ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 442
(Senators Bowman, Jenkins, Plymale, Minard,
McKenzie, White and Hunter, original sponsors)
____________
[Passed March 7, 2007; in effect from passage.]
____________
AN ACT to repeal §18-29-1, §18-29-2, §18-29-3, §18-29-4, §18-29-5,
§18-29-6, §18-29-7, §18-29-8, §18-29-9, §18-29-10 and §18-29-
11 of the Code of West Virginia, 1931, as amended; to repeal
§29-6A-1, §29-6A-2, §29-6A-3, §29-6A-4, §29-6A-5, §29-6A-6,
§29-6A-7, §29-6A-8, §29-6A-9, §29-6A-10, §29-6A-11 and §29-6A-
12 of said code; to amend and reenact §5-5-4 and §5-5-5 of
said code; to amend and reenact §5B-2-5 of said code; to amend
and reenact §5F-2-1 of said code; to amend said code by adding
thereto a new article, designated §6C-2-1, §6C-2-2, §6C-2-3,
§6C-2-4, §6C-2-5, §6C-2-6 and §6C-2-7; to amend said code by
adding thereto a new article, designated §6C-3-1, §6C-3-2,
§6C-3-3, §6C-3-4, §6C-3-5 and §6C-3-6; to amend and reenact
§11-10A-8 of said code; to amend and reenact §18A-2-8 of said
code; to amend and reenact §18B-2A-4 of said code; to amend and reenact §18B-7-4 of said code; to amend and reenact §21-
5E-4 of said code; to amend and reenact §22C-7-2 of said code;
to amend and reenact §31-20-27 of said code; to amend and
reenact §33-48-2 of said code; and to amend and reenact §49-
5E-5a of said code, all relating to state employees grievance
procedures; establishing a new West Virginia public employees
grievance procedure; discontinuing the Education and State
Employees Grievance Board; creating the West Virginia Public
Employees Grievance Board with five members appointed by the
Governor; giving the board new powers, duties, rule-making
authority and data collection responsibilities; creating a
uniform grievance procedure with three levels for certain
public employees; clarifying definitions and general grievance
procedures; prohibiting supervisors from representing
employees they evaluate; clarifying and reorganizing general
provisions; increasing time frames in grievance procedure;
defining default provisions; eliminating laches and defining
back pay; establishing that employees may be represented at
conferences, hearings and meetings at any step of the
procedure; clarifying the procedure for conferences and
hearings; removing hearing examiners from the grievance
procedure; and making technical corrections to affected
sections of the code.
Be it enacted by the Legislature of West Virginia:
That §18-29-1, §18-29-2, §18-29-3, §18-29-4, §18-29-5, §18-29-
6, §18-29-7, §18-29-8, §18-29-9, §18-29-10 and §18-29-11 of the Code of West Virginia, 1931, as amended, be repealed; that §29-6A-
1, §29-6A-2, §29-6A-3, §29-6A-4, §29-6A-5, §29-6A-6, §29-6A-7, §29-
6A-8, §29-6A-9, §29-6A-10, §29-6A-11 and §29-6A-12 of said code be
repealed; that §5-5-4 and §5-5-5 of said code be amended and
reenacted; that §5B-2-5 of said code be amended and reenacted; that
§5F-2-1 of said code be amended and reenacted; that said code be
amended by adding thereto a new article, designated §6C-2-1, §6C-2-
2, §6C-2-3, §6C-2-4, §6C-2-5, §6C-2-6 and §6C-2-7; that said code
be amended by adding thereto a new article, designated §6C-3-1,
§6C-3-2, §6C-3-3, §6C-3-4, §6C-3-5 and §6C-3-6; that §11-10A-8 of
said code be amended and reenacted; that §18A-2-8 of said code be
amended and reenacted; that §18B-2A-4 of said code be amended and
reenacted; that §18B-7-4 of said code be amended and reenacted;
that §21-5E-4 of said code be amended and reenacted; that §22C-7-2
of said code be amended and reenacted; that §31-20-27 of said code
be amended and reenacted; that §33-48-2 of said code be amended and
reenacted; and that §49-5E-5a 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 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-4. Department of Health and Human Resources pay equity salary
adjustment.
The Legislature hereby directs that a pay equity salary adjustment be provided for employees of the various agencies of the
Department of Health and Human Resources. This salary adjustment
shall be provided from the funding appropriated to the department
in the fiscal year two thousand and may not be construed to require
additional appropriations from the Legislature. In the event any
provision of this section conflicts with any rule, policy or
provision of this code, the provisions of this section control. In
determining the pay equity salary adjustments, the department may
give consideration to employee tenure, relevant average salaries
and such other factors as may be determined relevant by the
secretary. Due to the limits of funding, the results of the pay
equity salary adjustments shall not be subject to the provisions of
article two, chapter six-c of this code. The provisions of this
section are rehabilitative in nature and it is the specific intent
of the Legislature that no private cause of action, either express
or implied, shall arise pursuant to the provisions or
implementation of this section.
§5-5-5. Pay equity adjustment.
The Legislature hereby directs that a gender-based pay equity
salary adjustment be provided to public employees as determined by
the Secretary of the Department of Administration, based on
recommendations of the equal pay commission, within the limitations
provided by this section. This salary adjustment shall be provided
from the funding appropriated to the Department of Administration,
office of the secretary, for purposes of a "pay equity reserve" in
the fiscal year two thousand two and may not be construed to require additional appropriations from the Legislature. If any
provision of this section conflicts with any rule, policy or
provision of this code, the provisions of this section control.
Because the provisions of this section are rehabilitative in
nature, the results of the pay equity salary adjustments are not
subject to the provisions of article two, chapter six-c of this
code. Further, it is the specific intent of the Legislature that
no private cause of action, either express or implied, is created
by or otherwise arises from the enactment, provisions or
implementation of this section.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
5B-2-5. Economic development representatives.
(a) The director may employ economic development
representatives to be paid a base salary within legislative
appropriations to the West Virginia Development Office, subject to
provisions set forth by the council in its reorganization plan and
applicable contract provisions pursuant to section four of this
article. Economic development representatives may receive
performance-based incentives and expenses paid from private funds
from a nonprofit corporation contracting with the West Virginia
Development Office pursuant to the provisions of section four of
this article. The director shall establish job descriptions and
responsibilities of economic development representatives, subject
to the provisions of any contract with a nonprofit corporation
entered into pursuant to section four of this article.
(b) Notwithstanding any provision of this code to the
contrary, economic development representatives employed within the
West Virginia Development Office are not subject to the procedures
and protections provided by articles six and six-a, chapter twenty-
nine of this code. Any employee of the West Virginia Development
Office on the effective date of this article who applies for
employment as an economic development representative is not
entitled to the protections of article six, chapter twenty-nine
with respect to hiring procedures and qualifications; and upon
accepting employment as an economic development representative, the
employee relinquishes the protections provided for in article two,
chapter six-c and article six, chapter twenty-nine of this code.
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 agency or board, are incorporated in and
administered as a part of the Department of Administration:
(1) Building Commission provided in article six, chapter five
of this code;
(2) Public Employees Insurance Agency and Public Employees
Insurance Agency Advisory Board provided in article sixteen,
chapter five of this code;
(3) Governor's Mansion Advisory Committee provided for in article five, chapter five-a of this code;
(4) Commission on Uniform State Laws provided in article
one-a, chapter twenty-nine of this code;
(5) West Virginia Public Employees Grievance Board provided
for in article three, chapter six-c of this code;
(6) Board of Risk and Insurance Management provided for in
article twelve, chapter twenty-nine of this code;
(7) Boundary Commission provided in article twenty-three,
chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one,
chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter
twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article
two, chapter six-b of this code;
(11) Consolidated Public Retirement Board provided in article
ten-d, chapter five of this code; and
(12) Real Estate Division provided in article ten, chapter
five-a of this code.
(b) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter
twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety
provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided 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:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety
and Technical Review Committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine,
chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the
Division of Tourism and the Tourism Commission provided in article
two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources
Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter
nineteen of this code;
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code; and
(7) Workforce West Virginia provided in chapter twenty-one-a
of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article two-f, chapter
five-b of this code.
(c) The Economic Development Authority provided in article
fifteen, chapter thirty-one of this code is continued as an
independent agency within the executive branch.
(d) The Water Development Authority and Board provided in
article one, chapter twenty-two-c of this code is continued as an
independent agency within the executive branch.
(e) The following agencies and boards, including all of the
allied, advisory and affiliated entities, are transferred to the
Department of Environmental Protection for purposes of
administrative support and liaison with the office of the Governor:
(1) Air Quality Board provided in article two, chapter
twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three,
chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board,
provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter
twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in
article seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight,
chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article
nine, chapter twenty-two-c of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of
this code;
(2) Educational Broadcasting Authority provided in article
five, chapter ten of this code;
(3) Division of Culture and History provided in article one,
chapter twenty-nine of this code;
(4) Division of Rehabilitation Services provided in section
two, article ten-a, chapter eighteen of this code.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Health and Human
Resources:
(1) Human Rights Commission provided in article eleven,
chapter five of this code;
(2) Division of Human Services provided in article two,
chapter nine of this code;
(3) Bureau for Public Health provided in article one, chapter sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council
provided in article four-c, chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b,
chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article
fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided in article twenty, chapter
twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter
forty-eight of this code.
(h) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Military Affairs and
Public Safety:
(1) Adjutant General's Department provided in article one-a,
chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of
this code;
(3) Military Awards Board provided in article one-g, chapter
fifteen of this code;
(4) West Virginia State Police provided in article two,
chapter fifteen of this code;
(5) Division of Homeland Security and Emergency Management and
Disaster Recovery Board provided in article five, chapter fifteen of this code and Emergency Response Commission provided in article
five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter
fifteen of this code;
(7) Division of Corrections provided in chapter twenty-five of
this code;
(8) Fire Commission provided in article three, chapter
twenty-nine of this code;
(9) Regional Jail and Correctional Facility Authority provided
in article twenty, chapter thirty-one of this code;
(10) Board of Probation and Parole provided in article twelve,
chapter sixty-two of this code; and
(11) Division of Veterans' Affairs and Veterans' Council
provided in article one, chapter nine-a of this code.
(i) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Revenue:
(1) Tax Division provided in article one, chapter eleven of
this code;
(2) Racing Commission provided in article twenty-three,
chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director
provided in article twenty-two, chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided in article two,
chapter thirty-three of this code;
(5) Office of Alcohol Beverage Control Commissioner provided
in article sixteen, chapter eleven of this code and article two,
chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided in
article three, chapter thirty-one-a of this code;
(7) Lending and Credit Rate Board provided in chapter
forty-seven-a of this code;
(8) Division of Banking provided in article two, chapter
thirty-one-a of this code;
(9) The State Budget Office provided in article two of this
chapter;
(10) The Municipal Bond Commission provided in article three,
chapter thirteen of this code;
(11) The Office of Tax Appeals provided in article ten-a,
chapter eleven of this code; and
(12) The State Athletic Commission provided in article five-a,
chapter twenty-nine of this code.
(j) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter
seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority
provided in article sixteen-a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two, chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two,
chapter seventeen-b of this code;
(5) Aeronautics Commission provided in article two-a, chapter
twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter
twenty-nine of this code; and
(7) Port Authority provided in article sixteen-b, chapter
seventeen of this code.
(k) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the position of administrator and
the powers, authority and duties of each administrator and agency
are not affected by the enactment of this chapter.
(l) Except for powers, authority and duties that 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 the boards are not affected by the enactment of this
chapter. All boards that are appellate bodies or are independent
decisionmakers shall not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(m) Any department previously transferred to and incorporated
in a department by prior enactment of this section means a division
of the appropriate department. Wherever reference is made to any
department transferred to and incorporated in a department created in section two, article one of this chapter, the reference means a
division of the appropriate department and any reference to a
division of a department so transferred and incorporated means a
section of the appropriate division of the department.
(n) 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 is solely for purposes of
administrative support and liaison with the Office of the Governor,
a department secretary or a bureau. Nothing in this section
extends the powers of department secretaries under section two of
this article to any person other than a department secretary and
nothing limits or abridges the statutory powers and duties of
statutory commissioners or officers pursuant to this code.
CHAPTER 6C. PUBLIC EMPLOYEES.
ARTICLE 2. WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE PROCEDURE.
§6C-2-1. Purpose.
(a) The purpose of this article is to provide a procedure for
the resolution of employment grievances raised by the public
employees of the State of West Virginia, except as otherwise
excluded in this article.
(b) Resolving grievances in a fair, efficient, cost-effective
and consistent manner will maintain good employee morale, enhance
employee job performance and better serve the citizens of the State
of West Virginia.
(c) Nothing in this article prohibits the informal disposition
of grievances by stipulation or settlement agreed to in writing by the parties, nor the exercise of any hearing right provided in
chapter eighteen or eighteen-a of this code.
(d) Effective the first day of July, two thousand seven, any
reference in this code to the education grievance procedure, the
state grievance procedure, article twenty-nine, chapter eighteen of
this code or article six-a, chapter twenty-nine of this code, or
any subsection thereof, shall be considered to refer to the
appropriate grievance procedure pursuant to this article.
(e) Any grievance proceeding which is in process on the
effective date of the enactment of this article will be completed
as expeditiously as possible, and all outstanding orders for
hearings must be completed by the first day of July, two thousand
seven. Parties to grievances for which a hearing has not been held
may, by agreement, proceed to either level two or level three.
§6C-2-2. Definitions.
For the purpose of this article and article three of this
chapter:
(a) "Board" means the West Virginia Public Employees Grievance
Board created in article three of this chapter.
(b) "Chief administrator" means, in the appropriate context,
the commissioner, chancellor, director, president or head of any
state department, board, commission, agency, state institution of
higher education, commission or council, the state superintendent,
the county superintendent, the executive director of a regional
educational service agency or the director of a multicounty
vocational center who is vested with the authority to resolve a grievance. A "chief administrator" includes a designee, with the
authority delegated by the chief administrator, appointed to handle
any aspect of the grievance procedure as established by this
article.
(c) "Days" means working days exclusive of Saturday, Sunday,
official holidays and any day in which the employee's workplace is
legally closed under the authority of the chief administrator due
to weather or other cause provided for by statute, rule, policy or
practice.
(d) (1) "Employee" means any person hired for permanent
employment by an employer for a probationary, full- or part-time
position.
(2) A substitute education employee is considered an
"employee" only on matters related to days worked or when there is
a violation, misapplication or misinterpretation of a statute,
policy, rule or written agreement relating to the substitute.
(3) "Employee" does not mean a member of the West Virginia
State Police employed pursuant to article two, chapter fifteen of
this code, but does include civilian employees hired by the
Superintendent of the State Police. "Employee" does not mean an
employee of a constitutional officer unless he or she is covered
under the civil service system, an employee of the Legislature, or
a patient or inmate employed by a state institution.
(e) "Employee organization" means an employee advocacy
organization with employee members that has filed with the board
the name, address, chief officer and membership criteria of the organization.
(f) "Employer" means a state agency, department, board,
commission, college, university, institution, state board of
education, department of education, county board of education,
regional educational service agency or multicounty vocational
center, or agent thereof, using the services of an employee as
defined in this section.
(g) (1) "Grievance" means a claim by an employee alleging a
violation, a misapplication or a misinterpretation of the statutes,
policies, rules or written agreements applicable to the employee
including:
(i) Any violation, misapplication or misinterpretation
regarding compensation, hours, terms and conditions of employment,
employment status or discrimination, unless the discrimination is
related to the actual job responsibilities of the employee or
agreed to in writing by the employee;
(ii) Any discriminatory or otherwise aggrieved application of
unwritten policies or practices of his or her employer;
(iii) Any specifically identified incident of harassment,
including repeated or continual disturbance, irritation or
annoyance of an employee that is contrary to the demeanor expected
by law, policy and profession, or favoritism, including unfair
treatment of an employee as demonstrated by preferential,
exceptional or advantageous treatment of another similarly situated
employee; or
(iv) Any action, policy or practice constituting a substantial detriment to or interference with the effective job performance of
the employee, or the health and safety of the employee.
(2) "Grievance" does not mean any pension matter or other
issue relating to public employees insurance in accordance with
article sixteen, chapter five of this code, retirement or any other
matter in which the authority to act is not vested with the
employer.
(h) "Grievant" means an employee or group of similarly
situated employees filing a grievance.
(i) "Party" and "parties" mean the grievant, employer and the
Director of the Division of Personnel for state government employee
grievances. The Division of Personnel shall not be a party to
grievances involving higher education employees.
(j) "Representative" means any employee organization, fellow
employee, legal counselor or other person designated by the
grievant as the grievant's representative and may not include a
supervisor who evaluates the grievant.
§6C-2-3. Grievance procedure generally.
(a)
Time limits. --
(1) An employee shall file a grievance within the time limits
specified in this article.
(2) The specified time limits may be extended to a date
certain by mutual written agreement, and shall be extended whenever
a grievant is not working because of accident, sickness, death in
the immediate family or other cause for which the grievant has
approved leave from his or her employment.
(b)
Default. --
(1) The grievant prevails by default if a required response is
not made by the employer within the time limits established in this
article, unless the employer is prevented from doing so directly as
a result of injury, illness or a justified delay not caused by
negligence or intent to delay the grievance process.
(2) Within ten days of the default, the grievant may file with
the chief administrator a written notice of intent to proceed
directly to the next level or to enforce the default. If the chief
administrator objects to the default, then the chief administrator
may request a hearing before an administrative law judge for the
purpose of stating a defense to the default, as permitted by
subdivision one of this subsection, or showing that the remedy
requested by the prevailing grievant is contrary to law or contrary
to proper and available remedies. In making a determination
regarding the remedy, the administrative law judge shall determine
whether the remedy is proper, available and not contrary to law.
(3) If the administrative law judge finds that the employer
has a defense to the default
as permitted by subdivision (1) of
this subsection, or that the remedy is contrary to law or not
proper or available at law, the administrative law judge may deny
the default, or modify the remedy to be granted to comply with the
law or otherwise make the grievant whole.
(c) Defenses and limitations. -
(1) Untimeliness. -- Any assertion by the employer that the
filing of the grievance at level one was untimely shall be asserted by the employer at or before level two.
(2) Back Pay. -- A one-year statute of limitations applies to
the recovery of back pay. In the case of a willful violation by
the employer in which it can be shown by a preponderance of the
evidence that the employer acted in bad faith in concealing the
facts giving rise to the claim for back pay, an eighteen-month
statute of limitations applies. Further, a grievant's right to
back pay tolls from the time that the grievant has actual or
constructive knowledge of his or her right to back pay.
(3) Statutory defense. -- If the employer intends to assert
the application of any statute, policy, rule or written agreement
as a defense at any level, then a copy of the materials shall be
forwarded to the grievant and his or her representative.
(d) Withdrawal and reinstatement of grievance. -- An employee
may withdraw a grievance at any time by filing a written notice of
withdrawal with the chief administrator or the board. The
grievance may not be reinstated by the grievant unless
reinstatement is granted by the chief administrator or the board.
If more than one employee is named as a grievant, the withdrawal of
one employee does not prejudice the rights of any other employee
named in the grievance.
(e) Consolidation and Groups of Similarly Situated Employees.
--
(1) Grievances may be consolidated at any level by agreement
of all parties, or at the discretion of the administrative law
judge.
(2) Class actions are not permitted. However, a grievance may
be filed by one or more employees on behalf of a group of similarly
situated employees, but any similarly situated employee shall
indicate in writing his or her intent to join the group of
similarly situated employees. Only one employee filing a grievance
on behalf of similarly situated employees shall be required to
participate in the level one hearing required in section four of
this article.
(f) Intervention. -- Upon a timely request, any employee may
intervene and become a party to a grievance at any level when the
employee demonstrates that the disposition of the action may
substantially and adversely affect his or her rights or property
and that his or her interest is not adequately represented by the
existing parties.
(g) Representation. -- An employee may designate a
representative who may be present at any step of the procedure as
well as at any meeting that is held with the employee for the
purpose of discussing or considering disciplinary action.
(h) Reprisal. -- No reprisal or retaliation of any kind may be
taken by an employer against a grievant or any other participant in
the grievance procedure by reason of his or her participation.
Reprisal or retaliation constitutes a grievance, and any person
held responsible is subject to disciplinary action for
insubordination. Further, any supervisor or administrator
responsible for a willful act of bad faith toward an employee or
who intentionally works an employee out of classification may be subject to disciplinary action, including demotion or discharge.
(i) Forms. -- The board shall create the forms for filing
grievances, giving notice, taking appeals, making reports and
recommendations, and all other necessary documents provide them to
chief administrators to make available to any employee upon
request.
(j) Discovery. -- The parties are entitled to copies of all
material submitted to the chief administrator or the administrative
law judge by any party. All documents submitted become part of the
record.
(k) Conferences and Hearings. -
(1) Impartiality. -- The administrative law judge shall
conduct all level three hearings in an impartial manner and shall
ensure that all parties are accorded procedural and substantive due
process.
(2) Closed Conferences and Hearings. -- All conferences and
hearings shall be conducted in private. Hearings may be public at
level three at the discretion of the administrative law judge.
(3) Evidence. -- All parties may present supportive or
corroborative evidence and argument with respect to the grievance
at a conference or hearing. Formal rules of evidence do not apply,
but parties are bound by the rules of privilege recognized by law,
and the rules and procedures established by the board.
(4) Witnesses. --
At level one, the chief administrator may
call witnesses and may allow parties to call witnesses during a
conference or hearing upon request
. The parties have the right to call, examine and cross-examine witnesses during any hearing.
Administrative law judges may issue subpoenas for witnesses, limit
witnesses, administer oaths and may exercise other powers granted
by rule or law. No employee may be compelled to testify against
himself or herself in a grievance hearing.
(5) Notice. -- Reasonable notice of a conference or hearing
shall be sent at least five days prior to the hearing to all
parties and their representatives and shall include the date, time
and place of the hearing. If an employer causes a conference or
hearing to be postponed without adequate notice to employees who
are scheduled to appear during their normal work day, the employees
may not suffer any loss in pay for work time lost.
(6) Location. -- All proceedings shall be at a convenient
place accessible to all parties and the location of the level three
hearing shall be set by the administrative law judge.
(7) Date and Time. -- Conferences and hearings shall be
scheduled within the time frames established at a reasonable time
of day in accommodation to the parties' work schedules.
Disagreements shall be decided by the board or the administrative
law judge.
(8) Record. -- Conferences are not required to be recorded,
but all evidence submitted and the decision become part of the
record. All the testimony and evidence at a hearing shall be
recorded by mechanical means, and a copy of the recording provided
to any party upon request. The board is responsible for paying for
and promptly providing a certified transcript of a hearing to a requesting party or the court for a mandamus or appellate
proceeding.
(l) Grievance decisions. -
(1) Prior to a decision, any party may propose findings of
fact and conclusions of law.
(2) Decisions rendered at all levels of the grievance
procedure shall be dated, in writing, setting forth the decision or
decisions and the reasons for the decision, and transmitted to the
board, the employer and the grievant within the time limits
prescribed. If the grievant is denied the relief sought, the
decision shall include the procedure for the next level of appeal
for the grievant.
(m) Preparation time. -
(1) The grievance shall be processed during regular working
hours with minimal interference with the normal operations of the
employer and schedule of the employee.
(2) The grievant, witnesses and an employee representative
shall be granted reasonable and necessary time off during working
hours for grievance proceedings without loss of pay and without
charge to annual or compensatory leave credits.
(3) In addition to actual time spent in grievance conferences
and hearings, the grievant and an employee representative shall be
granted time off during working hours, not to exceed four hours per
grievance, for the preparation of the grievance without loss of pay
and without charge to annual or compensatory leave credits.
However, the first responsibility of any employee is the work assigned to the employee. An employee may not allow grievance
preparation and representation activities to seriously affect the
overall productivity of the employee.
(4) The grievant and an employee representative 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 the equipment for non-work purposes.
(5) Disagreements regarding preparation time shall be decided
by the board or the presiding administrative law judge.
(n) Grievance files. -
(1) All grievance forms and reports shall be kept in a file
separate from the personnel file of the employee and may not become
a part of the personnel file, but shall remain confidential except
by mutual written agreement of the parties.
(2) The grievant may file a written request to have the
grievant's identity removed from any files kept by the employer one
year following the conclusion of the grievance.
(o) Number of Grievances. -- The number of grievances filed
against an employer by an employee is not, per se, an indication of
the employer's or the employee's job performance.
(p) Procedures and Rules. -- The board shall prescribe rules
and procedures in compliance with this article, article three of
this chapter and the State Administrative Procedures Act under
chapter twenty-nine-a of this code for all matters relating to the
grievance procedure.
§6C-2-4. Grievance procedural levels.
(a) Level one: Chief Administrator. -
(1) Within fifteen days following the occurrence of the event
upon which the grievance is based, or within fifteen days of the
date upon which the event became known to the employee, or within
fifteen days of the most recent occurrence of a continuing practice
giving rise to a grievance, an employee may file a written
grievance with the chief administrator stating the nature of the
grievance and the relief requested and request either a conference
or a hearing. The employee shall also file a copy of the grievance
with the board. State government employees shall further file a
copy of the grievance with the Director of the Division of
Personnel, who may participate at any level in person or by a
designee.
(2) The chief administrator shall hold the conference or
hearing, as requested by the grievant, within ten days of receiving
the grievance and issue a written decision within fifteen days of
the conference or hearing.
(3) An employee may proceed directly to level three upon the
agreement of the employee and the chief administrator or when
discharged, suspended without pay or demoted or reclassified
resulting in a loss of compensation or benefits.
(b) Level two: Alternative dispute resolution. -
(1) Within ten days of receiving an adverse written decision
at level one, the grievant shall file a written request for
mediation, private mediation or mediation-arbitration with the
board if the grievant desires to continue the grievance process.
(A) Mediation. -- The board shall schedule the mediation
between the parties within twenty days of the request. Mediation
shall be conducted by an administrative law judge pursuant to
standard mediation practices and board procedures at no cost to the
parties. Parties may be represented and shall have the authority
to resolve the dispute. Agreements reached through mediation shall
be documented in writing within fifteen days. Agreements are
binding and enforceable in this state by a writ of mandamus.
(B) Private Mediation. -- The parties may agree in writing to
retain their choice of a private mediator and share the cost. The
mediator shall schedule the mediation within twenty days of the
written request and shall follow standard mediation practices and
any applicable board procedures. Parties may be represented and
shall have the authority to resolve the dispute. Agreements
reached through mediation shall be documented in writing within
fifteen days. Agreements are binding and enforceable in this state
by a writ of mandamus.
(C) Mediation-arbitration. -- The parties may agree in writing
to participate in mediation-arbitration. The board shall schedule
the mediation-arbitration between the parties within twenty days of
the request. Mediation-arbitration shall be conducted by an
administrative law judge pursuant to standard mediation and
arbitration practices and board procedures, at no cost to the
parties. In the event the mediation does not result in a
resolution, the mediator may become an arbitrator and proceed to
decide the matter. The parties may be represented and may resolve the dispute. Agreements reached through mediation and decisions
issued through arbitration are to be documented in writing within
fifteen days, and are binding and enforceable in this state by a
writ of mandamus.
(2) Neutral Evaluation. -- Within fifteen days of the
conclusion of an unsuccessful mediation or mediation-arbitration,
the administrative law judge serving as the mediator or mediator-
arbitrator may provide a written summary to the parties as a
neutral evaluator stating the issues presented, and issue a
scheduling and discovery order that is binding upon the parties in
preparation for level three.
(c) Level three: Adjudication. -
(1) Within ten days of receiving a written report stating that
alternative dispute resolution at level two was unsuccessful, the
grievant may file a written appeal with the employer and the board
requesting a hearing and adjudication on the grievance. The
administrative law judge shall schedule the hearing, and any other
proceedings or deadlines, within a reasonable time in consultation
with the parties. State government employees shall also serve a
copy of the appeal upon the Director of the Division of Personnel,
or his or her designee, who may appear at the hearing and submit
oral or written evidence upon matters at issue.
(2) Both the employer and the 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 administrative
law judge 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. The allocation of costs shall be based on the
relative ability of the party to pay the costs.
(3) Within thirty days following the hearing, the
administrative law judge shall render a decision in writing to all
parties setting forth findings of fact and conclusions of law on
the issues submitted.
§6C-2-5. Enforcement and appeal.
(a) The decision of the administrative law judge is final upon
the parties and is enforceable in the circuit court of Kanawha
County.
(b) A party may appeal the decision of the administrative law
judge on the grounds that the decision:
(1) Is contrary to law or a lawfully adopted rule or written
policy of the employer;
(2) Exceeds the administrative law judge's statutory
authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
(c) A party shall file the appeal in the circuit court of
Kanawha County within thirty days of receipt of the administrative
law judge's decision. The decision of the administrative law judge
is not automatically stayed upon the filing of an appeal, but a stay may be granted by the circuit court upon a separate motion for
a stay.
(d) The court shall review the entire record that was before
the administrative law judge, and the court may hear oral arguments
and require written briefs. The court may reverse, vacate or
modify the decision of the administrative law judge, or may remand
the grievance to the administrative law judge or the chief
administrator for further proceedings.
§6C-2-6. Allocation of expenses and attorney's fees.
(a) Any expenses incurred relative to the grievance procedure
at levels one, two or three shall be borne by the party incurring
the expenses.
(b) In the event a grievant or employer appeals an adverse
level three decision to the circuit court of Kanawha County, or an
adverse circuit court decision to the Supreme Court of Appeals of
West Virginia, and the grievant substantially prevails upon the
appeal, the grievant may recover from the employer court costs and
reasonable attorney's fees for the appeal to be set by the court.
§6C-2-7. Mandamus proceeding.
Any employer failing to comply with the provisions of this
article may be compelled to do so by a mandamus proceeding and may
be liable to a prevailing party for court costs and reasonable
attorney's fees to be set by the court.
ARTICLE 3. WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE BOARD.
§6C-3-1. West Virginia Public Employees Grievance Board.
(a) Effective the thirtieth day of June, two thousand seven, the Education and State Employees Grievance Board, and the
employment of the hearing examiners and administrative law judges
under the board, terminate.
(b) Effective the first day of July, two thousand seven, the
West Virginia Public Employees Grievance Board is created as an
independent entity under the Department of Administration and all
references to the Education and State Employees Grievance Board in
the code shall be considered to refer to the West Virginia Public
Employees Grievance Board.
(c) On or before the first day of July, two thousand seven,
the Governor, by and with the advice and consent of the Senate,
shall appoint the following five members to the board for the
following terms:
(1) One person representing the largest labor organization in
the state for a term of three years;
(2) One person representing an education employee organization
in the state for a term of two years;
(3) One employer representative from the executive branch for
a term of two years;
(4) One employer representative from secondary or higher
education for a term of three years; and
(5) One citizen member, who is not a current employee,
employer or a representative of employees in a workplace in the
public, educational or higher educational sector of this state, for
a term of one year.
(d) After the initial appointment, the board term shall be three years.
(e) No member may serve more than two consecutive full terms
and any member having served two consecutive full terms may not be
appointed for one year after completion of his or her second full
term. A member shall continue to serve until his or her successor
has been appointed and qualified.
(f) A vacancy on the board shall be filled by the Governor by
appointment of a like member for the unexpired term of the member
whose office is vacant.
(g) The membership of the board shall represent each
congressional district, with no more than two members from any one
district and no more than three members may be from the same
political party.
(h) Each member of the board, at the time of his or her
appointment, must have been a resident of this state for a period
of not less than one year immediately preceding the appointment and
each member of the board shall remain a resident of this state
during the appointment term.
(i) The Governor may remove any member from the board for
neglect of duty, incompetency, criminal convictions or official
misconduct.
(j) Any member of the board immediately and automatically
forfeits his or her membership if he or she is convicted of a
felony under the laws of any state or the United States, or becomes
a nonresident of this state.
(k) The board shall hold at least four meetings per year. Other meetings shall be held at the call of the chairperson or upon
the written request of two members, at such time and place as
designated in the call or request.
(l) The board shall designate one of its members as
chairperson and one member as secretary-treasurer who shall serve
at the will of the board.
(m) A majority of the members of the board constitute a
quorum.
(n) Each member of the board is entitled to receive
compensation and expense reimbursement as is accorded legislators
in the performance of their duties.
§6C-3-2. Powers and duties of the board.
The board shall:
(1) Maintain jurisdiction over procedural matters in the
grievance process;
(2) Employ competent administrative law judges and a chief
administrative law judge and pay them commensurately with other
administrative law judges in the state, who shall be:
(A) Residents of the State of West Virginia;
(B) Members in good standing of the West Virginia State Bar;
and
(C) Persons who have knowledge and legal experience regarding
public and education employment law and alternative dispute
resolution;
(3) Provide suitable office space for the board and the
administrative law judges separate from any workplace in the public, educational and higher educational sectors, so that the
administrative law judges are accessible statewide;
(4) Hire, discharge, set the job requirements for and fix the
compensation of the director, employees and administrative law
judges, who serve at the will and pleasure of the board, necessary
to enforce the provisions of this article and article two of this
chapter;
(5) Prepare and submit an annual budget;
(6) Establish and provide all forms necessary for the
grievance process and make them easily accessible;
(7) Establish procedures to obtain and maintain records,
outcomes and costs at each level of the grievance process;
(8) Keep accurate and complete records of its proceedings and
hearings and certify the records as may be appropriate;
(9) Evaluate, on an annual basis, the grievance process,
including written comment from employers, employees and employee
organizations that participate in the process;
(10) Submit an annual report to the Joint Committee on
Government and Finance, the Legislature and the Governor that
includes a compilation of all data received regarding outcomes and
costs at each level of the grievance process;
(11) File a mandamus proceeding against any employer failing
to comply with the reporting requirements of this article; and
(12) Take all other actions necessary and proper to effectuate
the purposes of this article.
§6C-3-3. Data collection and reporting requirements.
(a) Each employer involved in a grievance matter shall
maintain the forms and all records created in the grievance
process, and shall provide this information to the board in the
form and manner prescribed by the board.
(b) The board shall obtain and maintain all records of
grievance matters.
(c) The board shall annually report to the Joint Committee on
Government and Finance, the Legislature and the Governor. The
report shall contain the following:
(1) An overview of grievance-related issues;
(2) The number of grievances against each employer;
(3) Identification of each grievance by type of grievance,
level of resolution and cost of the grievance, including the
estimated cost of employee time to handle the grievance and actual
cost of any legal time or damages paid in the resolution of the
grievance;
(4) The number and type of grievances granted, denied or
resolved by other means, including informal resolutions and
alternative dispute resolution, and the actual or estimated cost of
handling the grievance at each level of the grievance process;
(5) Any legislative recommendations for changes to the
grievance process as a result of the data collected; and
(6) The caseload of each administrative law judge, the type of
grievance, the number of grievances resolved and the number of
decisions issued.
(d) Nothing contained in the annual report may breach the confidentiality of a party to the dispute, nor may any matter be
disclosed if the disclosure may violate any provision of law.
§6C-3-4. Rule-making authority.
(a) The rules established by the Education and State Employees
Grievance Board in effect on the effective date of this article
that are consistent with the provisions of this article and article
two of this chapter remain in effect until they are amended,
modified or repealed.
(b) The board may adopt, modify, amend and repeal procedural
rules promulgated in accordance with article three, chapter twenty-
nine-a of this code, necessary to effectuate the provisions of this
article and article two of this chapter including, but not limited
to, procedures to create and distribute forms, obtain and maintain
records and collect and report data.
(c) The board shall adopt, modify, amend, repeal and enforce
rules for legislative approval necessary to effectuate the
provisions of this article and article two of this chapter,
including any emergency rules, pursuant to article three, chapter
twenty-nine-a of this code.
§6C-3-5. Continuation of the West Virginia Public Employees
Grievance Board.
Pursuant to the provisions of article ten, chapter four of
this code, the West Virginia Public Employees Grievance Board shall
continue to exist until the first day of July, two thousand ten,
unless sooner terminated, continued or reestablished.
§6C-3-6. Review of the grievance procedure.
On or before the first day of January, two thousand ten, the
Joint Committee on Government and Finance shall review the
grievance procedure and the board, evaluate its usefulness and make
recommendations concerning its continuation or termination.
CHAPTER 11. TAXATION.
ARTICLE 10A. WEST VIRGINIA OFFICE OF TAX APPEALS.
§11-10A-8. Jurisdiction of Office of Tax Appeals.
The Office of Tax Appeals has exclusive and original
jurisdiction to hear and determine all:
(1) Appeals from tax assessments issued by the Tax
Commissioner pursuant to article ten of this chapter;
(2) Appeals from decisions or orders of the Tax Commissioner
denying refunds or credits for all taxes administered in accordance
with the provisions of article ten of this chapter;
(3) Appeals from orders of the Tax Commissioner denying,
suspending, revoking, refusing to renew any license or imposing any
civil money penalty for violating the provisions of any licensing
law administered by the Tax Commissioner;
(4) Questions presented when a hearing is requested pursuant
to the provisions of any article of this chapter which is
administered by the provisions of article ten of this chapter;
(5) Matters which the Tax Division is required by statute or
legislatively approved rules to hear, except employee grievances
filed pursuant to article two, chapter six-c of this code; and
(6) Other matters which may be conferred on the office of tax
appeals by statute or legislatively approved rules.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-8. Suspension and dismissal of school personnel by board;
appeal.
(a) Notwithstanding any other provisions of law, a board may
suspend or dismiss any person in its employment at any time for:
Immorality, incompetency, cruelty, insubordination, intemperance,
willful neglect of duty, unsatisfactory performance, the conviction
of a felony or a guilty plea or a plea of nolo contendere to a
felony charge.
(b) A charge of unsatisfactory performance shall not be made
except as the result of an employee performance evaluation pursuant
to section twelve of this article. The charges shall be stated in
writing served upon the employee within two days of presentation of
the charges to the board.
(c) The affected employee shall be given an opportunity,
within five days of receiving the written notice, to request, in
writing, a level three hearing and appeals pursuant to the
provisions of article two, chapter six-c of this code, except that
dismissal for the conviction of a felony or guilty plea or plea of
nolo contendere to a felony charge is not by itself a grounds for
a grievance proceeding. An employee charged with the commission of
a felony may be reassigned to duties which do not involve direct
interaction with pupils pending final disposition of the charges.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-4. Powers and duties of governing boards generally.
Each governing board separately has the power and duty to:
(a) Determine, control, supervise and manage the financial,
business and education policies and affairs of the state
institutions of higher education under its jurisdiction;
(b) Develop a master plan for the institutions under its
jurisdiction, except the administratively linked community and
technical colleges which retain an institutional board of advisors
shall develop their master plans subject to the provisions of
section one, article six of this chapter.
(1) The ultimate responsibility for developing and updating
the master plans at the institutional level resides with the board
of governors, or board of advisors, as applicable, but the ultimate
responsibility for approving the final version of the institutional
master plans, including periodic updates, resides with the
commission or council, as appropriate.
(2) Each master plan shall include, but not be limited to, the
following:
(A) A detailed demonstration of how the master plan will be
used to meet the goals and objectives of the institutional compact;
(B) A well-developed set of goals outlining missions, degree
offerings, resource requirements, physical plant needs, personnel
needs, enrollment levels and other planning determinates and
projections necessary in a plan to assure that the needs of the
institution's area of responsibility for a quality system of higher
education are addressed;
(C) Document the involvement of the commission or council, as
appropriate, institutional constituency groups, clientele of the
institution and the general public in the development of all
segments of the institutional master plan.
(3) The plan shall be established for periods of not less than
three nor more than six years and shall be revised periodically as
necessary, including the addition or deletion of degree programs
as, in the discretion of the appropriate governing board, may be
necessary;
(c) Prescribe for the institutions under its jurisdiction, in
accordance with its master plan and the compact for each
institution, specific functions and responsibilities to meet the
higher education needs of its area of responsibility and to avoid
unnecessary duplication;
(d) Direct the preparation of a budget request for the
institutions under its jurisdiction, which relates directly to
missions, goals and projections as found in the institutional
master plans and the institutional compacts;
(e) Consider, revise and submit to the commission or council,
as appropriate, a budget request on behalf of the institutions
under its jurisdiction;
(f) Review, at least every five years, all academic programs
offered at the institutions under its jurisdiction. The review
shall address the viability, adequacy and necessity of the programs
in relation to its institutional master plan, the institutional
compact and the education and workforce needs of its responsibility district. As a part of the review, each governing board shall
require the institutions under its jurisdiction to conduct periodic
studies of its graduates and their employers to determine placement
patterns and the effectiveness of the education experience. Where
appropriate, these studies should coincide with the studies
required of many academic disciplines by their accrediting bodies;
(g) Ensure that the sequence and availability of academic
programs and courses offered by the institutions under their
jurisdiction is such that students have the maximum opportunity to
complete programs in the time frame normally associated with
program completion. Each governing board is responsible to see
that the needs of nontraditional college-age students are
appropriately addressed and, to the extent it is possible for the
individual governing board to control, to assure core course work
completed at institutions under its jurisdiction is transferable to
any other state institution of higher education for credit with the
grade earned;
(h) Subject to the provisions of article one-b of this
chapter, approve the teacher education programs offered in the
institution under its control. In order to permit graduates of
teacher education programs to receive a degree from a nationally
accredited program and in order to prevent expensive duplication of
program accreditation, the Commission may select and use one
nationally recognized teacher education program accreditation
standard as the appropriate standard for program evaluation;
(i) Use faculty, students and classified employees in institutional-level planning and decisionmaking when those groups
are affected;
(j) Subject to the provisions of federal law and pursuant to
the provisions of article nine of this chapter and to rules adopted
by the commission and the council, administer a system for the
management of personnel matters, including, but not limited to,
personnel classification, compensation and discipline for employees
at the institutions under their jurisdiction;
(k) Administer a system for hearing employee grievances and
appeals. Notwithstanding any other provision of this code to the
contrary, the procedure established in article two, chapter six-c
of this code is the exclusive mechanism for hearing prospective
employee grievances and appeals;
(l) Solicit and use or expend voluntary support, including
financial contributions and support services, for the institutions
under its jurisdiction;
(m) Appoint a president for the institutions under its
jurisdiction subject to the provisions of section six, article
one-b of this chapter;
(n) Conduct written performance evaluations of the president
pursuant to section six, article one-b of this chapter;
(o) Employ all faculty and staff at the institution under its
jurisdiction. The employees operate under the supervision of the
president, but are employees of the governing board;
(p) Submit to the commission or council, as appropriate, no
later than the first day of November of each year an annual report of the performance of the institution under its jurisdiction during
the previous fiscal year as compared to stated goals in its master
plan and institutional compact;
(q) Enter into contracts or consortium agreements with the
public schools, private schools or private industry to provide
technical, vocational, college preparatory, remedial and customized
training courses at locations either on campuses of the public
institution of higher education or at off-campus locations in the
institution's responsibility district. To accomplish this goal,
the boards may share resources among the various groups in the
community;
(r) Provide and transfer funding and property to certain
corporations pursuant to section ten, article twelve of this
chapter;
(s) Delegate, with prescribed standards and limitations, the
part of its power and control over the business affairs of the
institution to the president in any case where it considers the
delegation necessary and prudent in order to enable the institution
to function in a proper and expeditious manner and to meet the
requirements of its institutional compact. If a governing board
elects to delegate any of its power and control under the
provisions of this subsection, it shall enter the delegation in the
minutes of the meeting when the decision was made and shall notify
the commission or council, as appropriate. Any delegation of power
and control may be rescinded by the appropriate governing board,
the commission or council, as appropriate, at any time, in whole or in part, except that the commission may not revoke delegations of
authority made by the governing boards of Marshall University or
West Virginia University as they relate to the state institutions
of higher education known as Marshall University and West Virginia
University;
(t) Unless changed by the commission or the council, as
appropriate, continue to abide by existing rules setting forth
standards for acceptance of advanced placement credit for their
respective institutions. Individual departments at institutions of
higher education may, upon approval of the institutional faculty
senate, require higher scores on the advanced placement test than
scores designated by the appropriate governing board when the
credit is to be used toward meeting a requirement of the core
curriculum for a major in that department;
(u) Consult, cooperate and work with the State Treasurer and
the State Auditor to update as necessary and maintain an efficient
and cost-effective system for the financial management and
expenditure of special revenue and appropriated state funds at the
institutions under its jurisdiction that ensures that properly
submitted requests for payment be paid on or before due date but,
in any event, within fifteen days of receipt in the State Auditor's
office;
(v) In consultation with the appropriate chancellor and the
Secretary of the Department of Administration, develop, update as
necessary and maintain a plan to administer a consistent method of
conducting personnel transactions, including, but not limited to, hiring, dismissal, promotions and transfers at the institutions
under their jurisdiction. Each personnel transaction shall be
accompanied by the appropriate standardized system or forms which
shall be submitted to the respective governing board and the
Department of Finance and Administration;
(w) Notwithstanding any other provision of this code to the
contrary, transfer funds from any account specifically appropriated
for their use to any corresponding line item in a general revenue
account at any agency or institution under their jurisdiction as
long as such transferred funds are used for the purposes
appropriated;
(x) Transfer funds from appropriated special revenue accounts
for capital improvements under their jurisdiction to special
revenue accounts at agencies or institutions under their
jurisdiction as long as such transferred funds are used for the
purposes appropriated;
(y) Notwithstanding any other provision of this code to the
contrary, acquire legal services that are necessary, including
representation of the governing boards, their institutions,
employees and officers before any court or administrative body.
The counsel may be employed either on a salaried basis or on a
reasonable fee basis. In addition, the governing boards may, but
are not required to, call upon the Attorney General for legal
assistance and representation as provided by law;
(z) For each governing board which has under its jurisdiction
an administratively linked community and technical college or a regional campus offering community and technical college education
programs, create within the administrative structure of its
governing board a subcommittee for community and technical college
education. The subcommittee shall have at least four members, one
of whom is the chairperson of the board of advisors of the
community and technical college or, in the case of the Governing
Board of West Virginia University, both the member representing the
community and technical college and the member representing the
regional campus; and
(aa) Contract and pay for disability insurance for a class or
classes of employees at a state institution of higher education
under its jurisdiction.
ARTICLE 7. PERSONNEL GENERALLY.
§18B-7-4. Notice to probationary faculty members of retention or
nonretention; hearing.
(a) For any probationary faculty the president or other
administrative head of each institution shall give written notice
concerning retention or nonretention for the ensuing academic year
not later than the first day of March.
(b) If a request is made by the probationary faculty member
not retained, the president or other administrative head of the
institution shall inform the probationary faculty member by
certified mail within ten days of the reasons for nonretention.
Any probationary faculty member who desires to appeal the decision
may proceed to level three of the grievance procedure established
in article two, chapter six-c of this code. If the administrative law judge decides that the reasons for nonretention are arbitrary
or capricious or without a factual basis, the faculty member shall
be retained for the ensuing academic year.
(c) The term "probationary faculty member" shall be defined
according to rules promulgated by the governing boards. The rights
provided to probationary faculty members by this section are in
addition to, and not in lieu of, other rights afforded them by
other rules and other provisions of law.
CHAPTER 21. LABOR.
ARTICLE 5E. EQUAL PAY FOR EQUAL WORK FOR STATE EMPLOYEES.
§21-5E-4. Employee's right of action against employer.
(a) Any employee whose compensation is at a rate that is in
violation of section three of this article has the right to file a
grievance pursuant to the provisions of article two, chapter six-c
of this code.
(b) No agreement for compensation at a rate of less than the
rate to which the employee is entitled under this article is a
defense to any action under this article.
(c) The rights and procedures provided under this section are
subject to the provisions of the rules promulgated by the Equal Pay
Commission in accordance with section six of this article.
(d) Except as otherwise provided in subsection (d), section
six of this article, the provisions of this section shall not
become effective until the Legislature approves for promulgation
the rules proposed by the Equal Pay Commission under the provisions
of subsection (c) of said section.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS.
ARTICLE 7. ENVIRONMENTAL RESOURCES.
§22C-7-2. Oil and gas inspectors; eligibility for appointment;
qualifications; salary; expenses; removal.
(a) No person is eligible for appointment as an oil and gas
inspector or supervising inspector unless, at the time of his or
her probationary appointment, the person: (1) Is a citizen of West
Virginia, in good health and of good character, reputation and
temperate habits; (2) has had at least six years' actual relevant
experience in the oil and gas industry:
Provided, That not
exceeding three years of the experience shall be satisfied by any
combination of: (i) A bachelor of science degree in science or
engineering which shall be considered the equivalent of three
years' actual relevant experience in the oil and gas industry; (ii)
an associate degree in petroleum technology which shall be
considered the equivalent of two years actual relevant experience
in the oil and gas industry; and (iii) actual relevant
environmental experience including, without limitation, experience
in wastewater, solid waste or reclamation each full year of which
shall be considered as a year of actual relevant experience in the
oil and gas industry; and (3) has good theoretical and practical
knowledge of oil and gas drilling and production methods, practices
and techniques, sound safety practices and applicable mining laws.
(b) In order to qualify for appointment as an oil and gas
inspector or supervising inspector, an eligible applicant shall
submit to a written and oral examination by the Oil and Gas Inspectors' Examining Board and shall furnish any evidence of good
health, character and other facts establishing eligibility required
by the board. If the board finds after investigation and
examination that an applicant: (1) Is eligible for appointment; and
(2) has passed all written and oral examinations, the board shall
add the applicant's name and grade to the register of qualified
eligible candidates and certify its action to the director of the
Division of Environmental Protection. No candidate's name may
remain on the register for more than three years without
requalifying.
(c) Within the limits provided by law, the salary of each
inspector and of the supervising inspector shall be fixed by the
director and the Oil and Gas Inspectors' Examining Board may make
recommendations for salary determinations. In fixing salaries of
the oil and gas inspectors and of the supervising inspector, the
director shall consider ability, performance of duty and
experience. Inspectors and supervising inspectors are entitled to
mileage expense reimbursement at the rate established for in-state
travel of public employees, in the Governor's travel rules, as
administered by the Department of Administration. No reimbursement
for traveling expenses may be made except upon an itemized account
of the expenses submitted by the inspector or supervising
inspector, as the case may be, who shall verify, upon oath, that
the expenses were actually incurred in the discharge of official
duties.
(d) (1) For grievances concerning matters other than suspension or dismissal, inspectors may file written grievances in
accordance with the procedures set forth in article two, chapter
six-c of this code. For a level one grievance, the inspector shall
file the grievance with the supervising inspector. For a level two
grievance, the inspector shall file the grievance with the chief of
the Office of Oil and Gas.
(2) An inspector or the supervising inspector, after having
received a permanent appointment, shall be suspended or dismissed
by the chief of the Office of Oil and Gas only for physical or
mental impairment, incompetency, neglect of duty, drunkenness,
malfeasance in office or other good cause.
(3) Not less than twenty reputable citizens engaged in oil and
gas drilling and production operations in the state may petition
the chief of the office of oil and gas for the dismissal of an
inspector or the supervising inspector. If the petition is
verified by at least one of the petitioners, based on actual
knowledge of the affiant, and alleges facts which, if true, warrant
the removal of the inspector or supervising inspector, the chief
shall cause an investigation of the facts to be made. If, after
investigation, the chief finds that there is substantial evidence
which, if true, warrants dismissal of the inspector or supervising
inspector, the chief shall bring the petition before the Oil and
Gas Inspectors' Examining Board requesting dismissal of the
inspector or supervising inspector.
(4) A level three grievance is a hearing before the board to
consider the appeal of a level two grievance, the appeal of suspension or dismissal by the chief or a citizens' petition
seeking dismissal of an inspector or supervising inspector. For
any level three grievance, the chief may not preside over the
hearing and may not vote. The remaining members of the board shall
select a member of the board to serve as acting chair, who may not
vote.
(5) An appeal of an inspector from a suspension or dismissal
by the chief may be filed by the end of the tenth day following the
suspension or dismissal notwithstanding the time limits and
requirements set forth in article two, chapter six-c of this code.
(6) On receipt of an appeal of a level two grievance, an
appeal of suspension or dismissal by the chief or a citizens'
petition seeking dismissal of an inspector or the supervising
inspector, the Oil and Gas Inspectors' Examining Board shall
promptly notify the inspector or supervising inspector, as the case
may be, to appear before it at a time and place designated in the
notice, which time shall be not less than fifteen days nor more
than thirty days thereafter notwithstanding the time limits and
requirements set forth in article two, chapter six-c of this code.
There shall be attached to the copy of the notice served upon the
inspector or supervising inspector a copy of the appeal or petition
filed with the board.
(7) At the time and place designated in the notice, the Oil
and Gas Inspectors' Examining Board shall conduct a level three
grievance proceeding in which the testimony shall be recorded to
enable a transcript to be prepared for any further appeal. The board shall hear all evidence offered in support of the appeal or
petition and on behalf of the inspector or supervising inspector.
Each witness shall be sworn and a transcript shall be made of all
evidence taken and proceedings had at any hearing. No continuance
may be granted except for good cause shown.
(8) The acting chair of the board may administer oaths and
subpoena witnesses.
(9) An inspector or supervising inspector who willfully
refuses or fails to appear before the board, or having appeared,
refuses to answer under oath any relevant question on the ground
that the inspector's testimony or answer might incriminate the
inspector, or refuses to accept a grant of immunity from
prosecution on account of any relevant matter about which the
inspector may be asked to testify at the hearing before the board,
forfeits the inspector's position notwithstanding any provisions to
the contrary in article two, chapter six-c of this code.
(10) If, after hearing, the Oil and Gas Inspectors' Examining
Board finds that the inspector or supervising inspector should be
suspended, dismissed or otherwise disciplined, it shall enter an
order to that effect. An appeal of the decision of the board shall
proceed as a level three proceeding under the provisions of article
two, chapter six-c of this code.
CHAPTER 31. CORPORATIONS.
ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY.
§31-20-27. Correctional officers; regional jails; priority of hiring.
(a) Notwithstanding any provision of this code to the
contrary, the authority, when employing correctional officers to
complete the approved staffing plan of a regional jail completed
after the effective date of this section, shall employ any
correctional officer applying for a position as a correctional
officer at a regional jail who was employed in good standing at a
county jail facility in the region at the time of its closing or at
a prison facility operated by the Division of Corrections:
Provided, That the regional jail is located within the same region
as the prison facility that was closed due to relocation of the
prison facility to a site outside the region. Only those
correctional officers who are employees in good standing at the
time the prison facility is closed are eligible for transfer under
the provisions of this subsection. Correctional officers, employed
under the provisions of this subsection, shall be employed at a
salary and with benefits consistent with the approved plan of
compensation of the Division of Personnel, created under section
five, article six, chapter twenty-nine of this code. All
correctional officers employed under this subsection shall also be
covered by the policies and procedures of the West Virginia Public
Employees Grievance Board, created under article two, chapter six-c
of this code and the classified-exempt service protection policies
of the Division of Personnel.
(b) The authority shall, when employing correctional officers
to fill positions within the approved staffing plan of any regional jail, employ any correctional officer applying for a position as a
correctional officer at a regional jail who was previously employed
as a correctional officer in good standing at any local jail
facility:
Provided, That the local jail facility is located within
the same region as the regional jail at the time of the local jail
facility's closing or reduction in size and was reduced in size or
closed prior to or due to the completion of the regional jail
within the region. Correctional officers, employed under the
provisions of this subsection, shall be employed at a salary and
with benefits consistent with the approved plan of compensation of
the Division of Personnel, created under section five, article six,
chapter twenty-nine of this code. Only those county correctional
officers who are employees in good standing at the time the local
jail facility is closed are eligible for transfer under the
provisions of this subsection. All correctional officers employed
under this subsection shall also be covered by the policies and
procedures of the West Virginia Public Employees Grievance Board
created under article two, chapter five-c of this code and the
classified-exempt service protection of the Division of Personnel.
CHAPTER 33. INSURANCE.
ARTICLE 48. MODEL HEALTH PLAN FOR UNINSURABLE INDIVIDUALS ACT.
§33-48-2. Operation of the plan.
(a) There is continued within the department a body corporate
and politic to be known as the West Virginia Health Insurance Plan
which shall be considered to be an instrumentality of the state and
a public corporation. The plan shall have perpetual existence and any change in the name or composition of the plan shall in no way
impair the obligations of any contracts existing under this
article.
(b) The plan shall operate subject to the supervision and
control of the board. The board shall consist of the commissioner
or his or her designated representative, who shall serve as an ex
officio member of the board and shall be its chairperson, and six
members appointed by the Governor. At least two board members
shall be individuals, or the parent, spouse or child of
individuals, reasonably expected to qualify for coverage by the
plan. At least two board members shall be representatives of
insurers. At least one board member shall be a hospital
administrator. A majority of the board shall be composed of
individuals who are not representatives of insurers or health care
providers.
(c) Board members shall serve for a term of three years. A
board member's term shall continue until his or her successor is
appointed.
(d) Vacancies in the board shall be filled by the Governor.
Board members may be removed by the Governor for cause.
(e) Board members shall not be compensated in their capacity
as board members but shall be reimbursed for reasonable expenses
incurred in the necessary performance of their duties.
(f) The board shall submit to the commissioner a plan of
operation for the plan and any amendments to the plan necessary or
suitable to assure the fair, reasonable and equitable administration of the plan. The plan of operation shall become
effective upon approval in writing by the commissioner consistent
with the date on which the coverage under this article must be made
available. If the board fails to submit a suitable plan of
operation within one hundred eighty days after the appointment of
the board of directors, or at any time thereafter fails to submit
suitable amendments to the plan of operation, the commissioner
shall adopt and promulgate any rules necessary or advisable to
effectuate the provisions of this section. The rules shall
continue in force until modified by the commissioner or superseded
by a plan of operation submitted by the board and approved by the
commissioner.
(g) The plan of operation shall:
(1) Establish procedures for operation of the plan:
Provided,
That the plan shall be operated so as to qualify as an acceptable
alternative mechanism under the federal Health Insurance
Portability and Accountability Act and as an option to provide
health insurance coverage for individuals eligible for the federal
health care tax credit established by the federal Trade Adjustment
Assistance Reform Act of 2002 (Section 35 of the Internal Revenue
Code of 1986);
(2) Establish procedures for selecting an administrator in
accordance with section six of this article;
(3) Establish procedures for the handling, accounting and
auditing of assets, moneys and claims of the plan and the plan
administrator;
(4) Develop and implement a program to publicize the existence
of the plan, the eligibility requirements and procedures for
enrollment;
(5) Establish procedures under which applicants and
participants may have grievances reviewed by a grievance committee
appointed by the board. The grievances shall be reported to the
board after completion of the review. The board shall retain all
written complaints regarding the plan for at least three years; and
(6) Provide for other matters that are necessary and proper
for the execution of the board's powers, duties and obligations
under this article.
(h) The plan shall have the general powers and authority
granted under the laws of this state to health insurers and, in
addition thereto, the specific authority to:
(1) Enter into contracts that are necessary or proper to carry
out the provisions and purposes of this article, including the
authority, with the approval of the commissioner, to enter into
contracts with similar plans of other states for the joint
performance of common administrative functions or with persons or
other organizations for the performance of administrative
functions:
Provided, That the provisions of article three, chapter
five-a of this code relating to the Division of Purchasing of the
Department of Administration do not apply to any contracts executed
by or on behalf of the plan under this article;
(2) Sue or be sued, including taking any legal actions
necessary or proper to recover or collect assessments due the plan;
(3) Take any necessary legal action:
(A) To avoid the payment of improper claims against the plan
or the coverage provided by or through the plan;
(B) To recover any amounts erroneously or improperly paid by
the plan;
(C) To recover any amounts paid by the plan as a result of
mistake of fact or law; or
(D) To recover other amounts due the plan;
(4) Establish and modify, from time to time, as appropriate,
rates, rate schedules, rate adjustments, expense allowances,
agents' referral fees, claim reserve formulas and any other
actuarial function appropriate to the operation of the plan. Rates
and rate schedules may be adjusted for appropriate factors such as
age, sex and geographic variation in claim cost and shall take into
consideration appropriate factors in accordance with established
actuarial and underwriting practices;
(5) Issue policies of insurance in accordance with the
requirements of this article;
(6) Appoint appropriate legal, actuarial and other committees
as necessary to provide technical assistance in the operation of
the plan, policy and other contract design and any other function
within the authority of the pool;
(7) Borrow money to effect the purposes of the plan. Any
notes or other evidence of indebtedness of the plan not in default
shall be legal investments for insurers and may be carried as
admitted assets;
(8) Establish rules, conditions and procedures for reinsuring
risks of participating insurers desiring to issue plan coverages in
their own name. Provision of reinsurance shall not subject the
plan to any of the capital or surplus requirements, if any,
otherwise applicable to reinsurers;
(9) Employ and fix the compensation of employees, including an
executive director of the plan. The executive director shall have
overall management responsibility for the plan and is exempt from
the classified service and not subject to the procedures and
protections provided by article two, chapter six-c of this code and
article six, chapter twenty-nine of this code;
(10) Prepare and distribute certificate of eligibility forms
and enrollment instruction forms to insurance producers and to the
general public;
(11) Provide for reinsurance of risks incurred by the plan;
(12) Issue additional types of health insurance policies to
provide optional coverages, including medicare supplemental insurance;
(13) Provide for and employ cost containment measures and
requirements, including, but not limited to, preadmission
screening, second surgical opinion, concurrent utilization review
and individual case management for the purpose of making the
benefit plan more cost effective;
(14) Design, use, contract or otherwise arrange for the
delivery of cost-effective health care services, including
establishing or contracting with preferred provider organizations,
health maintenance organizations and other limited network provider arrangements:
Provided, That all contracts with preferred provider
organizations, health maintenance organizations, other network
providers or other health care providers shall provide that plan
participants are not personally liable for the cost of services
covered by the plan other than applicable deductibles or
copayments, including any balance claimed by the provider to be
owed as being the difference between that provider's charge or
charges and the amount payable by the plan; and
(15) Adopt bylaws, policies and procedures that are necessary
or convenient for the implementation of this article and the
operation of the plan.
(i) The board shall make an annual report to the Governor
which shall also be filed with the Legislature. The report shall
summarize the activities of the plan in the preceding calendar
year, including the net written and earned premiums, plan
enrollment, the expense of administration and the paid and incurred
losses.
(j) Neither the board nor its employees are liable for any
obligations of the plan. No member or employee of the board shall
be liable and no cause of action of any nature may arise against
them for any act or omission related to the performance of their
powers and duties under this article unless the act or omission
constitutes willful or wanton misconduct. The board may provide in
its bylaws or rules for indemnification of, and legal
representation for, its members and employees.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5E. DIVISION OF JUVENILE SERVICES.
§49-5E-5a. Juvenile detention and corrections facilities;
employees; priority of hiring.
(a) Notwithstanding any provision of this code to the
contrary, the division, when employing any persons to complete the
approved staffing plan of any of its juvenile detention or
corrections facilities, shall employ any person otherwise qualified
who applies for a position at the juvenile detention or corrections
facility who was also employed in good standing at a county or
local jail facility, at the time of its closing, that was closed
due to the completion of a regional jail.
(b) All persons employed at a juvenile detention or
corrections facility shall be employed at a salary and with
benefits consistent with the approved plan of compensation of the
Division of Personnel, created under section five, article six,
chapter twenty-nine of this code; all employees shall also be
covered by the policies and procedures of the West Virginia Public
Employees Grievance Board, created under article two, chapter six-c
of this code and the classified service protection policies of the
Division of Personnel.