H. B. 2238
(By Delegates Hrutkay and Iaquinta)
[Introduced January 9, 2008; referred to the
Committee on Pensions and Retirement 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 for service credits, for
purposes of public employment retirement, for service in 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 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 on the
twenty-first day of April, one thousand eight hundred ninety-eight,
and ending on the fourth day of July, one thousand nine hundred
two, 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 on the twenty-first day of April, one thousand
eight hundred ninety-eight, and ending on the fifteenth day of
July, one thousand nine hundred three.
(3) "The Mexican border period" means the period beginning on
the ninth day of May, one thousand nine hundred sixteen, and ending
on the fifth day of April, one thousand nine hundred seventeen, 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 on the sixth day
of April, one thousand nine hundred seventeen, and ending on the
eleventh day of November, one thousand nine hundred eighteen, and
in the case of a veteran who served with the United States military
forces in Russia, means the period beginning on the sixth day of April, one thousand nine hundred seventeen, and ending on the first
day of April, one thousand nine hundred twenty.
(5) "World War II" means the period beginning on the seventh
day of December, one thousand nine hundred forty-one, and ending on
the thirty-first day of December, one thousand nine hundred
forty-six.
(6) "Korean conflict" means the period beginning on the
twenty-seventh day of June, one thousand nine hundred fifty, and
ending on the thirty-first day of January, one thousand nine
hundred fifty-five.
(7) "The Vietnam era" means the period beginning on the
twenty-eighth day of February, one thousand nine hundred sixty-one,
and ending on the seventh day of May, one thousand nine hundred
seventy-five, in the case of a veteran who served in the Republic
of Vietnam during that period; and the fifth day of August, one
thousand nine hundred sixty-four, and ending on the seventh day of
May, one thousand nine hundred seventy-five, in all other cases.
(8) "Persian Gulf War" means the period beginning on the
second day of August, one thousand nine hundred ninety, and ending
on the eleventh day of April, one thousand nine hundred ninety-one.
(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: One-year service credit for two
years' active duty with the West Virginia Guard; one and one-half
years service credit for three years of active duty; three years'
service credit for five years of active duty; and a maximum service
credit of four years for six years of active duty.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 6. CIVIL SERVICE COMMISSION.
§29-6-10. Rules of division.
The board shall have the authority to 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 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
fifteen 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 be discharged from the classified service
for absenteeism upon using all entitlement to 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 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 purposes of this bill are as follows: (1) To
provide for service credits, for purposes of public employment
retirement, for service in the West Virginia National Guard and
Reserve; and (2) to provide for the award of 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
the present law, and underscoring indicates new language that would
be added.