ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 631
(Senators Plymale, Wells and Browning, original sponsors)
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[Passed March 8, 2010; to take effect July 1, 2010.]
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A BILL to amend and reenact §18-2A-1, §18-2A-2, §18-2A-3, §18-2A-4,
§18-2A-5, §18-2A-6, §18-2A-7, §18-2A-8 and §18-2A-9 of the
Code of West Virginia, 1931, as amended, all relating
generally to instructional resources; process for approval and
adoption of instructional resources in public schools;
replacing the terms "textbooks", "instructional materials" and
"learning technologies" with "instructional resources" and
modifying affected code provisions accordingly; modifying
limit on adoption cycles; providing for listing of
instructional resources on the state multiple list; requiring
a method for review and adding new and substantially revised
resources to the multiple list; providing for county waivers
of adoption cycles; providing method for counties to select
new or different resource before end of a contract period;
providing a method for vendor update of resources; revising the bidding, selection and approval process; permitting the
multiple list to be published in an electronic format;
requiring contracts to be filed pursuant to the state board
process; providing for review of electronic instructional
resources; providing for regional education service agency
level selection teams; and ensuring equity of access to
electronic instructional resources for all students.
Be it enacted by the Legislature of West Virginia:
That §18-2A-1, §18-2A-2, §18-2A-3, §18-2A-4, §18-2A-5, §18-2A-
6, §18-2A-7, §18-2A-8 and §18-2A-9 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2A. ADOPTION OF INSTRUCTIONAL RESOURCES.
§18-2A-1. Definition; adoption groups; adoption schedule.
(a) "Instructional Resources" include print materials,
electronic resources and systems, or combinations of such
instructional resources which convey information to the pupil.
(b) Instructional resources approved for adoption and listed
on the state multiple list shall substantially cover the required
content and skills for the subject as approved by the state board
. The instructional resources shall be current and the information
shall be presented accurately. The instructional resources may
consist of a single resource, print or electronic, or a compilation
of resources, print or electronic, that together cover the required
criteria established for approval as a primary instructional resource. The resources may be updated or otherwise changed and
improved on an ongoing basis to ensure that they are current and
accurate.
(c) On or before July 1 of each year, the state board shall
classify the elementary and secondary school subjects required to
be taught in the schools of our state into adoption groups by
related subject fields as nearly as possible. A schedule for the
periods of adoption, not to exceed six years, shall be determined
by the state board. However, during the school year beginning on
July 1, 2010, the state board shall develop a method by which newly
developed and substantially revised instructional materials
submitted by vendors or available as open resources may be reviewed
for compliance with established criteria. When an instructional
resource is found to be in compliance with established criteria, it
may be added to the official multiple list and thereafter be
available for adoption by a county board. County board
instructional resources adoption committees may request a waiver of
the adoption cycles from the state board. Software, print and
electronic magazines, print and electronic newspapers and other
print and electronic periodicals and other licensed or
subscription-based instructional resources may be purchased county
board for classroom use to supplement those items adopted on the
state multiple list without having to comply with the adoption
procedures provided in this article.
(d) Software, print and electronic magazines, print and
electronic newspapers and print and electronic periodicals are
considered to be instructional resources for purposes of special
excess levies subject to the provisions of section sixteen, article
eight, chapter eleven of this code when the described purpose under
that section is for textbooks or instructional resources.
(e) A county board that selects an electronic instructional
resource may, subject to the approval by the state board of its
request to do so, choose not to renew that option before the end of
the established contract period and select a new or different
instructional resource from the official multiple listing before
the end of the established contract period.
(f) The vendor of an adopted electronic resource, after notice
of explanation to the state board, may offer an update to the
navigational features or management system, or both, related to the
learning technology and may update the content of the learning
technology as needed to accurately reflect current knowledge or
information without charge. Vendor changes to the electronic
resources may not require the purchase of a new operating system
during the established contract period. Vendors shall continue to
provide support for the version adopted.
(g) The state board shall adopt guidelines and procedures for
updates and changes to electronic instructional resources submitted
by vendors.
§18-2A-2. Request for samples and bids; deposit by bidder;
selection, approval and publication of multiple
list.
(a) Prior to each adoption year, and not later than August 1,
the state board by written request or otherwise shall ask the
various vendors of instructional resources, print or electronic, or
any combination thereof, to submit samples and prices on items
considered appropriate by the state board to teach the curriculum
in the public elementary and secondary schools of the state for the
current adoption period. The state board also shall accept for
consideration newly developed and substantially revised
instructional resources for content areas not in the current
adoption cycle.
(b) All bids or proposals shall be under seal, and each bidder
shall deposit in the State Treasury such sum of money as the state
board may designate, such deposit to be not less than $1,000, and
not more than $3,000 and such deposit shall be forfeited to the
general school fund if such bidder shall fail or refuse to make and
execute such contract and bond as are herein required in case of
acceptance of all or part of the vendor's bid, and otherwise shall
be returned to such bidder after the contract has been made. The
state board reserves the right to set the sum of money a vendor is
required to deposit in the State Treasury upon submitting a bid:
Provided, That the vendor has a previous history of failure or refusal to execute contracts or bonds with the State of West
Virginia. The state board may set and collect review fees from
publishers and vendors participating in the state instructional
resources approval and adoption process.
(c) All bids shall be opened by the state board, or its
designee, in public session. After considering the subject matter,
product quality, general suitableness, and prices of items
submitted, the state board shall, prior to March 1 of each year in
which approvals for adoption are made by it, establish a committee
of teachers and other educational specialists, including a
sufficient number with experience with electronic instructional
resources, and with the aid of the committee, shall on or before
December 1, prior to county adoptions, select, approve and publish
a list of items in each subject and grade in the elementary and
secondary subjects required to be taught by the state board. The
committee of teachers and other educational specialists shall
report their recommendations to the state board on or before
November 15, of the year preceding the adoption by the county
board. The state board may create a standing committee of teachers
and other education specialists, including a sufficient number with
experience with electronic instructional resources, for each
subject and grade level to review all new or revised instructional
resources submitted after the initial approvals for adoption.
§18-2A-3. Disposition of and requests for samples.
(a) Items to be reviewed in excess of the official sample
submitted to the state board for examination shall remain the
property of the vendor submitting them if claimed within thirty
days after state board adoption of the multiple list. If not
claimed within that period, the items may be sold by the state
board and the money credited to the Department of Education
Instructional Resources Fund or items may be distributed to state
educational agencies.
(b) Sample items submitted to county boards or regional
education service agency selection teams remain the property of the
vendor submitting them if claimed within thirty days after
instructional materials have been formally adopted. Unclaimed
items may be distributed free of charge by the respective county
board or regional educational service agency to any school, library
or individual who may have need for the sample items.
(c) Vendors claiming samples within the thirty-day period
shall notify the respective board of education or regional
education service agency at the time samples are submitted for
study of their intent to recall the samples. All costs shall be
borne by the vendors.
(d) No county or regional education service agency adoption
committee is entitled to request or receive more than eight free
samples of any multigrade program being considered for adoption.
Any single grade level subject area items used above grade six shall be limited to five free samples per county selection
committee. Any individual requesting samples in excess of these
limits shall be billed by the vendor at the lowest wholesale price
plus shipping. In the case of electronic instructional resources,
it is sufficient for vendors to provide access for the purpose of
reviewing the resources via a user name and password to a web-based
resource or through on-line file transfer or download.
§18-2A-4. Execution of contracts; bond.
(a) When the selection and approval of the multiple list have
been properly made, it is the duty of the state board to furnish
contracts for the selected items with the vendors within thirty
days of the approval and adoption of the multiple list, prepare a
list of the adopted resources on the multiple list and publish it
in electronic format and make the list available through a page on
the West Virginia Department of Education web page. The contract
for adoption shall run for a period of time as designated by the
state board.
(b) Each vendor awarded a contract by the West Virginia
Department of Education shall enter into a bond payable to the State
of West Virginia in the penal sum of not less than $2,000 and not
more than $10,000 to be approved by the state board of public works.
The bond shall be executed as surety by a responsible surety company
authorized to carry on its business in West Virginia. The contract
shall be prepared by the Attorney General in accordance with the terms and provisions of this article. The contract shall be
executed in triplicate, one copy to be held by the vendor, one by
the state board and one attached to the bond filed with the board
of public works.
(c) Bonds required of successful vendors shall provide that:
(1) The vendor will furnish any of the instructional resources
on the multiple list under vendors contract for the period of the
adoption, from the date of the bond, to any county school unit, a
dealer appointed by the county, or any state board approved
depository or depositories as defined in section seven of this
article, at the lowest wholesale price contained in the bids or
contracts made to any other county school unit, dealer, county,
school or depository in any other state, like conditions prevailing.
The state board shall determine, from time to time, the terms of the
bids and contracts and may require the vendor to bear the costs of
shipping, mail or transportation or offer any other financial
benefit available in the highest amount paid by a vendor to any
other county school unit, dealer, county or depository in any other
state:
Provided, That the state board shall decide whether from time
to time bids and contracts for instructional resources are to be for
the delivery directly to each county school unit, dealer appointed
by the county, county or to each depository or depositories, or any
combination thereof, under this section.
(2) The vendor will automatically reduce the prices in West Virginia when prices are reduced anywhere in the United States, so
that no such item or items shall at any time be sold in West
Virginia at a higher wholesale price than received for items
elsewhere in the United States, like conditions prevailing.
(3) All items sold in West Virginia will be identical with the
official samples submitted to the state board as regards quality
standards, specifications, subject matter, and other particulars
which may affect the value of the items. The state board may,
however, during the period of the contract approve revised editions
of adopted items, which will authorize a vendor to furnish such
revisions. All contracts and bonds shall be filed in accordance
with the appropriate state board process prior to July 1.
§18-2A-5. Selection by county boards; school curriculum teams.
(a) Vendors, upon requests of county superintendents, shall
furnish to county boards the requested sample copies of resources
that were selected and placed on the state multiple list by the
state board in accordance with the provisions of section three of
this article. In the case of electronic instructional resources,
it is sufficient for vendors to provide access for the purpose of
reviewing the resources via a web-hosted online format.
(b) School curriculum teams shall make their curriculum and
instructional needs known to the county superintendent and selection
committees prior to the consideration of any adopted grouping in
accordance with the provisions of section three of this article. The county board shall, upon recommendation of the county
superintendent with the aid of a committee of teachers and not later
than May 1 of the year following that in which the multiple list for
the group was made and approved, select from the state multiple list
one or more resources to deliver instruction for a period as
provided for elsewhere in this article. Counties are authorized to
include nonvoting advisors from the general public in the adoption
process, but shall require advisors to provide their assessment of
the resources appropriate for the subject before the voting
committee commences the selection process.
(c) In order to avoid duplication and to maximize resources,
with agreement of all county superintendents within a regional
education service agency area and subsequent regional education
service agency actions, a regional education service agency
instructional resources selection team may be established to conduct
a review of selected resources placed on the state multiple list by
the state board. The membership of the selection team will be
established through agreement of the county superintendents with
representation of all counties, including any nonvoting advisors
from the general public. The resource selection team will provide
recommendations to each county superintendent for consideration,
review and adoption by each county board.
(d) County boards adopting electronic instructional resources
shall ensure equity of access for all students at school and shall have a plan to provide equity of access at home if necessary through
alternate avenues including, but not limited to, print, software,
and hardware support.
§18-2A-6. Retail prices; limitation on profit; violation; penalty.
It shall be the duty of the state board to fix prices at which
the various instructional resources on the state multiple list shall
be sold to patrons, the excess of which above contract price shall
represent the profit to the retailer; but in no case shall such
profit exceed twenty percent of the contract price. The state board
shall notify each county superintendent of the instructional
resources on the state multiple list and the prices at which they
are to be sold, and any person selling such resources at a higher
price than that fixed by the state board shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not less
than $10 nor more than $50.
§18-2A-7. Exchange privilege; use of supplementary items; state-
approved depositories authorized.
Contractors shall arrange for the exchange of items, allowing
pupils or boards of education an exchange price as liberal as
granted on the same items to any city, county, or state in the
United States, like conditions prevailing. The exchange privilege
shall extend through one entire school year. Nothing in this
article prevents the use of supplementary instructional resources,
print or electronic, provided they do not displace the adopted instructional resources, nor the use of more advanced items in such
schools as may be ready for the same. The state Board of Education
is authorized to approve any depository or depositories, either
public or private, to serve any county or several counties, whose
purpose includes, but is not limited to, offering the savings and
services generally associated with local distribution of
instructional resources or electronic instructional resources that
are not web-based, or any combination thereof, to counties and
schools.
§18-2A-8. Instructional resources must be approved and listed;
when changes may be effected; rules.
(a) No instructional resource, print or electronic, may be used
in any public elementary or secondary school in West Virginia as the
primary source to deliver the instructional goals and objectives for
state required courses unless it has been approved and listed on the
state multiple list by the state board, except as otherwise provided
in this section. Any changes of items made by the state board shall
become effective upon approval. The state board may upon request by
a county board and upon justification of that request, and
subsequent to the adoption by a county board approve the adoption of
additional items to meet the needs of specific children which were
not provided for in the original adoption, or waive the requirement
to adopt and use resources in a particular school as provided for in
section six, article five-a of this chapter. Nothing in this section shall apply to the supplementary items that are needed from
time to time.
(b) The state board may grant permission to county boards for
the continued use of previously adopted resources that are listed on
the most recently expired multiple list appropriate for the subject
category under consideration. The continued use shall not exceed a
period as designated by the state board. The state board may make
such rules as it may deem necessary and expedient to carry out the
provisions of this article.
§18-2A-9. Gifts and bribes to influence adoption of instructional
resources a felony; penalty.
Any member of the state board, any county superintendent, any
member of a county board or any other person who shall receive,
solicit, or accept any gift, present, or thing of value to influence
that individual in the vote for the adoption of instructional
resources, print or electronic, or any combination thereof, or any
person who shall either directly or indirectly give or offer to give
any such gift, present, or thing of value to any person to influence
that individual in voting for the adoption of instructional
resources, print or electronic, or any combination thereof, shall be
guilty of a felony and, upon conviction thereof, shall be confined
in a correctional facility for not less than one year nor more than
three years.