HB106 S JUD AM #1 as amended

Santos 7908

The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §4-1-24; that said code be amended by adding thereto a new section, designated §4-3-6; that said code be amended by adding thereto a new article, designated §5-30-1, §5-30-2, §5-30-3, §5-30-4, §5-30-5, §5-30-6 and §5-30-7; and that said code be amended by adding thereto a new section, designated §51-3-19, all to read as follows:

CHAPTER 4. THE LEGISLATURE.

ARTICLE I. OFFICERS, MEMBERS AND EMPLOYEES; APPROPRIATIONS; INVESTIGATIONS; DISPLAY OF FLAGS; RECORDS; USE OF CAPITOL BUILDING; PREFILING OF BILLS AND RESOLUTIONS; STANDING COMMITTEES; INTERIM MEETINGS; NEXT MEETING OF THE SENATE.

§4-1-24. Furlough of employees of the Senate and House of Delegates during a declared fiscal emergency.

(b) Notwithstanding any provision of law to the contrary, when the Governor declares a fiscal emergency pursuant to section two, article thirty, chapter five of this code, the Speaker of the House of Delegates may furlough employees of the House of Delegates.

(c) The applicable provisions of article thirty, chapter five of this code shall govern furloughs ordered under this section.

ARTICLE 3. JOINT COMMITTEE ON GOVERNMENT AND FINANCE.

§4-3-6. Furlough of employees of the Joint Committee on Government and Finance during a declared fiscal emergency.

(a) Notwithstanding any provision of law to the contrary, when the Governor declares a fiscal emergency pursuant to section two, article thirty, chapter five of this code, the President of the Senate and the Speaker of the House of Delegates may jointly grant the Legislative Manager the authority to furlough one or more employees of the joint legislative agencies under the Joint Committee on Government and Finance, as provided for in section three-c of this article.

(b) The applicable provisions of article thirty, chapter five of this code shall govern furloughs ordered under this section.

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 30. FURLOUGH OF STATE EMPLOYEES.

§5-30-1. Definitions.

As used in this article:

(1) “Budgetary fiscal emergency” means a fiscal emergency based on the circumstances in paragraph (B), subdivision (5) of this section.

(2) “Declared fiscal emergency” means a period of time commencing upon the Governor’s issuance of a proclamation declaring that a fiscal emergency, as defined in subdivision (5) of this section, exists.

(3) “Employer” means:

(A) The Governor or his or her designee with regard to employees of departments and agencies under the supervision and control of the Governor;

(B) The President of the Senate or the Speaker of the House of Delegates or their designees as to employees of the Senate and of the House of Delegates, respectively;

(C) The President of the Senate and the Speaker of the House of Delegates or their designees as to employees of the Joint Committee on Government and Finance;

(D) The Secretary of State, Auditor, Treasurer, Commissioner of Agriculture and Attorney General or their designees in their individual capacities as to their respective employees; and

(E) The Supreme Court of Appeals or a designee thereof as to employees of the Judiciary.

(F) The presidents of state institutions of higher learning and the chancellors of the Higher Education Policy Commission and the Council for Community and Technical College Education or their designees as to their respective employees.

(4) “Executive branch” means departments, agencies and entities under the supervision and control of the Governor, including the Department of Education, but not including the offices of the Secretary of State, Auditor, Treasurer, Commissioner of Agriculture or Attorney General or their employees.

(5) “Fiscal emergency” means that either of the following circumstances exists:

(A) At any point in time during a fiscal year, general revenue collection amounts for the fiscal year to date are three percent or more below the official revenue estimate upon which the budget is based at the same point in time for that fiscal year; or

(B) No budget has been enacted for the current fiscal year.

(6) “Furlough” means a mandatory, temporary, unpaid leave of absence conducted subject to the provisions of this article.

(7) “Revenue-based fiscal emergency” means a fiscal emergency based on the circumstances in paragraph (A), subdivision (5) of this section.

§5-30-2. Declaration of fiscal emergency.

(a) Upon determination that one or more of the circumstances in subdivision (5), section one of this article exists, the Governor is hereby authorized to declare a fiscal emergency: Provided, That the Governor shall declare a fiscal emergency if no budget bill has been enacted for the current fiscal year.

(b) The declaration shall be made by proclamation and shall set forth the specific circumstances supporting the declaration of a fiscal emergency. The declaration shall identify whether the fiscal emergency is a revenue-based fiscal emergency or a budgetary fiscal emergency.

(c) A declared fiscal emergency may only remain in effect for thirty consecutive calendar days. The Governor may not declare a subsequent fiscal emergency in the same fiscal year based on the same facts and circumstances that led to the issuance of a prior declaration of fiscal emergency, unless the Legislature is in session or has been reconvened.

(d) After thirty consecutive calendar days have elapsed, or the fiscal emergency is sooner resolved, the Governor shall issue a proclamation declaring that the fiscal emergency has ended.

§5-30-3. Furlough of executive branch employees under the supervision and control of the Governor during a fiscal emergency.

(a) When the Governor declares a fiscal emergency, the following shall apply:

(1) The furlough must be applied uniformly as to all employees within a designated department, agency, division, office or program, regardless of the source of funds or place of work, subject to the following exceptions:

(A) Individuals determined by the employer to be essential personnel may be exempted from furlough or may be furloughed on a different schedule than others within the designated department, agency, division, office or program;

(B) If an organizational unit or classification of workers within a designated department, agency, division, office or program can be identified, then that particular organizational unit or classification of workers may be furloughed on a different schedule than others within the designated department, agency, division, office or program;

(C) Individuals who voluntarily accept furlough for a full week or weeks may be furloughed on a different schedule than others within the designated department, agency, division, office or program; and

(D) Individuals who are at will employees or who are not classified civil service employees may be furloughed on a different schedule than others within a designated department, agency, division, office or program.

(2) When a furlough has been ordered, the head of an affected department, agency, division, office or program shall create a schedule for furlough weeks, furlough days or portions of furlough days.

(3) For any furlough implemented pursuant to this article, the employer may permit an employee’s reduction in compensation to be allocated over the balance of the fiscal year rather than solely in the pay period or pay periods in which the furlough occurs.

(b) During the period of any furlough, the following shall apply with respect to the benefits of employees, whether furloughed or not furloughed:

(1) Employees participating in the public employee health insurance program will remain participants therein during the period of fiscal emergency. Payment of the employer portion of premiums shall remain the responsibility of the employer: Provided, That if a furloughed employee’s wages for a pay period are insufficient to allow for the deduction therefrom of the employee’s share of the health insurance premium, the employer shall be responsible for payment of the amount of the employee’s share to the Public Employee’s Insurance Agency: Provided, however, That upon the termination of the fiscal emergency, the employer shall recover any such moneys paid on the employee’s behalf from the employee’s pay at the maximum rate permissible under law not to exceed fifteen percent of the employee’s net pay per pay period;

(2) Days, portions of days or weeks during a declared fiscal emergency shall be considered days employed or days worked for purposes of calculating retirement eligibility and state service credit: Provided, That employer and employee contributions are made for the period of fiscal emergency within thirty days of the termination of the fiscal emergency on the base salary the employee would have received if the Governor had not declared a fiscal emergency: Provided, however, That if the period of employment for which an employee’s retirement benefit is calculated includes periods during a declared fiscal emergency, the employee’s average pay upon which the benefit is computed shall be deemed to have been paid during the periods of fiscal emergency at his or her rate of pay in effect at the times of furlough;

(3) Days, portions of days or weeks for which employees are furloughed shall not be considered days employed or days worked for purposes of accruing sick leave or annual leave; and

(4) No employee who has been furloughed may use accrued annual leave or accrued sick leave for days on which he or she is scheduled to be furloughed pursuant to this section unless at the time of furlough he or she is on employer approved annual leave or sick leave or has sick leave approved by the employer prior to the declaration of the fiscal emergency.

(c) The Governor shall have no authority to furlough elected executive officers or their employees, or members or employees of the legislative branch, or officials or employees of the judicial branch.

§5-30-6. Rule-making.

(a) Notwithstanding any provision of law to the contrary, upon declaration by the Governor of a fiscal emergency pursuant to section two, article thirty, chapter five of this code, the Supreme Court of Appeals is authorized to furlough employees and personnel of the judiciary under the Supreme Court of Appeals, including employees and personnel of the circuit courts, family courts and magistrate courts.

(b) Furloughs shall not completely close a court or court office.

(c) Nothing in this section shall be construed as granting authority for the furlough of elected judicial officers, nor shall it be construed as restricting or otherwise limiting the plenary authority of the Supreme Court of Appeals or the lower courts.

(d) The applicable provisions of article thirty, chapter five of this code shall govern furloughs ordered under this section.

Adopted

Rejected