ENGROSSED
Senate Bill No. 496
(By Senators Tomblin, Mr. President, and Caruth, By Request of
the Executive)
________
[Introduced February 7, 2007; referred to the Committee on
Government Organization; and then to the Committee on Finance.]
________
A BILL to amend and reenact §29-6-10 and §29-6-14 of the Code of
West Virginia, 1931, as amended, all relating to the approval
of pay plans by the State Personnel Board of the Division of
Personnel for all employees in the classified-exempt service;
and requiring certification of classified-exempt payrolls by
the director.
Be it enacted by the Legislature of West Virginia:
That §29-6-10 and §29-6-14 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
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 or her 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 a pay plan for all employees in the classified-exempt
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 or her 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) (4)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) (5)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) (6)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) (7)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) (8)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)(7) 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) (9)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) (10)For a period of probation not to exceed one year
before appointment or promotion may be made complete within the
classified service.
(10) (11)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) (12)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) (13)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) (14)For such other rules and administrative regulations,
not inconsistent with this article, as may be proper and necessary
for its enforcement.
(14) (15)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.
§29-6-14. Certification of payrolls; wrongfully withholding
certification of payroll.
(a) No state disbursing or auditing officer shall make or
approve or take any part in making or approving any payment for
personal service to any person holding a position in the classified
service or classified-exempt service unless the payroll voucher or
account of such pay bears the certification of the director, or of
his or her authorized agent, that the persons named therein have
been appointed and employed in accordance with the provisions of
this article and the rules, regulations and orders thereunder. The
director may for proper cause withhold certification from an entire
payroll or from any specific item or items thereon. The director
may, however, provide that certification of payrolls may be made
once every six months and such certification shall remain in effect
except in the case of any officer or employee whose status has
changed after the last certification of his or her payroll. In the
latter case no voucher for payment of salary to such employee shall
be issued or payment of salary made without further certification
by the director.
(b) If the director wrongfully withholds certification of the
payroll voucher or account of any employee, such employee may maintain a proceeding in the courts to compel the director to
certify such payroll voucher or account.