Senate Bill No. 578
(By Senator Unger)
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[Introduced March 17, 2005; referred to the Committee
on Military; and then to the Committee on the Judiciary.]
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A BILL to amend and reenact §6-13-1 of the Code of West Virginia,
1931, as amended; and to amend and reenact §29-6-10 of said
code, all relating to providing a preference for filling
vacancies in state agencies to West Virginia veterans who,
because of injuries sustained while serving on active duty
with the National Guard after the eleventh day September, two
thousand one, are released from the National Guard.
Be it enacted by the Legislature of West Virginia:
That §6-13-1 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 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 13. PREFERENCE RATING OF VETERANS ON WRITTEN EXAMINATION
ON NONPARTISAN MERIT BASIS.
§6-13-1. Preference rating of veterans on written examinations for
positions in state departments filled under nonpartisan
merit system.
For positions in any agency as defined in section four,
article one, chapter five-f of this code or any other political
subdivision of this state in which positions are filled under civil
service or any job classification system, a preference of five
points in addition to the regular numerical score received on
examination shall be awarded to all veterans having qualified for
appointment by making a minimum passing grade; and to all veterans
awarded the purple heart, or having a compensable service-connected
disability, as established by any proper veterans' bureau or
department of the federal government, an additional five points
shall be allowed.
West Virginia veterans, who because of injuries
sustained while serving on active duty with the National Guard
after the eleventh day September, two thousand one, and who are
released from the National Guard because of those injuries shall be
given preference over other applicants with regard to filling
vacancies in any agency of state government for which the veteran
is qualified by education and experience to hold.
For the purpose of this article, a person is defined as a
"veteran" if he or she fulfills the requirements of one of the
following subsections:
(a) Served on active duty anytime between the seventh day of
December, one thousand nine hundred forty-one, and the first day of
July, one thousand nine hundred fifty-five. However, any person
who was a reservist called to active duty between the first day of
February, one thousand nine hundred fifty-five, and the fourteenth
day of October, one thousand nine hundred seventy-six, must meet condition (b) stated below;
(b) Served on active duty anytime between the second day of
July, one thousand nine hundred fifty-five, and the fourteenth day
of October, one thousand nine hundred seventy-six, or a reservist
called to active duty between the first day of February, one
thousand nine hundred fifty-five, and the fourteenth day of
October, one thousand nine hundred seventy-six, and who served for
more than one hundred eighty days;
(c) Entered on active duty between the fifteenth day of
October, one thousand nine hundred seventy-six, and the seventh day
of September, one thousand nine hundred eighty, or a reservist who
entered on active duty between the fifteenth day of October, one
thousand nine hundred seventy-six, and the thirteenth day of
October, one thousand nine hundred eighty-two, and received a
campaign badge or expeditionary medal or is a disabled veteran; or
(d) Enlisted in the armed forces after the seventh day of
September, one thousand nine hundred eighty, or entered active duty
other than by enlistment on or after the fourteenth day of October,
one thousand nine hundred eighty-two; and
(1) Completed twenty-four months of continuous active duty or
the full period called or ordered to active duty, or was discharged
under 10 U.S.C. 1171, or for hardship under 10 U.S.C. 1173, and
received or was entitled to receive a campaign badge or
expeditionary medal; or
(2) Is a disabled veteran.
To receive veteran preference, separation from active duty must have been under honorable conditions. This includes honorable
and general discharges. A clemency discharge does not meet the
requirements of the Veteran Preference Act. Active duty for
training in the military reserve and National Guard programs is not
considered active duty for purposes of veteran preference.
These awards shall be made for the benefit and preference in
appointment of all veterans who have heretofore or who shall
hereafter take examinations, but shall not operate to the detriment
of any person heretofore appointed to a position in a department or
agency.
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 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 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 West Virginia
veterans, who because of injuries sustained while serving on active
duty with the National Guard after the eleventh day of September,
two thousand one, and who are released from the National Guard
because of those injuries shall be given preference over other
applicants with regard to filling vacancies in any agency of state
government for which the veteran is qualified by education and
experience to hold, then 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) 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) 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) 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) For a period of probation not to exceed one year before
appointment or promotion may be made complete within the classified
service.
(10) 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) 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) 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) For such other rules and administrative regulations, not
inconsistent with this article, as may be proper and necessary for
its enforcement.
(14) 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 give a preference over
other applicants with regard to filling vacancies in any agency of
state government for West Virginia veterans who, because of
injuries suffered in the line of duty after September 11, 2001 and
who are discharged from the National Guard as a result of those
injuries if he or she is qualified by education and experience to
hold the vacant position.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.