H. B. 3086

         (By Delegates Fleischauer, Marshall, Barker,

              Kominar, White, T. Campbell, Fragale,

           L. Phillips, Guthrie, Carmichael and Lane)

         [Introduced February 9, 2011; referred to the

         Committee on Government Organization then Finance.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5B-2H-1, §5B-2H-2, §5B-2H-3, §5B-2H-4, §5B-2H-5 and §5B-2H-6, all relating to creating the Good Jobs Internet Reporting Act; authorizing state departments and agencies to provide developmental assistance to qualified recipients; defining developmental assistance to include tax credits, tax exemptions, grants and loans; setting forth the requirements for applications for developmental assistance; setting forth the requirements of developmental assistance agreements; setting forth the requirements for annual progress reports by recipients of developmental assistance; requiring all state departments and agencies to annually submit copies of all developmental assistance agreements to the Department of Revenue; requiring the Department of Revenue to submit an annual unified economic development budget to the Legislature; setting forth what that budget must contain; and defining additional terms.

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 §5B-2H-1, §5B-2H-2, §5B-2H-3, §5B-2H-4, §5B-2H-5 and §5B-2H-6, all to read as follows:

ARTICLE 2H. THE GOOD JOBS INTERNET REPORTING ACT.

§5B-2H-1. Short title.

    This article may be cited as the Good Jobs Internet Reporting Act.

§5B-2H-2. Definitions.

    (1) "Base years" means the first two complete calendar years following the effective date of a recipient receiving development assistance.
    (2) "Date of assistance" means the commencement date of the assistance agreement, which date triggers the period during which the recipient is obligated to create or retain jobs and continue operations at the specific project site.
    (3) "Default" means that a recipient has not achieved its job creation, job retention, or wage or benefit goals, as applicable, during the prescribed period therefore.
    (4) "Department" means, unless otherwise noted, the Department of Commerce or any successor agency.
    (5) "Development assistance" means: (i) Tax credits and tax exemptions including tax increment financing given as an incentive to a recipient business organization pursuant to an initial certification or an initial designation made by the Department of Revenue for the Manufacturing Investment Tax Credit and the Economic Opportunity Tax Credit; (ii) grants or loans given to a recipient as an incentive to a business organization; (iii) the West Virginia Economic Development Authority; and (iv) all successor and subsequent programs and tax credits designed to promote large business relocations and expansions. "Development assistance" does not include participation loans, or financial transactions through statutorily authorized financial intermediaries in support of small business loans and investments or given in connection with the development of affordable housing.
    (6) "Development assistance agreement" means any agreement executed by the state granting body and the recipient setting forth the terms and conditions of development assistance to be provided to the recipient consistent with the final application for development assistance, including, but not limited to, the date of assistance, submitted to and approved by the state granting body.
    (7) "Full-time, permanent job" means the same as that term is defined in legislation authorizing the programs described in the definition of “development assistance” in subdivision (5) of this section. However, if there is no such definition, then the term means the same as it is defined in administrative rules implementing that legislation: Provided, That the administrative rules were in place prior to the effective date of this article. On and after the effective date of this article, if there is no definition of "full-time, permanent job" in either the legislation authorizing a program that constitutes economic development assistance under this article or in any administrative rule implementing the legislation that was in place prior to the effective date of this article, then "full-time, permanent job" means a job in which the new employee works for the recipient at a rate of at least thirty-five hours per week.
    (8) "New employee" means the same as that term is defined in legislation authorizing the programs described in the definition of “development assistance” in subdivision (5) of this section. However, if there is no such definition, then the term means the same as it is defined in the administrative rules implementing the legislation: Provided, That the administrative rules were in place prior to the effective date of this article. On and after the effective date of this article, if there is no definition of "new employee" in either the legislation authorizing a program that constitutes economic development assistance under this article nor in any administrative rule implementing the legislation that was in place prior to the effective date of this article, then "new employee" means a full-time, permanent employee who represents a net increase in the number of the recipient's employees statewide. "New employee" includes an employee who previously filled a new employee position with the recipient who was rehired or called back from a layoff that occurs during or following the base years.
    The term "New Employee" does not include any of the following:
    (A) An employee of the recipient who performs a job that was previously performed by another employee in this state, if that job existed in this state for at least six months before hiring the employee.
    (B) A child, grandchild, parent, or spouse, other than a spouse who is legally separated from the individual, of any individual who has a direct or indirect ownership interest of at least five percent in the profits, capital, or value of any member of the recipient.
    (9) "Part-time job" means the same as that term is defined in legislation authorizing the programs described in the definition of “development assistance” in subdivision (5) of this section. However, if there is no such definition, then the term means the same as it is defined in the administrative rules implementing the Legislation: Provided, That the administrative rules were in place prior to the effective date of this article. On and after the effective date of this article, if there is no definition of "part-time job" in either the legislation authorizing a program that constitutes economic development assistance under this article or in any administrative rule implementing such legislation that was in place prior to the effective date of this article, then "part-time job" means a job in which the new employee works for the recipient at a rate of less than thirty five hours per week.
    (10) "Recipient" means any business that receives economic development assistance. A business is any corporation, limited liability company, partnership, joint venture, association, sole proprietorship, or other legally recognized entity.
    (11) "Retained employee" means the same as that term is defined in legislation authorizing the programs described in the definition of “development assistance” in subdivision (5) of this section. However, if there is no such definition, then the term means the same as it is defined in administrative rules implementing that legislation: Provided, That the administrative rules were in place prior to the effective date of this article. On and after the effective date of this article, if there is no definition of "retained employee" in either the legislation authorizing a program that constitutes economic development assistance under this article or in any administrative rule implementing such legislation that was in place prior to the effective date of this article, then "retained employee" means any employee defined as having a full-time or full-time equivalent job preserved at a specific facility or site, the continuance of which is threatened by a specific and demonstrable threat, which shall be specified in the application for development assistance.
    (12) "Specific project site" means that distinct operational unit to which any development assistance is applied.
    (13) "State granting body" means the Department of Commerce, any state department or state agency that provides development assistance that has reporting requirements under this article, and any successor agencies to any of the preceding.
    (14) "Temporary job" means the same as that term is defined in legislation authorizing the programs described in the definition of “development assistance” in subdivision (5) of this section. However, if there is no such definition, then the term means the same as it is defined in administrative rules implementing that legislation: Provided, That the administrative rules were in place prior to the effective date of this article. On and after the effective date of this article, if there is no definition of "temporary job" in either the legislation authorizing a program that constitutes economic development assistance under this article or in any administrative rule implementing such legislation that was in place prior to the effective date of this article, then "temporary job" means a job in which the new employee is hired for a specific duration of time or season.
    (15) "Value of assistance" means the face value of any form of development assistance.

§5B-2H-3. Unified Economic Development Budget.

    (a) For each state fiscal year ending on or after June 30, 2012, the Department of Revenue shall submit an annual Unified Economic Development Budget to the Legislature. The Unified Economic Development Budget shall be due within three months after the end of the fiscal year, and shall present all types of development assistance granted during the prior fiscal year, including:

    (1) The aggregate amount of uncollected or diverted state tax revenues resulting from each type of development assistance provided in the tax statutes, as reported to the Department of Revenue on tax returns filed during the fiscal year; and
    (2) All state development assistance.
    (b) All data contained in the Unified Economic Development Budget presented to the Legislature shall be fully subject to the Freedom of Information Act.
    (c) The Department of Revenue shall submit a report of the amounts in subdivision (1), subsection (a) of this section to the department, which may append such report to the Unified Economic Development Budget rather than separately reporting such amounts.

§5B-2H-4. Standardized applications for state development                assistance.

    (a) All final applications submitted to the department or any other state granting body requesting development assistance shall contain, at a minimum:

    (1) An application tracking number that is specific to both the state granting agency and to each application;

    (2) The office mailing addresses, office telephone number, and chief officer of the granting body;

    (3) The office mailing address, telephone number, six-digit NAIC number or successor number, and the name of the chief officer of the applicant or authorized designee for the specific project site for which development assistance is requested;

    (4) The applicant's total number of employees at the specific project site on the date that the application is submitted to the state granting body, including the number of full-time, permanent jobs, the number of part-time jobs, and the number of temporary jobs;

    (5) The type of development assistance and value of assistance being requested;

    (6) The number of jobs to be created and retained or both created and retained by the applicant as a result of the development assistance, including the number of full-time, permanent jobs, the number of part-time jobs, and the number of temporary jobs;

    (7) A detailed list of the occupation or job classifications and number of new employees or retained employees to be hired in full-time, permanent jobs, a schedule of anticipated starting dates of the new hires and the anticipated average wage by occupation or job classification and total payroll to be created as a result of the development assistance;

    (8) A list of all other forms of development assistance that the applicant is requesting for the specific project site and the name of each state granting body from which that development assistance is being requested;

    (9) A narrative, if necessary, describing why the development assistance is needed and how the applicant's use of the development assistance may reduce employment at any site in West Virginia; and     (10) A certification by the chief officer of the applicant, or his or her authorized designee, that the information contained in the application submitted to the granting body contains no knowing misrepresentation of material facts upon which eligibility for development assistance is based.

    (b) Every state granting body either shall complete, or shall require the applicant to complete, an application form that meets the minimum requirements as prescribed in this section each time an applicant applies for development assistance covered by this article.

    (c) The department shall have the discretion to modify any standardized application for state development assistance required under subsection (a) of this section for any grants under the Business and Industrial Training Program that are not given as an incentive to a recipient business organization.

§5B-2H-5. State development assistance disclosure.

    (a) Beginning May 1, 2012 and each year thereafter, every state granting body shall submit to the department copies of all development assistance agreements that it approved in the prior calendar year.

    (b) For each development assistance agreement for which the date of assistance has occurred in the prior calendar year, each recipient shall submit to the department a progress report that shall include, but not be limited to, the following:

    (1) The application tracking number;

    (2) The office mailing address, telephone number, and the name of the chief officer of the granting body;

    (3) The office mailing address, telephone number, 6-digit NAIC number or successor number, and the name of the chief officer of the applicant or authorized designee for the specific project site for which the development assistance was approved by the state granting body;

    (4) The type of development assistance program and value of assistance that was approved by the state granting body;

    (5) The applicant's total number of employees at the specific project site on the date that the application was submitted to the state granting body and the applicant's total number of employees at the specific project site on the date of the report, including the number of full-time, permanent jobs, the number of part-time jobs, and the number of temporary jobs, and a computation of the gain or loss of jobs in each category;

    (6) The number of new employees and retained employees the applicant stated in its development assistance agreement, if any, if not, then in its application, would be created by the development assistance broken down by full-time, permanent, part-time, and temporary;

    (7) A declaration of whether the recipient is in compliance with the development assistance agreement;
    (8) A detailed list of the occupation or job classifications and number of new employees or retained employees to be hired in full-time, permanent jobs, a schedule of anticipated starting dates of the new hires and the actual average wage by occupation or job classification and total payroll to be created as a result of the development assistance;

    (9) A narrative, if necessary, describing how the recipient's use of the development assistance during the reporting year has reduced employment at any site in West Virginia; and

    (10) A certification by the chief officer of the applicant, or his or her authorized designee, that the information in the progress report contains no knowing misrepresentation of material facts upon which eligibility for development assistance is based.

    (c) The state granting body, or a successor agency, shall have full authority to verify information contained in the recipient's progress report, including the authority to inspect the specific project site and inspect the records of the recipient that are subject to the development assistance agreement.

    (d) By June 1, 2012 and by June 1 of each year thereafter, the department shall compile and publish all data in all of the progress reports in both written and electronic form.

    (e) If a recipient of development assistance fails to comply with subsection (b) of this section, the department shall, within twenty working days after the reporting submittal deadlines set forth in: (i) The legislation authorizing; (ii) the administrative rules implementing; or (ii) specific provisions in development assistance agreements pertaining to the development assistance programs, suspend within thirty-three working days any current development assistance to the recipient under its control, and shall be prohibited from completing any current or providing any future development assistance until it receives proof that the recipient has come into compliance with the requirements of subsection (b) of this section.

§5B-2H-6. Recapture.

    (a) All development assistance agreements shall contain, at a minimum, the following recapture provisions:

    (1) The recipient must: (i) Make the level of capital investment in the economic development project specified in the development assistance agreement; and (ii) create or retain, or both, the requisite number of jobs, paying not less than specified wages for the created and retained jobs, within and for the duration of the time period specified in the legislation authorizing, or the administrative rules implementing, the development assistance programs and the development assistance agreement;

    (2) If the recipient fails to create or retain the requisite number of jobs within and for the time period specified, in the legislation authorizing, or the administrative rules implementing, the development assistance programs and the development assistance agreement, the recipient shall be deemed to no longer qualify for the state economic assistance and the applicable recapture provisions shall take effect;

    (3) If the recipient receives state economic assistance in the form of a Manufacturing Investment Tax Credit or the Economic Opportunity Tax Credit and the business receives the benefit of the exemption and the recipient fails to create or retain the requisite number of jobs, as determined by the legislation authorizing the development assistance programs or the administrative rules implementing such legislation, or both, within the requisite period of time, the recipient shall be required to pay to the state a pro rata amount of the state tax exemption that it received; and
    (4) If the recipient receives a grant or loan and the recipient fails to create or retain the requisite number of jobs for the requisite time period, as provided in the legislation authorizing the development assistance programs or the administrative rules implementing such legislation, or both, or in the development assistance agreement, the recipient shall be required to repay to the state a pro rata amount of the grant; that amount shall reflect the percentage of the deficiency between the requisite number of jobs to be created or retained by the recipient and the actual number of such jobs in existence as of the date the department determines the recipient is in breach of the job creation or retention covenants contained in the development assistance agreement. If the recipient of development assistance ceases operations at the specific project site, during the five year period commencing on the date of assistance, the recipient shall be required to repay the entire amount of the grant or to accelerate repayment of the loan back to the state.

    (b) The director may elect to waive enforcement of any contractual provision arising out of the development assistance agreement required by this article based on a finding that the waiver is necessary to avert an imminent and demonstrable hardship to the recipient that may result in such recipient's insolvency or discharge of workers. If a waiver is granted, the recipient must agree to a contractual modification, including recapture provisions, to the development assistance agreement. The existence of any waiver granted pursuant to this subsection, the date of the granting of such waiver, and a brief summary of the reasons supporting the granting of such waiver shall be disclosed consistent with the provisions of this article.

    (c) Beginning June 1, 2012, the department shall annually compile a report on the outcomes and effectiveness of recapture provisions by program, including but not limited to: (i) The total number of companies that receive development assistance as defined in this article; (ii) the total number of recipients in violation of development agreements with the department; (iii) the total number of completed recapture efforts; (iv) the total number of recapture efforts initiated; and (v) the number of waivers granted. This report shall be disclosed consistent with the provisions of this article.

    NOTE: The purpose of this bill is to create the Good Jobs Internet Reporting Act. The bill authorizes state departments and agencies to provide developmental assistance to qualified recipients. The bill defines developmental assistance to include, tax credits, tax exemptions, grants and loans and sets forth the requirements for applications for developmental assistance. The bill sets forth the requirements of developmental assistance agreements and the requirements for annual progress reports by recipients of developmental assistance. The bill also requires all state departments and agencies to annually submit copies of all developmental assistance agreements to the Department of Revenue. The bill requires the Department of Revenue to submit an annual unified economic development budget to the Legislature and sets forth what that budget must contain. The bill also defines additional terms.

    This article is new; therefore, it has been completely underscored.