Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home

Introduced Version Senate Bill 394 History

   |  Email


ole.gif

Senate Bill No. 394

(By Senators Wills, Kirkendoll, Klempa, McCabe, Minard, Palumbo, Tucker, Williams, K. Facemyer, Nohe, Plymale, Foster and Beach)

____________

[Introduced January 24, 2012; referred to the Committee on the Judiciary.]

____________

 

 

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-30-1, §5-30-2, §5-30-3, §5-30-4, §5-30-5, §5-30-6, §5-30-7 and §5-30-8; to amend said code by adding thereto a new section, designated §7-1-16; and to amend and reenact §8-5-10 of said code, all relating to procedures for the transfer of power when certain elected officials are unable to fulfill the duties of their office; creating a procedure for the transfer of power due to disability or unavailability of the elected members of the Board of Public Works; requiring designation of chain of succession and waiver of HIPAA rights for certain elected officials; creating the disability evaluation panel; declaring procedures for voluntary temporary transfer of power and involuntary transfer of power; defining the process for reevaluation of findings by the disability evaluation panel; establishing procedures for declaration of unavailability; requiring that certain determinations be published in the State Register; providing for review of the disability evaluation panel’s determinations by the Supreme Court of Appeals of West Virginia; directing the Supreme Court to create procedural rules pertaining to the review; requiring continuation of salary and insurance for certain disabled and unavailable elected officials; requiring counties to create a procedure for the transfer of power due to disability or unavailability; and requiring municipalities to create a procedure for the transfer of power due to disability or unavailability.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5-30-1, §5-30-2, §5-30-3, §5-30-4, §5-30-5, §5-30-6, §5-30-7 and §5-30-8; that said code be amended by adding thereto a new section, designated §7-1-16; and that §8-5-10 of said code be amended and reenacted, all to read as follows:

CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,

SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD

OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,

OFFICES, PROGRAMS, ETC.

ARTICLE 30. DISABILITY OF GOVERNOR; ELECTED CONSTITUTIONAL                   OFFICERS; MEMBERS STATE SENATE AND                   HOUSE OF DELEGATES.

§5-30-1. Definitions.

    (a) As used in this article, the terms “disabled” or “disability” mean the inability of the official to exercise and discharge the powers and duties of the office due to any medically determinable physical or mental/psychological impairment or a combination of physical and mental/psychological impairments.

    (b) As used in this article, the terms “unavailable” or “unavailability” mean the inability of the official to exercise and discharge the powers and duties of the office for any reason other than disability.

§5-30-2. Designation of chain of succession during disability or unavailability; requiring waiver of HIPAA upon taking office.

    (a) If the Governor becomes disabled or unavailable, then the individual who performs the actions of the Governor during the disability or unavailability is determined by article VII, section sixteen of the West Virginia Constitution.

    (b) The Secretary of State, Treasurer, Auditor, Attorney General and Commissioner of Agriculture shall, upon taking office, provide written authorization to the Office of the Secretary of State naming an employee or a series of employees who will assume the duties of the office in the event the elected official is unable to fulfill his or her duties due to disability or unavailability. The elected official may change his or her designated replacement at any time, by providing a new written authorization to the Office of the Secretary of State.

    (c) The Governor, Secretary of State, Treasurer, Auditor, Attorney General and Commissioner of Agriculture shall, upon taking office, provide written authorization to the Office of the Secretary of State authorizing the release of any medical records requested by the disability evaluation panel created in section three of this article. The authorization shall be made in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, on a form created by the Office of the Attorney General.

§5-30-3. Disability evaluation panel.

    (a) There is hereby created a disability evaluation panel consisting of the following three members or his or her designee: the Dean of West Virginia University Robert C. Byrd Health Sciences Center School of Medicine, the Dean of the West Virginia School of Osteopathic Medicine, and the Dean of Marshall University Joan C. Edwards School of Medicine. If a dean is not a physician, or is unable to fulfill the duties imposed by this section, he or she shall name a designee who is a licenced physician affiliated with the school he or she is representing on the panel.

    (b) The disability evaluation panel shall meet only when the requirements of this article are met. Meetings of the disability evaluation panel are not subject to chapter six, article nine-A of this code. Except for the panel’s recommendation, records of the panel are not subject to disclosure under chapter twenty-nine-b, article one of this code.

§5-30-4. Temporary transfer of power voluntarily.

    (a) The Governor, Secretary of State, Treasurer, Auditor, Attorney General or Commissioner of Agriculture may, at any time, declare that he or she expects to be temporarily disabled or unavailable for a period of time and will not be able to discharge the duties of the office during that period of time.

    (b) In order to take the action stated in subsection (a) of this section, the elected official shall submit a letter to the Board of Public Works, indicating the date and time that the period of disability or unavailability will commence, and an estimate of the length of time during which he or she will be disabled or unavailable. The letter shall then be printed in the State Register and submitted to the President of the Senate and the Speaker of the House. The Office of the Secretary of State shall notify the person who will temporarily fulfill the elected official’s duties, as established pursuant to section two of this article. The notice shall take place within twenty-four hours by certified mail and any other reasonable means to effectuate earlier notice.

    (c) Upon the date and time specified by the letter required by subsection (b) of this section, the elected official shall be deemed temporarily disabled or unavailable and another person shall fulfill the duties of that elected official’s office during the period of disability or unavailability. If the elected official declaring temporary disability or unavailability is the Governor, then the person next in line of succession shall act as Governor pursuant to the provisions of article VII, section sixteen of the West Virginia Constitution. If the elected official declaring temporary disability or unavailability is the Secretary of State, Treasurer, Auditor, Attorney General or Commissioner of Agriculture, then the employee designated by the elected official pursuant to section two of this article shall execute the duties of the office.

    (d) Upon the elected official’s declaration that the period of disability or unavailability has ended by letter to the Board of Public Works, the person acting as Governor or the employee designated by the elected official shall immediately cease to perform those duties and the elected official shall resume performance of the duties of the office. The letter shall then be printed in the State Register and submitted to the President of the Senate and the Speaker of the House.

§5-30-5. Involuntary transfer of power.

    (a) The Board of Public Works may meet at any time to consider the disability or unavailability of the Governor, Secretary of State, Treasurer, Auditor, Attorney General or Commissioner of Agriculture at the request of any member of the Board of Public Works. The Board of Public Works shall meet within five business days of a call for an inquiry into the unavailability or suspected disability of a member of the Board of Public Works jointly made by the President of the Senate and the Speaker of the House. If disability is at issue, the procedure set forth in this section to convene the disability evaluation panel shall be followed. If unavailability is at issue, the Board of Public Works may discuss the matter and hold a vote whereby unavailability can only be concluded by unanimous decision of all Board of Public Works members, excluding the member whose unavailability is being discussed, that the Governor, Secretary of State, Treasurer, Auditor, Attorney General or Commissioner of Agriculture is unavailable. If the Board of Public Works makes a unanimous decision of unavailability, the decision shall be printed in the State Register and submitted to the President of the Senate and the Speaker of the House. The elected official is then deemed unavailable and the replacement and return of the elected official to full duties shall be governed by section four of this article, as if the action was taken voluntarily.

    (b) The disability evaluation panel created in section three of this article may only be convened upon a written request by a majority of the Board of Public Works, except as noted in section six of this article. A request for an evaluation of the Governor, Secretary of State, Treasurer, Auditor, Attorney General or Commissioner of Agriculture by the disability evaluation panel must indicate that the persons making the request believe that the official is suffering from a disability for a continuous period in excess of twenty days. The written request shall be sent by certified mail to each member of the disability evaluation panel.

    (c) As soon as possible, but no later than three days after the disability evaluation panel is requested to meet, the panel shall meet to discuss whether the elected official is disabled, either temporarily or permanently, for a continuous period in excess of twenty days. The members of the panel shall conduct a physical or mental/psychological examination or, if appropriate, both a physical and mental/psychological examination of the elected official as soon as practicable, but no later than five calendar days after the meeting.

    (d) The disability evaluation panel is authorized to receive medical information from every available source necessary to reach a decision. Notwithstanding any provision of this code to the contrary, all medical records pertaining to the elected official being evaluated pursuant to this section shall be released to the panel within five business days of receipt of a written request from the panel. Release of the requested medical records to the panel will be conducted in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, pursuant to the authorization obtained under subsection (c) of section two of this article.

    (e) The disability evaluation panel shall make a determination that an elected official is disabled for a continuous period in excess of twenty days by unanimous vote only. If the panel unanimously concludes that the elected official is not disabled or if the panel is unable to reach a unanimous decision, then the panel shall send a written statement containing that result to the Board of Public Works. If the panel finds, by unanimous vote, that the elected official is disabled for a continuous period in excess of twenty days, then the panel shall designate whether the inability of the elected official to fulfill his or her duties will be temporary or permanent, as follows:

    (1) If the panel designates the disability as temporary, the panel shall give written notice of its conclusion to the Board of Public Works, along with an estimate of the date when the temporary disability will end. The conclusion shall be printed in the State Register and submitted to the President of the Senate and the Speaker of the House. The Office of the Secretary of State shall notify the person who will temporarily fulfill the disabled elected official’s duties, as established pursuant to section two of this article. The notice shall take place within twenty-four hours by certified mail and any other reasonable means to effectuate earlier notice. The elected official deemed temporarily disabled may appeal that decision to the Supreme Court of Appeals of West Virginia within five business days, pursuant to section seven of this article.

    (2) If the panel designates the disability as permanent, meaning that it will prevent the elected official from performing his or her duties for the remainder of his or her term of office, then the panel shall give written notice of its conclusion to the Board of Public Works. The conclusion shall be printed in the State Register and submitted to the President of the Senate and the Speaker of the House. The conclusion is automatically appealed to the Supreme Court of Appeals of West Virginia and the panel shall recommend that the Supreme Court declare the office vacant, pursuant to section seven of this article. The elected official deemed permanently disabled may submit additional information or argument in response to the recommendation, pursuant to section seven of this article.

§5-30-6. Reevaluation of finding of temporary disability.

    (a) If the disability evaluation panel determines that an elected official is temporarily disabled, pursuant to section five of this article, reevaluation of the elected official, shall occur as follows:

    (1) The elected official who has been found to be disabled may request, no more often than once every three months, that the disability evaluation panel be convened for the purpose of determining whether the elected official is no longer disabled and is able to discharge the duties of the office. The panel shall meet and reexamine the elected official to determine whether he or she remains unable to discharge the duties of the office, following the same procedure set forth in subsections (c) and (d) of section five of this article, and reaching a determination as set forth in subsection (b) of this section.

    (2) Upon the passage of the estimated date that the temporary disability will end, as listed by the disability evaluation panel on its conclusion to the Board of Public Works, the panel shall meet and reexamine the elected official to determine whether he or she remains unable to discharge the duties of the office, following the same procedure set forth in subsections (c) and (d) of section five of this article with the estimated date treated as a request to meet, and reaching a determination as set forth in subsection (b) of this section.

    (b) Upon a reevaluation of an elected official previously deemed to have a temporary disability by the panel, as set forth in subsection (a) of this section, the panel may find that the elected official is no longer disabled and is able to discharge the duties of the office by unanimous vote only. If the panel finds that the elected official is no longer disabled, the panel shall send a written statement containing its conclusion to the Board of Public Works; and the conclusion shall be printed in the State Register and submitted to the President of the Senate and the Speaker of the House. The person acting as Governor or the employee designated by the elected official to fulfill the duties of the office shall immediately cease to perform those duties and the elected official shall resume performance of the duties of the office. If the panel is unable to come to a unanimous decision, then the panel shall designate by majority vote whether the inability of the elected official to fulfill his or her duties remains temporary or has become permanent. In doing so, the panel shall follow the procedure set forth in either subdivision (1) or (2) of subsection (e) of section five of this article.

§5-30-7. Review by the Supreme Court of Appeals.

    (a) When an elected official is determined to be temporarily disabled, pursuant to section five of this article, the official may file an appeal of that decision directly with the Supreme Court of Appeals of West Virginia within five business days of the determination.

    (b) When an elected official is determined to be permanently disabled, pursuant to section five of this article, the determination is automatically appealed to the Supreme Court of Appeals of West Virginia.

    (c) Upon either a direct appeal or an automatic appeal to the Supreme Court of Appeals of West Virginia, as stated in this section, the disability evaluation panel shall submit its recommendation along with all of the records and other information used by the panel to make its determination and a written explanation of the panel’s findings supporting the recommendation to the Supreme Court of Appeals and the elected official determined to be disabled within two business days of the direct or automatic appeal.

    (d) The elected official determined to be disabled may submit additional information or argument in support of his or her opinion that he or she is not disabled within two business days of the submission by the disability evaluation panel.

    (e) The Supreme Court of Appeals shall immediately take the issue up for consideration and issue a decision either affirming the determination, modifying a permanent disability to a temporary disability, or reversing the determination of the disability evaluation panel that the elected official is disabled. The decision shall be made within fourteen days of receipt of the submission by the disability evaluation panel or any additional information or argument submitted pursuant to this section. If the Supreme Court of Appeals affirms a determination of permanent disability, then the Supreme Court of Appeals shall declare the office vacant and it shall be filled pursuant to chapter three, article ten of this Code. The decision of the Supreme Court is not appealable.

    (f) The Supreme Court shall establish rules of procedure for the review of a determination by the disability evaluation panel.

§5-30-8. Continuation of salary and insurance.

    Pursuant to the provisions of this article, an elected official who declares himself or herself disabled or unavailable or is found to be disabled or unavailable shall continue to receive the salary of the office and be eligible to participate in the public employees insurance and retirement programs, unless the office is declared vacant by the Supreme Court of Appeals. If the office is declared vacant, the elected official shall no longer receive the salary of the office, but shall continue to be eligible to participate in the public employees insurance and retirement programs, as if they completed the term of office without intervention.

CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 1. COUNTY COMMISSIONS GENERALLY.

§7-1-16. Disability and unavailability of elected officials.

    In addition to all other powers and duties now conferred by law upon county commissions, the county commission of each county is authorized, empowered and required to either adopt an ordinance, promulgate a rule, or create by other official means, a process to determine when an elected county official is disabled or unavailable, as those terms are defined in chapter five, article thirty of this code. The county commission shall use the process outlined in chapter five, article thirty of this code, to the extent applicable, as an example of a process to determine disability or unavailability of an elected official and, under the proper circumstances, declare an elected office vacant.

CHAPTER 8. MUNICIPAL CORPORATIONS

ARTICLE 5. ELECTION, APPOINTMENT, QUALIFICATION AND COMPENSATION OF OFFICERS; GENERAL PROVISIONS RELATING TO OFFICERS AND EMPLOYEES; ELECTIONS AND PETITIONS GENERALLY; CONFLICT OF INTEREST.

§8-5-10. Vacancies in elective offices; how filled.

    All municipalities shall create, either in the charter, by ordinance, or by other official means, a process to determine when an elected municipal official is disabled or unavailable, as those terms are defined in chapter five, article thirty of this code. The municipality shall use the process outlined in chapter five, article thirty of this code, to the extent applicable, as an example of a process to determine disability or unavailability of an elected official and, under the proper circumstances, declare an elected office vacant. Unless otherwise provided by charter provision or ordinance, when a vacancy shall occur from any cause in any municipal elective office, the vacancy, until the next succeeding regular municipal election and until the qualification of an elected successor, shall be filled by appointment by the governing body from among the residents of the municipality eligible under this article.


    NOTE: The purpose of this bill is to create a procedure by which the Governor or other elected member of the Board of Public Works can declare themselves disabled or unavailable or be found disabled or unavailable. The bill also includes process for performing these determinations and appealing the determinations. Finally, the bill requires municipalities and counties to provide a procedure for determining whether elected officials are disabled or unavailable.



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


    Chapter 5, Article 30 is new, therefore, strike-throughs and underscoring have been omitted. §7-1-16 is new, therefore strike-throughs and underscoring have been omitted.


    This bill was recommended for introduction and enactment by the Joint Judiciary Committee.

This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature **