Senate Bill No. 556
(By Senator Schoonover)
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[Introduced February 17, 1999; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A Bill to amend and reenact section one, article two, chapter
five-f of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend chapter twenty- nine of said code by adding thereto a new article,
designated article twenty-five, all relating to creation of
charitable gaming commission in department of tax and
revenue; stating legislative intent and findings; defining
terms; creating charitable gaming commission and charitable
gaming commission office; transferring administration of
charitable bingo and charitable raffles to commission;
specifying composition, qualifications, terms of office,
removal, vacancies, compensation, quorum, oath and bonding,
powers and duties of commissioners; providing for
appointment of executive director, qualifications, oath of
office, bonding and salary; specifying powers and duties of executive director; providing transition rules and for
severability; specifying effective date; and making
technical corrections.
Be it enacted by the Legislature of West Virginia:
That section one, article two, chapter five-f of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that chapter twenty-nine of said
code be amended by adding thereto a new article, designated
article twenty-five, all to read as follows:
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards;
funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board the agencies and boards,
are hereby transferred to and incorporated in and shall be
administered as a part of the department of administration:
(1) Building commission provided for in article six, chapter
five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for in article sixteen,
chapter five of this code;
(3) Governor's mansion advisory committee provided for in
article five, chapter five-a of this code;
(4) Commission on uniform state laws provided for in article
one-a, chapter twenty-nine of this code;
(5) Education and state employees grievance board provided
for in article twenty-nine, chapter eighteen of this code and
article six-a, chapter twenty-nine of this code;
(6) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(7) Boundary commission provided for in article
twenty-three, chapter twenty-nine of this code;
(8) Public defender services provided for in article
twenty-one, chapter twenty-nine of this code;
(9) Division of personnel provided for in article six,
chapter twenty-nine of this code;
(10) The West Virginia ethics commission provided for in
article two, chapter six-b of this code;
(11) Consolidated public retirement board provided for in
article ten-d, chapter five of this code; and
(12) The child support enforcement division designated in
chapter forty-eight-a of this code.
(b) The department of commerce, labor and environmental
resources and the office of secretary of the department of
commerce, labor and environmental resources are hereby abolished. For purposes of administrative support and liaison with the
office of the governor, the following agencies and boards,
including all allied, advisory and affiliated entities shall be
grouped under three bureaus as follows:
(1) Bureau of commerce:
(A) Division of labor provided for in article one, chapter
twenty-one of this code, which shall include:
(i) Occupational safety and health review commission
provided for in article three-a, chapter twenty-one of this code;
and
(ii) Board of manufactured housing construction and safety
provided for in article nine, chapter twenty-one of this code;
(B) Office of miners' health, safety and training provided
for in article one, chapter twenty-two-a of this code. The
following boards are transferred to the office of miners' health,
safety and training for purposes of administrative support and
liaison with the office of the governor:
(i) Board of coal mine health and safety and coal mine
safety and technical review committee provided for in article
six, chapter twenty-two-a of this code;
(ii) Board of miner training, education and certification
provided for in article seven, chapter twenty-two-a of this code;
and
(iii) Mine inspectors' examining board provided for in article nine, chapter twenty-two-a of this code;
(C) The West Virginia development office provided for in
article two, chapter five-b of this code, which shall include:
(i) Enterprise zone authority provided for in article two-b,
chapter five-b of this code;
(ii) Economic development authority provided for in article
fifteen, chapter thirty-one of this code; and
(iii) Tourism commission provided for in article two,
chapter five-b of this code and the office of the tourism
commissioner;
(D) Division of natural resources and natural resources
commission provided for in article one, chapter twenty of this
code. The Blennerhassett historical state park provided for in
article eight, chapter twenty-nine of this code shall be under
the division of natural resources;
(E) Division of forestry provided for in article one-a,
chapter nineteen of this code;
(F) Geological and economic survey provided for in article
two, chapter twenty-nine of this code;
(G) Water development authority and board provided for in
article one, chapter twenty-two-c of this code;
(2) Bureau of employment programs provided for in article
one, chapter twenty-one-a of this code;
(3) Bureau of environment:
(A) Air quality board provided for in article two, chapter
twenty-two-b of this code;
(B) Solid waste management board provided for in article
three, chapter twenty-two-c of this code;
(C) Environmental quality board, or its successor board,
provided for in article three, chapter twenty-two-b of this code;
(D) Division of environmental protection provided for in
article one, chapter twenty-two of this code;
(E) Surface mine board provided for in article four, chapter
twenty-two-b of this code;
(F) Oil and gas inspectors' examining board provided for in
article seven, chapter twenty-two-c of this code;
(G) Shallow gas well review board provided for in article
eight, chapter twenty-two-c of this code; and
(H) Oil and gas conservation commission provided for in
article nine, chapter twenty-two-c of this code.
(c) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board of the agencies or
boards, are hereby transferred to and incorporated in and shall
be administered as a part of the department of education and the
arts:
(1) Library commission provided for in article one, chapter
ten of this code;
(2) Educational broadcasting authority provided for in
article five, chapter ten of this code;
(3) University of West Virginia board of trustees provided
for in article two, chapter eighteen-b of this code;
(4) Board of directors of the state college system provided
for in article three, chapter eighteen-b of this code;
(5) Joint commission for vocational-technical-occupational
education provided for in article three-a, chapter eighteen-b of
this code;
(6) Division of culture and history provided for in article
one, chapter twenty-nine of this code; and
(7) Division of rehabilitation services provided for in
section two, article ten-a, chapter eighteen of this code.
(d) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board of the agencies or
boards, are hereby transferred to and incorporated in and shall
be administered as a part of the department of health and human
resources:
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Bureau of public health provided for in article one, chapter sixteen of this code;
(4) Office of emergency medical services and advisory
council thereto provided for in article four-c, chapter sixteen
of this code;
(5) Health care cost review authority provided for in
article twenty-nine-b, chapter sixteen of this code;
(6) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code;
(7) Women's commission provided for in article twenty,
chapter twenty-nine of this code; and
(8) The child support enforcement division designated in
chapter forty-eight-a of this code.
(e) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board of the agencies or
boards, are hereby transferred to and incorporated in and shall
be administered as a part of the department of military affairs
and public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter
fifteen of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) West Virginia state police provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five, chapter fifteen of this code and
emergency response commission provided for in article five-a of
said the chapter;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter twenty- five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority
provided for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans'' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board of the agencies or
boards, are hereby transferred to and incorporated in and shall
be administered as a part of the department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven of this code;
(2) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(3) Lottery commission and position of lottery director
provided for in article, chapter twenty-nine of this code;
(4) Agency of insurance commissioner provided for in
article, chapter thirty-three of this code;
(5) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven of this code and article
two, chapter sixty of this code;
(6) Board of banking and financial institutions provided for
in article three, chapter thirty-one-a of this code;
(7) Lending and credit rate board provided for in chapter
forty-seven-a of this code;
(8) Division of banking provided for in article two, chapter
thirty-one-a of this code; and
(9) The child support enforcement division as designated in
chapter forty-eight-a charitable gaming commission and position
of executive director created in article twenty-five, chapter
twenty-nine of this code.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board of the agencies or
boards, are hereby transferred to and incorporated in and shall be administered as a part of the department of transportation:
(1) Division of highways provided for in article two-a,
chapter seventeen of this code;
(2) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this
code;
(3) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(4) Driver's licensing advisory board provided for in
article two, chapter seventeen-b of this code;
(5) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(6) State rail authority provided for in article eighteen,
chapter twenty-nine of this code; and
(7) Port authority provided for in article sixteen-b,
chapter seventeen of this code.
(h) Except for such the powers, authority and duties as have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence of the
position of administrator and of the agency and the powers,
authority and duties of each administrator and agency shall not
be affected by the enactment of this chapter.
(i) Except for such the powers, authority and duties as have
been delegated to the secretaries of the departments by the provisions of section two of this article, the existence, powers,
authority and duties of boards and the membership, terms and
qualifications of members of such the boards shall not be
affected by the enactment of this chapter and all boards which
are appellate bodies or were otherwise established to be
independent decision makers shall not have their appellate or
independent decision-making status affected by the enactment of
this chapter.
(j) Any department previously transferred to and
incorporated in a department created in section two, article one
of this chapter by prior enactment of this section in chapter
three, acts of the Legislature, first extraordinary session, one
thousand nine hundred eighty-nine, and subsequent amendments
thereto, shall henceforth be read, construed and understood to
mean a division of the appropriate department so created.
Wherever elsewhere in this code, in any act, in general or other
law, in any rule or regulation, or in any ordinance, resolution
or order, reference is made to any department transferred to and
incorporated in a department created in section two, article one
of this chapter, such the reference shall henceforth be read,
construed and understood to mean a division of the appropriate
department so created, and any such reference elsewhere to a
division of a department so transferred and incorporated shall
henceforth be read, construed and understood to mean a section of the appropriate division of the department so created.
(k) When an agency, board or commission is transferred
under a bureau or agency other than a department headed by a
secretary pursuant to this section, that transfer shall be
construed to be solely for purposes of administrative support and
liaison with the office of the governor, a department secretary
or a bureau. The bureaus created by the Legislature upon the
abolishment of the department of commerce, labor and
environmental resources in the year one thousand nine hundred
ninety-four shall be headed by a commissioner or other statutory
officer of an agency within that bureau. Nothing in this section
shall be construed to extend the powers of department secretaries
under section two of this article to any person other than a
department secretary and nothing herein shall be construed to
limit or abridge the statutory powers and duties of statutory
commissioners or officers pursuant to this code. Upon the
abolishment of the office of secretary of the department of
commerce, labor and environmental resources, the governor may
appoint a statutory officer serving functions formerly within
that department to a position which was filled by the secretary
ex officio.
CHAPTER 29. MISCELLANEOUS BOARDS AND COMMISSIONS.
ARTICLE 25. CHARITABLE GAMING COMMISSION.
§29-25-1. Legislative findings and intent.
The Legislature finds and declares that the purpose of this
article is to establish a charitable gaming commission to oversee
charitable gaming in this state under the supervision of an
executive director. The charitable gaming commission and the
executive director of the commission shall be appointed by the
governor.
§29-25-2. Definitions.
(a) "Charitable gaming" includes charitable bingo as
authorized in article twenty, chapter forty-seven of this code
and charitable raffles as authorized in article twenty-one of
this code.
(b) "Charitable gaming commission" or "commission" means the
charitable gaming commission created by this article.
(c) "Executive director" or "director" means the individual
appointed by the governor to provide management and
administration necessary to direct the charitable gaming
commission.
§29-25-3. Charitable gaming commission created; composition;
qualifications; appointment; terms of office; member's removal; vacancies; compensation and expenses; quorum; oath and bond.
(a) Commission created. -- There is hereby created within
the department of tax and revenue a state charitable gaming
commission, which shall consist of three members, all residents and citizens of this state. Commission members shall be appointed
by the governor, by and with the advice and consent of the
Senate. No more than two members of the commission shall belong
to the same political party. No person convicted of a felony, a
crime involving moral turpitude, or a gambling offense shall be
eligible for appointment nor serve as a commissioner.
(b) Terms. -- Members serve overlapping terms of four years,
and until their successors have been appointed and have
qualified: Provided, That the terms of members first appointed
expire as designated by the governor at the time of appointment,
one for the term ending the thirtieth day of June, two thousand,
one for the term ending the thirtieth day of June, two thousand
two, and one for the term ending the thirtieth day of June, two
thousand three. Members are eligible for successive appointments
to the commission.
(c) Removal. -- The governor may remove any commission
member as provided in section four, article six, chapter six of
this code. Vacancies shall be filled in the same manner as the
original appointment but only for the remainder of the term.
(d) Oath and bond. -- Before entering upon the discharge of
the duties as commissioner, each commissioner shall take and
subscribe to the oath of office prescribed in section five,
article IV of the constitution of West Virginia and shall give
the bond required by section three, article two, chapter five-f of this code. The executed oath and bond shall be filed in the
office of the secretary of state.
(e) Chairperson. -- Annually, the commission shall select a
chairperson from its membership who shall serve as chairperson
during the fiscal year of this state.
(f) Compensation. -- The commission shall pay each member
the same compensation as is paid to members of the Legislature
for their interim duties as recommended by the citizens
legislative compensation commission and authorized by law for
each day or portion thereof engaged in the discharge of official
duties and shall reimburse each member for actual and necessary
expenses incurred in the discharge of official duties: Provided,
That the per mile rate to be reimbursed shall be the same rate as
authorized for members of the Legislature. All payments shall be
made from funds appropriated by the Legislature for operation of
the charitable gaming commission.
(g) Meetings. -- The commission shall meet at least once
each calendar month. Additional meetings may be held at the call
of the chairman, executive director or majority of the commission
members.
(h) Quorum. -- A majority of the members constitutes a
quorum for the transaction of business, and all actions require
a majority vote of the members present.
§29-25-4. Charitable gaming commission; powers and duties.
(a) Purpose. -- The commission shall carry on a continuous
study and investigation of charitable gaming throughout this
state and advise and assist the executive director of the state
charitable gaming commission.
(b) Powers and duties. -- The commission shall have the
authority to:
(1) Promulgate rules in accordance with chapter twenty-nine- a it believes are reasonable and necessary to implement, explain,
administer or enforce the provisions of this article and articles
twenty, twenty-one and twenty-three, chapter forty-seven of this
code: Provided, That those rules previously promulgated by the
tax commissioner for those articles shall remain in effect until
they are withdrawn, amended or superseded as provided for in
chapter twenty-nine-a of this code;
(2) Adopt an official seal;
(3) Maintain a principal office;
(4) Prescribe a schedule of fees and charges;
(5) Sue and be sued;
(6) Lease, rent, acquire, purchase, own, hold, construct,
equip, maintain, operate, sell, encumber and assign rights of any
property, real or personal, consistent with the objectives of the
commission as set forth in this article;
(7) Hold hearings on any matter of concern to the commission
relating to charitable gaming, subpoena witnesses, administer oaths, take testimony, require the production of evidence and
documentary evidence and designate hearing examiners and
employees to so act. The provisions of article five, chapter
twenty-nine-a of this code shall apply to contested cases; and
(8) Make and enter into all agreements and do all acts
necessary or incidental to the performance of its duties and the
exercise of its powers under this article.
§29-22-5. Executive director; appointment; oath and bond;
background; qualifications; compensation.
(a) Office created. -- There is hereby created the position
of executive director of the commission whose duties include the
management and administration of the state charitable gaming
commission office.
(b) Appointment. -- The governor with the advice and
consent of the senate shall appoint the executive director. The
governor may remove the director as provided in section four,
article six, chapter six of this code. Before entering upon the
discharge of the duties as director, the director shall take and
subscribe to the oath of office prescribed in section five,
article IV of the constitution of West Virginia and shall give
the bond required by section three, article two, chapter five-f
of this code. The executed oath and bond shall be filed in the
office of the secretary of state.
(c) Background. -- The director shall be of sound moral character and have a good reputation, particularly as a person of
honesty and integrity. The director shall favorably pass a
thorough background investigation prior to being appointed. No
person shall be appointed as director who has been convicted of
a felony, a crime involving moral turpitude or a gambling
offense.
(d) Residency. -- The director shall be a citizen of the
United States and must become a resident of this state within
ninety days of appointment, if not a resident at the time of
appointment.
(e) Position is full-time. -- The director shall serve on a
full-time basis at the will and pleasure of the governor and be
qualified by training and experience to direct the operations of
the charitable gaming commission. The director shall not hold any
other political office in this state, either by election or
appointment, while serving as director. The director may not
engage in any other profession or occupation for compensation or
be an officer of any organization that holds a license under
article twenty or twenty-one, chapter forty-seven of this code.
(f) Compensation. -- The director shall receive an annual
salary fixed by the governor and shall be paid actual and
necessary traveling expenses incurred in performance of the
official duties of the office as provided in the governor's
travel regulations.
(g) The director and the director's executive secretary are
ineligible for civil service coverage as provided in section
four, article six, chapter twenty-nine of this code.
§29-25-6. Executive director; powers and duties; deputy
directors; hiring of staff; civil service coverage; submission
of proposed appropriations; reports; enforcement agents;
assistance of other officials.
(a) Powers. -- The executive director shall have the
authority to:
(1) Appoint, with the approval of the commission, a deputy
director who shall serve at the will and pleasure of the director
at an annual salary established by the commission. The deputy
director shall not be eligible for civil service coverage as
provided in section four, article six, chapter twenty-nine of
this code;
(2) Hire, pursuant to the approval of the commission,
professional, clerical, technical and administrative personnel
necessary to carry out the provisions of this article. No person
shall be employed by the charitable gaming commission who has
been convicted of a felony, a crime involving moral turpitude or
a gambling offense. Each person employed by the commission shall
execute an authorization to allow an investigation of that
person's background.
(b) Civil service. -- All employees of the commission, except as otherwise expressly provided in this article, shall be
in the classified service under the provisions of article six,
chapter twenty-nine of this code.
(c) Budget. -- The director shall, pursuant to the approval
of the commission, prepare and submit the annual proposed
appropriations for the commission to the governor.
(d) Reports. -- The director shall, no later than the tenth
day of each regular session of the Legislature, provide to the
Legislature, the governor and the secretary of tax and revenue an
annual report focused upon subjects of interest concerning
operations and functions of the commission. The director shall
make other reports and recommendations as may be required by the
governor or the secretary of tax and revenue.
(e) Enforcement agents. -- The director may designate
employees the commission believes necessary to act as enforcement
agents. The agents are authorized to investigate complaints made
to the commission or the charitable gaming commission office
concerning possible violation of the provisions of article
twenty, twenty-one or twenty-three, chapter forty-seven of
this code, and to determine whether to recommend criminal
prosecution. If it is determined that action is necessary, an
agent, after approval of the director, is to make the
recommendation to the prosecuting attorney in the county
wherein the violation occurred or to any appropriate law-enforcement agency.
(f) Assistance of other officials. -- (1) The director may
request assistance from the attorney general, the state police
and any other law-enforcement agency. These officers and agencies
shall furnish the director with information in their possession
that may tend to assure the security, honesty, fairness and
integrity in the operation and administration of charitable
gaming as they may have in their possession, including, but not
limited to, manual or computerized information and data.
(2) The executive director may enter into agreements with
the tax commissioner under which the tax commissioner collects
and processes fees and penalties paid under article twenty-three,
chapter forty-seven of this code. The director may enter into
agreements with the tax commissioner for the tax commissioner to
conduct audits for compliance with the requirements of articles
twenty, twenty-one or twenty-three of this code. Any agreement
entered into under this subsection (f) shall provide that the
director will reimburse the tax commissioner for reasonable and
necessary costs incurred by the commissioner to provide services
specified in the agreement. To facilitate execution of these
agreements, the tax commissioner and the executive director may
exchange information reasonably necessary to full performance of
any agreement notwithstanding the confidentiality provisions of
article ten, chapter eleven of this code, as those provisions ordinarily apply to information in the possession of the tax
commissioner and the executive director. Information so disclosed
may be used by the recipient only to carry out the recipient's
responsibilities under the agreement. Information so disclosed
shall otherwise remain confidential in the hands of the recipient
and may be further disclosed only as permitted under article ten,
chapter eleven of this code.
§29-25-7. Transition rules.
(a) After the thirtieth day of June, one thousand nine
hundred ninety-nine, whenever the term "tax commissioner" or
"commissioner" is used in article twenty or twenty-one, chapter
forty-seven of this code, it shall mean the charitable gaming
commission created by this article, notwithstanding any provision
of article twenty or twenty-one of chapter forty-seven.
(b) Notwithstanding any provision of article twenty-three,
chapter forty-seven of this code, after the thirtieth day of
June, one thousand nine hundred ninety-nine, the term "tax
commissioner" or "commissioner" when used in article ten, chapter
eleven of this code, when applied to article twenty-three,
chapter forty-seven of this code, as provided in section thirteen
of article twenty-three, shall mean the executive director of the
charitable gaming commission.
(c) Notwithstanding any provision of this code to the
contrary, after the thirtieth day of June, one thousand nine hundred ninety-nine, all fees, taxes and penalties collected
under articles twenty, twenty-one and twenty-three, chapter
forty-seven of this code shall be deposited in a special revenue
account established in the office of the treasurer to be
appropriated by the Legislature. Funds in this special revenue
account shall be used to support the charitable gaming
commission.
(d) Effective the first day of July, one thousand nine
hundred ninety-nine, four investigators and four other employees
of the criminal investigation section of the tax division whose
compensation is paid from fees, taxes and penalties collected
under articles twenty, twenty-one and twenty-three, chapter
forty-seven of this code, shall be transferred to the charitable
gaming commission.
§29-25-8. Severability.
If, for any reason, any section, sentence, clause, phrase or
provision of this article or the application thereof to any
person or circumstance is held unconstitutional or invalid, the
unconstitutionality or invalidity shall not affect other
sections, sentences, clauses, phrases or provisions or their
application to any other person or circumstance, and to this end
each and every article, section, sentence, clause, phrase or
provision of this article is hereby declared to be severable.
§29-25-9. Effective date.
The provisions of this article shall take effect on the
first day of June, one thousand nine hundred ninety-nine, and
apply to charitable gaming conducted after the thirtieth day of
June.
NOTE: The purpose of this bill is to create a three-member
charitable gaming commission and a state charitable gaming
commission office to administer the provisions of articles
twenty, twenty-one and twenty-three, chapter forty-seven of the
Code pertaining to charitable bingo, charitable raffles and
charitable raffle boards and games after June 30, 1999.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Article 25 is new; therefore, strike-throughs and
underscoring are omitted.