FIRST REGULAR SESSION
HOUSE COMMITTEE SUBSTITUTE FOR
HOUSE BILL NO. 461
94TH GENERAL ASSEMBLY
Reported from the Special Committee on State Parks and Waterways April 5, 2007 with recommendation that House Committee Substitute for House Bill No. 461 Do Pass. Referred to the Committee on Rules pursuant to Rule 25(21)(f).
D. ADAM CRUMBLISS, Chief Clerk
To repeal sections 36.030, 36.031, 306.161, 306.163, and 650.005, RSMo, and to enact in lieu thereof ten new sections relating to the water patrol.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 36.030, 36.031, 306.161, 306.163, and 650.005, RSMo, are repealed and ten new sections enacted in lieu thereof, to be known as sections 36.030, 36.031, 306.161, 306.163, 306.227, 306.228, 306.229, 306.230, 306.232, and 650.005, to read as follows:
36.030. 1. A system of personnel administration based on merit principles and designed to secure efficient administration is established for all offices, positions and employees, except attorneys, of the department of social services, the department of corrections, the department of health and senior services, the department of natural resources, the department of mental health, the division of personnel and other divisions and units of the office of administration, the division of employment security, mine safety and on-site consultation sections of the division of labor standards and administration operations of the department of labor and industrial relations, the division of tourism and job development and training, the Missouri housing development commission, and the office of public counsel of the department of economic development, [the Missouri state water patrol,] the Missouri veterans commission, capitol police and state emergency management agency of the department of public safety, such other agencies as may be designated by law, and such other agencies as may be required to maintain personnel standards on a merit basis by federal law or regulations for grant-in-aid programs; except that, the following offices and positions of these agencies are not subject to this chapter and may be filled without regard to its provisions:
(1) Other provisions of the law notwithstanding, members of boards and commissions, departmental directors, five principal assistants designated by the departmental directors, division directors, and three principal assistants designated by each division director; except that, these exemptions shall not apply to the division of personnel;
(2) One principal assistant for each board or commission, the members of which are appointed by the governor or by a director of the department;
(3) Chaplains and attorneys regularly employed or appointed in any department or division subject to this chapter, except as provided in section 36.031;
(4) Persons employed in work assignments with a geographic location principally outside the state of Missouri and other persons whose employment is such that selection by competitive examination and standard classification and compensation practices are not practical under all the circumstances as determined by the board by rule;
(5) Patients or inmates in state charitable, penal and correctional institutions who may also be employees in the institutions;
(6) Persons employed in an internship capacity in a state department or institution as a part of their formal training, at a college, university, business, trade or other technical school; except that, by appropriate resolution of the governing authorities of any department or institution, the personnel division may be called upon to assist in selecting persons to be appointed to internship positions;
(7) The administrative head of each state medical, penal and correctional institution, as warranted by the size and complexity of the organization and as approved by the board;
(8) Deputies or other policy-making assistants to the exempt head of each division of service, as warranted by the size or complexity of the organization and in accordance with the rules promulgated by the personnel advisory board;
(9) Special assistants as designated by an appointing authority; except that, the number of such special assistants shall not exceed one percent of a department's total authorized full-time equivalent workforce;
(10) Merit status shall be retained by present incumbents of positions identified in this section which have previously been subject to this chapter.
2. All positions in the executive branch transferred to coverage pursuant to this chapter where incumbents of such positions have at least twelve months' prior service on the effective date of such transfer shall have incumbency preference and shall be permitted to retain their positions, provided they meet qualification standards acceptable to the division of personnel of the office of administration. An employee with less than twelve months of prior service on the effective date of such transfer or an employee who is appointed to such position after the effective date of such transfer and prior to the classification and allocation of the position by the division of personnel shall be permitted to retain his or her position, provided he or she meets acceptable qualification standards and subject to successful completion of a working test period which shall not exceed twelve months of total service in the position. After the allocation of any position to an established classification, such position shall thereafter be filled only in accordance with all provisions of this chapter.
3. The system of personnel administration governs the appointment, promotion, transfer, layoff, removal and discipline of employees and officers and other incidents of employment in divisions of service subject to this chapter, and all appointments and promotions to positions subject to this chapter shall be made on the basis of merit and fitness.
4. To encourage all state employees to improve the quality of state services, increase the efficiency of state work operations, and reduce the costs of state programs, the director of the division of personnel shall establish employee recognition programs, including a statewide employee suggestion system. The director shall determine reasonable rules and shall provide reasonable standards for determining the monetary awards, not to exceed five thousand dollars, under the employee suggestion system. Awards shall be made from funds appropriated for this purpose.
5. At the request of the senate or the house of representatives, the commissioner of administration shall submit a report on the employee suggestion award program described in subsection 4 of this section.
36.031. Any provision of law to the contrary notwithstanding, except for the elective offices, institutions of higher learning, the department of transportation, the department of conservation, those positions in the Missouri state highway patrol the compensation of which is established by subdivision (2) of subsection 2 of section 43.030, RSMo, and section 43.080, RSMo, those positions in the Missouri state water patrol the compensation of which is established by section 306.166, RSMo, those positions in the division of finance and the division of credit unions compensated through a dedicated fund obtained from assessments and license fees under sections 361.170 and 370.107, RSMo, and those positions for which the constitution specifically provides the method of selection, classification, or compensation, and the positions specified in subsection 1 of section 36.030, but including attorneys, those departments, agencies and positions of the executive branch of state government which have not been subject to these provisions of the state personnel law shall be subject to the provisions of sections 36.100, 36.110, 36.120 and 36.130, and the regulations adopted pursuant to sections 36.100, 36.110, 36.120 and 36.130 which relate to the preparation, adoption and maintenance of a position classification plan, the establishment and allocation of positions within the classification plan and the use of appropriate class titles in official records, vouchers, payrolls and communications. Any provision of law which confers upon any official or agency subject to the provisions of this section the authority to appoint, classify or establish compensation for employees shall mean the exercise of such authority subject to the provisions of this section. This section shall not extend coverage of any section of this chapter, except those specifically named in this section, to any agency or employee. In accordance with sections 36.100, 36.110, 36.120 and 36.130, and after consultation with appointing authorities, the director of the division of personnel shall conduct such job studies and job reviews and establish such additional new and revised job classes as the director finds necessary for appropriate classification of the positions involved. Such classifications and the allocation of positions to classes shall be maintained on a current basis by the division of personnel. The director of the division of personnel shall, at the same time, notify all affected agencies of the appropriate assignment of each job classification to one of the salary ranges within the pay plan then applicable to merit system agencies. The affected agencies and employees in the classifications set pursuant to this section shall be subject to the pay plan and rates of compensation established and administered in accordance with the provisions of this section, and the regulations adopted pursuant to this section, on the same basis as for merit agency employees. In addition, any elected official, institution of higher learning, the department of transportation, the department of conservation, the general assembly, or any judge who is the chief administrative officer of the judicial branch of state government may request the division of personnel to study salaries within the requestor's office, department or branch of state government for classification purposes.
306.161. The Missouri state water patrol is authorized to employ, within the limits of appropriations [made therefor and subject to the provisions of chapter 36, RSMo,] and notwithstanding any other provision of law to the contrary, such personnel as may be necessary to properly perform the duties of the water patrol, and the water patrol shall prescribe the duties and responsibilities of such personnel.
306.163. 1. The governor, by and with the advice and consent of the senate, shall appoint a commissioner of the Missouri state water patrol to serve at the pleasure of the governor. [He] The commissioner shall take and subscribe an oath of office to perform [his] the commissioner's duties faithfully and impartially.
2. The commissioner shall prescribe rules for instruction and discipline and make administrative rules and regulations and fix the hours of duty for the members of the patrol. [He] The commissioner shall have charge of the office of the patrol, shall be custodian of the records of the patrol, and shall direct the day-to-day activities of the officers, patrolmen and office personnel.
3. [He] The commissioner shall be given a certificate of appointment, a copy of which shall be filed with the secretary of state, granting him or her all the powers of a peace officer to enforce all the laws of this state within the jurisdiction of the water patrol as listed in section 306.165, provided that he has completed a law enforcement training course which meets the standards established in chapter 590, RSMo.
4. In the absence, or upon the disability, of the commissioner, or at the time the commissioner designates, the lieutenant colonel shall assume the duties of the commissioner. In case of the disability of the commissioner and the lieutenant colonel, the governor may designate a major as acting commissioner and when so designated, the acting commissioner shall have all the powers and duties of the commissioner.
306.227. Patrolmen and radio personnel of the water patrol shall not be less than twenty-one years of age. No person shall be appointed as commissioner or as a member of the patrol or as a member of the radio personnel who:
(1) Has been convicted of a felony or any crime involving moral turpitude, or against whom any indictment or information may then be pending charging the person with having committed a crime;
(2) Is not of good character;
(3) Is not a citizen of the United States;
(4) At the time of appointment is not a citizen of the state of Missouri;
(5) Is not a graduate of an accredited four-year high school or in lieu thereof has not obtained a certificate of equivalency from the state department of elementary and secondary education or other source recognized by such department; or
(6) Does not possess ordinary physical strength, and who is not able to pass the physical and mental examination that the commissioner prescribes.
306.228. 1. The commissioner may appoint from within the membership not more than one assistant commissioner, two majors, nine captains, nine lieutenants, and one director of radio, each of whom shall have the same qualifications as the commissioner, and such additional force of sergeants, corporals and patrolmen, so that the total number of members of the patrol shall not exceed ninety-nine officers and patrolmen and such numbers of radio personnel as the commissioner deems necessary.
2. In case of a national emergency the commissioner may name additional patrolmen and radio personnel in a number sufficient to replace, temporarily, patrolmen and radio personnel called into military services.
3. Applicants shall not be discriminated against because of race, creed, color, national origin or sex.
306.229. 1. The commissioner is authorized and empowered to prescribe policies providing increases in the salaries of patrolmen and radio personnel of the water patrol, subject to appropriations. Each year, prior to January first, the commissioner shall submit a salary schedule report to the governor, speaker of the house of representatives, and the president pro tem of the senate. The salary schedule report prepared by the commissioner shall include, in addition to other matters deem pertinent to the commissioner, a comparison of the salaries of police officers of three police departments, that employ similar numbers of patrol officers in the state. Such report shall also include a full description and comparison of each department position used to determine parity for all patrol positions of sergeant and above. The governor may make additional recommendations to the report and forward them to the speaker of the house of representatives and president pro tem of the senate. The speaker of the house of representatives and the president pro tem of the senate may assign the salary schedule report to the appropriate standing committees to review the salary comparisons to ensure that parity, as adjusted for equivalent duties and functions, in the salary of patrolmen and radio personnel of the water patrol and officers of the three police departments that employ similar numbers of patrol officers in the state is maintained. The commissioner of the water patrol shall testify before the appropriate committee on the salary schedule report if called up by such committee.
2. The "service" of a member of the patrol, who has served in the armed forces of the United States and who has subsequently been reinstated as a member of the patrol within ninety days after receiving a discharge other than dishonorable from the armed forces of the United States, shall be considered service with the patrol as a member of the patrol rendered since last becoming a member prior to entrance into the armed forces of the United States; except that no member shall be entitled to any credit, privilege or benefit provided by this chapter if such reenlistment, waiver of discharge, acceptance of commission or any other action, with the armed forces beyond the period of service for which such member was originally commissioned, enlisted, inducted or called.
306.230. 1. The commissioner shall prescribe rules for instruction and discipline and make all administrative rules and regulations and fix the hours of duty for the members of the patrol. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly under chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2007, shall be invalid and void. The commissioner shall divide the state into districts and assign members of the patrol to such districts in a manner deemed proper to carry out the purposes of this chapter. The commissioner may call members of the patrol from one district to another.
2. The commissioner may, by general order, establish for the circumstances under which members of the patrol are promoted. The commissioner shall classify and, by promotion, increase the rank of lieutenant colonels, majors, captains, lieutenants, sergeants, corporals, patrolmen, and radio personnel from the next lower rank after not less than one year of service satisfactorily performed therein. If the commissioner finds the candidate pool to fill a position through promotion is not sufficient from which to select, the commissioner may promote an individual from the next lower rank.
306.232. 1. After a probation period of one year, members of the patrol shall be subject to removal, reduction in rank, or suspension of more than three days only for cause after a petition with a formal charge has been filed in writing before or by the commissioner and upon a finding and vote by a majority of a board of six patrol members after a hearing. The members of the board shall be randomly selected from districts or divisions other than that of the accused. The board shall be composed of six unbiased members including one nonvoting captain, one lieutenant, and four members of the same rank as the accused member. The randomly selected captain shall serve as presiding officer at the hearing. Within thirty days after the petition is filed, unless the accused consents to an extension of the time, the board shall conduct a hearing and report to the commissioner the finding and vote of the majority of the board, whether the charges are true, and what discipline, if any, should be imposed. All lawful rules, regulations, and orders of the commissioner shall be obeyed by the members of the patrol, who shall be subject to dismissal or one or more of the following as adjudged by the commissioner:
(1) Suspension without pay for not more than thirty days;
(2) Reduction in rank; or
(3) Disciplinary transfer at the member's expense. Nothing in this section shall be construed to prevent nondisciplinary transfers of members if the commissioner determines that such transfers are for the good of the patrol. No hearings shall be required in the case of reprimands or suspensions of three days or less which may be imposed at the discretion of the commissioner.
2. If a complaint is filed against a member, the member shall be provided a copy of the complaint promptly after the complaint is filed by or received by the patrol. Unless the member consents in writing to an earlier time, the member shall not be questioned by the patrol about the complaint or ordered to respond in writing to the complaint until forty-eight hours after the member has received a copy of the complaint. The member shall have a reasonable opportunity to have counsel present during any questioning related to the complaint. Prior to the commissioner or the patrol making an initial recommendation of discipline, the member shall be entitled to a copy of any investigation reports and any other written or recorded information or other evidence reviewed by the patrol which relates to the complaint; and the member will be afforded an opportunity to present a written response thereto.
3. Notwithstanding the provisions of this subsection or subsection 2 of this section to the contrary, the commissioner may postpone notifying a member that a complaint has been filed against him or her and may withhold the complaint and part or all of the investigation report and other evidence if the commissioner determines that such disclosures shall seriously interfere with the investigation regarding such complaint or any other investigation being conducted by the patrol or may likely jeopardize the health or safety of any person. Nothing in this subsection shall be construed to limit the rights of parties to discovery in civil or criminal litigation.
650.005. 1. There is hereby created a "Department of Public Safety" in charge of a director appointed by the governor with the advice and consent of the senate. The department's role will be to provide overall coordination in the state's public safety and law enforcement program, to provide channels of coordination with local and federal agencies in regard to public safety, law enforcement and with all correctional and judicial agencies in regard to matters pertaining to its responsibilities as they may interrelate with the other agencies or offices of state, local or federal governments.
2. All the powers, duties and functions of the state highway patrol, chapter 43, RSMo, and others, are transferred by type II transfer to the department of public safety. The governor by and with the advice and consent of the senate shall appoint the superintendent of the patrol. With the exception of sections 43.100 to 43.120, RSMo, relating to financial procedures, the director of public safety shall succeed the state highways and transportation commission in approving actions of the superintendent and related matters as provided in chapter 43, RSMo. Uniformed members of the patrol shall be selected in the manner provided by law and shall receive the compensation provided by law. Nothing in the Reorganization Act of 1974, however, shall be interpreted to affect the funding of appropriations or the operation of chapter 104, RSMo, relating to retirement system coverage or section 226.160, RSMo, relating to workers' compensation for members of the patrol.
3. All the powers, duties and functions of the supervisor of liquor control, chapters 311 and 312, RSMo, and others, are transferred by type II transfer to the department of public safety. The supervisor shall be nominated by the department director and appointed by the governor with the advice and consent of the senate. The supervisor shall appoint such agents, assistants, deputies and inspectors as limited by appropriations. All employees shall have the qualifications provided by law and may be removed by the supervisor or director of the department as provided in section 311.670, RSMo.
4. The director of public safety, superintendent of the highway patrol and transportation division of the department of economic development are to examine the motor carrier inspection laws and practices in Missouri to determine how best to enforce the laws with a minimum of duplication, harassment of carriers and to improve the effectiveness of supervision of weight and safety requirements and to report to the governor and general assembly by January 1, 1975, on their findings and on any actions taken.
5. The Missouri division of highway safety is transferred by type I transfer to the department of public safety. The division shall be in charge of a director who shall be appointed by the director of the department.
6. All the powers, duties and functions of the safety and fire prevention bureau of the department of public health and welfare are transferred by type I transfer to the director of public safety.
7. All the powers, duties and functions of the state fire marshal, chapter 320, RSMo, and others, are transferred to the department of public safety by a type I transfer.
8. All the powers, duties and functions of the law enforcement assistance council administering federal grants, planning and the like relating to Public Laws 90-351, 90-445 and related acts of Congress are transferred by type I transfer to the director of public safety. The director of public safety shall appoint such advisory bodies as are required by federal laws or regulations. The council is abolished.
9. The director of public safety shall promulgate motor vehicle regulations and be ex officio a member of the safety compact commission in place of the director of revenue and all powers, duties and functions relating to chapter 307, RSMo, are transferred by type I transfer to the director of public safety.
10. The office of adjutant general and the state militia are assigned to the department of public safety; provided, however, nothing herein shall be construed to interfere with the powers and duties of the governor as provided in article IV, section 6 of the Constitution of the state of Missouri or chapter 41, RSMo.
11. All the powers, duties and functions of the Missouri boat commission, chapter 306, RSMo, and others, are transferred by type I transfer to the "Missouri State Water Patrol", which is hereby created, in the department of public safety. The Missouri boat commission and the office of secretary to the commission are abolished. The Missouri state water patrol shall be headed by a boat commissioner who shall be appointed by the governor, with the advice and consent of the senate. All deputy boat commissioners and all other employees of the commission who were employed on February 1, 1974, shall be transferred to the water patrol [and they shall be immediately covered by the provisions of chapter 36, RSMo,] without further qualification. [All deputy boat commissioners and others employed by the water patrol after May 2, 1974, shall be selected and removed pursuant to the provisions of chapter 36, RSMo.]
12. The division of veterans affairs, chapter 42, RSMo, is assigned to the office of adjutant general. The adjutant general, with the advice of the veterans' board, shall appoint the director of the division of veterans affairs who shall serve at the pleasure of the adjutant general.
13. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is promulgated under the authority of this chapter, shall become effective only if the agency has fully complied with all of the requirements of chapter 536, RSMo, including but not limited to, section 536.028, RSMo, if applicable, after August 28, 1999. If the provisions of section 536.028, RSMo, apply, the provisions of this section are nonseverable and if any of the powers vested with the general assembly pursuant to section 536.028, RSMo, to review, to delay the effective date, or to disapprove and annul a rule or portion of a rule are held unconstitutional or invalid, the purported grant of rulemaking authority and any rule so proposed and contained in the order of rulemaking shall be invalid and void, except that nothing in this section shall affect the validity of any rule adopted and promulgated prior to August 28, 1999.