Introduced Version
House Bill 2904 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2904
(By Delegates Kump, Canterbury, Faircloth, Rowan, Howell,
Ambler, Folk, Romine and R. Smith)
[Introduced March 12, 2013; referred to the
Committee on Government Organization then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §4-14-1, §4-14-2,
§4-14-3, §4-14-4 and §4-14-5, all relating to the Office of
State Employee Ombudsman; creating a State Employee Ombudsman;
describing the qualifications of the State Employee Ombudsman;
providing for powers and duties; specifying investigatory
powers; describing complaint procedures; requiring annual
reports; describing penalties for noncompliance; and allowing
for enforcement.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §4-14-1, §4-14-2,
§4-14-3, §4-14-4 and §4-14-5, all to read as follows:
ARTICLE 14. STATE EMPLOYEE OMBUDSMAN.
§4-14-1. Authority of State Employee Ombudsman; short title;
purpose.
_____(a) The West Virginia Legislature creates and establishes the
Office of State Employee Ombudsman to act as an advisory office to
the Legislature in order to provide oversight of executive branch
employment issues. This article shall be known as the "State
Employee Ombudsman Act".
_____(b) The State Employee Ombudsman is responsible for research,
investigations, training and reporting on employment issues
specific to the executive branch of state government. The State
Employee Ombudsman shall make recommendations, provide training and
produce reports pursuant to this article and as directed by the
Joint Committee on Government and Finance in order to resolve
complaints made against a public agency, department or person
employed with public funds.
_____(c) The purpose of the State Employee Ombudsman is to serve as
an impartial investigator and advocate for executive branch
employees who request an investigation into employee issues in the
executive branch of state government. The State Employee Ombudsman
may investigate any office in the executive branch of state
government or any person paid with public money, for compliance
with any law, rule or policy related to employment issues.
§4-14-2. Qualifications of State Employee Ombudsman; office
staff; toll free hotline.
_____(a) A qualified State Employee Ombudsman shall be employed by
the Joint Committee on Government and Finance. The State Employee Ombudsman appointed shall have the following minimum
qualifications:
_____(1) Is a citizen of the United States and a resident of the
State of West Virginia;
_____(2) (A) Have earned a bachelor's degree from an accredited
college or university; or
_____(B) Has successfully completed a course on generally accepted
government auditing standards;
_____(3) Has not been an officer of a political party for a minimum
of one year prior to employment; and
_____(4) Has not held an elected political office for a minimum of
one year prior to employment.
_____(b) The State Employee Ombudsman shall provide, operate and
maintain a toll free anonymous hot line for the purpose of
receiving complaints, referrals and information as necessary to
carry out the provisions of this article. Referrals and
information may be made in writing or provided anonymously except
that a complaint, referral or information filed by an elected
official or agency manager, director or department head must be
made in writing and provide name, title and relevant contact
information.
§4-14-3. Powers and duties; procedures; required training.
_____(a) The State Employee Ombudsman has the authority to initiate
and investigate complaints, referrals and information related to employment issues of executive branch employees. The State
Employee Ombudsman may:
_____(1) Initiate investigations related to employment issues of
executive branch employees as directed or based on information that
may be received anonymously, telephonically, in writing or at the
request of an appointed or elected officer of state government;
_____(2) Report and make recommendations to the Legislature, the
Joint Committee on Government and Finance, the Commission on
Special Investigations, the Ethics Commission, the Human Rights
Commission, the Equal Employment Opportunity Office, the West
Virginia Public Employees Grievance Board or to law enforcement or
prosecuting attorneys, as appropriate, in order to resolve an issue
or violation of law, rule or policy; and
_____(3) Compel an agency, department, office, board, commission or
other public or quasi-public entity in this state, including a
contractor paid with public funds, to produce any records and
documents for inspection as requested. Upon request of the State
Employee Ombudsman pursuant to an officially recognized
investigation, an agency, department, office, board, commission or
other public or quasi-public entity in this state, including a
contractor paid with public funds, shall provide access to all
records.
_____(b) The State Employee Ombudsman shall:
_____(1) Keep accurate records of all complaints, referrals and information including the nature of the complaint, referral and
information; the date the complaint, referral and information was
made; the method of filing; and, other records to be maintained
pursuant to the generally accepted government auditing standards,
as necessary, to investigate and resolves complaints, referrals and
informations;
_____(2) Report promptly to the proper authorities upon a finding
that a state or federal law, rule or policy has been violated;
_____(3) Make written recommendations or written findings
describing the nature of the complaint, referral or information and
the actions necessary to resolve each; and
_____(4) Maintain all investigation files confidentially, to the
maximum extent practical, in order to protect the identity of
individuals.
_____(c) Upon a finding of probable cause, the State Employee
Ombudsman shall report, in writing, recommendations as may be
necessary to resolve an issue.
_____(d) The State Employee Ombudsman may recommend, provide or
require appropriate training necessary to resolve an issue.
_____(e) The State Employee Ombudsman may recommend certain
compliance and performance measures and make written
recommendations that stipulate continuing education, sensitivity
training, management training, ethics training or other remediation
as appropriate to resolve or prevent future issues.
§4-14-4. Reports of the State Employee Ombudsman.
_____(a) Any person may provide information regarding issues
related to any person paid by the executive branch with public
money. The State Employee Ombudsman shall evaluate the information
and:
_____(1) Open an investigation;
_____(2) Close the file; or
_____(3) Forward the issue to an appropriate law-enforcement or
regulatory agency.
_____(b) The State Employee Ombudsman shall produce an
investigation report for each investigation initiated or authorized
in each calendar year or as directed. Each investigation report
shall include the status of the investigation and describe either
a recommendation to close an investigation or describe the
recommendations as may be necessary to resolve the issue.
_____(c) The State Employee Ombudsman shall report annually to the
Joint Committee on Government and Finance on or before January 1 of
each year. The annual report shall contain:
_____(1) A summary describing the total number of issues reported
received in that preceding calendar year;
_____(2) A summary of the nature of the reports received in that
preceding calendar year;
_____(3) Copies of the executive summary or written recommendations
made regarding each issue received in that preceding calendar year;
_____(4) A summary describing the status or disposition of all
reports received in that preceding calendar year;
_____(5) A summary of the status of all issues that are continued
from previous years; and
_____(6) Recommend changes to any laws, rules or policies that may
be necessary to resolve and prevent future issues related to a
subject matter investigated.
_____(d) The annual report of the State Employee Ombudsman is a
public record.
§4-14-5. Compliance and enforcement; penalties.
_____(a) Every executive branch, office, department or agency shall
cooperate with the State Employee Ombudsman and his or her staff
and provide access to all records, documents, facilities and
personnel in the investigation of an open investigation conducted
pursuant to the authority provided in this article.
_____(b) Obstructing or otherwise failing to comply with a request
for information or refusing to provide access to the public
resources requested by the State Employee Ombudsman and his or her
staff is a misdemeanor and, upon conviction thereof, the person
charged shall be fined not less than $500 nor more than $1,000 per
offense. An employer who directs his or her employees to obstruct
or otherwise refuse to comply with a request by the State Employee
Ombudsman and his or her staff is guilty of obstruction of justice,
a misdemeanor and, upon conviction thereof, shall be fined not less than $2,500 nor more than $10,000 and is grounds for termination of
employment.
_____(c) The State Employee Ombudsman may petition the Circuit
Court of Kanawha County for orders as necessary to enforce the
provisions of this article.
_____NOTE: The purpose of this bill is to create a State Employee
Ombudsman, describe the qualifications of the State Employee
Ombudsman, provide for powers and duties of the ombudsman and
specify investigatory powers, describe complaint procedures,
require annual reports, establish penalties for noncompliance and
allowing for enforcement.
This article is new; therefore, it has been completely
underscored.
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