Senate Bill No. 467
(By Senators Love and Schoonover)
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[Introduced February 11, 1998; referred to the
Committee on Government Organization; and then to the Committee
on Finance.]
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A BILL to amend and reenact section one, article three, chapter
five-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
article five-b, chapter twenty-eight of said code, all
relating to enacting the "Prison Industries Act of 1998";
modernizing the provisions of the "Prison-Made Goods Act of
1939"; updating certain terms; and providing for enhanced
ability of prison industries programs to be competitive by
eliminating requirement that purchases of raw materials,
supplies, etc. be made only through the division of
purchasing.
Be it enacted by the Legislature of West Virginia:
That section one, article three, chapter five-a of the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that article five-b,
chapter twenty-eight of said code be amended and reenacted, all
to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-1. Division created; purpose; director; applicability of article; continuation.
(a) There is hereby created the purchasing division of the
department of administration for the purpose of establishing
centralized offices to provide purchasing, travel and leasing
services to the various state agencies.
(b) No person shall may be appointed director of the
purchasing division unless that person is, at the time of
appointment, a graduate of an accredited college or university
and shall have who has spent a minimum of ten of the fifteen
years immediately preceding his or her appointment employed in an
executive capacity in purchasing for any unit of government or
for any business, commercial or industrial enterprise.
(c) The provisions of this article shall apply to all of the
spending units of state government, except as is otherwise
provided by this article or by law: Provided, That the
provisions of this article shall do not apply to: (i) The legislative branch, unless otherwise provided by law, or the
Legislature or either house thereof requests the director to
render specific services under the provisions of this chapter;
nor to (ii) purchases of stock made by the alcohol beverage
control commissioner; nor to (iii) purchases of textbooks for the
state board of education; and (iv) purchases of goods or
materials to be used in the production or manufacture of prison- made goods, pursuant to article five-b, chapter twenty-eight of
this code.
(d) Pursuant to the provisions of article ten, chapter four of
this code, the purchasing division within the department of
administration shall continue to exist until the first day of
July, one thousand nine hundred ninety-eight.
CHAPTER 28. STATE CORRECTIONAL AND PENAL INSTITUTIONS.
ARTICLE 5B. PRISON INDUSTRIES ACT.
§28-5B-1. Intent of article.
Whereas, the means now provided for the employment of
convict inmate labor are inadequate to furnish a sufficient
number of convicts inmates with employment, it is hereby declared
to be the intent of this article:
(a) To further provide more adequate, regular and suitable
employment for the convicts inmates of this state, consistent
with proper penal correctional purposes;
(b) To further utilize the labor of convicts inmates for
self-maintenance and for reimbursing this state for expenses
incurred by reason of their crimes and imprisonment;
(c) To effect the requisitioning and disbursement of prison
prison-made products directly through established state
authorities with no possibility of private profits therefrom.
§28-5B-2. Citation of article.
This article may be cited as the "Prison-Made Goods Prison
Industries Act of 1939 1998."
§28-5B-3. Establishment of industries at correctional
facilities; purpose and extent.
The state commissioner of public institutions the division
of corrections is hereby authorized to purchase in the manner
provided by law, equipment, raw materials and supplies and to
engage the supervisory personnel necessary to establish and
maintain for this state at the penitentiary its correctional
facilities or any penal farm or institution now or hereafter
under control of this commissioner, industries for the
utilization of services of convicts inmates in the manufacture or
production of such articles or products as that may be needed for
the construction, operation, maintenance or use of any office,
department, institution or agency supported, in whole or in part,
by this state and the political subdivisions thereof.
§28-5B-4. Purchase of prison-made goods by state agencies and
political subdivisions.
(a) On and after the effective date of this article, as
amended in the regular session of the Legislature in the year one
thousand nine hundred ninety-eight, all offices, departments,
institutions and agencies of this state which are supported, in
whole or in part, by this state shall purchase, and all political
subdivisions of this state may purchase from the state
commissioner of public institutions all of the articles or
products required by such offices, departments, institutions,
agencies or political subdivisions of this state, that they
require from the commissioner of the division of corrections if
those articles or products are produced or manufactured by the
state commissioner of public institutions by convict inmate labor
at the state's correctional facilities, as provided for by this
article. and No such article or product shall be purchased by
any such state office, department, institution or agency, may
purchase any article or product that is produced by inmate labor
at any of this state's correctional facilities from any other
source, unless specifically excepted from the provisions of this
section as hereinafter provided by this article or otherwise by
law
.
(b) All purchases of inmate-produced articles or products by state offices, departments, institutions, agencies and political
subdivisions shall be made through the department of purchases
division of purchasing, upon requisition by the proper authority
of the office, department, institution, agency or political
subdivision of this state requiring such articles or products.
§28-5B-5. Exceptions as to mandatory purchase requirement.
Exceptions from the operation of the mandatory purchase
provisions of section four hereof of this article may be made in
any case where, in the majority opinion of the state commissioner
of public institutions, the state director of purchases, and the
director of the budget commissioner of corrections, the director
of purchasing and the secretary of the department of
administration, or their designees, or a majority of them, who
are hereby constituted a board for such purposes of this section,
the article or articles or product or products so produced or
manufactured by inmate labor does or do not meet the reasonable
requirements of or for such offices, departments, institutions,
agencies or, in any case, where the requisition made cannot be
reasonably complied with on account of an insufficient supply of
the articles or products required, or otherwise. the requesting
state office, department, institution, agency or political
subdivision or where the requisition cannot be filled because of
insufficient supply or other reason. No such state office, department, institution or agency shall be allowed to may evade
the intent and meaning of this section by requesting slight
variations from standards adopted by the state commissioner of
public institutions, commissioner of corrections, when the
articles or products produced or manufactured by the
commissioner, in accordance with the commissioner's standards,
are reasonably adapted to the actual needs of such the office,
department, institution or agency.
§28-5B-6. Auditor bound by voucher or warrant; intentional
violation of article; penalty.
No voucher, certificate or warrant issued on the state
auditor by any such state office, department, institution or
agency shall may be questioned by him the auditor or by the state
treasurer on the grounds that this article has not been complied
with by such the office, department, institution or agency has
failed to comply with the provisions of this article, but if
intentional violation of this article by any such a state office,
department, institution or agency continues to intentionally
violate the provisions of this article, after notice from the
governor to desist, such action shall constitute a constitutes
malfeasance in office and shall subject the person or persons
responsible for this the violation are subject to suspension or
removal from office.
§28-5B-7. Catalogues of articles and products made and produced;
estimates of needs by departments, etc.
The state commissioner of public institutions commissioner
of corrections shall: (i) Cause to be prepared, annually, at
such times as he may determine he or she determines, catalogues
containing the a description of all articles and products
manufactured or produced by the commissioner pursuant to the
provisions of this article; (ii) send copies of which this
catalogue shall be sent by him to all offices, departments,
institutions and agencies of this state; and made (iii) make the
same accessible to all political subdivisions of this state.
referred to in the preceding sections. At least thirty days
before the
commencement beginning of each fiscal year, the proper
official of each such state office, department, institution or
agency when required by the state commissioner of public
institutions shall report to the state commissioner of public
institutions estimates for such fiscal year of the kind and
amount of articles and products reasonably required for such
ensuing year shall provide estimates to the commissioner of
corrections of the kind and amount of articles and products that
the office, department, institution or agency may reasonably
require in the ensuing fiscal year, referring in such estimates
with reference to the catalogue issued by the state commissioner of public institutions insofar as the articles and products
indicated required are included in this catalogue.
§28-5B-8. Order of distribution of articles and products.
The articles or products manufactured or produced by convict
inmate labor in accordance with the provisions of this article
shall be devoted first to fulfilling the requirements of the
offices, departments, institutions and agencies of this state
which are supported, in whole or in part, by this state, and,
secondly, to supply the political subdivisions of this state.
with such articles and products.
§28-5B-9. Commissioner of corrections to fix prices.
The state commissioner of public institutions commissioner
of corrections shall fix and determine the prices at which all
articles or products manufactured or produced by inmate labor
shall be are furnished, which prices shall be uniform and
nondiscriminating to all, and shall be as near the usual market
price for such those articles or products as may be is
practicable.
§28-5B-10. Annual statements by wardens of correctional
facilities and directors of prison industries programs.
The warden of the penitentiary each state correctional
facility and the manager or authorities by whatever name known having charge of the penal institutions of this state director of
any prison industries program at such correctional facility shall
annually make a full detailed statement of all materials,
machinery or other property procured, and the cost thereof, and
of the expenditures made during the last preceding year for
manufacturing purposes, together with a statement of all
materials then on hand to be manufactured, or in process of
manufacture, or manufactured, and all machinery, fixtures or
other appurtenances for the dedicated to the purpose of carrying
on the inmate labor of the convicts and the earnings realized
therefrom during the last preceding year, as the proceeds of the
labor of the convicts at the penitentiary of such penal
institutions of this state, which statement shall be verified by
the oath of the warden or such manager or authorities having
charge of such penal institutions to be just and true, under oath
and shall be by him or them forwarded to the state commissioner
of public institutions commissioner of corrections within thirty
days after the end of such last preceding year.
§28-5B-11. Quarterly estimate of needs for prison industries
programs.
Such warden, or manager or authorities having charge of a
penal institution of this state The warden or director of the
prison industries program at each state correctional facility shall quarterly make an estimate and detailed statement of all
materials, machinery, fixtures, tools or other appurtenances or
accommodations, and the cost thereof, which will in his, her or
their judgment be necessary for carrying on the activities
authorized by this article at such penal institution that
correctional facility for the next ensuing quarter, or which in
his, her or their judgment should be contracted for during such
the ensuing quarter, which estimate shall be forwarded to the
state commissioner of public institutions for his commissioner of
corrections for consideration and proper action relative thereto,
at least ten days before the beginning of such that ensuing
quarter.
§28-5B-12. Commissioner of corrections empowered to implement
article; authority to propose rules for promulgation.
The state commissioner of public institutions shall have power
and authority to prepare and promulgate rules and regulations
The commissioner of the division of corrections has those powers
that are necessary to implement the provisions of this article.
He or she shall propose legislative rules for promulgation which
are necessary to give effect to implement the provisions of this
article with respect to matters of and to provide for the
administration and procedure respecting the same necessary for such implementation. To this end, the commissioner is authorized
to cause to be purchased and to develop the method for purchasing
raw materials, supplies, services and equipment necessary for the
production and timely delivery of articles and products produced
by inmate labor. The commissioner shall propose by rule policies
and procedures to ensure that purchases made for the benefit of
prison industries programs are, to the extent practicable, at the
lowest possible price while at the same time ensuring quality of
material and timely delivery thereof. The commissioner may
purchase supplies, services and equipment for prison industries
through the division of purchasing, and is encouraged to do so
under circumstances which are advantageous for the timely
delivery of low-cost, high-quality products; but the commissioner
is not required to make such purchases through the division of
purchasing nor to comply with rules of that division in making
purchases for the benefit of prison industries programs.
§28-5B-13. Appropriation for buildings, equipment, etc.;
self-liquidating contracts.
In order to carry out the provisions of this article there
is hereby appropriated out of the moneys in the state fund,
general revenue, not otherwise appropriated, the sum of fifty
thousand dollars, and the commissioner of the division of
corrections is authorized to expend such moneys from such this appropriation as may be necessary to erect buildings, to purchase
equipment, to procure tools, supplies and materials, to purchase,
install or replace equipment, to employ personnel and otherwise
to defray the necessary expenses incident to the employment of
convicts inmates as herein provided in this article, and further
to aid in the above these purposes, the commissioner of the
division of corrections is empowered to enter into contracts and
agreements with any person or persons upon a self-liquidating
basis respecting the acquisition and purchase of any such
equipment, tools, supplies and materials, to the end that the
same may be paid for over a period of not exceeding three years;
Provided, That and the aggregate amount of such these purchases
or acquisitions may not to exceed one million dollars: Provided,
however, That such amounts to be these amounts are payable solely
out of the revenues derived from the activities authorized by
this article. Nothing in this section shall be so may be
construed or interpreted as to authorize or permit authorizing or
permitting the incurring of a state debt of any kind or nature as
the type contemplated prohibited by the constitution of this
state. in relation to such debt
§28-5B-14. Prison industries account.
All moneys collected by the commissioner of the division of
corrections from the sale or disposition of articles and products manufactured or produced by convict inmate labor in accordance
with the provisions of this article shall be forthwith deposited
with the state treasurer to be there kept and maintained as a
special revolving account designated the "prison industries
account" and such moneys so collected and deposited shall be used
solely for the purchase of manufacturing supplies, equipment,
machinery and materials used to carry out the purposes of this
article, as well as for the payment of the necessary personnel in
charge thereof and to otherwise defray the necessary expenses
incident thereto, all of which are under the direction and
subject to the approval of the commissioner: Provided, That the
"prison industries account" shall may never be maintained in
excess of the amount necessary to efficiently and properly carry
out the intentions of this article, and in no event may the
"prison industries account" be maintained in excess of the sum of
one million dollars. When, in the opinion of the governor, the
"prison industries account" has reached a sum in excess of the
requirements of this article, the excess shall be transferred by
the commissioner of the division of corrections to the state
fund, general revenue, and if the governor does not make such
determination, any excess above one million dollars shall be
transferred to the state fund, general revenue, by the
commissioner of the division of corrections at the end of each fiscal year.
§28-5B-15. Sale of prison-made goods on open market prohibited;
penalty; exceptions.
(a) Subject to the provisions of subsections (b) and (c) of
this section, it is unlawful to sell or offer for sale on the
open market of this state any articles or products manufactured
or produced, wholly or in part, in this or any other state, by
convicts inmates or prisoners of this state, or any other state,
except convicts inmates or prisoners on parole or probation.
Any person violating the provisions of this section is guilty of
a misdemeanor and, upon conviction thereof, shall be punished by
is subject to a fine of not less than two hundred dollars nor
more than five thousand dollars, or by imprisonment in
jail
confinement in a regional or county jail for not less than three
months nor more than one year, or by both fine and imprisonment.
Each such sale or offer for sale shall constitute to sell
constitutes a separate offense under this section.
(b) Notwithstanding the provisions of subsection (a) of this
section, any articles or products manufactured or produced,
wholly or in part, by inmates of West Virginia penal and
correctional institutions and facilities which are designed and
intended to be used solely by blind and handicapped persons,
including, but not limited to, braille books and reading materials, may be sold or offered for sale or distributed on the
open market by the department division of corrections or other
state department or agency.
(c) Notwithstanding the provisions of subsection (a) of this
section, arts and crafts produced by inmates may be sold to the
general public by the department division of corrections or by
such other agencies or departments of state government as that
the commissioner of corrections may designate. The arts and
crafts shall may be sold only on a consignment basis so that
inmates whose arts and crafts products are sold shall receive
payment for the products. The payments shall be deposited in
such accounts or funds and managed in such a manner as provided
by section six, article five of this chapter: Provided, That
where the state department division of corrections or any other
agency or department of state government provides any materials
used in the production of an arts and crafts product, the fair
market value of such materials may be deducted from the account
of the individual inmate after the sale of such product.
(d) For purposes of this section, "arts and crafts" means
articles produced individually by artistic or craft skill such
as, but not limited to, painting, sculpture, pottery and jewelry.
§28-5B-16. Penalties.
Any person who wilfully violates any of the provisions of this article, other than except for section fifteen, hereof,
shall be is guilty of a misdemeanor and, upon conviction, shall
be confined in a regional or county jail for not less than ten
days nor more than one year, or fined not less than ten dollars
nor more than five hundred dollars, or both, in the discretion of
the court.
§28-5B-17. Provisions of act severable.
If any section, subsection, provision or sentence of this
act or the application thereof to any person, or any
circumstance, be is held invalid, the remainder of the act and
the application of any such section, subsection, provision or
sentence to other persons or circumstances shall not be is not
affected thereby.
§28-5B-18. Inconsistent acts repealed.
All acts and parts of acts inconsistent herewith with this
article are hereby repealed; however, this article is to be
considered as supplementary or additional in addition to other
provisions of law now existing relative to the employment of
convicts inmates.
NOTE: The purpose of this bill is to enact the "Prison
Industries Act of 1998" by modernizing the provisions of the
Prison-made Goods Act of 1939. It would increase Prison
Industries' ability to be competitive by eliminating the
requirement that raw materials and supplies be purchased through the Purchasing Division. It also would update certain terms and
make stylistic changes.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.