H. B. 2225
(By Delegates Fleischauer and Pino)
[Introduced February 13, 2013; 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.
Article 30 is new, therefore, it has been completely
underscored.
§7-1-16 is new, therefore, it has been completely
underscored.