WEST virginia Legislature
2017 regular session
By
[
to the Committee on Veterans’ Affairs and Homeland Security then Finance.
A BILL to amend and
reenact §5-10-15 of the Code of West Virginia, 1931, as amended; and to amend
and reenact §29-6-10 of said code, all relating to providing benefits for those
who have served in the military service; providing service credits for purposes
of public employment retirement for service in any branch of the military
including the West Virginia National Guard and Reserve; and awarding additional
testing credit points in civil service examinations for members of the National
Guard and Reserve who are applying for state employment.
Be it enacted by the
Legislature of West Virginia:
That §5-10-15 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that §29-6-10 of said code be amended and reenacted, all to
read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY
GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES,
PROGRAMS, ETC.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT
ACT.
§5-10-15. Military service credit; qualified military
service.
(a) (1) The Legislature recognizes the men and women of this
state who have served in the Armed Forces of the United States during times of
war, conflict and danger. It is the
intent of this section to confer military service credit upon persons who are
eligible at any time for public employees retirement benefits for any time
served in active duty in the Armed Forces of the United States when the duty
was during any period of compulsory military service or during a period of
armed conflict, as defined in this section.
(2) In addition to any benefit provided by federal law, any
member of the retirement system who has previously served in or enters the
active service of the Armed Forces of the United States during any period of
compulsory military service or during a period of armed conflict shall receive
credited service for the time spent in the Armed Forces of the United States,
not to exceed five years if the member:
(A) Has been honorably discharged from the Armed Forces; and
(B) Substantiates by appropriate documentation or evidence
his or her active military service and entry into military service during any
period of compulsory military service or during periods of armed conflict.
(3) Any member of the retirement system who enters the active
service of the Armed Forces of the United States during any period of
compulsory military service or during a period of armed conflict shall receive
the credit provided by this section regardless of whether he or she was a
public employee at the time of entering the military service.
(4) If a member of the Public Employees Retirement System
enters the active service of the United States and serves during any period of
compulsory military service regardless of being activated, on standby for
call up or activation during such times, including the Vietnam Conflict, or
during any period of armed conflict, during the period of the armed service and
until the member's return to the employ of a
participating public employer, the member's contributions to
the retirement system is suspended and any credit balance remaining in the
member's deposit fund shall be accumulated at regular
interest: Provided, That
notwithstanding any provision in this article to the contrary, if an employee
of a participating political subdivision serving in the military service during
any period of compulsory military service or armed conflict has accumulated
credited service prior to the last entry into military service, in an amount that,
added to the time in active military service while an employee equals nine or
more years, and the member is unable to resume employment with a participating
employer upon completion of duty due to death during or as a result of active
service, all time spent in active military service, up to and including a total
of five years, is considered to be credited service and death benefits are
vested in the member: Provided,
however, That the active service during the time the member is an employee
must be as a result of an order or call to duty, and not as a result of
volunteering for assignment or volunteering to extend the time in service
beyond the time required by order or call.
(5) No member may receive duplicate credit for service for a
period of compulsory military service which falls under a period of armed
conflict.
(6) In any case of doubt as to the period of service to be
credited a member under the provisions of this section, the board of trustees
have final power to determine the period.
(7) The board may consider a petition by any member whose
tour of duty, in a territory that would reasonably be considered hostile and
dangerous, was extended beyond the period in which an armed conflict was
officially recognized, if that tour of duty commenced during a period of armed
conflict, and the member was assigned to duty stations within the hostile
territory throughout the period for which service credit is being sought. The board has the authority to evaluate the
facts and circumstances peculiar to the petition, and rule on whether granting
service credit for the extended tour of duty is consistent with the objectives
of this article. In that determination,
the board may grant full credit for the period under petition subject to the
limitations otherwise applicable, or to grant credit for any part of the period
as the board considers appropriate, or to deny credit altogether.
(8) The board of trustees may propose legislative rules for
promulgation in accordance with the provisions of article three, chapter
twenty-nine-a of this code to administer the provisions of this section.
(b) For purposes of this section, the following definitions
apply:
(1)"Period of armed conflict" means the
Spanish-American War, the Mexican border period, World War I, World War II, the
Korean conflict, the Vietnam era, the Persian Gulf War and any other period of
armed conflict by the United States, including, but not limited to, those
periods sanctioned by a declaration of war by the United States Congress or by
executive or other order of the President.
(2) "Spanish-American War" means the period
beginning April 21, 1898, and ending July 4, 1902, and includes the Philippine
Insurrection, the Boxer Rebellion, and in the case of a veteran who served with
the United States Military forces engaged in hostilities in the Moro Province,
means the period beginning April 21, 1898, and ending July 15, 1903.
(3) "The Mexican border period" means the period
beginning May 9, 1916, and ending April 5, 1917, in the case of a veteran who
during the period served in Mexico, on its borders or in the waters adjacent to
it.
(4) "World War I" means the period beginning April
6, 1917, and ending November 11, 1918, and in the case of a veteran who served
with the United States Military forces in Russia, means the period beginning
April 16, 1917, and ending April 1, 1920.
(5) "World War II" means the period beginning
December 7, 1941, and ending December 31, 1946.
(6) "Korean conflict" means the period beginning
June 27, 1950, and ending January 31, 1955.
(7) "The Vietnam era" means the period beginning
February 28, 1961, and ending May 7, 1975, in the case of a veteran who served
in the Republic of Vietnam during that period; and August 5, 1964, and ending
May 7, 1975, in all other cases.
(8) "Persian Gulf War" means the period beginning
August 2, 1990, and ending April 11, 1991.
(c) Notwithstanding the preceding provisions of this section,
contributions, benefits and service credit with respect to qualified military
service shall be provided in accordance with Section 414(u) of the Internal
Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code.
No military service credit may be used in more than one retirement system
administered by the Consolidated Public Retirement Board and once used in any
system, may not be used again in any other system. The board is authorized to determine all
questions and make all decisions relating to this section and, pursuant to the
authority granted to the board in section one, article ten-d of this chapter,
may promulgate rules relating to contributions, benefits and service credit to
comply with Section 414(u) of the Internal Revenue Code.
(d) The Legislature recognizes the service to the State of
West Virginia made by members of the West Virginia National Guard while on
active duty. Accordingly, service credit will be given for active service in
the West Virginia National Guard in accordance with the following:
(1) One year service credit for two years’ active duty with
the West Virginia National Guard;
(2) One and one-half years service credit for three years of
active duty;
(3) Three years’ service credit for five years of active
duty; and
(4) A maximum service credit of four years for six years of
active duty.
CHAPTER 29.
MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 6. CIVIL SERVICE SYSTEM.
§29-6-10. Rules of division.
The board shall have the authority to may propose,
promulgate, amend or repeal rules, according to 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
position classification plan for all positions in the classified-exempt
service, based upon similarity 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
such 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 or her
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 or she 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 therefor, 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.
An additional three points shall be awarded to a member of
the National Guard and Reserve with two years of service. A member with four years of service shall be
awarded an additional four points and a member with five or more years of
service shall be awarded an additional five points.
(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 the benefit or have the benefit
withdrawn, as the case may be. When an
employee classified in a secretarial or clerical position has, irrespective of
job classification, actual job experience related to the qualifications for a
managerial or supervisory position, the division shall consider the experience
as qualifying experience for the position.
The division in its classification plan may, for designated
classifications, permit substitution of qualifying experience for specific
educational or training requirements at a rate determined by the division.
(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 a 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 is 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 directors 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 or her selection from the top ten names on the appropriate
lists of eligibles, 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 the 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
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: Provided, That upon an involuntary
discharge for cause, the employer may require immediate separation from the
workplace, or the employee may elect immediate separation. If separation is required by the employer in
lieu of any advance notice of discharge, or if immediate separation is elected
by an employee who receives notice of an involuntary discharge for cause, the
employee is entitled to receive severance pay attributable to time the employee
otherwise would have worked, up to a maximum of 15 calendar days following
separation. Receipt of severance pay
does not affect any other right to which the employee is entitled with respect
to the discharge. 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 may be discharged from the classified service for
absenteeism upon using all entitlement to annual leave and sick leave when such
the 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 the 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 provisions 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 provisions 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 that rules and practices meeting such standards are in
effect continuously after the effective date of this article.
NOTE: The purpose of this bill is to provide
rewards to those serving in the military by providing service credits, for
purposes of public employment retirement, for service in any branch of the
military including the West Virginia National Guard and Reserve. The bill provides
additional testing credit points in civil service examinations for members of
the National Guard and Reserve who are applying for state employment.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.