To the Editor:

In recent months, there has been much controversy regarding SB 330, which was passed during the 2011 Legislative Session. Much of the information being circulated in the media is inaccurate. I would like to take this time to provide a more expansive view of SB 330 – its background, goals and implementation.

Background

In 2005, the Legislature passed SB 603, which included a provision requiring a study of higher education personnel. The bill directed the Policy Commission staff to examine issues related to employee compensation, classification, and job evaluation methodologies; review and analyze the existing data; and make recommendations for changes to the personnel system in order to establish a state-wide, integrated human resources structure. The report and recommendations were due to the Legislature by December 1, 2008.

In 2009, the Joint Committee on Government and Finance created the Select Committee on Higher Education Personnel to receive the data and recommendations and to prepare legislation for introduction in 2010. That bill became SB 480 which was passed by the Senate and the House in slightly differing versions. An agreement was reached in conference, but due to a clerical error in the Conference Committee Report, the bill was technically flawed and could not be enrolled.

SB 330 was drafted from the conference committee report on SB 480 in 2010. However, SB 480 did not contain the amendments to §18B-12, Research and Development Agreements for State Institutions of Higher Education (Research Corporations) nor certain provisions that would have given greater control to the Policy Commission to review academic programs at the institutions.

Summary of SB 330

SB 330 updates the higher classification and compensation system; creates the vice chancellor for human resources and certain related staff positions; outlines staff responsibilities and provides for training and professional development for employees engaged in human resources administration.

The bill provides additional operational flexibility and accountability for baccalaureate institutions and community and technical colleges; clarifies and enlarges certain higher education goals, objectives, and priorities; reorganizes personnel-related statutes, repeals obsolete provisions clarifies institution names; and makes general language clean up changes.

Specific provisions include the following: Requires Commission and Council to contract with external vendor for an initial human resources review of each high ed organization by October 1, 2011; limits percentage of non-classified employees to 20% of total of classified and non-classified employees at the organization by July 1, 2015 and provides an exception allowing institutions to move to 25% with approval of governing boards and Commission or Council. The provision allowing additional 5% sunsets in five years; requires organizations that have not reached full funding to apply all funds for classified employee salary increases toward funding the schedule and prohibits organizations that have not achieved full funding or are not making appropriate progress toward achieving it from providing discretionary raises to any other employees, except those mandated by law or provided by Legislature, until the salary schedule is fully funded; establishes Job Classification Committee and Compensation Planning and Review Committee representing all constituency groups to assist in classification and compensation decision making; Requires Commission and Council to promulgate joint legislative rule (or rules) and going emergency rule (or rules) to be filed with LOCEA by November 1, 2010 to implement provisions of bill and prohibits implementation of emergency rule prior to LOCEA approval; require chancellors to review and approve or disapprove rules for each organization under his/her respective jurisdiction, except for MU and WVU, to assure compliance with law, rules, and established state goals, objectives, and priorities. MU & WVU are required to file rules for review and comment and publish comments as part of their minute record; assigns primary responsibility for implementing human resources provisions jointly to Commission and Council who are required to provide assistance to human resources departments in each organization to bring about proposed changes; extends to all institutions, if approved by Commission or Council, operational flexibility currently given to MU and WVU. These flexibilities provide greater discretion in purchasing; in filing requisitions with the auditor electronically in filing requirements to receive compensation or expense reimbursement in participating in the computer & computer equipment donation program; in hiring campus police officers and handling parking violations; in disposing of obsolete and unusable equipment and in use of purchasing cards; requires an annual report card beginning 12/1/2013 containing specific data on human resources; and with approval of Policy Commission, authorizes Marshall University to increase amount of funds invested with its foundation from $18 million to $30 million and West Virginia University to increase from $25 million to $40 million; removes language capping investments at 65% of unrestricted net assets; and requires that each governing board under the jurisdiction of the Commission reach a graduation rate equal to or exceeding the graduation rate of its peers by July 1, 2015.

Rule-making in West Virginia and Implementation of SB 330

West Virginia is a “rules” state, meaning that state agencies, with a few very specific exceptions spelled out in Code, must conduct business within full view of the public and according to rules promulgated under a delegation of authority from the Legislature. As citizens, part-time legislators, we frequently must deal with areas where it is impractical for us to apply the level of detail or expertise required to establish complete standards. In such cases, these are delegated to the agencies which flesh out the legislative mandate by adopting a rule that adds implementation detail and industry or sector expertise, provides flexibility to tailor standards to differing circumstances, develops consensus among stakeholders, and adds transparency to agency policy development.

The WV Administrative Procedures Act (1982) sets forth the frame work under which all rules are to be promulgated. The Act provides “a plan for the systematic preparation, public consideration, orderly promulgation, preservation and public availability of the body of law, policy and administrative decisions ….” (§29A-1-1). §29A-3A-1 et. seq. (1988) provides the administrative procedures to be followed when the state-wide higher education boards propose rules. It is important to remember that properly adopted agency rules have the force of law, so when a statute delegates rule-making authority, the Legislature is granting the agency authority to make law. Agencies have such authority only to the extent that the Legislature grants it. Historically, the courts have invalidated agency rules that exceed or conflict with the legislative delegation of rule-making authority as well as agency attempts to set policy without following rule-making procedures. Agencies which fail to adopt rules as directed by statute, are acting outside the scope of their authority when carrying out policy in the absence of a properly adopted rule.

Current Status of Implementing SB 330

As you can see from the forgoing discussion, SB 330 is a comprehensive Bill that covers more than the issues that have been raised recently in local media. To date, $100,000 has paid under contract. Conversations are still ongoing between the parties involved, who are working to ascertain the data that can be utilized in moving forward.

The West Virginia Higher Education Policy Commission and Community and Technical Community Council of West Virginia are the agencies charged with implementation of SB 330. The Commission and Council missed multiple deadlines, despite requests for extensions being denied. In short, we have been waiting for action, and, to date, there has been very little.

While I am disappointed in the delay in the timely implementation of portions of SB 330, I believe that the bill is set on solid policy grounds and look forward to seeing its effects in the near future. After the studies have been made, I, as Chair of the Senate Education Committee, am more than happy to propose whatever changes need to be made to correct any flaws, if they exist.

 

Respectfully Yours,

Senator Robert H. Plymale

Chair, Senate Education Committee, 2002-Present

 

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