ENGROSSED
H. B. 407
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced September 7, 2005; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact §5F-2-2 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section designated §5F-2-7, relating to the power and
authority of department secretaries to transfer employees
between departments; establishing guidelines for transfer of
employees; protecting rights of transferred employees;
requiring annual reports; and requiring promulgation of
emergency and legislative rules.
Be it enacted by the Legislature of West Virginia:
That §5F-2-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section designated §5F-2-7, all to read as follows:
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the
contrary, the secretary of each department shall have plenary power
and authority within and for the department to:
(1) Employ and discharge within the office of the secretary
employees as may be necessary to carry out the functions of the
secretary, which employees shall serve at the will and pleasure of
the secretary;
(2) Cause the various agencies and boards to be operated
effectively, efficiently and economically, and develop goals,
objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the
department;
(3) Eliminate or consolidate positions, other than positions
of administrators or positions of board members,
and name a person
to fill more than one position
, and transfer employees between
departments in accordance with the provisions of section seven of
this article;
(4) Delegate, assign, transfer or combine responsibilities or
duties to or among employees, other than administrators or board
members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the
Governor, and transfer within the department funds appropriated to
the various agencies of the department which are not expended due
to cost savings resulting from the implementation of the provisions
of this chapter:
Provided, That no more than twenty-five percent of the funds appropriated to any one agency or board may be
transferred to other agencies or boards within the department:
Provided, however, That no funds may be transferred from a special
revenue account, dedicated account, capital expenditure account or
any other account or funds specifically exempted by the Legislature
from transfer, except that the use of appropriations from the State
Road Fund transferred to the Office of the Secretary of the
Department of Transportation is not a use other than the purpose
for which the funds were dedicated and is permitted:
Provided
further, That if the Legislature by subsequent enactment
consolidates agencies, boards or functions, the appropriate
secretary may transfer the funds formerly appropriated to the
agency, board or function in order to implement consolidation. The
authority to transfer funds under this section shall expire on the
thirtieth day of June, two thousand five;
(7) Enter into contracts or agreements requiring the
expenditure of public funds, and authorize the expenditure or
obligation of public funds as authorized by law:
Provided, That
the powers granted to the secretary to enter into contracts or
agreements and to make expenditures or obligations of public funds
under this provision shall not exceed or be interpreted as
authority to exceed the powers granted by the Legislature to the
various commissioners, directors or board members of the various
departments, agencies or boards that comprise and are incorporated
into each secretary's department under this chapter;
(8) Acquire by lease or purchase property of whatever kind or character and convey or dispose of any property of whatever kind or
character as authorized by law:
Provided, That the powers granted
to the secretary to lease, purchase, convey or dispose of such
property shall not exceed or be interpreted as authority to exceed
the powers granted by the Legislature to the various commissioners,
directors or board members of the various departments, agencies or
boards that comprise and are incorporated into each secretary's
department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one,
chapter twenty-nine-a of this code, to implement and make effective
the powers, authority and duties granted and imposed by the
provisions of this chapter in accordance with the provisions of
chapter twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any
rule, as defined in section two, article one, chapter twenty-nine-a
of this code, by any administrator, agency or board within the
department. Without written consent, no proposal for a rule shall
have any force or effect;
(13) Delegate to administrators the duties of the secretary as
the secretary may deem appropriate from time to time to facilitate
execution of the powers, authority and duties delegated to the
secretary; and
(14) Take any other action involving or relating to internal
management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall
engage in a comprehensive review of the practices, policies and
operations of the agencies and boards within their departments to
determine the feasibility of cost reductions and increased
efficiency which may be achieved therein, including, but not
limited to, the following:
(1) The elimination, reduction and restriction of the state's
vehicle or other transportation fleet;
(2) The elimination, reduction and restriction of state
government publications, including annual reports, informational
materials and promotional materials;
(3) The termination or rectification of terms contained in
lease agreements between the state and private sector for offices,
equipment and services;
(4) The adoption of appropriate systems for accounting,
including consideration of an accrual basis financial accounting
and reporting system;
(5) The adoption of revised procurement practices to
facilitate cost-effective purchasing procedures, including
consideration of means by which domestic businesses may be assisted
to compete for state government purchases; and
(6) The computerization of the functions of the state agencies
and boards.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, none of the powers granted to the secretaries
herein shall be exercised by the secretary if to do so would violate or be inconsistent with the provisions of any federal law
or regulation, any federal-state program or federally delegated
program or jeopardize the approval, existence or funding of any
program.
(d) The layoff and recall rights of employees within the
classified service of the state as provided in subsections five and
six, section ten, article six, chapter twenty-nine of this code
shall be limited to the organizational unit within the agency or
board and within the occupational group established by the
classification and compensation plan for the classified service of
the agency or board in which the employee was employed prior to the
agency or board's transfer or incorporation into the department:
Provided, That the employee shall possess the qualifications
established for the job class. The duration of recall rights
provided in this subsection shall be limited to two years or the
length of tenure, whichever is less. Except as provided in this
subsection, nothing contained in this section shall be construed to
abridge the rights of employees within the classified service of
the state as provided in sections ten and ten-a, article six,
chapter twenty-nine of this code, or the right of classified
employees of the Board of Regents to the procedures and protections
set forth in article twenty-six-b, chapter eighteen of this code.
(e) Notwithstanding any other provision of this code to the
contrary, the secretary of each department with authority over
programs which are payors for prescription drugs, including but not
limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division
of Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and
universities, public hospitals, state or local institutions
including nursing homes and veteran's homes, the Division of
Rehabilitation, public health departments, the Bureau of Medical
Services and other programs that are payors for prescription drugs,
shall cooperate with the Office of the Pharmaceutical Advocate
established pursuant to section four, article sixteen-d, chapter
five of this code for the purpose of purchasing prescription drugs
for any program over which they have authority.
§5F-2-7. Authority of Department Secretaries to transfer employees
from one department to another.
(a) A department secretary may transfer a permanent state
employee from a position that would otherwise be consolidated or
eliminated to a currently funded vacant position in another
department, if the following conditions are met:
(1) The secretary of each department affected by the
transfer, together with the Division of Personnel, shall enter into
a memorandum of understanding prior to any such transfer.
(2) An employee shall be transferred to a position at the same
or higher level of benefits and rate of compensation and shall
retain the same level of seniority as the position from which he or
she is being transferred.
(3) Employees in the classification involved in the proposed
consolidation or elimination shall be given not less than fifteen days notice prior to the proposed transfer. During the notice
period, an affected employee may agree to be voluntarily
transferred.
(4) An involuntary transfer may be ordered if an insufficient
number of employees volunteer to be transferred. An employee may
reject an involuntary transfer which would require the employee to
travel a distance of thirty miles more than the distance the
employee currently travels from his or her residence to his or her
current job site. An employee who qualifies for and chooses to
reject a transfer shall be laid off in accordance with legislative
rules of the Division of Personnel.
(5) Involuntary transfers shall be made beginning with the
least senior permanent employee who qualifies for the new position
and moving up the seniority ranking until the necessary transfers
have been made.
(6) A classified employee who is transferred shall retain his
or her classified status regardless of the status of the position
to which they transfer:
Provided, That any change of status must be
in accordance with the law.
(7) A department secretary may, when necessary, transfer the
furniture and equipment to support the transfer of employees,
excluding motor vehicles and excluding any assets purchased by
designated funds for specific uses and purposes, the removal of
which is prohibited by law or would jeopardize federal funds,
grants or other funding sources.
(b) Nothing in this section shall affect any other rights provided by law.
(c) On or before the thirty-first day of December of each
year, the Division of Personnel established in article six, chapter
twenty-nine of this code shall report annually to the Joint
Standing Committee on Government and Finance on all
interdepartmental transfers of employees, furniture and equipment,
whether the transfer of employees was voluntary or involuntary and
the departments participating in the memorandum of understanding.
(d) The State Personnel Board established in article six,
chapter twenty-nine of this code shall promulgate emergency and
legislative rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code, prior to the thirty-
first day of December, two thousand five, to effectuate the
provisions of this section.
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