H. B. 2670


(By Mr. Speaker (Mr. Chambers) and Delegate Burk)
(By Request of the Executive)
[Introduced March 23, 1993; referred to the
Committee on Government Organization.]



A BILL to amend and reenact section five, article twenty-nine, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section seven, article six, chapter twenty-nine of said code; and to amend and reenact sections four, five, six and seven, article six-a of said chapter twenty-nine; all relating to the education employees grievance board; the director of personnel; and the grievance procedure for state employees.

 Be it enacted by the Legislature of West Virginia:
That section five, article twenty-nine, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section seven, article six, chapter twenty-nine of said code be amended and reenacted; that sections four, five, six and seven, article six-a of said chapter twenty-nine be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.

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 five three members who shall be citizens of the state appointed by the governor by and with the advice and consent of the Senate for overlapping 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 three two members shall be from the same congressional district, and no more than three two of the appointed members shall be from the same political party, and at least one member shall be a nonsupervisory public employee. No person shall be appointed to membership on the board who is a member of any political party executive committee or holds any elected or appointed 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 thegovernor of the state elected officers.
The board shall hold at least two meetings yearly at such times and places as it may prescribe and may meet at such other times as may be necessary, such 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 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 and expenditures, 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 evaluation in the annual report to the governor and Legislature. In making such 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 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 ofthis code, provide such relief as is deemed fair and equitable in accordance with the provisions of this article, and such other powers 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.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 6. CIVIL SERVICE SYSTEM.

§29-6-7. Director of personnel; appointment; qualifications; powers and duties.

(a) Notwithstanding any other provision of this code, including the provisions of section two-a, article seven, chapter six of this code, to the contrary, the secretary of the department of administration, subject to the approval of the governor, shall appoint the director and shall set all terms and conditions of the director's employment, including the director's compensation to the extent that the salary component of such compensation does not exceed sixty-five thousand dollars per calendar year. The director shall serve at the will and pleasure of the governor. The director shall be a person knowledgeable of the application of the merit principles in public employment as evidenced by the obtainment of a degree in business administration, personnel administration, public administration or the equivalent and at least five years of administrative experience in personnel administration.
(b) The director shall:
(1) Consistent with the provisions of this articleadminister the operations of the division, allocating the functions and activities of the division among sections as the director may establish;
(2) Maintain a personnel management information system necessary to carry out the provisions of this article;
(3) Supervise payrolls and audit payrolls, reports or transactions for conformity with the provisions of this article;
(4) Plan, evaluate, administer and implement personnel programs and policies in state government and to political subdivisions after agreement by the parties;
(5) Supervise the employee selection process and employ performance evaluation procedures;
(6) Develop programs to improve efficiency and effectiveness of the public service, including, but not limited to, employee training, development, assistance and incentives;
(7) Establish pilot programs and other projects for a maximum of one year outside of the provisions of this article, subject to approval by the board, to be included in the annual report;
(8) Establish and provide for a public employee interchange program and may provide for a voluntary employee interchange program between public and private sector employees;
(9) Establish an internship program;
(10) Assist the governor and secretary of the department of administration in general work force planning and other personnel matters;
(11) Make an annual report to the governor and Legislature and all other special or periodic reports as may be required;
(12) Assess cost for special or other services;
(13) Recommend rules to the board for implementation of this article; and
(14) Conduct schools, seminars or classes for supervisory employees of the state regarding handling of complaints and disciplinary matters and the operation of the state personnel system.
The director, or his or her designee, shall have the authority to initiate and conduct investigations, inquiries, and hearings. In pursuing any such investigation, the director or his or her designee shall have the authority to swear oaths and affirmations, to issue subpoenas, subpoenas duces tecum, take affidavits and summon witnesses to give testimony under oath or affirmation on any matter upon which any witness may be lawfully interrogated, require the production of relevant books, accounts, papers, records, and documents pertaining to any matter covered by the provisions of this article and the rules, regulations and policies thereof, and the provisions of article one, chapter six- c of this code. Any person who wilfully swears or testifies falsely, under an oath or affirmation lawfully administered pursuant to the provisions of this section, or any person who counsels, advises, aids or abets another in the commission of false swearing shall be subject to immediate dismissl, as well as any other applicable penalties. Notwithstanding the provisionsof article one, chapter twenty-nine-b of this code to the contrary, information obtained in the course of an investigation conducted pursuant to the provisions of this section shall not be published or be open to public inspection, including internal investigative reports, memoranda, letters, affidavits, statements, notes, draft materials, audio and video recordings, transcripts and other documentary evidence generated during any such investigation. The director, his or her designee, and any other person working at their direction on an investigation conducted pursuant to the provisions of this section, shall be immune from civil and criminal liability for any action taken or statement made by them during the course of such investigation, or after the conclusion of such investigation, unless such action or statement is proven to have been taken or made with malice.
ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.

§29-6A-4. Procedural levels and procedure at each level.

(a) Level one.
Within ten days following the occurrence of the event upon which the grievance is based, or within ten days of the date on which the event became known to the grievant, or within ten days of the most recent occurrence of a continuing practice giving rise to a grievance, the grievant or the designated representative, or both, may file a written grievance with the immediate supervisor of the grievant. At the request of the grievant or the immediate supervisor, an informal conference shall be held to discuss the grievance within three days of thereceipt of the written grievance. The immediate supervisor shall issue a written decision within six days of the receipt of the written grievance.
(b) Level two.
Within five days of receiving the decision of the immediate supervisor, the grievant may file a written appeal to the administrator of the grievant's work location, facility, area office, or other appropriate subdivision of the department, board, commission or agency. The administrator or his designee shall hold a conference within five days of the receipt of the appeal and issue a written decision upon the appeal within five days of the conference.
(c) Level three.
Within five days of receiving the decision of the administrator of the grievant's work location, facility, area office, or other appropriate subdivision of the department, board, commission or agency, the grievant may file a written appeal of the decision with the chief administrator of the grievant's employing department, board, commission or agency. A copy of the appeal and the level two decision shall be served upon the personnel director of the state civil service commission by the grievant.
The chief administrator or his designee shall hold a hearing in accordance with section six of this article within seven days of receiving the appeal. The personnel director of the state civil service commission or his designee may appear at suchhearing and submit oral or written evidence upon the matters in the hearing.
The chief administrator or his designee shall issue a written decision affirming, modifying or reversing the level two decision within five days of such hearing.
(d) Level four.
(1) If the grievant is not satisfied with the action taken by the chief administrator or his designee, within five days of the written decision the grievant may request, in writing, on a form furnished by the employer, that the grievance be submitted to a hearing examiner as provided for in section five of this article, such hearing to be conducted in accordance with section six of this article within fifteen days following the request therefor: Provided, That such hearing may be held within thirty days following the request, or within such time as is mutually agreed upon by the parties, if the hearing examiner gives reasonable cause, in writing, as to the necessity for such delay. A copy of the appeal shall be served by the grievant upon the director of personnel of the division of personnel. state civil service commission The director of personnel of the division of personnel, state civil service commission or his designee, may appear at such hearing and submit oral or written evidence upon the matters in the hearing: Provided, however, That when the hearing examiner determines that the findings of facts in the case are not in dispute, such hearing may be waived by the hearing examiner and a summary decision may be issued.
(2) Within thirty days following the hearing, the hearing examiner shall render a decision in writing to all parties setting forth findings and conclusions on the issues submitted. Subject to the provisions of section seven of this article The decision of the hearing examiner shall be final upon the parties and shall be enforced and reviewed in accordance with the provisions of subsection (e) of this section or section seven of this article. enforceable in circuit court
(e) Upon written petition to the board by either party to a level four decision, which petition shall be filed with and received by the board within ten days of the issuance of the written decision rendered by the hearing examiner in such grievance, the board may review such decision which review shall be in lieu of the right of appeal by any party to such decision to circuit court as set forth in section seven of this article. Any party to the level four decision may file a response to said petition, and the party filing the original petition for review may file a reply to any such response. Any review by the board of a level four decision shall be limited to the legal and factual issues raised and argued in the petition for such review, and to the legal and factual issues raised and argued in the applicable responses and replies.
(e) (f) Expedited grievance process.
An employee may grieve a final action of the employer involving a dismissal, demotion or suspension exceeding twenty days directly to the hearing examiner. The expedited grievanceshall be in writing and must be filed within ten days of the date of the final action with the chief administrator and the director of personnel of the state civil service commission.
§29-6A-5. Education and state employees grievance board; hearing examiners.

(a) The education employees grievance board, created by virtue of the provisions of section five, article twenty-nine, chapter eighteen of this code, shall be hereafter known and referred to as the education and state employees grievance board and, in addition to those duties set forth in said chapter eighteen, is hereby authorized and required to administer the grievance procedure at level four as provided for in section four of this article. The board shall employ, in addition to those persons employed as hearing examiners for educational employee grievances, at least two full-time hearing examiners for the purpose of conducting hearings at level four as provided in section four of this article. Such hearing examiners shall be employed on an annual basis along with such clerical help as is necessary to implement the legislative intent expressed in section one of this article.
In addition to the budget required for submission to the Legislature by virtue of the provisions of section five, article twenty-nine, chapter eighteen of this code, the board shall submit a yearly budget and shall report annually to the governor and the Legislature regarding proceedings conducted under this article, including receipts and expenditures, number of levelfour 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 evaluation in the annual report to the governor and the Legislature. In making such evaluation the board shall notify all employers, employee organizations, the director of personnel of the state civil service commission 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 employer as defined in section two of this article and shall ensure that reference materials are generally available. The board shall provide forms for filing grievances, giving notice, taking appeals, making reports and recommendations and such other documents as the board deems necessary for any stage of a grievance under this article.
The board is authorized to promulgate rules and regulations consistent with the provisions of this article, such 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, issue summary decisions,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 other powers as will provide for the effective resolution of grievances not inconsistent with any rules and regulations of the board or the provisions of this article: Provided, That in all cases the hearing examiner shall have the authority to provide appropriate remedies including, but not limited to, making the employee whole.
§29-6A-6. Hearings generally.

The chief administrator or his designee acting as a grievance evaluator 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. Reasonable notice of a hearing shall be sent prior to the hearing to all parties and their named representative and shall include the date, time and place of the hearing. Level one, level two and level three hearings shall be at a convenient place accessible to the aggrieved employee. All such hearings shall be held on the employer's premises or on other premises mutually agreeable to the parties and within regular working hours: Provided, That any such hearing mightcontinue beyond normal working hours. Level four hearings shall be at a place to be designated by the hearing examiner.
The employer 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 have been requested by the grievant, in writing. Prior to such hearing the hearing examiner may require proposed findings of fact and conclusions of law from all parties, and if the hearing examiner finds that the relevant facts in the grievance are not in dispute as between and among the parties to the grievance, then the hearing examiner shall have the discretion to issue a summary final decision on the grievance which decision is based on such relevant facts.
The chief administrator or his designee or the hearing examiner shall have the power to (1) administer oaths and affirmations, (2) subpoena witnesses, (3) regulate the course of the hearing, (4) hold conferences for the settlement or simplification of the issues by consent of the parties, (5) exclude immaterial, irrelevant or repetitious evidence, (6) sequester witnesses, (7) 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 level three or level four hearing shall be recorded by mechanical means, and all recorded testimony and evidence at such hearing shall be transcribed and certified by affidavit. The chief administratorshall be responsible for promptly providing a copy of the certified transcript of a level three hearing to any party to that hearing who requests such 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. The board shall be responsible for promptly providing a copy of the certified transcript of a level four hearing to any party to that hearing who requests such transcript.
Formal rules of evidence shall not be applied, but parties shall be bound by the rules of privilege recognized by law. No employee shall be compelled to testify against himself or herself in a grievance involving disciplinary action. The burden of proof shall rest with the employer in disciplinary matters.
All materials submitted in accordance with section three of this 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 decision any party may propose findings of fact and conclusions of law.
§29-6A-7. Enforcement and reviewability; costs; good faith.

The decision of the hearing examiner shall be final upon the parties: and shall be enforceable in circuit court Provided, That either party or the division of personnel state civil service commission 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 a lawfully adopted rule, regulation or written policy of the employer, (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 either party may seek a review of the decision of the hearing examiner pursuant to the provision of subsection (e) of section four of this article in lieu of any appeal to circuit court. Such Any appeal to a circuit court shall be filed 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, with or without findings of law or fact by the court, to the appropriate chief administrator, to the relevant hearing examiner, or to the board for further proceedings consistent with the rulings of the court.
Both employer and employee shall at all times act in good faith and make every possible effort to resolve disputes at the lowest level of the grievance procedure. The hearing examiner may make a determination of bad faith and in extreme instances allocate the cost of the hearing to the party found to be acting in bad faith. Such allocation of costs shall be based on the relative ability of the party to pay such costs.

NOTE: The purpose of this bill is to reform various provisions of the code related to the division of personnel and the grievance process.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.