Senate Bill No. 535

(By Senator Chafin)

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[Introduced March 22, 1993; referred to the Committee
on Education; and then to the Committee on Finance.]

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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 political party. 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.