Senate Bill No. 484
(By Senators McCabe, Unger, Foster, Stollings, Wells, Minard, Beach and Kessler (Acting President))
[Originating in the Committee on Education;
reported February 28, 2011.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §18B-1E-1, §18B-1E-2, §18B-1E-3, §18B-1E-4, §18B-1E-5, §18B-1E-6, §18B-1E-7, §18B-1E-8 and §18B-1E-9; and to amend and reenact §18C-7-5 of said code, all relating to powers and duties of the policy commission; authorizing creation of certain corporations; authorizing policy commission to enter into certain agreements and contractual arrangements; terms and conditions; legislative findings, purpose and intent; providing certain definitions; setting forth essential criteria for certain corporations; specifying corporation membership, organization and financial requirements; providing for appointment of executive director; specifying qualifications; requiring annual audit of corporation operations; clarifying issues of conflicts of interest; prohibiting waiver of sovereign immunity; clarifying issues of debt obligations; requiring memorandum of agreement on research collaboration and cooperation; specifying parties to agreement and setting forth certain conditions; specifying certain deadlines; requiring reports in certain instances; and clarifying approval process for participation of certain institutions in PROMISE scholarship program.
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 §18B-1E-1, §18B-1E-2, §18B-1E-3, §18B-1E-4, §18B-1E-5, §18B-1E-6, §18B-1E-7, §18B-1E-8 and §18B-1E-9; and that §18C-7-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1E. MANAGEMENT AGREEMENTS FOR THE HIGHER EDUCATION POLICY COMMISSION.
§18B-1E-1. Legislative findings and purpose.
(a) The Legislature finds that economic development in West Virginia depends in part on collaborations developed between higher education and businesses and industry, particularly in the advancement of new and emerging technologies. It is in the best interests of the citizens of the state to implement programs which promote this research and contribute to the general economic welfare.
(b) The Legislature further finds that the transfer of property to the Commission to establish the West Virginia Education, Research and Technology Park created a new and unprecedented opportunity to promote research and development in the state. An efficiently managed Technology Park will encourage private sector participation in and support for research and economic development and will facilitate collaboration among the commission, the doctoral institutions and their research corporations.
(c) It is the responsibility of the commission to ensure that the day to day operations of the Technology Park are carried out effectively and efficiently in order to provide the greatest investment return to the people of West Virginia. To this end the Legislature finds that a mechanism is needed to simplify and expedite property management and purchasing of equipment, material, and personal services.
(d) Therefore, the purpose of this article is to provide the Commission with the authority necessary to carry out its responsibilities related to the operation of the Technology Park. The commission is authorized to enter into agreements and other contractual relationships with an affiliated corporation in order to achieve maximum efficiency in managing the Technology Park.
The following words used in this article have the meanings ascribed to them in this section unless the context clearly indicates a different meaning:
“Affiliated corporation” or “corporation” means a corporation which meets the essential criteria prescribed in section three of this article and whose purpose is to provide management services to the commission in carrying out the day to day operations of the Technology Park.
"Agreement" means an agreement or contractual relationship being entered into between the commission and an affiliated corporation pursuant to the provisions of this article.
"Board of directors" means the governing body of the corporation created pursuant to section three of this article.
“Doctoral institution” means Marshall University or West Virginia University.
“Executive director” means the chief executive officer of the affiliated corporation employed pursuant to section five of this article.
“Potential membership” means the total number of members who comprise the board of directors when all membership seats are filled.
“Private sector member” means a director of the affiliated corporation who is not an employee of the commission nor of any entity bearing a direct or indirect relationship to the commission.
“Research corporation” means a corporation established with respect to Marshall University or West Virginia University pursuant to section three, article twelve of this chapter.
“Technology Park” means the state-owned West Virginia Education, Research and Technology Park affiliated with the commission.
§18B-1E-3. Commission authorized to contract with corporation; corporation to meet essential criteria; corporation membership and organization; financial requirements.
(a) The commission is authorized to enter into agreements and any other contractual relationships with the affiliated corporation formed as set forth in this article.
(b) The affiliated corporation shall meet the following essential criteria:
(1) Corporation status. -- The corporation is organized as a non-profit, non-stock corporation under the general corporation laws of the state exclusively for charitable, educational or scientific purposes within the meaning of section 501(c) of the Internal Revenue Code of 1986, as amended.
(2) Corporation membership, meetings, officers. --
(A) Members of the board of directors of the affiliated corporation serve terms as prescribed in the bylaws of the corporation and are selected by the commission in consultation with the chancellor. The commission shall make all appointments to the board of directors by majority vote of its members and shall include the individual votes as a part of the minute record.
(B) Private sector members shall constitute a majority of the potential membership of the corporate directors. Vacancies shall be filled in such a way that the majority status of private sector membership is maintained.
(C) By July 1, 2011, and at least biennially thereafter, the corporate directors shall elect a chair from among their members.
§18B-1E-4. Powers and duties of board of directors and corporation.
The primary responsibility of the corporation is to manage the day to day operations of the Technology Park through collaboration agreements with the commission. To that end, the board of directors of the corporation has the following powers and duties:
(a) To employ an executive director subject to the provisions of section five of this article;
(b) To approve employment of other staff recommended by the executive director as being necessary and appropriate to carry out the purposes pursuant to this article and subject to agreements with the commission;
(c) To serve as fiscal agent and provide additional services, including, but not limited to, property management, human resources management, and purchasing;
(d) To meet as a governing body. A corporation created under this article is exempt from the provisions of section three, article nine-a, chapter six of this code and from the provisions of article one, chapter twenty-nine-b of this code;
(e) To receive, purchase, hold, lease, use, sell and dispose of real and personal property of all classes, subject to the provisions of section eight of this article;
(f) To receive and accept from any public or private agency, corporation, association, person, partnership, company or any other organization or entity of any nature whatsoever grants to be expended in accomplishing the objectives of this article and to receive and accept from the state, from any municipality, county or other political subdivision of the state and from any other source, aid or contributions of either money, property or other things of value to be held, used and applied only for the purposes for which the grants and contributions may be made;
(g) To accept and expend any gift, grant, contribution, bequest, endowment or other money for the purposes of this article. Any transfer of endowment or other assets by the commission to the corporation or by the corporation to the commission for management shall be formalized in a memorandum of agreement to assure, at a minimum, that any restrictions governing the future disposition of funds are preserved. The commission may not transfer ownership of the Technology Park property to the corporation;
(h) To make, amend and repeal bylaws and rules consistent with the provisions of this article to carry into effect the purpose and scope of the corporation and, subject to the directions and limitations contained in its governing documents, to delegate the exercise of any of its powers to the executive director except for the power to approve budgets; to make, amend or repeal its governing documents; or to alter the purpose or scope of the corporation;
(i) In addition to the powers and duties provided for in this section and any other powers and duties that may be assigned to it by law or agreement, the corporation has other powers and duties necessary to accomplish the objectives of this article or as provided by law.
§18B-1E-5. Appointment of executive director; qualifications.
(a) The commission shall set the qualifications for the position of executive director and shall conduct a thorough search for qualified candidates. A qualified candidate is one who meets at least the following criteria:
(1) Possesses a broad understanding of the relationship between public and private sector research and the need for cooperation and collaboration among the commission and the research corporations;
(2) Holds at least a bachelor’s degree in a field related to the duties and responsibilities of the position of executive director;
(3) Demonstrates strong communication skills and the ability to work with all types of businesses and industry, government agencies and higher education institutions; and
(4) Possesses other skills, qualifications or attributes as the board of directors may consider appropriate or desirable.
(b) The commission shall select the executive director for the corporation who may have dual appointment with the commission, but may not be a corporation director. The commission may not delegate this duty to the chancellor.
(1) The commission shall appoint the executive director by majority vote of its members and shall include the vote as a part of the minute record.
(2) The executive director shall inform the corporate directors and the commission annually of his or her employment status with any other institution, agency or organization.
(c) The corporation is under the control and supervision of the executive director who, with the approval of the board of directors, may employ staff as necessary to carry out the corporation's purposes as set forth in this article.
§18B-1E-6. Agreements; required provisions.
(a) The commission is hereby authorized to enter into agreements or other contractual relationships with a corporation that meets the conditions set forth in section three of this article. Any agreement shall specify that the corporation is accountable to the commission for the efficient operations of the Technology Park.
(b) On the effective date of the agreement, the corporation becomes the fiscal agent for operations of the Technology Park on behalf of the commission pursuant to terms of the agreement.
(c) If an agreement is terminated, the funds, contributions or grants paid or held by the corporation and not encumbered or committed prior to termination shall be distributed as provided for in the agreement.
(d) If made part of the agreement, the corporation may use services of both corporation employees and personnel of the commission. The corporation may pay the costs incurred by the commission, including personnel funded on grants and contracts, fringe benefits of personnel funded on grants and contracts, administrative support costs and other costs which may require reimbursement. The corporation may include as costs any applicable overhead and fringe benefit assessments necessary to recover the costs expended by the commission, pursuant to the terms of the agreement, and the commission may be reimbursed for expenses incurred by it pursuant to the agreement.
§18B-1E-7. Audits required; financial reports; conflicts of interest.
(a) The financial statements of the corporation shall be audited annually by an independent certified public accountant or firm. Within thirty days of completion, the financial audit report shall be presented to the corporation’s governing board for approval, after which a copy of the financial audit and required statements shall be submitted to the commission.
(b) Notwithstanding any other provision of this code to the contrary, officers and employees of the commission may hold appointments to offices of the corporation and be members of its board of directors. The board of directors shall make an annual report of these appointments to the commission.
§18B-1E-8. No waiver of sovereign immunity; not obligation of the state.
(a) Nothing contained in this article waives or abrogates in any way the sovereign immunity of the state or deprives the commission or any officer or employee of the commission of sovereign immunity.
(b) Obligations of the board of directors or the corporation do not constitute debts or obligations of the commission or the state.
§18B-1E-9. Legislative findings and intent; memorandum of agreement required; terms and conditions; reports.
(a) The Legislature finds that the Technology Park is a diversified, multi-tenant research, development and commercialization park focused on energy, chemicals and related technologies for the advancement of education and economic development in West Virginia. The areas of primary research and development include energy, chemicals and materials, and biotechnology. It is the intent of the Legislature to provide the commission with the tools needed to manage the Technology Park and facilitate the translation of state investment dollars in higher education and research into business and economic growth that will provide tangible benefits for the citizens of the state.
(b) To achieve the goals set forth in this section, it is essential that the commission include in its research and development efforts the talents and expertise available at the doctoral institutions and their research corporations. Therefore, by July 1, 2011, the commission shall enter into a memorandum of agreement with the research corporations to delineate the role each party will play in furthering the goals of research and economic development as set forth in this article. The agreement shall focus on collaboration and cooperation among the commission and the two research corporations.
(1) The agreement is not effective until all parties have agreed to the included terms and conditions.
(2) The commission shall file a report, including a copy of the completed agreement and any relevant documents, with the Joint Committee on Government and Finance and the Legislative Oversight Commission on Education Accountability by July 15, 2011.
(3) The agreement may be amended by mutual consent of the parties. Within fifteen days of the date a new agreement is signed, the commission shall file a report as provided in subdivision (2) of this subsection.
CHAPTER 18C. STUDENT LOANS, SCHOLARSHIPS AND STATE AID.
ARTICLE 7. WEST VIRGINIA PROVIDING REAL OPPORTUNITIES FOR MAXIMIZING IN-STATE STUDENT EXCELLENCE SCHOLARSHIP PROGRAM.
§18C-7-5. Powers and duties of the West Virginia Higher Education Policy Commission regarding the PROMISE Scholarship.
(a) Powers of commission. -- In addition to the powers granted by any other provision of this code, the commission has the powers necessary or convenient to carry out the purposes and provisions of this article including, but not limited to, the following express powers:
(1) To promulgate legislative rules in accordance with the provisions of article three-a, chapter twenty-nine-a of this code to effectuate the purposes of this article;
(2) To invest any of the funds of the West Virginia PROMISE Scholarship Fund established in section seven of this article with the West Virginia Investment Management Board in accordance with the provisions of article six, chapter twelve of this code. Any investments made pursuant to this article shall be made with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in conducting an enterprise of a like character and with like aims. Fiduciaries shall diversify plan investments to the extent permitted by law to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so;
(3) To execute contracts and other necessary instruments;
(4) To impose reasonable requirements for residency for students applying for the PROMISE scholarship. Except as provided in section four, article one of this chapter, a student shall have met the following requirements to be eligible:
(A) Completed at least one half of the credits required for high school graduation in a public or private high school in this state; or
(B) Received instruction in the home or other approved place pursuant to subsection (c), section one, article eight, chapter eighteen of this code for the two years immediately preceding application;
(C) This subsection does not establish residency requirements for matriculation or fee payment purposes at state institutions of higher education;
(5) To contract for necessary goods and services, to employ necessary personnel and to engage the services of private persons for administrative and technical assistance in carrying out the responsibilities of the scholarship program. Any services provided or secured to implement or administer the provisions of this section remain under the direction and authority of the Vice Chancellor for Administration;
(6) To solicit and accept gifts, including bequests or other testamentary gifts made by will, trust or other disposition, grants, loans and other aid from any source and to participate in any federal, state or local governmental programs in carrying out the purposes of this article;
(7) To define the terms and conditions under which scholarships are awarded with the minimum requirements being set forth in section six of this article; and
(8) To approve or reject applications for participation in the PROMISE scholarship program by any public or private regionally accredited institution in this state not listed in section three of this article. The commission has the sole and unilateral authority to grant approval to an institution to participate in the program and approval may not be granted by any other governmental entity nor through amendment of section three of this article; and
(8) (9) To establish other policies, procedures and criteria necessary to implement and administer the provisions of this article.
(b) Duties of commission. -- In addition to any duty required by any other provision of this code, the commission has the following responsibilities:
(1) To operate the program in a fiscally responsible manner and within the limits of available funds;
(2) To operate the program as a merit-based program;
(3) To adjust academic eligibility requirements should projections indicate that available funds will not be sufficient to cover future costs; and
(4) To maintain contact with graduates who have received PROMISE scholarships and to provide a written statement of intent to recipients who are selected to receive a PROMISE scholarship notifying them that acceptance of the scholarship entails a responsibility to supply the following:
(A) Information requested by the commission to determine the number and percentage of recipients who shall:
(i) Continue to live in West Virginia after graduation;
(ii) Obtain employment in West Virginia after graduation; and
(iii) Enroll in post-graduate education programs;
(B) For PROMISE scholars who enroll in post-graduate education programs, the name of the state in which each post-graduate institution is located; and
(C) Any other relevant information the commission reasonably requests to implement the provisions of this subdivision;
(5) To analyze and use the data collected pursuant to subdivision (4) of this subsection to:
(A) Report the findings annually to the Legislative Oversight Commission on Education Accountability; and
(B) Make annual recommendations to the Legislative Oversight Commission on Education Accountability regarding any actions the commission considers necessary or expedient to encourage PROMISE recipients to live and work in the state after graduation.