapter twenty of this code. The Blennerhassett historical state park provided for in article eight, chapter twenty-nine of this code shall be under the division of natural resources;
(E) Division of forestry provided for in article one-a, chapter nineteen of this code;
(F) Geological and economic survey provided for in article two, chapter twenty-nine of this code;
(G) Water development authority and board provided for in article one, chapter twenty-two-c of this code;
(2) Bureau of employment programs provided for in article one, chapter twenty-one-a of this code.
(3) Bureau of environment:
(A) Air quality board provided for in article five, chapter twenty-two of this code;
(B) Solid waste management board provided for in article three, chapter twenty-two of this code;
(C) Environmental quality board, or its successor board, provided for in article three, chapter twenty-two-b of this code;
(D) Division of environmental protection provided for in article one, chapter twenty-two of this code;
(E) Surface mine board of review provided for in article four, chapter twenty-two-b of this code;
(F) Oil and gas inspectors' examining board provided for in article seven, chapter twenty-two-c of this code;
(G) Shallow gas well review board provided for in article eight, chapter twenty-two-c of this code; and
(H) Oil and gas conservation commission provided for in article nine, chapter twenty-two-c of this code.
(c) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any such agency or board, are hereby transferred to and incorporated in and shall be administered as a part of the department of education and the arts:
(1) Library commission provided for in article one, chapter ten of this code;
(2) Educational broadcasting authority provided for in article five, chapter ten of this code;
(3) University of West Virginia board of trustees provided for in article two, chapter eighteen-b of this code;
(4) Board of directors of the state college system provided for in article three, chapter eighteen-b of this code;
(5) Joint commission for vocational-technical-occupational education provided for in article three-a, chapter eighteen-b of this code;
(6) Division of culture and history provided for in article one, chapter twenty-nine of this code; and
(7) Division of rehabilitation services provided for in section two, article ten-a, chapter eighteen of this code.
(d) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any such agency or board, are hereby transferred to and incorporated in and shall be administered as a part of the department of health and human resources:
(1) Human rights commission provided for in article eleven, chapter five of this code;
(2) Division of human services provided for in article two, chapter nine of this code;
(3) Division of health provided for in article one, chapter sixteen of this code;
(4) Office of emergency medical services and advisory council thereto provided for in article four-c, chapter sixteen of this code;
(5) Health care cost review authority provided for in article twenty-nine-b, chapter sixteen of this code;
(6) Commission on aging provided for in article fourteen, chapter twenty-nine of this code;
(7) Commission on mental retardation provided for in article fifteen, chapter twenty-nine of this code;
(8) Women's commission provided for in article twenty, chapter twenty-nine of this code; and
(9) The child support enforcement division designated in chapter forty-eight-a of this code.
(e) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any such agency or board, are hereby transferred to and incorporated in and shall be administered as a part of the department of military affairs and public safety:
(1) Adjutant general's department provided for in article one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter fifteen of this code;
(3) Military awards board provided for in article one-g, chapter fifteen of this code;
(4) Division of public safety provided for in article two, chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board provided for in article five, chapter fifteen of this code and emergency response commission provided for in article five-a of said chapter;
(6) Sheriffs' bureau provided for in article eight, chapter fifteen of this code;
(7) Division of corrections provided for in chapter twenty-five of this code;
(8) Fire commission provided for in article three, chapter twenty-nine of this code;
(9) Regional jail and correctional facility authority provided for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council provided for in article one, chapter nine-a of this code.
(f) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any such agency or board, are hereby transferred to and incorporated in and shall be administered as a part of the department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven of this code;
(2) Appraisal control and review commission provided for in article one-a, chapter eleven of this code;
(3) Racing commission provided for in article twenty-three, chapter nineteen of this code;
(4) Lottery commission and position of lottery director provided for in article twenty-two, chapter twenty-nine of this code;
(5) Agency of insurance commissioner provided for in article two, chapter thirty-three of this code;
(6) Office of alcohol beverage control commissioner provided for in article sixteen, chapter eleven of this code and article two, chapter sixty of this code;
(7) Division of professional and occupational licenses which may be hereafter created by the Legislature;
(8) Board of banking and financial institutions provided for in article three, chapter thirty-one-a of this code;
(9) Lending and credit rate board provided for in chapter forty-seven-a of this code;
(10) Division of banking provided for in article two, chapter thirty-one-a of this code; and
(11) The child support enforcement division as designated in chapter forty-eight-a of this code.
(g) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any such agency or board, are hereby transferred to and incorporated in and shall be administered as a part of the department of transportation:
(1) Road commission provided for in article two, chapter seventeen of this code;
(2) Division of highways provided for in article two-a, chapter seventeen of this code;
(3) Parkways, economic development and tourism authority provided for in article sixteen-a, chapter seventeen of this code;
(4) Division of motor vehicles provided for in article two, chapter seventeen-a of this code;
(5) Driver's licensing advisory board provided for in article two, chapter seventeen-b of this code;
(6) Aeronautics commission provided for in article two-a, chapter twenty-nine of this code;
(7) State rail authority provided for in article eighteen, chapter twenty-nine of this code; and
(8) Port authority provided for in article sixteen-b, chapter seventeen of this code.
(h) Except for such the powers, authority and duties as have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence of the position of administrator and of the agency and the powers, authority and duties of each administrator and agency shall may not be affected by the enactment of this chapter.
(i) Except for such the powers, authority and duties as have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence, powers, authority and duties of boards and the membership, terms and qualifications of members of such these boards shall may not be affected by the enactment of this chapter and all boards which are appellate bodies or were otherwise established to be independent decisionmakers shall may not have their appellate or independent decision-making status affected by the enactment of this chapter.
(j) Any department previously transferred to and incorporated in a department created in section two, article one of this chapter by prior enactment of this section in chapter three, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-nine, and subsequent amendments thereto, shall henceforth be read, construed and understood to mean a division of the appropriate department so created. Wherever elsewhere in this code, in any act, in general or other law, in any rule or regulation, or in any ordinance, resolution or order, reference is made to any department transferred to and incorporated in a department created in section two, article one of this chapter, such the reference shall henceforth be read, construed and understood to mean a division of the appropriate department so created, and any such reference elsewhere to a division of a department so transferred and incorporated shall henceforth be read, construed and understood to mean a section of the appropriate division of the department so created.
(k) When an agency, board or commission is transferred under a bureau or agency other than a department headed by a secretary pursuant to this section, that transfer shall be construed to be solely for purposes of administrative support and liaison with the office of the governor, a department secretary or a bureau. The bureaus created by the Legislature upon the abolishment of the department of commerce, labor and environmental resources in the year one thousand nine hundred ninety-four, shall be headed by a commissioner or other statutory officer of an agency within that bureau. Nothing in this section shall be construed to extend the powers of department secretaries under section two of this article to any person other than a department secretary and nothing herein shall be construed to limit or abridge the statutory powers and duties of statutory commissioners or officers pursuant to this code. Upon the abolishment of the office of secretary of the department of commerce, labor and environmental resources, the governor may appoint a statutory officer serving functions formerly within that department to a position which was filled by the secretary ex officio.
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 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 two members shall be from the same congressional district, and no more than two of the appointed members shall be from the same political party. No person shall be appointed to membership on the board who is a member of any political party executive committee or holds any 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 such the times and places as it may prescribe and may meet at such the other times as may be necessary, such the 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 and 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 levels two, three and four, as set forth in section five, article six-a, chapter twenty-nine of this code, and 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. In addition to the authorization granted by this section over education employees, the board has jurisdiction over grievance procedures of nonsupervisory public employees.
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 and expenditures, number of level four hearings conducted, synopses of hearing outcomes and such any other information as the board may deem consider 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 the evaluation in the annual report to the governor and Legislature. In making such the evaluation, the board shall may 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 the 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 determined 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 or regulations of the board or the provisions of this article.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.
§29-6A-3. Grievance procedure generally.

(a) A grievance must be filed within the times specified in section four of this article and shall be processed as rapidly as possible. The number of days indicated at each level specified in section four of this article shall be considered as the maximum number of days allowed and, if a decision is not rendered at any level within the prescribed time limits, the grievant may appeal to the next level: Provided, That the specified time limits shall be extended whenever a grievant is not working because of accident, sickness, death in the immediate family or other cause necessitating the grievant to take personal leave from his or her employment.
(b) If a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in this article, unless prevented from doing so directly as a result of sickness or illness, the grievant shall prevail by default. Within five days of the default, the employer may request a hearing before a level four hearing examiner for the purpose of showing that the remedy received by the prevailing grievant is contrary to law or clearly wrong. In making a determination regarding the remedy, the hearing examiner shall presume the employee prevailed on the merits of the grievance and shall determine whether the remedy is contrary to law or clearly wrong in light of that presumption. If the examiner finds that the remedy is contrary to law, or clearly wrong, the examiner may modify the remedy to be granted so as to comply with the law and to make the grievant whole.
(b) (c) If the employer or its agent intends to assert the application of any statute, policy, rule, regulation or written agreement or submits any written response to the filed grievance at any level, a copy thereof shall be forwarded to the grievant and any representative of the grievant named in the filed grievance. Anything submitted and the grievant's response thereto, if any, shall become part of the record. Failure to assert such statute, policy, rule, regulation or written agreement at any level shall may not prevent the subsequent submission thereof in accordance with the provisions of this subsection.
(c) (d) The grievant may file the grievance at the level vested with authority to grant the requested relief if each lower administrative level agrees in writing thereto. In the event a grievance is filed at a higher level, the employer shall provide copies to each lower administrative level.
(d) (e) An employee may withdraw a grievance at any time by notice, in writing, to the level wherein the grievance is then current. The grievance may not be reinstated by the grievant unless reinstatement is granted by the grievance evaluator at the level where the grievance was withdrawn. If more than one employee is named as grievant in a particular grievance, the withdrawal of one employee shall may not prejudice the rights of any other employee named in the grievance. In the event a grievance is withdrawn or an employee withdraws from a grievance, such the employer shall notify in writing each lower administrative level.
(e) (f) Grievances may be consolidated at any level by agreement of all parties.
(f) (g) A grievant may be represented by an employee organization representative, legal counsel or any other person, including a fellow employee, in the preparation or presentation of the grievance. At the request of the grievant, such the person or persons may be present at any step of the procedure: Provided, That at level one of such the grievance, as set forth in section four of this article, a grievant may have only one such representative.
(g) (h) If a grievance is filed which cannot be resolved within the time limits set forth in section four of this article prior to the end of the employment term, the time limit set forth in said the section shall be reduced as agreed to in writing by both parties so that the grievance procedure may be concluded within ten days following the end of the employment term or an otherwise reasonable time.
(h) (i) No reprisals of any kind shall be taken by any employer or agent of the employer against any interested party, or any other participant in the grievance procedure by reason of such participation. A reprisal constitutes a grievance, and any person held to be responsible for reprisal action shall be subject to disciplinary action for insubordination.
(i) (j) Decisions rendered at all levels of the grievance procedure shall be dated, shall be in writing setting forth the decision or decisions and the reasons therefor, and shall be transmitted to the grievant and any representative named in the grievance within the time prescribed. If the grievant is denied the relief sought, the decision shall include the name of the individual at the next level to whom appeal may be made.
(j) (k) Once a grievance has been filed, supportive or corroborative evidence may be presented at any conference or hearing conducted pursuant to the provisions of this article. Whether evidence substantially alters the original grievance and renders it a different grievance is within the discretion of the grievance evaluator at the level wherein the new evidence is presented. If the grievance evaluator rules that the evidence renders it a different grievance, the party offering the evidence may withdraw same, the parties may consent to such the evidence, or the grievance evaluator may decide to hear the evidence or rule that the grievant must file a new grievance. The time limitation for filing the new grievance shall be measured from the date of such the ruling.
(k) (l) Any change in the relief sought by the grievant shall be consented to by all parties or may be granted at level four within the discretion of the hearing examiner.
(l) (m) Forms for filing grievances, giving notice, taking appeals, making reports and recommendations, and all other necessary documents shall be made available by the immediate supervisor to any employee upon request. Such The forms shall include information as prescribed by the board. The grievant shall have access to the employer's equipment for purposes of preparing grievance documents subject to the reasonable rules of the employer governing the use of such the equipment.
(m) (n) Notwithstanding the provisions of section three, article nine-a, chapter six of this code, or any other provision relating to open proceedings, all conferences and hearings pursuant to this article shall be conducted in private except that, upon the grievant's request, conferences and hearings at levels two and three shall be open to employees of the grievant's immediate office or work area or, at the request of the grievant, shall be public. Within the discretion of the hearing examiner, conferences and hearings may be public at level four.
(n) (o) No person shall confer or correspond with a hearing examiner regarding the merits of the grievance unless all parties to the grievance are present.
(o) (p) Grievances shall be processed during regular working hours. Attempts shall be made to process the grievance in a manner which does not interfere with the normal operation of the employer.
(p) (q) The grievant or the employee selected by a grievant to represent him or her in the processing of a grievance through this procedure, or both, shall be granted necessary time off during working hours for the grievance procedure without loss of pay and without charge to annual or compensatory leave credits. In addition to actual time spent in grievance conferences and hearings, the grievant or the employee representative, or both, shall be granted time off during working hours, not to exceed four hours per grievance, for the preparation of such grievance without loss of pay and without charge to annual or compensatory leave credits. However, it shall be understood by all parties that the first responsibility of any state employee is the work assigned by the appointing authority to the employee. Grievance preparation and representation activities by an employee shall may not seriously affect the overall productivity of the employee.
(q) (r) The aggrieved employee, employing agency and representatives of both shall have the right to call, examine and cross-examine witnesses who are employees of the agency against which the grievance is lodged and who have knowledge of the facts at issue.
(r) (s) Both parties may produce witnesses other than employees of the agency against which the grievance is lodged, and such the witnesses shall be subject to examination and cross-examination.
(s) (t) Should any employer or the employer's agent cause a conference or hearing to be postponed without adequate notice to employees who are scheduled to appear during their normal work day, such the employees will not suffer any loss in pay for work time lost.
(t) (u) Any grievance evaluator may be excused from participation in the grievance process for reasonable cause, including, but not limited to, conflict of interest or incapacitation, and in such case the grievance evaluator at the next higher level shall designate an alternate grievance evaluator if such it is deemed considered reasonable and necessary.
(u) (v) No less than one year following resolution of a grievance at any level, the grievant may by request in writing have removed any record of the grievant's identity from any file kept by the employer.
(v) (w) All grievance forms and reports shall be kept in a file separate from the personnel file of the employee and shall may not become a part of such the personnel file, but shall remain confidential except by mutual written agreement of the parties.
(w) (x) The number of grievances filed against an employer or agent or by an employee shall may not, per se, be an indication of such the employer's or agent's or such the employee's job performance.
(x) (y) Any chief administrator with whom a grievance was filed may appeal a level four decision on the grounds that the decision: (1) Was contrary to law or 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. Such The appeal shall follow the procedure regarding appeal provided the grievant in section four of this article and provided both parties in section seven of this article.
§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 have jurisdiction regarding procedural matters at levels two, three and four of this procedure. 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 the 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 such other information as the board may deem consider 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 an evaluation in the annual report to the governor and the Legislature. In making such the 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 any other documents as the board deems consi ders 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 the 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 considered fair and equitable in accordance with the provisions of this article, and such any 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 or her 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 hearings hearings might continue beyond normal working hours. Level four hearings shall be at a place to be designated by the hearing examiner.
The employer that is party to the grievance shall produce prior to such the 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.
The chief administrator or his or her 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) at the request of either party, 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; and (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 the hearing shall be transcribed and certified by affidavit. The chief administrator shall be responsible for promptly providing a copy of the certified transcript of a level three hearing to any party to that hearing who requests such a 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 a transcript.
Formal rules of evidence shall may 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 The record shall be submitted to any level at which appeal has been made, and such the record shall be considered, but the development of such the record shall may 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 the 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 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. Such The appeal shall be filed in the circuit court of Kanawha County or 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 may 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 may remand the grievance to the appropriate chief administrator for further proceedings.
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 The allocation of costs shall be based on the relative ability of the party to pay such the costs.
§29-6A-10. Employee's right to attorney's fees and costs.

If an employee shall appeal appeals to a circuit court an adverse decision of a hearing examiner rendered in a grievance proceeding pursuant to provisions of this article or is required to defend an appeal and such the person shall substantially prevail, the adverse party or parties shall be are liable to such the employee, upon final judgment or order, for court costs, and for reasonable attorney's fees, to be set by the court, for representing such the employee in all administrative hearings and before the circuit court and the supreme court of appeals, and shall be are further liable to such the employee for any court reporter's costs incurred during any such administrative hearings or court proceedings: Provided, That in no event shall such attorney's fees be awarded in excess of a total of one thousand dollars for the administrative hearings and circuit court proceedings nor an additional one thousand dollars for supreme court proceedings: Provided, however, That the requirements of this section shall not be construed to limit the employee's right to The employee may recover reasonable attorney's fees in a mandamus proceeding brought under section nine of this article.
 §29-6A-12. Mediation required at request of either party.
Upon the request of either party, the board shall attempt mediation or other alternative dispute resolution techniques to assist the parties in identifying, clarifying and resolving issues regarding the grievance. Mediation may be requested at any time prior to the level four hearing.
All of the information that is provided by the parties during mediation shall remain confidential. Mediators may not be called as witnesses to provide testimony in unresolved grievances that proceed to a grievance hearing, and any hearing examiner involved in a mediation process may not hear the grievance or be consulted regarding the merits of the grievance.



NOTE: The purpose of this bill is to change certain procedures in the education and state employees grievance board hearing process.

The bill removes the board from the department of administration, making it a free-standing entity. The bill adds the default provision to bring it in line with the education statute. In addition, the bill gives the board jurisdiction over lower-level grievance proceedings. The bill mandates mediation upon the request of either party. The bill allows a Level 4 decision to be appealed in Kanawha County, as well as in the county in which it was brought. The bill also removes the $1000 cap on attorney's fees which can be awarded to prevailing grievants. Finally, the bill expands board jurisdiction to cover nonsupervisory public employees.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

Section 29-6A-12 is new; therefore strike-throughs and underscoring have been omitted.