ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2705
(By Delegates Staton, Amores, Armstead, Fleischauer,
R. Thompson, Webb and Webster)
[Passed March 8, 2003; in effect from passage.]
AN ACT to amend chapter twenty-eight of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article seven, relating to
the supervision of adult offenders; and authorizing and
directing the governor to execute a compact for the
supervision of adult offenders.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article seven, to read as
follows:
ARTICLE 7. INTERSTATE COMPACT FOR THE SUPERVISION OF ADULT
OFFENDERS
.
§28-7-1. Execution of interstate compact for the supervision of
adult offenders.
The governor of this state is authorized and directed to execute a compact on behalf of the state of West Virginia with any
state or states of the United States legally joining therein, in
form substantially as follows:
ARTICLE I. PURPOSE.
(a) The compacting states to this interstate compact recognize
that each state is responsible for the supervision of adult
offenders in the community who are authorized pursuant to the
bylaws and rules of this compact to travel across state lines both
to and from each compacting state in such a manner as to track the
location of offenders, transfer supervision authority in an orderly
and efficient manner, and when necessary return offenders to the
originating jurisdictions. The compacting states also recognize
that Congress, by enacting the Crime Control Act, 4 U.S.C. § 112
(1965), has authorized and encouraged compacts for cooperative
efforts and mutual assistance in the prevention of crime.
(b) It is the purpose of this compact and the interstate
commission created hereunder, through means of joint and
cooperative action among the compacting states:
(1) To provide the framework for the promotion of public
safety and protect the rights of victims through the control and
regulation of the interstate movement of offenders in the
community;
(2) To provide for the effective tracking, supervision, and
rehabilitation of these offenders by the sending and receiving
states; and
(3) To equitably distribute the costs, benefits and
obligations of the compact among the compacting states.
(c) In addition, this compact will:
(1) Create an interstate commission which will establish
uniform procedures to manage the movement between states of adults
placed under community supervision and released to the community
under the jurisdiction of courts, paroling authorities, corrections
or other criminal justice agencies which will promulgate rules to
achieve the purpose of this compact;
(2) Ensure an opportunity for input and timely notice to
victims and to jurisdictions where defined offenders are authorized
to travel or to relocate across state lines;
(3) Establish a system of uniform data collection, access to
information on active cases by authorized criminal justice
officials, and regular reporting of compact activities to heads of
state councils, state executive, judicial, and legislative branches
and criminal justice administrators;
(4) Monitor compliance with rules governing interstate
movement of offenders and initiate interventions to address and
correct noncompliance; and
(5) Coordinate training and education regarding regulations of
interstate movement of offenders for officials involved in such
activity.
(d) The compacting states recognize that there is no "right"
of any offender to live in another state and that duly accredited officers of a sending state may at all times enter a receiving
state and there apprehend and retake any offender under supervision
subject to the provisions of this compact and by-laws and rules
promulgated hereunder. It is the policy of the compacting states
that the activities conducted by the interstate commission created
herein are the formation of public policies and are therefore
public business.
ARTICLE II. DEFINITIONS.
As used in this compact, unless the context clearly requires
a different construction:
(a) "Adult" means both individuals legally classified as
adults and juveniles treated as adults by court order, statute, or
operation of law.
(b) "Bylaws" means those bylaws established by the interstate
commission for its governance, or for directing or controlling the
interstate commission's actions or conduct.
(c) "Compact administrator" means the individual in each
compacting state appointed pursuant to the terms of this compact
responsible for the administration and management of the state's
supervision and transfer of offenders subject to the terms of this
compact, the rules adopted by the interstate commission and
policies adopted by the state council under this compact.
(d) "Compacting state" means any state which has enacted the
enabling legislation for this compact.
(e) "Commissioner" means the voting representative of each compacting state appointed pursuant to article III of this compact.
(f) "Interstate commission" means the interstate commission
for adult offender supervision established by this compact.
(g) "Member" means the commissioner of a compacting state or
designee, who shall be a person officially connected with the
commissioner.
(h) "Noncompacting state" means any state which has not
enacted the enabling legislation for this compact.
(i) "Offender" means an adult placed under, or subject, to
supervision as the result of the commission of a criminal offense
and released to the community under the jurisdiction of courts,
paroling authorities, corrections, or other criminal justice
agencies.
(j) "Person" means any individual, corporation, business
enterprise, or other legal entity, either public or private.
(k) "Rules" means acts of the interstate commission, duly
promulgated pursuant to article VIII of this compact, substantially
affecting interested parties in addition to the interstate
commission which shall have the force and effect of law in the
compacting states.
(l) "State" means a state of the United States, the District
of Columbia and any other territorial possessions of the United
States.
(m) "State council" means the resident members of the state
council for interstate adult offender supervision created by each state under article III of this compact.
ARTICLE III. THE COMPACT COMMISSION.
(a) The compacting states hereby created the "Interstate
Commission for Adult Offender Supervision." The interstate
commission shall be a body corporate and joint agency of the
compacting states. The interstate commission shall have all the
responsibilities, powers and duties set forth herein, including the
power to sue and be sued, and such additional powers as may be
conferred upon it by subsequent action of the respective
legislatures of the compacting states in accordance with the terms
of this compact.
(b) The interstate commission shall consist of commissioners
selected and appointed by resident members of a state council for
interstate adult offender supervision for each state. In addition
to the commissioners who are the voting representatives of each
state, the interstate commission shall include individuals who are
not commissioners but who are members of interested organizations;
such noncommissioner members must include a member of the national
organizations of governors, legislators, state chief justices,
attorneys general and crime victims. All noncommissioner members
of the interstate commission shall be ex-officio (nonvoting)
members. The interstate commission may provide in its bylaws for
such additional, ex-officio, nonvoting members as it deems
necessary.
(c) Each compacting state represented at any meeting of the interstate commission is entitled to one vote. A majority of the
compacting states shall constitute a quorum for the transaction of
business, unless a larger quorum is required by the bylaws of the
interstate commission.
(d) The interstate commission shall meet at least once each
calendar year. The chairperson may call additional meetings and,
upon the request of twenty-seven or more compacting states, shall
call additional meetings. Public notice shall be given of all
meetings and meetings shall be open to the public.
(e) The interstate commission shall establish an executive
committee which shall include commission officers, members and
others as shall be determined by the bylaws. The executive
committee shall have the power to act on behalf of the interstate
commission during periods when the interstate commission is not in
session, with the exception of rule making and/or an amendment to
the compact. The executive committee oversees the day-to-day
activities managed by the executive director and interstate
commission staff; administers enforcement and compliance with the
provisions of the compact, its bylaws and as directed by the
interstate commission and performs other duties as directed by the
commission or set forth in the bylaws.
ARTICLE IV. THE STATE COUNCIL.
(a) Each member state shall create a state council for
interstate adult offender supervision which shall be responsible
for the appointment of the commissioner who shall serve on the interstate commission from that state. Each state council shall
appoint as its commissioner the compact administrator from that
state to serve on the interstate commission in such capacity under
or pursuant to applicable law of the member state. While each
member state may determine the membership of its own state council,
its membership must include at least one representative from the
legislative, judicial, and executive branches of government,
victims groups and compact administrators.
(b) Each compacting state retains the right to determine the
qualifications of the compact administrator who shall be appointed
by the state council or by the governor in consultation with the
Legislature and the judiciary.
(c) In addition to appointment of its commissioner to the
national interstate commission, each state council shall exercise
oversight and advocacy concerning its participation in interstate
commission activities and other duties as may be determined by each
member state including, but not limited to, development of policy
concerning operations and procedures of the compact within that
state.
ARTICLE V. POWERS AND DUTIES OF THE INTERSTATE COMMISSION.
The interstate commission shall have the following powers:
(1) To adopt a seal and suitable bylaws governing the
management and operation of the interstate commission;
(2) To promulgate rules which shall have the force and effect
of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact;
(3) To oversee, supervise and coordinate the interstate
movement of offenders subject to the terms of this compact and any
bylaws adopted and rules promulgated by the compact commission;
(4) To enforce compliance with compact provisions, interstate
commission rules, and bylaws, using all necessary and proper means,
including, but not limited to, the use of judicial process;
(5) To establish and maintain offices;
(6) To purchase and maintain insurance and bonds;
(7) To borrow, accept or contract for services of personnel,
including, but not limited to, members and their staffs;
(8) To establish and appoint committees and hire staff which
it deems necessary for the carrying out of its functions including,
but not limited to, an executive committee as required by article
III which shall have the power to act on behalf of the interstate
commission in carrying out its powers and duties hereunder;
(9) To elect or appoint such officers, attorneys, employees,
agents, or consultants, and to fix their compensation, define their
duties and determine their qualifications; and to establish the
interstate commission's personnel policies and programs relating
to, among other things, conflicts of interest, rates of
compensation, and qualifications of personnel;
(10) To accept any and all donations and grants of money,
equipment, supplies, materials, and services, and to receive,
utilize, and dispose of same;
(11) To lease, purchase, accept contributions or donations of,
or otherwise to own, hold, improve or use any property, real,
personal, or mixed;
(12) To sell, convey, mortgage, pledge, lease, exchange,
abandon, or otherwise dispose of any property, real, personal or
mixed;
(13) To establish a budget and make expenditures and levy dues
as provided in article X of this compact;
(14) To sue and be sued;
(15) To provide for dispute resolution among compacting
states;
(16) To perform such functions as may be necessary or
appropriate to achieve the purposes of this compact;
(17) To report annually to the legislatures, governors,
judiciary, and state councils of the compacting states concerning
the activities of the interstate commission during the preceding
year. Such reports shall also include any recommendations that may
have been adopted by the interstate commission;
(18) To coordinate education, training and public awareness
regarding the interstate movement of offenders for officials
involved in such activity; and
(19) To establish uniform standards for the reporting,
collecting, and exchanging of data.
ARTICLE VI. ORGANIZATION AND OPERATION OF THE INTERSTATE
COMMISSION.
Section A. Bylaws.
(a)The interstate commission shall, by a majority of the
members, within twelve months of the first interstate commission
meeting, adopt bylaws to govern its conduct as may be necessary or
appropriate to carry out the purposes of the compact, including,
but not limited to:
(1) Establishing the fiscal year of the interstate commission;
(2) Establishing an executive committee and such other
committees as may be necessary providing reasonable standards and
procedures:
(i) For the establishment of committees; and
(ii) Governing any general or specific delegation of any
authority or function of the interstate commission;
(3) Providing reasonable procedures for calling and conducting
meetings of the interstate commission, and ensuring reasonable
notice of each such meeting;
(4) Establishing the titles and responsibilities of the
officers of the interstate commission;
(5) Providing reasonable standards and procedures for the
establishment of the personnel policies and programs of the
interstate commission. Notwithstanding any civil service or other
similar laws of any compacting state, the bylaws shall exclusively
govern the personnel policies and programs of the interstate
commission;
(6) Providing a mechanism for winding up the operations of the interstate commission and the equitable return of any surplus funds
that may exist upon the termination of the compact after the
payment and/or reserving of all of its debts and obligations;
(7) Providing transition rules for "start up" administration
of the compact; and
(8) Establishing standards and procedures for compliance and
technical assistance in carrying out the compact.
Section B. Officers and Staff.
(b)(1) The interstate commission shall, by a majority of the
members, elect from among its members a chairperson and a vice
chairperson, each of whom shall have such authorities and duties as
may be specified in the bylaws. The chairperson or, in his or her
absence or disability, the vice chairperson, shall preside at all
meetings of the interstate commission. The officers so elected
shall serve without compensation or remuneration from the
interstate commission: Provided, That subject to the availability
of budgeted funds, the officers shall be reimbursed for any actual
and necessary costs and expenses incurred by them in the
performance of their duties and responsibilities as officers of the
interstate commission.
(2) The interstate commission shall, through its executive
committee, appoint or retain an executive director for such period,
upon such terms and conditions and for such compensation as the
interstate commission may deem appropriate. The executive director
shall serve as secretary to the interstate commission, and hire and supervise such other staff as may be authorized by the interstate
commission, but shall not be a member.
Section C. Corporate Records of the Interstate Commission.
(c) The interstate commission shall maintain its corporate
books and records in accordance with the bylaws.
Section D. Qualified Immunity, Defense and Indemnification.
(d)(1) The members, officers, executive director and employees
of the interstate commission shall be immune from suit and
liability, either personally or in their official capacity, for any
claim for damage to or loss of property or personal injury or other
civil liability caused or arising out of any actual or alleged act,
error or omission that occurred within the scope of interstate
commission employment, duties or responsibilities: Provided, That
nothing in this paragraph shall be construed to protect any such
person from suit and/or liability for any damage, loss, injury or
liability caused by the intentional or willful and wanton
misconduct of any such person.
(2) The interstate commission shall defend the commissioner of
a compacting state, or his or her representatives or employees, or
the interstate commission's representatives or employees, in any
civil action seeking to impose liability, arising out of any actual
or alleged act, error or omission that occurred within the scope of
interstate commission employment, duties or responsibilities, or
that the defendant has a reasonable basis for believing occurred
within the scope of interstate commission employment, duties or responsibilities: Provided, That the actual or alleged act, error
or omission did not result from intentional wrongdoing on the part
of such person.
(3) The interstate commission shall indemnify and hold the
commissioner of a compacting state, the appointed designee or
employees, or the interstate commission's representatives or
employees, harmless in the amount of any settlement or judgement
obtained against such persons arising out of any actual or alleged
act, error or omission that occurred within the scope of interstate
commission employment, duties or responsibilities, or that such
persons had a reasonable basis for believing occurred within the
scope of interstate commission employment, duties or
responsibilities, provided, that the actual or alleged act, error
or omission did not result from gross negligence or intentional
wrongdoing on the part of such person.
ARTICLE VII. ACTIVITIES OF THE INTERSTATE COMMISSION.
(a) The interstate commission shall meet and take such actions
as are consistent with the provisions of this compact.
(b) Except as otherwise provided in this compact and unless a
greater percentage is required by the bylaws, in order to
constitute an act of the interstate commission, such act shall have
been taken at a meeting of the interstate commission and shall have
received an affirmative vote of a majority of the members present.
(c) Each member of the interstate commission shall have the
right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the
interstate commission. A member shall vote in person on behalf of
the state and shall not delegate a vote to another member state.
However, a state council shall appoint another authorized
representative, in the absence of the commissioner from that state,
to cast a vote on behalf of the member state at a specified
meeting. The bylaws may provide for members' participation in
meetings by telephone or other means of telecommunication or
electronic communication. Any voting conducted by telephone, or
other means of telecommunication or electronic communication shall
be subject to the same quorum requirements of meetings where
members are present in person.
(d) The interstate commission shall meet at least once during
each calendar year. The chairperson of the interstate commission
may call additional meetings at any time and, upon the request of
a majority of the members, shall call additional meetings.
(e) The interstate commission's bylaws establish conditions
and procedures under which the interstate commission shall make its
information and official records available to the public for
inspection or copying. The interstate commission may exempt from
disclosure any information or official records to the extent they
would adversely affect personal privacy rights or proprietary
interests. In promulgating such rules, the interstate commission
may make available to law-enforcement agencies records and
information otherwise exempt from disclosure, and may enter into agreements with law-enforcement agencies to receive or exchange
information or records subject to nondisclosure and confidentiality
provisions.
(f) Public notice shall be given of all meetings and all
meetings shall be open to the public, except as set forth in the
rules or as otherwise provided in the compact. The interstate
commission shall promulgate rules consistent with the principals
contained in the "Government in Sunshine Act" 5 U.S.C. § 552(b), as
may be amended. The interstate commission and any of its
committees may close a meeting to the public where it determines by
two-thirds vote that an open meeting would be likely to:
(1) Relate solely to the interstate commission's internal
personnel practices and procedures;
(2) Disclose matters specifically exempted from disclosure by
statute;
(3) Disclose trade secrets or commercial or financial
information which is privileged or confidential;
(4) Involve accusing any person of a crime, or formally
censuring any person;
(5) Disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal
privacy;
(6) Disclose investigatory records compiled for law-
enforcement purposes;
(7) Disclose information contained in or related to examination, operating or condition reports prepared by, or on
behalf of or for the use of, the interstate commission with respect
to a regulated entity for the purpose of regulation or supervision
of such entity;
(8) Disclose information, the premature disclosure of which
would significantly endanger the life of a person or the stability
of a regulated entity; and
(9) Specifically relate to the interstate commission's
issuance of a subpoena or its participation in a civil action or
proceeding.
(g) For every meeting closed pursuant to this provision, the
interstate commission's chief legal officer shall publicly certify
that, in his or her opinion, the meeting may be closed to the
public, and shall reference each relevant exemptive provision. The
interstate commission shall keep minutes which shall fully and
clearly describe all matters discussed in any meeting and shall
provide a full and accurate summary of any actions taken, and the
reasons therefor, including a description of each of the views
expressed on any item and the record of any roll call (effective in
the vote of each member on the question). All documents considered
in connection with any action shall be identified in such minutes.
(h) The interstate commission shall collect standardized data
concerning the interstate movement of offenders as directed through
its bylaws and rules which shall specify the data to be collected,
the means of collection and data exchange and reporting requirements.
ARTICLE VIII. RULE MAKING FUNCTIONS OF THE INTERSTATE
COMMISSION.
(a) The interstate commission shall promulgate rules in order
to effectively and efficiently achieve the purposes of the compact
including transition rules governing administration of the compact
during the period in which it is being considered and enacted by
the states;
(b) Rule making shall occur pursuant to the criteria set forth
in this article and the bylaws and rules adopted pursuant thereto.
Such rule making shall substantially conform to the principles of
the federal Administrative Procedure Act, 5 U.S.C. § 551 et seq.,
and the Federal Advisory Committee Act, 5 U.S.C. app. 2, § l et
seq., as may be amended (hereinafter "APA"). All rules and
amendments shall become binding as of the date specified in each
rule or amendment.
(c) If a majority of the legislatures of the compacting states
rejects a rule, by enactment of a statute of resolution in the same
manner used to adopt the compact, then such rule shall have no
further force and effect in any compacting state.
(d) When promulgating a rule, the interstate commission shall:
(1) Publish the proposed rule stating with particularity the
text of the rule which is proposed and the reason for the proposed
rule;
(2) Allow persons to submit written data, facts, opinions and arguments, which information shall be publicly available;
(3) Provide an opportunity for an informal hearing; and
(4) Promulgate a final rule and its effective date, if
appropriate, based on the rule making record.
(e) Not later than sixty days after a rule is promulgated, any
interested person may file a petition in the United States District
Court for the District of Columbia or in the Federal District Court
where the interstate commission's principal office is located for
judicial review of such rule. If the court finds that the
interstate commission's action is not supported by substantial
evidence, (as defined in the APA), in the rule making record, the
court shall hold the rule unlawful and set it aside.
(f) Subjects to be addressed within twelve months after the
first meeting must at a minimum include:
(1) Notice to victims and opportunity to be heard;
(2) Offender registration and compliance;
(3) Violations/returns;
(4) Transfer procedures and forms;
(5) Eligibility for transfer;
(6) Collection of restitution and fees from offenders;
(7) Data collection and reporting;
(8) The level of supervision to be provided by the receiving
state;
(9) Transition rules governing the operation of the compact
and the interstate commission during all or part of the period between the effective date of the compact and the date on which the
last eligible state adopts the compact; and
(10) Mediation, arbitration and dispute resolution.
(g) The existing rules governing the operation of the previous
compact superceded by this act shall be null and void twelve months
after the first meeting of the interstate commission created
hereunder.
(h) Upon determination by the interstate commission that an
emergency exists, it may promulgate an emergency rule which shall
become effective immediately upon adoption, provided that the usual
rule-making procedures provided hereunder shall be retroactively
applied to said rule as soon as reasonably possible, in no event
later than ninety days after the effective date of the rule.
ARTICLE IX. OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION BY THE
INTERSTATE COMMISSION.
Section A. Oversight.
(a)(1) The interstate commission shall oversee the interstate
movement of adult offenders in the compacting states and shall
monitor such activities being administered in noncompacting states
which may significantly affect compacting states.
(2) The courts and executive agencies in each compacting state
shall enforce this compact and shall take all actions necessary and
appropriate to effectuate the compact's purposes and intent. In
any judicial or administrative proceeding in a compacting state
pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the interstate
commission, the interstate commission shall be entitled to receive
all service of process in any such proceeding, and shall have
standing to intervene in the proceeding for all purposes.
Section B. Dispute Resolution.
(b)(1) The compacting states shall report to the interstate
commission on issues or activities of concern to them, and
cooperate with and support the interstate commission on the
discharge of its duties and responsibilities.
(2) The interstate commission shall attempt to resolve any
disputes or other issues which are subject to the compact and which
may arise among compacting states and noncompacting states.
(3) The interstate commission shall enact a bylaw or
promulgate a rule providing for both mediation and binding dispute
resolution for disputes among the compacting states.
Section C. Enforcement.
(c) The interstate commission, in the reasonable exercise of
its discretion, shall enforce the provisions of this compact using
any or all means set forth in article XII, section B, of this
compact.
ARTICLE X. FINANCE.
(a) The interstate commission shall pay or provide for the
payment of the reasonable expenses of its establishment
organization and ongoing activities.
(b) The interstate commission shall levy on and collect an annual assessment from each compacting state to cover the cost of
the internal operations and activities of the interstate commission
and its staff which must be in a total amount sufficient to cover
the interstate commission's annual budget as approved each year.
The aggregate annual assessment amount shall be allocated based
upon a formula to be determined by the interstate commission,
taking into consideration the population of the state and the
volume of interstate movement of offenders in each compacting state
and shall promulgate a rule binding upon all compacting states
which governs said assessment.
(c) The interstate commission shall not incur any obligations
of any kind prior in securing the funds adequate to meet the same;
nor shall the interstate commission pledge the credit of any of the
compacting states, except by and with the authority of the
compacting state.
(d) The interstate commission shall keep accurate accounts of
all receipts and disbursements. The receipts and disbursements of
the interstate commission shall be subject to the audit and
accounting procedures established under its bylaws. However, all
receipts and disbursements of funds handled by the interstate
commission shall be audited yearly by a certified or licensed
public accountant and the report of the audit shall be included in
and become part of the annual report of the interstate commission.
ARTICLE XI. COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT.
(a) Any state, as defined in article II of this compact, is eligible to become a compacting state.
(b) The compact shall become effective and binding upon
legislative enactment of the compact into law by no less than
thirty-five of the states. The initial effective date shall be the
later of the first day of July, two thousand one, or upon enactment
into law by the thirty-fifth jurisdiction. Thereafter it shall
become effective and binding, as to any other compacting state,
upon enactment of the compact into law by that state. The
governors of nonmember states or their designees will be invited to
participate in interstate commission activities on a non-voting
basis prior to adoption of the compact by all states and
territories of the United States.
(c) Amendments to the compact may be proposed by the
interstate commission for enactment by the compacting states. No
amendment shall become effective and binding upon the interstate
commission and the compacting states unless and until it is enacted
into law by unanimous consent of the compacting states.
ARTICLE XII. WITHDRAWAL, DEFAULT, TERMINATION, AND JUDICIAL
ENFORCEMENT.
Section A. Withdrawal.
(a)(1) Once effective, the compact shall continue in force and
remain binding upon each and every compacting state: Provided,
That a compacting state may withdraw from the compact ("withdrawing
state") by enacting a statute specifically repealing the statute
which enacted the compact into law.
(2) The effective date of withdrawal is the effective date of the repeal.
(3) The withdrawing state shall immediately notify the
chairperson of the interstate commission in writing upon the
introduction of legislation repealing this compact in the
withdrawing state. The interstate commission shall notify the
other compacting states of the withdrawing state's intent to
withdraw within sixty days of its receipt thereof.
(4) The withdrawing state is responsible for all assessments,
obligations and liabilities incurred through the effective date of
withdrawal, including any obligations, the performance of which
extend beyond the effective date of withdrawal.
(5) Reinstatement following withdrawal of any compacting state
shall occur upon the withdrawing state reenacting the compact or
upon such later date as determined by the interstate commission.
Section B. Default
(b)(1) If the interstate commission determines that any
compacting state has at any time defaulted ("defaulting state") in
the performance of any of its obligations or responsibilities under
this compact, the bylaws or any duly promulgated rules the
interstate commission may impose any or all of the following
penalties:
(A) Fines, fees and costs in such amounts as are deemed to be
reasonable as fixed by the interstate commission;
(B) Remedial training and technical assistance as directed by
the interstate commission; and
(C) Suspension and termination of membership in the compact.
Suspension shall be imposed only after all other reasonable means
of securing compliance under the bylaws and rules have been
exhausted. Immediate notice of suspension shall be given by the
interstate commission to the governor, the chief justice or chief
judicial officer of the state, the majority and minority leaders of
the defaulting state's legislature, and the state council.
(2) The grounds for default include, but are not limited to,
failure of a compacting state to perform such obligations or
responsibilities imposed upon it by the compact, interstate
commission bylaws, or duly promulgated rules. The interstate
commission shall immediately notify the defaulting state in writing
of the penalty imposed by the interstate commission on the
defaulting state pending a cure of the default. The interstate
commission shall stipulate the conditions and the time period
within which the defaulting state must cure its default. If the
defaulting state fails to cure the default within the time period
specified by the interstate commission, in addition to any other
penalties imposed herein, the defaulting state may be terminated
from the compact upon an affirmative vote of a majority of the
compacting states and all rights, privileges and benefits conferred
by this compact shall be terminated from the effective date of
suspension. Within sixty days of the effective date of termination
of a defaulting state, the interstate commission shall notify the
governor, the chief justice or chief judicial officer and the majority and minority leaders of the defaulting state's legislature
and the state council of such termination.
(3) The defaulting state is responsible for all assessments,
obligations and liabilities incurred through the effective date of
termination including any obligations, the performance of which
extends beyond the effective date of termination.
(4) The interstate commission shall not bear any costs
relating to the defaulting state unless otherwise mutually agreed
upon between the interstate commission and the defaulting state.
Reinstatement following termination of any compacting state
requires both a reenactment of the compact by the defaulting state
and the approval of the interstate commission pursuant to the
rules.
Section C. Judicial Enforcement.
(c) The interstate commission shall not bear any costs
relating to the defaulting state unless otherwise mutually agreed
upon between the interstate commission and the defaulting state.
Reinstatement following termination of any compacting state
requires both a reenactment of the compact by the defaulting state
and the approval of the interstate commission pursuant to the
rules. The interstate commission may, by majority vote of the
members, initiate legal action in the United States District Court
for the District of Columbia or, at the discretion of the
interstate commission, in the Federal District where the interstate
commission has its offices to enforce compliance with the provisions of the compact, its duly promulgated rules and bylaws,
against any compacting state in default. In the event judicial
enforcement is necessary the prevailing party shall be awarded all
costs of such litigation including reasonable attorneys fees.
Section D. Dissolution of Compact.
(d)(1) The compact dissolves effective upon the date of the
withdrawal or default of the compacting states which reduces
membership in the compact to one compacting state.
(2) Upon the dissolution of this compact, the compact becomes
null and void and shall be of no further force or effect, and the
business and affairs of the interstate commission shall be wound up
and any surplus funds shall be distributed in accordance with the
bylaws.
ARTICLE XIII. SEVERABILITY AND CONSTRUCTION.
(a) The provisions of this compact shall be severable, and if
any phrase, clause, sentence or provision is deemed unenforceable,
the remaining provisions of the compact shall be enforceable.
(b) The provisions of this compact shall be liberally
constructed to effectuate its purposes.
ARTICLE XIV. BINDING EFFECT OF COMPACT AND OTHER LAWS.
Section A. Other laws.
(a)(1) Nothing herein prevents the enforcement of any other
law of a compacting state that is not inconsistent with this
compact.
(2) All compacting states' laws conflicting with this compact are superseded to the extent of the conflict.
Section B. Binding Effect of the Compact
(b)(1) All lawful actions of the interstate commission,
including all rules and by-laws promulgated by the interstate
commission, are binding upon the compacting states.
(2) All agreements between the interstate commission and the
compacting states are binding in accordance with their terms.
(3) Upon the request of a party to a conflict over meaning or
interpretation of interstate commission actions, and upon a
majority vote of the compacting states, the interstate commissions
may issue advisory opinions regarding such meaning or
interpretation.
(4) In the event any provision of this compact exceeds the
constitutional limits imposed on the legislature of any compacting
state, the obligations, duties, powers or jurisdiction sought to be
conferred by such provision upon the interstate commission shall be
ineffective and such obligations, duties, powers or jurisdiction
shall remain in the compacting state and shall be exercised by the
agency thereto to which such obligations, duties, powers or
jurisdiction are delegated by law in effect at the time this
compact becomes effective.
§28-7-2. State council for interstate adult offender
supervision.
(a) Within thirty days of the effective date of this article,
there shall be created a state council for interstate adult offender supervision. Said state council shall be comprised of a
total of nine members, to be selected and designated as follows:
(1) Two members designated by the state Legislature, one of
whom shall be named and appointed by the speaker of the House, and
the other of whom shall be designated by the president of the
Senate;
(2) Two members designated by the judiciary, both of whom
shall be named and appointed by the chief justice of the supreme
court of appeals of West Virginia;
(3) The compact administrator or a designee of the compact
administrator;
(4) Four members to be designated and appointed by the
governor, two of whom must be representatives of state agencies
dealing with adult corrections, parole or probation, and one of
whom must be a representative of a victims' group.
(b) Within sixty days of the effective date of this article,
the state council shall meet and designate a commissioner who shall
represent the state as the compacting state's voting representative
under article III of this compact.
(c) The state council will exercise oversight and advocacy
concerning West Virginia's participation in interstate commission
activities and rule makings, and engage in other duties and
activities as determined by its members, including, but not limited
to, the development of policy concerning the operations and
procedures for implementing the compact and interstate commission rules within West Virginia.
§28-7-3. Appointment of compact administrator.
(a) Upon and after the effective date of the interstate
compact for adult offender supervision, the governor is hereby
authorized and empowered to designate an officer who shall be the
compact administrator and who, acting jointly with like offices of
the other party states, shall be responsible for the administration
and management of this state's supervision and transfer of adult
offenders subject to the terms of this compact, the rules adopted
by the interstate commission and the policies adopted by the state
council under this compact. Said compact administrator shall serve
subject to the will and pleasure of the governor, and must meet the
minimum qualifications for the position of compact administrator,
as established by the state council. The compact administrator is
hereby authorized, empowered and directed to cooperate with all
departments, agencies and officers of and in the government of this
state and its subdivisions in facilitating the proper
administration of the compact or of any supplementary agreement or
agreements entered into by this state hereunder.
(b) Until such time as the state council has met and
established minimum qualifications for the position of compact
administrator, the individual or administrator who has been
designated by the governor to act as the compact administrator for
the supervision of out-of-state parolees and probationers, pursuant
to section one, article six of this chapter, may perform the duties and responsibilities of compact administrator under this article.
(c) Until such time as the state council has met and
designated a commissioner to vote on behalf of the state of West
Virginia at the interstate commission, the individual or
administrator who has been designated to act as the compact
administrator for the supervision of out-of-state parolees and
probationers, pursuant to section one, article six of this chapter,
shall function as the acting commissioner for the state of West
Virginia before the interstate commission formed under the new
compact.