H. B. 2629
(By Delegate S. Cook)
[Introduced March 18, 1993; referred to the
Committee on Education then Finance.]
A BILL to amend and reenact sections five, six, seven and ten,
article twenty-nine, chapter eighteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to education employees grievance board and hearing
examiners.
Be it enacted by the Legislature of West Virginia:
That sections five, six, seven and ten, article twenty-nine,
chapter eighteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
as follows:
ARTICLE 29. GRIEVANCE PROCEDURE.
§18-29-5. Education employees grievance board; hearing
examiners.
(a) There is hereby created and shall be an education
employees grievance board which shall consist of three five
members who shall be citizens of the state appointed by the
governor by and with the advice and consent of the Senate foroverlapping terms of three years, except that the original
appointments shall be for a period of one, two and three years,
respectively, commencing on the first day of July, one thousand
nine hundred eighty-five. No two members shall be from the same
congressional district, and no more than two of the appointed
members shall be from the same There shall be at least one
member from each congressional district, and no more than three
of the appointed members shall be from the same political party.
One member shall be a nonsupervisory public employee and one
member shall be a citizen representative who is not an employee
of any public agency in West Virginia. No A person shall not be
appointed to membership on the board who is a member of any
political party executive committee. With the exception of the
nonsupervisiory public employee member, a person shall not be
appointed to membership on the board who or holds any other
public office or public employment under the federal government
or under the government of this state. Members shall be eligible
for reappointment, and any vacancy on the board shall be filled
within thirty days of the vacancy by the governor by appointment
for the unexpired term.
A member of the board may not be removed from office except
for official misconduct, incompetence, neglect of duty, gross
immorality or malfeasance, and then only in the manner prescribed
in article six, chapter six of this code for the removal by the
governor of the state elected officers.
The board shall hold at least two meetings yearly at suchtimes and places as it may prescribe and may meet at such other
times as may be necessary, such the meetings to be agreed to in
writing by at least two of the members. Members of the board
shall each be paid seventy-five dollars for each calendar day
devoted to the work of the board, but not more than seven hundred
and fifty dollars during any one fiscal year. Each member shall
be reimbursed for all reasonable and necessary expenses actually
incurred in the performance of board duties, but shall submit a
request therefor upon sworn itemized statement.
The board is hereby authorized and required to administer
the grievance procedure at level four as provided for in section
four of this article and shall employ at least two full-time
hearing examiners on an annual basis and such clerical help as is
necessary to implement the legislative intent expressed in
section one of this article.
The board shall hire hearing examiners who reside in
different regional educational service agency areas unless and
until the number of hearing examiners exceeds the number of such
areas, at which time two hearing examiners may be from the same
such area. If a grievant previously before a hearing examiner
again brings a grievance, a different hearing examiner shall be
required to hear the grievance upon written request therefor by
any party to the grievance. These hearing examiners shall serve
at the will and pleasure of the board.
The board shall submit a yearly budget and shall report
annually to the governor and Legislature regarding receipts andexpenditures, number of level four hearings conducted, synopses
of hearing outcomes and such other information as the board may
deem appropriate. The board shall further evaluate on an annual
basis the level four grievance process and the performance of all
hearing examiners and include such the evaluation in the annual
report to the governor and Legislature. In making such the
evaluation, the board shall notify all institutions, employee
organizations and all grievants participating in level four
grievances in the year for which evaluation is being made and
shall provide for the submission of written comment and/or the
hearing of testimony regarding the grievance process. The board
shall provide suitable office space for all hearing examiners in
space other than that utilized by any institution as defined in
section two of this article and shall ensure that reference
materials are generally available.
The board is authorized to promulgate rules and regulations
consistent with the provisions of this article, such the rules
and regulations to be adopted in accordance with chapter twenty-
nine-a of this code.
(b) Hearing examiners are hereby authorized and shall have
the power to consolidate grievances, allocate costs among the
parties in accordance with section eight of this article,
subpoena witnesses and documents in accordance with the
provisions of section one, article five, chapter twenty-nine-a of
this code, provide such relief as is deemed fair and equitable in
accordance with the provisions of this article, and such otherpowers as will provide for the effective resolution of grievances
not inconsistent with any rules or regulations of the board or
the provisions of this article.
§18-29-6. Hearings generally.
The chief administrator or his or her designee, the
governing board or the hearing examiner shall conduct all
hearings in an impartial manner and shall ensure that all parties
are accorded procedural and substantive due process. All parties
shall have an opportunity to present evidence and argument with
respect to the matters and issues involved, to cross examine and
to rebut evidence. Notice of a hearing shall be sent to all
parties and their named representative and shall include the
date, time and place of the hearing.
The institution that is party to the grievance shall produce
prior to such hearing any documents, not privileged, and which
are relevant to the subject matter involved in the pending
grievance, that has been requested by the grievant, in writing.
The superintendent, the president of the state or county
board of education or the state or county board member designated
by such president, the executive director of the regional
educational service agency, the director of the multi-county
vocational center, the chancellor of the higher education
governing boards, the president of any state institution of
higher education, the senior administrator, the chief
administrator or his or her designee, each member of the
governing board or the hearing examiner shall have the power to(1) administer oaths and affirmations, (2) regulate the course of
the hearing, (3) hold conferences for the settlement or
simplification of the issues, by consent of the parties (4)
exclude immaterial, irrelevant or repetitious evidence, (5)
sequester witnesses, (6) restrict the number of advocates, and
take any other action not inconsistent with the rules and
regulations of the board or the provisions of this article.
All the testimony and evidence at any hearing shall be
recorded by mechanical means, and all recorded testimony and
evidence at such hearing shall be transcribed and certified at
the request of any party to the institution or board. The
institution shall be responsible for promptly transcribing the
testimony and evidence and for providing a copy of the certified
transcription to the party requesting same. The institution
shall be responsible for all costs relating to preparation and
duplication of the transcript. The hearing examiner may also
request and be provided a transcript upon appeal to level four
and allocate the costs therefor as prescribed in section eight of
this article.
Formal rules of evidence shall not be applied, but parties
shall be bound by the rules of privilege recognized by law. In
any grievance involving disciplinary or discharge actions, no
employee may be compelled to testify against himself or herself,
the burden of proof is on the employer, and the employer shall
present its case first.
All materials submitted in accordance with section three ofthis article; the mechanical recording of all testimony and
evidence or the transcription thereof, if any; the decision; and
any other materials considered in reaching the decision shall be
made a part and shall constitute the record of a grievance. Such
record shall be submitted to any level at which appeal has been
made, and such record shall be considered, but the development of
such record shall not be limited thereby.
Every decision pursuant to a hearing shall be in writing and
shall be accompanied by findings of fact and conclusions of law.
Prior to such a decision any party may propose findings of fact
and conclusions of law.
§18-29-7. Enforcement and reviewability.
The decision of the hearing examiner shall be final and
binding upon the parties and shall be enforceable in circuit
court: Provided, That either party may appeal to the circuit
court of the county in which the grievance occurred: on the
grounds that the hearing examiner's decision (1) was contrary to
law or lawfully adopted rule, regulation or written policy of the
chief administrator or governing board, (2) exceeded the hearing
examiner's statutory authority, (3) was the result of fraud or
deceit, (4) was clearly wrong in view of the reliable, probative
and substantial evidence on the whole record, or (5) was
arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion. Provided,
however, That the scope of judicial review shall be narrow and
the decision will not be reversed unless (1) the hearing examinerexceeded his or her statutory authority, (2) the decision is
manifestly contrary to law, (3) the decision is not supported by
competent evidence, or (4) the decision was procured by fraud,
collusion, or other similar unlawful means. Such The appeal
shall be filed in the circuit court of Kanawha County or in the
circuit court of the county in which the grievance occurred
within thirty days of receipt of the hearing examiner's decision.
The decision of the hearing examiner shall not be stayed,
automatically, upon the filing of an appeal, but a stay may be
granted by the circuit court upon separate motion therefor.
The court's ruling shall be upon the entire record made
before the hearing examiner, and the court may hear oral
arguments and require written briefs. The court may reverse,
vacate or modify the decision of the hearing examiner or may
remand the grievance to the chief administrator of the
institution for further proceedings.
§18-29-10. Mediation.
To such extent as may be feasible with existing personnel
and resources, the education employees grievance board shall
attempt mediation and other alternative dispute resolution
techniques to actively assist the parties in identifying,
clarifying and resolving issues regarding the grievance at any
time prior to the level four hearing. Hearing examiners may
require the parties to attend and participate in mediation
sessions.
All of the information that is provided by the partiesduring mediation shall remain confidential. Mediators shall not
be called as witnesses to provide testimony in unresolved
grievances that proceed to a grievance hearing, and any hearing
examiner involved in a mediation process shall not hear the
grievance nor be consulted regarding the merits of the grievance.
The education employees grievance board shall monitor the
results of all mediation attempts and report to the Legislature
prior to the first day of January, one thousand nine hundred
ninety-three, regarding the feasibility of the process, the cost
effectiveness of the process, the success of the process in
resolving grievances, the resources which would be required to
expand the process, and such other information or recommendations
as the grievance board may deem appropriate and helpful include
the results in the annual report required by section five of this
article.
NOTE: The purpose of this bill is to modify educational
employees' grievance procedures as recommended by the Governor's
Blue Ribbon Commission on personnel.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.