HB5441 HFA Hornbuckle, et al. 3-3 #1

Altizer – 3259

Delegates Hornbuckle, Fluharty, Garcia, Hamilton, Hansen, Lewis, Pushkin, Williams and Young move to amend Com Sub for HB5441 on page 9, line 12, following the period at the end of Section 8, by inserting the following:

"CHAPTER 16B. INspector General.

ARTICLE 17. Human Rights Commission.

§16B-17-9b. Political affiliation discrimination in public employment; complaints; enforcement.

(a) Legislative findings. The Legislature finds that political patronage employment practices in state government expose the State and its political subdivisions to substantial litigation costs; that establishing an administrative complaint process for claims of state employees that believe they have been discriminated based on political affiliation promotes uniformity, timely resolution, and cost-effective adjudication of claims; further as it is in most instances an unlawful discriminatory practice for a public employer to discharge, demote, discipline, refuse to hire, or otherwise adversely affect the employment of a public employee because of political affiliation unless the position is policymaking or political in nature, establishing a administrative process to address these complaints is preferable to the costly and protracted litigation of these claims in our civil justice system.

(b) Definitions.  For purposes of this section:

(1) “Political affiliation” means membership in, support of, opposition to, or association with a political party, candidate, political committee, or political ideology, including the refusal to engage in political activity;

(2) “Public employer” means the State of West Virginia and any department, agency, board, commission, institution, or political subdivision thereof;

(3) “Public employee” means any person employed by a public employer;

(4) “Policymaking or political position” means a position for which political affiliation is an appropriate requirement for the effective performance of the position due to the duties, responsibilities, level of discretion, authority to speak on behalf of elected officials, involvement in policy formulation, and access to confidential political communications.

(c) Unlawful discriminatory practice. It is unlawful to discharge, demote, discipline, refuse to hire, or otherwise adversely affect the employment of a state employee who does not hold a policymaking or political position based on political affiliation.

(d) When determining whether a position is a policymaking or political position, the Commission shall consider the totality of circumstances associated with the performance of the position held, rather than job title alone.

(e) Complaint; jurisdiction; exhaustion.

(1) A person aggravated by a violation of this section may file a complaint with the West Virginia Human Rights Commission in accordance with the procedures set forth in this article;

(2) The Commission has authority to receive, investigate, and adjudicate complaints filed under this section, and to issue orders and award remedies as authorized under this article; and

(3) A complainant shall exhaust the administrative remedy provided in this article prior to filing a civil action under state law alleging unlawful political affiliation discrimination in public employment."

Adopted

Rejected