(1) "Appointing officer" or "appointing sheriff" shall mean the sheriff of the county in which the appointment of a correctional officer shall be made pursuant to this article; and
(2) "Correctional officer" shall mean persons appointed by a sheriff whose sole duties as such correctional officer are within the scope of active operation and management of the county jail.
(b) For the purpose of this article, population shall be determined by reference to the last preceding census taken under the authority of the United States or of the Legislature of West Virginia.
There shall be a civil service commission in each county having a population of twenty-five thousand or more. Each such civil service commission shall consist of five commissioners, two of whom shall be appointed by the bar association of such county, one of whom shall be appointed by the correctional officer association of such county, and two of whom shall be appointed by the county commission of such county. In the event the bar association or correctional officer association shall fail to make an appointment within the time prescribed in this section therefor, then such appointment shall be made by the county commission. The persons appointed commissioners shall be qualified voters of the county for which they are appointed, and at least three of the commissioners shall be persons in full sympathy with the purposes of this article. Not more than three of the commissioners, at any one time, shall be members of the same political party. The commissioners in each county shall be appointed as follows: Within sixty days from the effective date of this article, the authorities having the power to appoint members to the civil service commission shall appoint the five commissioners, the first two to be appointed by the bar association of the county shall serve for six years from the date of his appointment, the one to be appointed by the correctional officer association of the county shall serve for four years from the date of his appointment, and the two to be appointed by the county commission of the county shall serve for a term of two years from the date of his appointment. All subsequent appointments shall be made for terms of six years. In the event that any commissioner of the civil service commission shall cease to be a member thereof by virtue of death, final removal or other cause, a new commissioner shall be appointed to fill the unexpired term of that commissioner within ten days after said ex-commissioner shall have ceased to be a member of the commission. Such appointment shall be made by the authority who appointed the commissioner who is no longer a member of the commission. Each year the members of the commission shall, together, elect one of their number to act as president of the commission for a term of one year. The county commission may at any time remove a commissioner for good cause, which shall be stated in writing and made a part of the records of the commission: Provided, That once the county commission has removed any commissioner, such county commission shall within ten days thereafter file in the office of the clerk of the circuit court of the county a petition setting forth in full the reason for the removal and praying for the confirmation of the circuit court of the action of the county commission in removing the said commissioner. A copy of the petition shall be served upon the commissioner so removed simultaneously with its filing in the office of the clerk of the circuit court and shall have precedence on the docket of the circuit court and shall be heard by the court as soon as practicable upon the request of the removed commissioner. All rights hereby vested in the circuit court may be exercised by the judge thereof in vacation. In the event that no term of the circuit court is being held at the time of the filing of the petition, and the judge thereof cannot be reached in the county wherein the petition was filed, the petition shall be heard at the next succeeding term of the circuit court, whether regular or special, and the commissioner so removed shall remain removed until a hearing is had upon the petition of the county commission. The circuit court, or the judge thereof in vacation, shall hear and decide the issues presented by the petition. The county commission or commissioner, as the case may be, against whom the decision of the circuit court or judge thereof in vacation shall be rendered shall have the right to petition the supreme court of appeals for a review of the decision of the circuit court or the judge thereof in vacation as in other civil cases. In the event that the county commission shall fail to file its petition in the office of the clerk of the circuit court, as hereinbefore provided, within ten days after the removal of the commissioner, such commissioner shall immediately resume his position as a member of the civil service commission.
Any resident of the county shall have the right at any time to file charges against and seek the removal of any member of the civil service commission. The charges shall be filed in the form of a petition in the office of the clerk of the circuit court of the county. A copy of the petition shall be served upon the commissioner sought to be removed. The petition shall be matured for hearing and heard as a civil action by the circuit court of the county for which the commissioner serves as a member of the civil service commission or by the judge thereof in vacation. The party against whom the decision of the circuit court or judge thereof in vacation shall be rendered shall have the right to petition the supreme court of appeals for a review of the decision of the circuit court or judge thereof in vacation as in other civil cases.
No commissioner shall hold any other office (other than the office of notary public) under the United States, this state, or any municipality, county or other political subdivision thereof; nor shall any commissioner serve on any political party committee or take any active part in the management of any political campaign.
The county commission of each such county is hereby required to appropriate sufficient funds for the purpose of carrying out the provisions of this article.
(1) Promulgate and enforce rules and regulations for carrying into effect the provisions of this article. All rules and regulations so prescribed may, from time to time, be added to, amended or rescinded.
(2) Keep minutes of its own proceedings and records of its examinations and other official actions. All recommendations of applicants for the position of correctional officer received by the commission or by the sheriff shall be kept and preserved for a period of ten years, and all such records, recommendations of former employees excepted, and all written causes of removal, filed with the commission, shall, subject to reasonable rule and regulation, be open to public inspection.
(3) Make investigations, either sitting as a body or through a single commissioner, concerning all matters touching the enforcement and effect of the provisions of this article and the rules and regulations promulgated hereunder or concerning the action of any examiner or subordinate of the commission or any person in the public service with respect to the execution of this article; and, in the course of such investigations, each commissioner shall have the power to administer oaths and affirmations and to take testimony.
(4) Have power to subpoena and require the attendance of witnesses and the production of books and papers pertinent to the investigations and inquiries herein authorized, and examine them and such public records as it shall require in relation to any matter which it has the authority to investigate. The fee of such witness for attendance and travel shall be the same as for witnesses before the circuit courts of this state and shall be paid from the appropriation for the incidental expenses of the commission. All officers in the public service and their deputies, clerks, subordinates and employees shall attend and testify when required to do so by the commission. Any disobedience to, or neglect of, any subpoena issued by the commissioners, or any one of them, to any person, shall be held a contempt of court, and shall be punished by the circuit court of the county in which the civil service commission is located, or the judge thereof in vacation, as if such subpoena has been issued by the court. The judge of the circuit court shall, upon the application of any one commissioner, in any such case, cause the process of that court to issue to compel any person or persons disobeying or neglecting any such subpoena to appear and to give testimony and produce evidence before the commissioner, or any one of them, and shall have the power to punish any such contempt.
(5) Prepare a position classification and promotion plan.
(6) Make an annual report to the county commission and sheriff showing its own actions, its rules and regulations, including all exceptions thereto in force, and the practical effects thereof, and any suggestions it may have for the more effectual accomplishment of the purposes of this article. Such report shall be available for public inspection five days after it shall have been delivered to the county commission and sheriff.
(1) His full name, residence and post-office address;
(2) His United States citizenship, age and the place and date of his birth;
(3) His health and his physical capacity for the position of correctional officer;
(4) His business, employments and residences for at least three previous years; and
(5) Such other information as may reasonably be required, relative to the applicant's qualifications and fitness for the position of correctional officer.
Blank forms for such applications shall be furnished by the commission, without charge, to all persons requesting the same. The commission may require, in connection with the application, such certificates of citizens, physicians or others, having pertinent knowledge concerning the applicant, as the good of the service may require.
No application for original appointment shall be received on and after the effective date of this article, if the person applying is less than eighteen years of age at the date of his application: Provided, That in the event any applicant formerly served as a correctional officer for a period of more than one year in the county to which he makes application, and resigned as a correctional officer at a time when there were no charges of misconduct or other misfeasance pending against him, within a period of two years preceding the date of his application, and at the time of his application resides within the county in which he seeks appointment by reinstatement, then such applicant shall be eligible for appointment by reinstatement in the discretion of the civil service commission provided he is not sixty-five years of age or over, and such applicant, providing his former term of service as a correctional officer so justifies, may be reappointed by reinstatement without a competitive examination, but such applicant shall undergo a medical examination; and if such applicant shall be so appointed by reinstatement as aforesaid, he shall be the lowest in rank in the jail next above the probationers of the office.
Adequate public notice of the date, time and place of every competitive examination held under the provisions of this article, together with information as to the position to be filled, shall be given at least two weeks prior to such competitive examination. The civil service commission in each county shall adopt reasonable rules and regulations for permitting the presence of representatives of the press at any such competitive examinations. Such commission shall post, in a public place at its office, the eligible list, containing the names and grades of those who have passed such competitive examinations for positions as correctional officer, under this article, and shall indicate thereon such appointments as may be made from said list.
All applicants for appointment or promotion to any position as a correctional officer in any such county who have passed the competitive examination specified above shall, before being appointed or promoted, undergo a medical examination which shall be conducted under the supervision of a board composed of two doctors of medicine appointed for such purpose by the sheriff of the county. Such board must certify that an applicant is free from any bodily or mental defects, deformity or diseases which might incapacitate him from the performance of the duties of the position desired and is physically fit to perform such duties before said applicant shall be appointed or promoted to any position. Notwithstanding the first sentence of this paragraph, in the event the commission deems it expedient, the medical examination may be given prior to the competitive examination, and if the medical examination is not passed as aforesaid, the applicant shall not be admitted to the competitive examination.
All correctional officers who are employed as correctional officers on the effective date of this article, shall be considered to have been appointed under the provisions of this article without regard to their age, and without competitive examination or medical examination, and shall hold their positions in accordance therewith for one year from the effective date of this article. The civil service commission shall, however, establish or prescribe a training program for correctional officers who are employed as such on the effective date of this article, giving due consideration to available training personnel and programs. Such correctional officers shall complete a two-hundred-hour basic correctional officer's training course as certified by the West Virginia department of corrections within a twelve-month period following appointment.
However, persons who have (1) completed a basic correctional officers training course or equivalent within the past three years prior to appointment or (2) who have been employed as a correctional officer in a jail for three years out of the last five years prior to appointment may be certified as correctional officers without basic training if in the judgment of the commission such persons are otherwise qualified. A correctional officer failing to qualify under the provisions of this paragraph may be continued in his position at the discretion of the sheriff but in no event for a period of more than one year. Such person may be reexamined at the discretion of the civil service commission of the county and may qualify as provided in this paragraph.
If any applicant feels aggrieved by the action of the commission in refusing to examine him, or after examination in refusing to certify him as eligible, the commission shall, at the request of such applicant, appoint a date, time and place for a public hearing, at which time the applicant may appear, by himself or by counsel or in person and with counsel, and the commission shall then review its refusal to make such examination or certification, and testimony shall be taken. The commission shall subpoena, at the expense of the applicant, any competent witnesses requested by him. After such review, the commission shall file in its records the testimony taken and shall make a decision, which decision shall be final and not subject to judicial review, but under no circumstances shall the provisions of this article be construed, in the case of a refusal to examine an applicant for promotion or to certify an applicant as eligible for promotion, as depriving such applicant of his right to seek a writ of mandamus, if the application for such writ is made within twenty days from the date of the decision (made after hearing as aforesaid) refusing to examine or to certify him as eligible for promotion.
(b) Any three residents of the county may file their written petition with the civil service commission thereof setting out therein the grounds upon which a correctional officer of such county should be removed for a violation of subsection (a) of this section. Notice of the filing of such petition shall be given by the commission to the accused correctional officer, which notice shall require him to file a written answer to the charges set out in the petition within thirty days of the date of such notice. The petition and answer thereto, if any, shall be entered upon the records of the civil service commission. If the answer is not filed within the time stated, or any extension thereof for cause which in the discretion of the civil service commission may be granted, an order shall be entered by the commission declaring the appointment of the correctional officer vacated. If such answer is filed within the time stated, or any extension thereof for cause which in the discretion of the civil service commission may be granted, the accused correctional officer may demand within such period a public hearing on the charges, or the civil service commission may, in its discretion and without demand therefor, set a date and time for a public hearing on the charges which hearing shall be within thirty days of the filing of said answer, subject, however, to any continuances which may in the discretion of the civil service commission be granted. A written record of all testimony taken at such hearing shall be kept and preserved by the civil service commission, which record shall be sealed and not be open to public inspection if no appeal be taken from the action of the commission. The commission at the conclusion of the hearing, or as soon thereafter as possible, shall enter an order sustaining in whole or in part the charges made, or shall dismiss the charges as unfounded. In the event that charges are sustained in whole or in part, the order shall also declare the appointment of such correctional officer to be vacated and thereupon the sheriff shall immediately remove the correctional officer from his office and from the payroll of the county. Notice of the action of the commission shall be given by registered letter to the county commission and the sheriff. If the sheriff fails to immediately comply with the order of the commission, he shall be punished for contempt, upon application of the commission to the circuit court of the county.
(c) An appeal from the ruling of the commission may be had in the same manner and within the same time as specified in section seventeen of this article for an appeal from a ruling of a commission after hearing held in accordance with the provisions of said section seventeen.
(b) The civil service commission of any such county shall also establish or prescribe retraining programs of at least sixteen hours which every correctional officer, whether such correctional officer was first appointed before or after the effective date of this article, must satisfactorily complete annually after the effective date of this article, in order to continue as a correctional officer of such county.
(b) In the event the civil service commission sustains the action of the sheriff, the correctional officer has an immediate right of appeal to the circuit court of the county. In the event that the commission reinstates the correctional officer, the sheriff has an immediate right of appeal to the circuit court. In the event either the sheriff or the correctional officer objects to the amount of the attorneys fees awarded to the correctional officer, the objecting party has an immediate right of appeal to the circuit court. Any appeal must be taken within ninety days from the date of entry by the civil service commission of its final order. Upon an appeal being taken and docketed with the clerk of the circuit court of the county, the circuit court shall proceed to hear the appeal upon the original record made before the commission and no additional proof may be permitted to be introduced. The circuit court's decision is final, but the correctional officer or sheriff, as the case may be, against whom the decision of the circuit court is rendered has the right to petition the supreme court of appeals for a review of the circuit court's decision as in other civil cases. The correctional officer or sheriff also has the right, where appropriate, to seek in lieu of an appeal, a writ of mandamus. The correctional officer, if reinstated or exonerated by the circuit court or the supreme court of appeals, shall, if represented by legal counsel, be awarded reasonable attorney fees as approved by the court and the fees shall be paid by the sheriff from county funds.
(c) The removing sheriff and the correctional officer shall at all times, both before the civil service commission and upon appeal, be given the right to employ counsel to represent them.
(d) If for reasons of economy or other reasons it is deemed necessary by any appointing sheriff to reduce the number of his or her correctional officers, the sheriff shall follow the procedure set forth in this subsection. The reduction in the numbers of the correctional officers of the county shall be effected by suspending the last person or persons, including probationers, who have been appointed as correctional officers: Provided, That in the event the number of correctional officers is increased in numbers to the strength existing prior to the reduction of correctional officers, the correctional officers suspended under the terms of this subsection shall be reinstated in the inverse order of their suspension before any new appointments of correctional officers in the county are made.
(e) Notwithstanding any other provision of this article to the contrary, no correctional officer in any county subject to the provisions of this article may serve as a correctional officer in any county subject to the provisions of this article after attaining the age of sixty-five years.
Each correctional officer shall only receive vacation time for each month in which he shall have worked one hour more than one half the normal working hours in a given month as prescribed by the sheriff.
Accrued vacation time may be carried forward from one calendar year to the next, in accordance with county policy.
(b) Sick leave shall be granted only when illness on the part of or injury to the correctional officer incapacitates him for duty: Provided, That the sheriff of the county in which the correctional officer is employed shall have the authority to require the correctional officer to produce a statement from an attending physician for each day of sick leave beyond two days. This statement shall include dates of treatment and also state that the correctional officer was unable to work. In the absence of the required physician's statement, annual leave shall be charged for the entire period.
(c) Correctional officers may accumulate yearly sick leave in accordance with policy to be established by the county commission.
(d) In the event of illness, a correctional officer may take emergency sick leave without pay after all accrued sick leave, annual leave and compensatory time available to such full-time correctional officer has been exhausted: Provided, That the total number of days sick leave and emergency sick leave used during such illness shall not exceed the total number of days of sick leave which may be accumulated under the provisions of subsection (c) of this section by any correctional officer with the same number of years of service.
Any commissioner or examiner, or any other person, who shall willfully, by himself or in cooperation with one or more persons, defeat, deceive or obstruct any person with respect to his right of examination or registration according to this article, or to any rules and regulations promulgated pursuant thereto, or who shall willfully or corruptly, falsely mark, grade, estimate or report upon such examination or proper standing of any person so examined, registered, or certified, pursuant to the provisions of this article, or aid in so doing, or who shall willfully or corruptly furnish to any person any special or secret information, for the purpose of either improving or injuring the prospects or chances of appointment or promotion to any position of any person so examined, registered or certified, or to be so examined, registered or certified; or who shall impersonate any other person, or permit or aid in any manner any other person to impersonate him, in connection with any examination or registration, or application or request to be examined or registered, shall, for each offense, be deemed guilty of a misdemeanor.
Any person convicted of any such misdemeanor offense shall be fined not less than fifty nor more than one thousand dollars, or imprisoned in the county jail not more than one year, or both fined and imprisoned, in the discretion of the court.
In the event fifteen percent of the qualified voters of such county protest such order, by petition duly signed by them in their own handwriting (which petition may be signed in any number of counterparts) and filed with the county clerk of such county within sixty days after publication of such copy and notice, such order shall not become effective unless and until it is ratified by a majority of the legal votes cast with respect to the question of civil service coverage for the correctional officers of such county by the qualified voters of such county at a regular or special election. Any such election shall be conducted and superintended and the results thereof ascertained as provided by law for regular or special elections, as the case may be.
Whenever the correctional officers of any county are placed under civil service pursuant to the provisions of this section, such civil service system for the correctional officers of such county shall thereupon become mandatory and all of the provisions of this article shall apply to the correctional officers of such county with like effect as if said county had a population of twenty-five thousand or more.
Any civil service system for correctional officers in any county with a population of twenty-five thousand or more shall remain mandatory and shall be governed by the provisions of this article even if the population of such county shall at any time decrease below twenty-five thousand.
Note: WV Code updated with legislation passed through the 2016 Regular Session
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