Senate Bill No. 4004
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Introduced September 7, 2005; referred to the Committee on
Government Organization; and then to the Committee on Finance.]
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A BILL to amend and reenact §5F-2-2 of the Code of West Virginia,
1931, as amended; and to amend and reenact §29-6-10 of said
code, all relating to the power and authority of department
secretaries; and providing that department secretaries may
transfer employees between departments.
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 §29-6-10 of said code be amended
and reenacted, 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;
(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 (5) 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.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 6. CIVIL SERVICE SYSTEM.
§29-6-10. Rules of division.
The board shall have the authority to promulgate, amend or
repeal rules, according to chapter twenty-nine-a of this code, to
implement the provisions of this article:
(1) For the preparation, maintenance and revision of a
position classification plan for all positions in the classified
service and a position classification plan for all positions in the
classified-exempt service, based upon similarity of duties
performed and responsibilities assumed, so that the same
qualifications may reasonably be required for and the same schedule
of pay may be equitably applied to all positions in the same class.
Except for persons employed by the governing boards of higher
education, all persons receiving compensation as a wage or salary,
funded either in part or in whole by the state, are included in
either the position classification plan for classified service or
classified-exempt service. After each such classification plan has
been approved by the board, the director shall allocate the position of every employee in the classified service to one of the
classes in the classified plan and the position of every employee
in the classified-exempt service to one of the positions in the
classified-exempt plan. Any employee affected by the allocation of
a position to a class shall, after filing with the director of
personnel a written request for reconsideration thereof in such
manner and form as the director may prescribe, be given a
reasonable opportunity to be heard thereon by the director. The
interested appointing authority shall be given like opportunity to
be heard.
(2) For a pay plan for all employees in the classified
service, after consultation with appointing authorities and the
state fiscal officers, and after a public hearing held by the
board. Such pay plan shall become effective only after it has been
approved by the Governor after submission to him or her by the
board. Amendments to the pay plan may be made in the same manner.
Each employee shall be paid at one of the rates set forth in the
pay plan for the class of position in which he or she is employed.
The principle of equal pay for equal work in the several agencies
of the state government shall be followed in the pay plan as
established hereby.
(3) For open competitive examinations to test the relative
fitness of applicants for the respective positions in the
classified service. Such examinations need not be held until after
the rules have been adopted, the service classified and a pay plan
established, but shall be held not later than one year after this article takes effect. Such examinations shall be announced
publicly at least fifteen days in advance of the date fixed for the
filing of applications therefor, and may be advertised through the
press, radio and other media. The director may, however, in his or
her discretion, continue to receive applications and examine
candidates long enough to assure a sufficient number of eligibles
to meet the needs of the service and may add the names of
successful candidates to existing eligible lists in accordance with
their respective ratings.
An additional five points shall be awarded to the score of any
examination successfully completed by a veteran. A disabled
veteran shall be entitled to an additional ten points, rather than
five points as aforesaid, upon successful completion of any
examination.
(4) For promotions within the classified service which shall
give appropriate consideration to the applicant's qualifications,
record of performance, seniority and his or her score on a written
examination, when such examination is practicable. An advancement
in rank or grade or an increase in salary beyond the maximum fixed
for the class shall constitute a promotion. When any benefit such
as a promotion, wage increase or transfer is to be awarded, or when
a withdrawal of a benefit such as a reduction in pay, a layoff or
job termination is to be made, and a choice is required between two
or more employees in the classified service as to who will receive
the benefit or have the benefit withdrawn, and if some or all of
the eligible employees have substantially equal or similar qualifications, consideration shall be given to the level of
seniority of each of the respective employees as a factor in
determining which of the employees will receive the benefit or have
the benefit withdrawn, as the case may be. When an employee
classified in a secretarial or clerical position has, irrespective
of job classification, actual job experience related to the
qualifications for a managerial or supervisory position, the
division shall consider the experience as qualifying experience for
the position. The division in its classification plan may, for
designated classifications, permit substitution of qualifying
experience for specific educational or training requirements at a
rate determined by the division.
(5) For layoffs by classification for reason of lack of funds
or work, or abolition of a position, or material changes in duties
or organization, or any loss of position because of the provisions
of this subdivision and for recall of employees so laid off,
consideration shall be given to an employee's seniority as measured
by permanent employment in the classified service or a state
agency. In the event that the agency wishes to lay off a more
senior employee, the agency must demonstrate that the senior
employee cannot perform any other job duties held by less senior
employees within that agency in the job class or any other
equivalent or lower job class for which the senior employee is
qualified: Provided, That if an employee refuses to accept a
position in a lower job class, such employee shall retain all
rights of recall as hereinafter provided.
(6) For department secretaries to enter into memoranda of
understanding with other department secretaries to accomplish the
interdepartmental transfer of tenured state employees along with
the assets necessary to support such employees. To avoid layoffs
in the event that it is necessary to eliminate or consolidate a
position, a department secretary may enter into a memorandum of
understanding with another department secretary to transfer an
employee from a position that would otherwise be consolidated or
eliminated to a position of need in another department. Prior to
any such transfer, employees in the classification involving the
proposed consolidation or elimination must be given a fifteen-day
notice of the proposed transfer. During this notice period, such
employees may agree to be voluntarily transferred to the targeted
department. In the absence of sufficient volunteer(s), the least
classified tenure employee shall be subject to transfer. Any
classified-exempt position affected by such transfer shall be added
to the classified service by issuance of an executive order and
within the provisions of this article. Nothing in this subsection
shall abridge any other rights provided in this article. The Board
is authorized to promulgate emergency rules, prior to the first day
of December, two thousand five, to incorporate the provisions of
this subsection.
(6) (7) For recall of employees, recall shall be by reverse
order of layoff to any job class that the employee has previously
held or a lower class in the series within the agency as that job
class becomes vacant. An employee will retain his or her place on the recall list for the same period of time as his or her seniority
on the date of his or her layoff or for a period of two years,
whichever is less. No new employees shall be hired for any vacancy
in his or her job class or in a lower job class in the series until
all eligible employees on layoff are given the opportunity to
refuse that job class. An employee shall be recalled onto jobs
within the county wherein his or her last place of employment is
located or within a county contiguous thereto. Any laid-off
employee who is eligible for a vacant position shall be notified by
certified mail of the vacancy. It shall be the responsibility of
the employee to notify the agency of any change in his or her address.
Notwithstanding any other provision of the code to the contrary,
except for the provisions of section seven, article two, chapter
five-b of this code, when filling vacancies at state agencies the
directors of state agencies shall, for a period of twelve months
after the layoff of a permanent classified employee in another
agency, give preference to qualified permanent classified employees
based on seniority and fitness over all but existing employees of
the agency or its facilities: Provided, That employment of these
persons who are qualified and who were permanently employed
immediately prior to their layoff shall not supersede the recall
rights of employees who have been laid off in such agency or
facility.
(7) (8) For the establishment of eligible lists for
appointment and promotion within the classified service, upon which
lists shall be placed the names of successful candidates in the order of their relative excellence in the respective examinations.
Eligibility for appointment from any such list shall continue not
longer than three years. An appointing authority shall make his or
her selection from the top ten names on the appropriate lists of
eligibles, or may choose any person scoring at or above the
ninetieth percentile on the examination.
For the establishment of eligible lists for preference as
provided in subdivision (6) (7) of this section, a list shall be
provided according to seniority. An appointed authority shall make
the selection of the most senior qualified person: Provided, That
eligibility for appointment from any such list shall continue not
longer than one year and shall cease immediately upon appointment
to a classified position.
(8) (9) For the rejection of candidates or eligibles within
the classified service who fail to comply with reasonable
requirements in regard to such factors as age, physical condition,
character, training and experience who are addicted to alcohol or
narcotics or who have attempted any deception or fraud in
connection with an examination.
(9) (10) For a period of probation not to exceed one year
before appointment or promotion may be made complete within the
classified service.
(10) (11) For provisional employment without competitive
examination within the classified service when there is no
appropriate eligible list available. No such provisional
employment may continue longer than six months, nor shall successive provisional appointments be allowed, except during the
first year after the effective date of this article, in order to
avoid stoppage of orderly conduct of the business of the state.
(11) (12) For keeping records of performance of all employees
in the classified service, which service records may be considered
in determining salary increases and decreases provided in the pay
plan; as a factor in promotion tests; as a factor in determining
the order of layoffs because of lack of funds or work and in
reinstatement; and as a factor in demotions, discharges and
transfers.
(12) (13) For discharge or reduction in rank or grade only for
cause of employees in the classified service. Discharge or
reduction of these employees shall take place only after the person
to be discharged or reduced has been presented with the reasons for
such discharge or reduction stated in writing, and has been allowed
a reasonable time to reply thereto in writing, or upon request to
appear personally and reply to the appointing authority or his or
her deputy: Provided, That upon an involuntary discharge for
cause, the employer may require immediate separation from the
workplace, or the employee may elect immediate separation. If
separation is required by the employer in lieu of any advance
notice of discharge, or if immediate separation is elected by an
employee who receives notice of an involuntary discharge for cause,
the employee is entitled to receive severance pay attributable to
time the employee otherwise would have worked, up to a maximum of
fifteen calendar days following separation. Receipt of severance pay does not affect any other right to which the employee is
entitled with respect to the discharge. The statement of reasons
and the reply shall be filed as a public record with the director.
Notwithstanding the foregoing provisions of this subdivision, no
permanent employee shall be discharged from the classified service
for absenteeism upon using all entitlement to annual leave and sick
leave when such use has been due to illness or injury as verified
by a physician's certification or for other extenuating
circumstances beyond the employee's control unless his or her
disability is of such a nature as to permanently incapacitate him
or her from the performance of the duties of his or her position.
Upon exhaustion of annual leave and sick leave credits for the
reasons specified herein and with certification by a physician that
the employee is unable to perform his or her duties, a permanent
employee shall be granted a leave of absence without pay for a
period not to exceed six months if such employee is not permanently
unable to satisfactorily perform the duties of his or her position.
(13) (14) For such other rules and administrative regulations,
not inconsistent with this article, as may be proper and necessary
for its enforcement.
(14) (15) The board shall review and approve by rules the
establishment of all classified-exempt positions to assure
consistent interpretation of the provisions of this article.
The provisions of this section are subject to any modifications
contained in chapter five-f of this code. The board may include in
the rules provided for in this article such provisions as are necessary to conform to regulations and standards of any federal
agency governing the receipt and use of federal grants-in-aid by
any state agency, anything in this article to the contrary
notwithstanding. The board and the director shall see that rules
and practices meeting such standards are in effect continuously
after the effective date of this article.
NOTE: The purpose of this bill is to provide that department
secretaries may transfer employees between departments in certain
instances.
Strike-throughs indicate language that would be stricken from
the present law, underscoring indicates new language that would be
added.
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