H. B. 2585
(By Delegates Staton, Seacrist, Farris, Manuel and Hunt)
[Introduced February 21, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section ten, article six, chapter
twenty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to public employees
seniority rights; loyalty disqualification.
Be it enacted by the Legislature of West Virginia:
That section ten, article six, chapter twenty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 6. CIVIL SERVICE COMMISSION.
§29-6-10. Rules of division.
The board shall have the authority to promulgate, amend or
repeal rules, in accordance with chapter twenty-nine-a of this
code, to implement the provisions of this article:
(1) For the preparation, maintenance and revision of a
position classification plan for all positions in the classified service and a 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. The position classification plan for classified-
exempt service shall become effective not later than the first
day of July, one thousand nine hundred seventy-nine. Except for
persons employed by the governing boards of higher education,
all persons receiving compensation in the form of a wage or
salary, funded either in part or in whole by the state, shall be
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 by the
board. Amendments to the pay plan may be made in the same
manner. Each employee shall be paid at one of the rates set
forth in the pay plan for the class of position in which he is
employed. The principle of equal pay for equal work in the
several agencies of the state government shall be followed in the
pay plan as established hereby.
(3) For open competitive examinations to test the relative
fitness of applicants for the respective positions in the
classified service. Such examinations need not be held until
after the rules have been adopted, the service classified and a
pay plan established, but shall be held not later than one year
after this article takes effect. Such examinations shall be
announced publicly at least fifteen days in advance of the date
fixed for the filing of applications 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.
(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.
In filling
vacancies an effort should be made to achieve a balance between
promotion from within the service and the introduction into the
service of qualified new employees. An advancement in rank or
grade or an increase in salary beyond the maximum fixed for the
class shall constitute a promotion.
Where any benefit such as a
promotion, wage increase or transfer is to be allocated between
two or more employees in the classified service, who have equal
or similar qualifications, such benefit shall first be offered to
the employee with the highest level of seniority. Likewise, any
across-the-board withdrawals of benefits, such as pay cuts,
layoffs or job terminations, shall be applied first to those
employees of lowest seniority.
(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
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 and discharges.
transfers
(12) For discharge or reduction in rank or grade only for
cause of employees in the classified service. Discharge or
reduction of these employees shall take place only after the
person to be discharged or reduced has been presented with the
reasons for such discharge or reduction stated in writing, and
has been allowed a reasonable time to reply thereto in writing,
or upon request to appear personally and reply to the appointing
authority or his
or her deputy. The statement of reasons and the
reply shall be filed as a public record with the director.
Notwithstanding the foregoing provisions of this subdivision, no
permanent employee shall be discharged from the classified
service for absenteeism upon using all entitlement 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
and
regulations 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 strengthen the role of
seniority in promotions within the classified service. Also
candidate or eligibles may be rejected where there is a
reasonable doubt of the loyalty of the candidate or allegiance to
the nation.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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