COMMITTEE SUBSTITUTE
FOR
H. B. 2585
(By Delegates Staton, Seacrist, Farris, Manuel and Hunt)
(Originating in the House Committee on the Judiciary)
[March 1, 1995]
A BILL to amend and reenact section ten, article six, chapter
twenty-nine of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to the
consideration of public employees' levels of seniority as
a factor when awarding benefits or withdrawing benefits
under the classified service.
Be it enacted by the Legislature of West Virginia:
That section ten, article six, chapter twenty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 6. CIVIL SERVICE COMMISSION.
ยง29-6-10. 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. The position classification plan
for classified-exempt service shall become effective not later
than the first day of July, one thousand nine hundred seventy-
nine. 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 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. In filling vacancies an effort should be made to
achieve a balance between promotion from within the service and
the introduction into the service of qualified new employees.
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.
(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: 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 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. 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 and
regulations 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.