Senate Bill No. 441
(By Senators Tomblin, Mr. President, Bailey, Hunter, Love, Ross,
White, Dempsey, Deem, Facemyer, Caldwell, Unger, Prezioso,
Helmick, Fanning, McKenzie, Bowman, Kessler, Minard and Minear)
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[Introduced February 4, 2003; referred to the Committee on
Government Organization; and then to the Committee on Finance.]
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A BILL to repeal section twelve-a, article one, chapter twelve of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal sections ten, fifteen and
twenty-one, article six of said chapter; to amend and reenact
sections two, seven, twelve and thirteen, article one of said
chapter; to amend and reenact sections one, two and three,
article two of said chapter; to amend and reenact sections one
and one-a, article three of said chapter; to amend and reenact
sections three, four and six, article three-a of said chapter;
to amend and reenact sections one and five, article five of
said chapter; to amend and reenact sections one-a, two, five,
eight, nine-e, twelve, thirteen, sixteen and nineteen, article
six of said chapter; and to further amend said chapter by
adding thereto a new article, designated article six-c, all relating generally to the management and investment of moneys
by the state; designating financial institutions as
depositories for state funds; adding state and federal savings
and loan associations as candidates as depository banks;
removing requirement the state treasurer retain and invest
money for current operation purposes; providing types of
accounts; requiring approval of state treasurer to open
account or process transaction through financial institution
and exceptions; adding provision that the requirement that
state funds only be deposited in designated depositories
meeting collateral requirements does not apply to bond
proceeds from the sale of general obligation bonds and bonds
issued by various state entities; requiring contracts or
agreements for banking goods or services with exceptions for
trust and investment accounts for various bond issues;
directing the treasurer to invest moneys; disposition of
earnings on investments; expressly allowing payments to the
state by electronic funds transfer; distribution of deposit
reports; deleting collections by the chief inspector of public
offices as the position no longer exists; requiring spending
units to comply with procedures for receipt and disbursement
of moneys not due the state; requiring disposition of federal
funds transferred from unclaimed property division; extending
the time for stale checks to become unclaimed property from six months to one year; requiring competitive bids for the
selection of vendors to implement electronic capabilities of
offices of state treasurer and auditor; specifying legal
effect of documents and electronic signatures and adding the
comptroller; administration of the West Virginia check card;
allowing the state treasurer to authorize spending units to
assess and collect fees for electronic commerce receipts;
adding cash to the definition of securities; authorizing the
treasurer to create any accounts needed for the deposit of
cash, to invest the money and to prescribe forms and
procedures for receipt and disbursements of the moneys;
transfer of management of consolidated fund from investment
management board to the state treasurer; amending definition
of consolidated fund; investment of funds of political
subdivisions; transferring rights, duties and responsibilities
for the consolidated fund and certain loans made from
consolidated fund; creating the consolidated fund investment
act; stating purposes and findings of the act; specifying the
authority of the treasurer for investments and restrictions on
investments; continuing the consolidated fund and vesting it
in the state treasurer on the first day of July, two thousand
three; transferring the management, control and administration
of the consolidated fund to the state treasurer from the
investment management board; requiring the state treasurer to retain an internal auditor; requiring the treasurer to
annually develop, adopt and review asset allocation plans and
investment policies; specifying permitted investments;
authorizing loans for industrial development and investment in
the West Virginia enterprise capital fund, LLC; handling of
securities; establishing the uniform prudent investor act as
the standard of care; requiring the investment management
board to transfer the cash, securities and other investments
of the consolidated fund to the treasurer on the first day of
July, two thousand three; requiring audits, financial
statements and reports; specifying that spending units retain
the functions and duties imposed by law as to any fund or
account; creating fee and investment accounts; and authorizing
fees for administration and expenses.
Be it enacted by the Legislature of West Virginia:
That section twelve-a, article one, chapter twelve of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be repealed; that sections ten, fifteen and twenty-one, article six
of said chapter be repealed; that sections two, seven, twelve and
thirteen, article one of said chapter be amended and reenacted;
that sections one, two and three, article two of said chapter be
amended and reenacted; that sections one and one-a, article three
of said chapter be amended and reenacted; that sections three, four
and six, article three-a of said chapter be amended and reenacted; that sections one and five, article five of said chapter be amended
and reenacted; that sections one-a, two, five, eight, nine-e,
twelve, thirteen, sixteen and nineteen, article six of said chapter
be amended and reenacted; and that said chapter be further amended
by adding thereto a new article, designated article six-c, all to
read as follows:
ARTICLE 1. STATE DEPOSITORIES.
§12-1-2. Depositories for demand deposits; categories of demand
deposits; competitive bidding for disbursement
accounts; maintenance of deposits by state treasurer.
The state treasurer shall designate the state and national
banks and the state and federal savings and loan associations in
this state which shall serve meeting the requirements of this
chapter as depositories for all state funds placed in demand
deposits. Any such state or national bank shall, upon request to
the treasurer, be designated as a state depository for such
deposits, if such bank meets the requirements set forth in this
chapter.
Demand deposit accounts shall consist of receipt and
disbursement accounts. Receipt accounts shall be those are
accounts in which are deposited moneys belonging to or due the
state of West Virginia or any official, department, board,
commission or agency thereof.
Disbursement accounts shall be those are accounts from which are paid moneys due from the state of West Virginia or any
official, department, board, commission, political subdivision or
agency thereof to any political subdivision, person, firm or
corporation, except moneys paid from investment accounts.
Investment accounts shall be those are accounts established by
the West Virginia investment management board or the state
treasurer for the buying and selling of securities for investment
for the state of West Virginia purposes.
The state treasurer shall promulgate rules, in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, concerning depositories for receipt accounts prescribing the
selection criteria, procedures, compensation and such other
contractual terms as it considers to be in the best interests of
the state giving due consideration to: (1) The activity of the
various accounts maintained therein; (2) the reasonable value of
the banking services rendered or to be rendered the state by such
depositories; and (3) the value and importance of such deposits to
the economy of the communities and the various areas of the state
affected thereby.
The state treasurer shall select depositories for disbursement
accounts through competitive bidding by eligible banks in this
state. If none of the eligible banks in this state are able to
provide any of the needed services, then the treasurer may include
eligible banks outside this state in the competitive bidding process. The treasurer shall promulgate rules in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, prescribing the procedures and criteria for the bidding and
selection. The treasurer shall, in the invitations for bids,
specify the approximate amounts of deposits, the duration of
contracts to be awarded and such other contractual terms as it
considers to be in the best interests of the state the treasurer
determines appropriate, consistent with obtaining the most
efficient service at the lowest cost.
The amount of money needed for current operation purposes of
the state government, as determined by the state treasurer, shall
be maintained at all times in the state treasury, in cash, in short
term investments not to exceed five days, or in disbursement
accounts with banks designated as depositories in accordance with
the provisions of this section. No state officer or employee shall
make or cause to be made any deposits of state funds in banks not
so designated. Only banks and state and federal savings and loan
associations designated by the treasurer as depositories may accept
deposits of state funds and only the Legislature and the state
treasurer may determine whether funds are state funds: Provided,
That this provision shall not apply to the proceeds from the sale
of general obligation bonds or bonds issued by the school building
authority, the parkways, economic development and tourism
authority, the housing development fund, the economic development authority, the infrastructure and jobs development council, the
water development authority or the hospital finance authority.
Notwithstanding any provision of this code to the contrary,
approval of the treasurer is required before any spending unit, as
defined in section one, article one, chapter five-a of this code,
may open an account in or process a transaction through a financial
institution, except for trust and investment accounts and
activities related to an issuance of bonds.
§12-1-7. Rules; banking contracts and agreements; depositors;
agreements.
In addition to rules specially authorized in this article, the
West Virginia investment management board and the state treasurer
are generally authorized to promulgate any rules necessary to
protect the interests of the state, its depositories and taxpayers.
All rules promulgated shall be are subject to the provisions of
article three, chapter twenty-nine-a of this code. Any rules
previously established by the board of public works, the board of
investments, the investment management board or the state treasurer
pursuant to this article shall remain in effect until amended,
superseded or rescinded.
Only the treasurer may enter into contracts or agreements with
financial institutions for banking goods or services required by
spending units, as defined in section one, article one, chapter
five-a of this code: Provided, That this provision does not apply to trust and investment accounts and activities for general
obligation bonds and bond issues of the school building authority,
the parkways, economic development and tourism authority, the
housing development fund, the economic development authority, the
infrastructure and jobs development council, the water development
authority or the hospital finance authority. A state spending unit
requiring banking goods or services shall submit a request for the
goods or services to the treasurer. If the treasurer enters into
a contract or agreement for the required goods or services,
spending units using the contract or agreement shall pay either the
vendor or pay the treasurer for the goods or services used.
The treasurer is also authorized to enter into any depositors'
agreements for the purpose of reorganizing or rehabilitating any
depository in which state funds are deposited, and for the purpose
of transferring the assets, in whole or in part, of any depository
to any other lawful depository when, in the judgment of the
treasurer, the interests of the state will be are promoted thereby
and upon condition that no right of the state to preferred payment
be is waived.
§12-1-12. Investing funds in treasury; depositories outside the
state.
When the funds in the treasury exceed the amount needed for
current operational purposes, as determined by the treasurer, the
treasurer shall make all of such excess available for investment by the investment management board which shall invest the excess for
the benefit of the general revenue fund: Provided, That the state
treasurer, after reviewing the cash flow needs of the state, may
withhold and invest amounts not to exceed one hundred twenty-five
million dollars of the operating funds needed to meet current
operational purposes. Investments made by the state treasurer
under this section shall be made in short term investments not to
exceed five days. Operating funds means the consolidated fund
established in section eight, article six of this chapter,
including all cash and investments of the fund.
The state treasurer may invest funds deposited in the
consolidated fund through his or her office or with the West
Virginia investment management board. Spending units with
authority to retain interest on a fund may submit requests to the
treasurer to transfer moneys to a specific investment pool of the
state treasurer's office or the investment management board and
retain any interest or other earnings on the money invested. The
general revenue fund shall receive all interest or other earnings
on money invested that are not designated for a specific fund.
Whenever the funds in the treasury exceed the amount for which
depositories within the state have qualified, or the depositories
within the state which have qualified are unwilling to receive
larger deposits, the treasurer may designate depositories outside
the state, disbursement accounts being bid for in the same manner as required by depositories within the state and when such
depositories outside the state have qualified by giving the bond
prescribed in section four of this article, the state treasurer
shall deposit funds therein in like in the same manner as funds are
deposited in depositories within the state under this article.
The state treasurer may transfer funds to banks financial
institutions outside the state to meet obligations to paying agents
outside the state and any such transfer if the financial
institution must meet meets the same bond collateral requirements
as set forth in this article.
§12-1-13. Payment of banking services and litigation costs for
prior investment losses.
(a) The treasurer is authorized to pay for banking services,
and goods and services ancillary thereto, by either a compensating
balance in a noninterest-bearing account maintained at the
financial institution providing the services or with a state
warrant as described in section one, article five three of this
chapter.
(b) The investment management board is authorized to pay for
the investigation and pursuit of claims against third parties for
the investment losses incurred during the period beginning on the
first day of August, one thousand nine hundred eighty-four, and
ending on the thirty-first day of August, one thousand nine hundred
eighty-nine. The payment may be in the form of a state warrant.
(c) If payment is made by a state warrant, the investment
management board, at the request of the treasurer, state treasurer
is authorized to establish within the consolidated fund an
investment pool which will generate sufficient income to pay for
all banking services provided to the state and to pay for the
investigation and pursuit of the prior investment loss claims. All
income earned by the investment pool shall be paid into a special
account of the treasurer to be known as the banking services
account and shall be used solely for the purpose of paying to pay
for all banking services and goods and services ancillary to the
banking services provided to the state, for the investigation and
pursuit of the prior investment loss claims, amortize and for
amortization of the balance in the investment imbalance fund.
ARTICLE 2. PAYMENT AND DEPOSIT OF TAXES AND OTHER AMOUNTS DUE THE
STATE OR ANY POLITICAL SUBDIVISION
.
§12-2-1. How and to whom taxes and other amounts due the state or
any political subdivision, official, department, board,
commission or other collecting agency thereof may be
paid.
All persons, firms and corporations shall promptly pay all
taxes and other amounts due from them to the state, or to any
political subdivision, official, department, board, commission or
other collecting agency thereof authorized by law to collect the
taxes and other amounts due by any authorized commercially acceptable means, in money, United States currency or by check,
bank draft, certified check, cashier's check, post office money
order, or express money order or electronic funds transfer payable
and delivered to the official, department, board, commission or
collecting agency thereof authorized by law to collect the taxes
and other amounts due and having the account upon which the taxes
or amounts due are chargeable against the payer of the taxes or
amounts due. The duly elected or appointed officers of the state
and of its political subdivisions, departments, boards, commissions
and collecting agencies having the account on which the taxes or
other amounts due are chargeable against the payer of the taxes or
other amounts due and authorized by law to collect the taxes or
other amounts due, and their respective agents, deputies,
assistants and employees shall in no case be the agent of the payer
in and about the collection of the taxes or other amounts, but
shall at all times and under all circumstances be the agent of the
state, its political subdivision, official, department, board,
commission or collecting agency having the account on which the
taxes or amounts are chargeable against the payer of the taxes or
other amounts due and authorized by law to collect the same.
§12-2-2. Itemized record of moneys received for deposit; rules
governing deposits; credit to state fund; exceptions.
(a) All officials and employees of the state authorized by
statute to accept moneys due the state of West Virginia shall keep a daily itemized record of moneys so received for deposit in the
state treasury and shall deposit within twenty-four hours with the
state treasurer all moneys received or collected by them for or on
behalf of the state for any purpose whatsoever. The treasurer
shall be is authorized to review the procedures and methods used by
officials and employees authorized to accept moneys due the state
and change such the procedures and methods if he or she determines
it to be is in the best interest of the state: Provided, That the
treasurer shall not be is not authorized to review or amend the
procedures by which the department of tax and revenue accepts
moneys due the state. The treasurer shall propose rules, in
accordance with the provisions of article three, chapter
twenty-nine-a of this code governing the procedure for deposits.
The official or employee making such deposits with the
treasurer shall prepare deposit lists in the manner and upon report
forms as may be prescribed by the treasurer. Certified or
receipted copies shall be immediately forwarded by the state
treasurer to the state auditor and to the secretary of
administration. The treasurer shall immediately forward certified
or receipted copies to the state auditor and secretary of
administration. The original of the deposit report shall become is
a part of the treasurer's permanent record records.
(b) All moneys received by the state from appropriations made
by the congress of the United States shall be recorded in special fund accounts, in the state treasury apart from the general
revenues of the state, and shall be expended in accordance with the
provisions of article eleven, chapter four of this code. All
moneys, other than federal funds, defined in section two, article
eleven, chapter four of this code, shall be credited to the state
fund and treated by the auditor and treasurer as part of the
general revenue of the state except the following funds which shall
be recorded in separate accounts:
(1) All funds excluded by the provisions of section six,
article eleven, chapter four of this code;
(2) All funds derived from the sale of farm and dairy products
from farms operated by any agency of the state government other
than the farm management commission spending unit of the state;
(3) All endowment funds, bequests, donations, executive
emergency funds and death and disability funds;
(4) All fees and funds collected at state educational
institutions for student activities;
(5) All funds derived from collections from dormitories,
boardinghouses, cafeterias and road camps;
(6) All moneys received from counties by institutions for the
deaf and blind on account of clothing for indigent pupils;
(7) All insurance collected on account of losses by fire and
refunds;
(8) All funds derived from bookstores and sales of blank paper and stationery; and collections by the chief inspector of public
offices
(9) All moneys collected and belonging to the capitol building
fund, state road fund, state road sinking funds, general school
fund, school fund, state fund (moneys belonging to counties,
districts and municipalities), state interest and sinking funds,
state compensation funds, the fund maintained by the public service
commission for the investigation and supervision of applications,
and all fees, money, interest or funds arising from the sales of
all permits and licenses to hunt, trap, fish or otherwise hold or
capture fish and wildlife resources and money reimbursed and
granted by the federal government for fish and wildlife
conservation;
(10) All moneys collected or received under any act of the
Legislature providing that funds collected or received thereunder
shall be used for specific purposes.
(c) All moneys, excepted as provided in subdivisions (1)
through (9), inclusive, subsection (b) of this section, shall be
paid into the state treasury in the same manner as collections not
so excepted and shall be recorded in separate accounts to be used
and expended only for receipt and expenditure for the purposes for
which the same are authorized to be collected by law: Provided,
That the Legislature may transfer any of the amounts collected
pursuant to subdivision (10), subsection (b) of this section which are found, from time to time, to exceed funds needed for the
purposes set forth in general law may be transferred to other
accounts or funds and redesignated for other purposes by
appropriation of the Legislature. The gross amount collected in
all cases shall be paid into the state treasury. and Commissions,
costs and expenses, of collection authorized by general law to be
paid out of the gross collection, including bank and credit or
check card fees, are hereby authorized to be paid out of the moneys
collected and paid into the state treasury including, without
limitation, amounts charged for use of bank, charge, check, credit
or debit cards, incurred in the collection process shall be paid
from the gross amount collected in the same manner as other
payments are made from the state treasury.
(d) The state treasurer shall have authority is authorized to
establish an imprest fund or funds in the office of any state
agency or institution making spending unit upon receipt of a proper
application. to the board To implement this authority, the
treasurer shall propose rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code. The treasurer
or his or her designee shall annually audit all imprest funds and
prepare a list of all such the funds showing the location and
amount as of fiscal year end, retaining the list as a permanent
record of the treasurer until the legislative auditor has completed
an audit of the imprest funds of all agencies and institutions involved.
(e) The treasurer shall be is authorized to develop and
implement a centralized receipts processing center. The treasurer
may request the transfer of equipment and personnel from
appropriate state agencies to the centralized receipts processing
center in order to implement the provisions of this subsection:
Provided, That the governor or appropriate constitutional officer
shall have final authority to authorize the transfer of equipment
or personnel to the centralized receipts processing center from the
respective agency.
§12-2-3. Deposit of moneys not due the state.
All officials and employees of the state authorized to accept
moneys that the state treasurer determines or that this code
specifies are not funds due the state pursuant to the provisions of
section two of this article shall deposit the moneys, as soon as
practicable in the manner and in the depository specified by the
treasurer. The treasurer shall prescribe the forms and procedures
for depositing the moneys.
A spending unit shall obtain written authorization from the
state treasurer before depositing the funds any moneys in an
account outside the treasury. Upon the treasurer's written
revocation of the authorization, the spending unit shall deposit
funds deposited in an account outside the treasury in into the
treasury in the manner and in the depository specified by the treasurer. The treasurer is the final determining authority as to
whether these funds are funds moneys are moneys due or not due the
state pursuant to section two of this article. The treasurer shall
on a quarterly basis provide the legislative auditor with a report
of all accounts approved by him or her authorized under this
section.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS.
§12-3-1. Manner of payment from treasury; form of checks.
(a) Every person claiming to receive money from the treasury
of the state shall apply to the auditor for a warrant for same.
The auditor shall thereupon examine the claim, and the vouchers,
certificates and evidence, if any, offered in support thereof, and
for so much thereof as he or she finds to be justly due from the
state, if payment thereof is authorized by law, and if there is an
appropriation not exhausted or expired out of which it is properly
payable, the auditor shall issue his or her warrant on the
treasurer, specifying to whom and on what account the money
mentioned therein is to be paid and to what appropriation it is to
be charged. The auditor shall present to the treasurer daily
reports on the number of warrants issued, the amounts of the
warrants and the dates on the warrants for the purpose of
effectuating the investment policy policies of the state treasurer
and the investment management board. On the presentation of the
warrant to the treasurer, the treasurer shall ascertain whether there are sufficient funds in the treasury to pay that warrant and
if he or she finds it to be so, he or she shall in that case, but
not otherwise, endorse his or her check upon the warrant, directed
to some depository, which check shall be payable to the order of
the person who is to receive the money therein specified.
(b) If the a check is not presented for payment within six
months after it is drawn, it shall then be is the duty of the
treasurer to credit it to the depository on which it was drawn, to
credit the unclaimed property fund pursuant to the provisions of
article eight, chapter thirty-six of this code stale check account,
which is hereby created, and immediately notify the auditor to make
corresponding entries on the auditor's books. If the state
treasurer determines any funds deposited in the stale check account
are federal funds, the state treasurer shall notify the spending
unit authorizing the payment. Within six months following issuance
of the notice, the spending unit shall inform the state treasurer
of the amount of federal funds included in the check, the account
from which the federal funds were disbursed, and the current fiscal
year account to which the federal funds are to be transferred.
After receiving the information, the state treasurer shall transfer
the amount of federal funds specified as a reimbursement to the
current fiscal year account specified to receive federal funds by
the spending unit. For a period of up to six months, the state
treasurer shall endeavor to pay the money in the stale check account to the payee. The treasurer shall credit the money that
has been in the stale check account for six months, or for a
shorter period as determined by the treasurer, to the unclaimed
property fund pursuant to the provisions of article eight, chapter
thirty-six of this code, and shall immediately notify the auditor
to make corresponding entries on the auditor's books.
(c) No state depository may pay a check unless it is presented
within six months after it is drawn and every check shall bear upon
its face the words "Void, unless presented for payment within six
months".
(d) Any information or records maintained by the treasurer
concerning any check which has not been not presented for payment
within six months one year of the date of issuance may only be
disclosed is confidential and exempt from disclosure under the
provisions of article one, chapter twenty-nine-b of this code, and
is disclosable only to the state agency specified on spending unit
authorizing the check, or to the payee, his or her personal
representative, next of kin or attorney-at-law. and is otherwise
confidential and exempt from disclosure under the provisions of
article one, chapter twenty-nine-b of this code
(e) All claims required by law to be allowed by any court, and
payable out of the state treasury, shall have the seal of the court
allowing or authorizing the payment of the claim affixed by the
clerk of the court to his or her certificate of its allowance. No claim may be audited and paid by the auditor unless the seal of the
court is thereto attached as aforesaid. No tax or fee may be
charged by the clerk for affixing his or her seal to the
certificate, referred to in this section. The treasurer shall
propose rules in accordance with the provisions of article three,
chapter twenty-nine-a of this code governing the procedure for such
payments from the treasury.
§12-3-1a. Payment by deposit in bank account.
The auditor may issue his warrant on the treasurer to pay any
person claiming to receive money from the treasury by deposit to
the person's account in any bank or other financial institution by
electronic funds transfer, if the person furnishes authorization of
the method of payment. The auditor shall prescribe the form of the
authorization. If the authorization is in written form, it shall
be sent to the auditor for review and approval and then forwarded
in electronic form to the treasurer. If the authorization is in
electronic form, it shall be sent to both the auditor and the
treasurer. The auditor must review and approve the authorization.
This section shall may not be construed to require the auditor to
utilize the method of payment authorized by this section. An
authorization furnished pursuant to this section may be revoked by
written notice furnished to the auditor and then forwarded by the
auditor in electronic form to the treasurer or by electronic notice
furnished to both the auditor and the treasurer. Upon execution of the authorization and its receipt by the office of the auditor, the
warrant shall be created in the manner specified on the
authorization and forwarded to the treasurer for further
disposition to the designated bank or other financial institution
specified on the electronic warrant: Provided, That after the
first day of July, two thousand two, the state auditor shall cease
issuing paper warrants except for income tax refunds. After that
date all warrants, except for income tax refunds, shall be issued
by electronic funds transfer: Provided, however, That the auditor,
in his or her discretion, may issue paper warrants on an emergency
basis. Provided further, That the treasurer and the auditor may
contract with any bank or financial institution for the processing
of electronic authorizations
ARTICLE 3A. FINANCIAL ELECTRONIC COMMERCE.
§12-3A-3. Financial electronic commerce.
The state auditor and the state treasurer shall implement
electronic commerce capabilities for each of their offices to
facilitate the performance of their duties under this code. The
state auditor and the shall competitively bid the selection of
vendors for the purchasing card program, the state treasurer shall
competitively bid the selection of vendors needed to provide the
necessary banking, investment and related services for their
offices and the provisions of article one-b, chapter five of this
code and articles three and seven, chapter five-a of this code shall not apply unless requested by the state auditor or state
treasurer.
A record, or an authentication, a document or a signature
issued or used by the auditor, or the treasurer or the comptroller
authorized in article two, chapter five-a of this code shall be
considered an original and may not be denied legal effect solely on
the ground that it is in electronic form.
The head of each spending unit is responsible for adopting and
implementing security procedures to ensure adequate integrity,
security, confidentiality and auditability of the business
transactions of his or her spending unit when utilizing electronic
commerce.
§12-3A-4. Payment by the West Virginia check card.
The state auditor treasurer may establish a state debit card
known as the "West Virginia Check Card" for recipients of employee
payroll or of benefits or entitlement programs processed by the
auditor who are considered unbanked and who do not possess a
federally insured depository institution account. The state
auditor treasurer shall use every reasonable effort to make a
federally insured depository account available to a recipient, and
to encourage all recipients to obtain a federally insured
depository account. Prior to issuing the West Virginia check card,
the state auditor treasurer shall first make a determination that
a recipient has shown good cause that an alternative method to direct deposit is necessary. The state auditor and the state
treasurer shall jointly issue a request for proposals in accordance
with section three of this article to aid the auditor in the
administration of the program and to aid the treasurer in the
establishment of state owned bank accounts and accommodate
accessible locations for use of the West Virginia check card. In
carrying out the purposes of this article, the state auditor and
state treasurer shall not compete with banks or other federally
insured financial institutions or for profit.
§12-3A-6. Receipting of electronic commerce purchases.
The state treasurer may establish a system for acceptance of
credit card and other payment methods for electronic commerce
purchases from spending units. Notwithstanding any other provision
of this code to the contrary, Each spending unit utilizing WEB
commerce, electronic commerce or other method that offers products
or services for sale shall utilize the state treasurer's system for
acceptance of payments. To facilitate electronic commerce, the
state treasurer may authorize a spending unit to assess and collect
a fee to recover or pay the cost of accepting bank, charge, check,
credit or debit cards from amounts collected. The state treasurer
shall propose legislative rules for promulgation in accordance with
the provisions of article three, chapter twenty-nine-a of this code
to establish the criteria and procedures involved in granting the
authorization and may promulgate emergency rules in accordance with the provisions of said article to implement the provisions of this
section prior to authorization of the legislative rules.
ARTICLE 5. PUBLIC SECURITIES.
§12-5-1. Securities defined.
The term "securities", when used in this article, shall
include all bonds, securities, debentures, notes or other evidences
of indebtedness and for purposes of this chapter, all cash received
with restrictions on expenditures, whether by court order or
otherwise.
§12-5-5. Protection and handling of securities.
(a) The noncash securities retained in the treasury shall be
kept in a vault. The treasurer shall use due diligence in
protecting the securities against loss from any cause. The
treasurer shall designate certain employees to take special care of
the securities. Only the treasurer and the designated employees
may have access to the securities, and at least two of these
persons shall be present whenever the securities are handled in any
manner. The treasurer may contract with one or more banking
institutions in or outside the state for the custody, safekeeping
and management of securities. The contract shall prescribe the
rules for the handling and protection of the securities.
(b) The treasurer shall deposit cash received in the state
treasury in accounts as determined by the treasurer after
discussion with the depositing spending unit. The treasurer is authorized to create any accounts in the state treasury needed for
purposes of this article and to invest the money in accordance with
this code and the restrictions placed on the money, with earnings
retained. The treasurer shall prescribe the forms and procedures
for receipt and disbursement of the moneys.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§12-6-1a. Legislative findings.
(a) The Legislature hereby finds and declares that all the
public employees covered by the public employees retirement system,
the teachers retirement system, the West Virginia state police
retirement system, the death, disability and retirement fund of the
division of public safety, the judges' retirement system and the
deputy sheriff's retirement system should benefit from a prudent
and conscientious staff of financial professionals dedicated to the
administration, investment and management of those employees' and
employers' financial contributions and that an independent board
and staff should be immune to changing political climates and
should provide a stable and continuous source of professional
financial investment and management.
(b) The Legislature finds and declares that teachers and other
public employees throughout the state are experiencing economic
difficulty and that in order to reduce this economic hardship on
these dedicated public employees and to help foster sound financial
practices, the West Virginia investment management board is given the authority to develop, implement and maintain an efficient and
modern system for the investment and management of the state's
money, except those moneys managed by the state treasurer in
accordance with article six-c of this chapter. The Legislature
further finds that in order to implement these sound fiscal
policies, the West Virginia investment management board shall
operate as an independent board with its own full-time staff of
financial professionals, immune to changing political climates, in
order to provide a stable and continuous source of professional
financial management.
(c) The Legislature hereby finds and declares further that
experience has demonstrated that prudent investment provides
diversification and beneficial return not only for public employees
but for all citizens of the state and that in order to have access
to this sound fiscal policy, public employee and employer
contributions to the 401(a) plans are declared to be made to an
irrevocable trust on behalf of each plan, available for no use or
purpose other than for the benefit of those public employees.
(d) The Legislature hereby finds and declares further that the
workers' compensation funds and coal workers' pneumoconiosis fund
are trust funds to be used exclusively for those workers, miners
and their beneficiaries who have sacrificed their health in the
performance of their jobs and further finds that the assets
available to pay awarded benefits should be prudently invested so that awards may be paid.
(e) The Legislature hereby finds and declares further that an
independent public body corporate with appropriate governance shall
be the best means of assuring prudent financial management of these
funds under rapidly changing market conditions and regulations.
(f) The Legislature hereby finds and declares further that in
accomplishing this purpose, the West Virginia investment management
board, created and established by this article, is acting in all
respects for the benefit of the state's public employees and
ultimately the citizens of the state and the West Virginia
investment management board is empowered by this article to act as
trustee of the irrevocable trusts created by this article and to
manage and invest other state funds.
(g) The Legislature hereby finds and declares further that the
standard of care and prudence applied to trustees, the conduct of
the affairs of the irrevocable trusts created by this article and
the investment of other state funds is intended to be that applied
to the investment of funds as described in the "uniform prudent
investor act" codified as article six-c, chapter forty-four of this
code and as described in section eleven of this article.
(h) The Legislature further finds and declares that the West
Virginia supreme court of appeals declared the "West Virginia Trust
Fund Act" unconstitutional in its decision rendered on the
twenty-eighth day of March, one thousand nine hundred ninety-seven, to the extent that it authorized investments in corporate stock,
but the court also recognized that there were other permissible
constitutional purposes of the "West Virginia Trust Fund Act" and
that it is the role of the Legislature to determine those purposes
consistent with the court's decision and the constitution of West
Virginia.
(i) The Legislature hereby further finds and declares that it
is in the best interests of the state and its citizens to create a
new investment management board in order to: (1) Be in full
compliance with the provisions of the constitution of West
Virginia; and (2) protect all existing legal and equitable rights
of persons who have entered into contractual relationships with the
West Virginia board of investments and the West Virginia trust
fund.
§12-6-2. Definitions.
As used in this article, unless a different meaning clearly
appears from the context:
(1) "Beneficiaries" means those individuals entitled to
benefits from the participant plans;
(2) "Board" means the governing body for the West Virginia
investment management board and any reference elsewhere in this
code to board of investments or West Virginia trust fund means the
board as defined in this subdivision;
(3) "Consolidated fund" means the investment fund established pursuant to subsection (a), section eight of this article and
managed by the board. and established pursuant to subsection (a),
section eight of this article Effective the first day of July, two
thousand three, "consolidated fund" means the investment fund
established in section eight-a of this article and transferred to
and managed by the state treasurer in accordance with article six-c
of this chapter;
(4) "401(a) plan" means a plan which is described in section
401(a) of the Internal Revenue Code of 1986, as amended, and with
respect to which the board has been designated to hold assets of
the plan in trust pursuant to the provisions of section nine-a of
this article;
(5) "Local government funds" means the moneys of a political
subdivision, including policemen's pension and relief funds,
firemen's pension and relief funds and volunteer fire departments,
transferred to the board for deposit;
(6) "Participant plan" means any plan or fund subject now or
hereafter to subsection (a), section nine-a, article six of this
chapter;
(7) "Political subdivision" means and includes a county,
municipality or any agency, authority, board, county board of
education, commission or instrumentality of a county or
municipality and regional councils created pursuant to the
provisions of section five, article twenty-five, chapter eight of this code;
(8) "Trustee" means any member serving on the West Virginia
investment management board: Provided, That in section nine-a of
this article in which the terms of the trusts are set forth,
"trustee" means the West Virginia investment management board;
(9) "Securities" means all bonds, notes, debentures or other
evidences of indebtedness and other lawful investment instruments;
and
(10) "State funds" means all moneys of the state which may be
lawfully invested except the "school fund" established by section
four, article XII of the state constitution.
§12-6-5. Powers of the board.
The board may exercise all powers necessary or appropriate to
carry out and effectuate its corporate purposes. The board may:
(1) Adopt and use a common seal and alter it at pleasure;
(2) Sue and be sued;
(3) Enter into contracts and execute and deliver instruments;
(4) Acquire (by purchase, gift or otherwise), hold, use and
dispose of real and personal property, deeds, mortgages and other
instruments;
(5) Promulgate and enforce bylaws and rules for the management
and conduct of its affairs;
(6) Notwithstanding any other provision of law, retain and
employ legal, accounting, financial and investment advisors and consultants;
(7) Acquire (by purchase, gift or otherwise), hold, exchange,
pledge, lend and sell or otherwise dispose of securities and invest
funds in interest earning deposits and in any other lawful
investments;
(8) Maintain accounts with banks, securities dealers and
financial institutions both within and outside this state;
(9) Engage in financial transactions whereby securities are
purchased by the board under an agreement providing for the resale
of the securities to the original seller at a stated price;
(10) Engage in financial transactions whereby securities held
by the board are sold under an agreement providing for the
repurchase of the securities by the board at a stated price;
(11) Consolidate and manage moneys, securities and other
assets of the other funds and accounts of the state and the moneys
of political subdivisions which may be made available to it under
the provisions of this article;
(12) Enter into agreements with political subdivisions of the
state whereby moneys of the political subdivisions are invested on
their behalf by the board Accept and invest funds transferred to
the board by the state treasurer on behalf of the state and
political subdivisions;
(13) Charge and collect administrative fees from political
subdivisions for its services;
(14) Exercise all powers generally granted to and exercised by
the holders of investment securities with respect to management of
the investment securities;
(15) Contract with one or more banking institutions in or
outside the state for the custody, safekeeping and management of
securities held by the board;
(16) Make and, from time to time, amend and repeal bylaws,
regulations and procedures not inconsistent with the provisions of
this article;
(17) Hire its own employees, consultants, managers and
advisors as it considers necessary and fix their compensation and
prescribe their duties;
(18) Develop, implement and maintain its own banking accounts
and investments;
(19) Do all things necessary to implement and operate the
board and carry out the intent of this article;
(20) Require the state auditor and treasurer to transmit state
funds on a daily basis for investment: Provided, That money held
for meeting the daily obligations of state government need not be
transferred;
(21) (20) Upon request of the treasurer, transmit funds for
deposit in the state treasury to meet the daily obligations of
state government;
(22) (21) Establish one or more investment funds for the purpose of investing the funds for which it is trustee, custodian
or otherwise authorized to invest pursuant to this article.
Interests in each fund shall be designated as units and the board
shall adopt industry standard accounting procedures to determine
each fund's unit value. The securities in each investment fund are
the property of the board and each fund shall be considered an
investment pool or fund and may not be considered a trust nor may
the securities of the various investment funds be considered held
in trust. However, units in an investment fund established by or
sold by the board and the proceeds from the sale or redemption of
any unit may be held by the board in its role as trustee of the
participant plans; and
(23) (22) Notwithstanding any other provision of the code to
the contrary, conduct investment transactions, including purchases,
sales, redemptions and income collections, which shall not be
treated by the auditor as recordable transactions on the state's
accounting system.
§12-6-8. Investment funds established; management thereof.
(a) There is hereby continued a special investment fund to be
managed by the board and designated as the "consolidated fund." On
the first day of July, two thousand three, the board shall transfer
the consolidated fund, all moneys, obligations, assets, securities
and other investments of the consolidated fund and all records,
properties and any other document or item pertaining to the consolidated fund in its possession or under its control to the
state treasurer for investment in accordance with article six-c of
this chapter.
(b) Each board, commission, department, official or agency
charged with the administration of state funds may request the
state treasurer to make moneys available to the board for
investment.
(c) Each political subdivision of this state through its
treasurer or equivalent financial officer may enter into agreements
with the board state treasurer for the investment of moneys of the
political subdivision. Any political subdivision may enter into an
agreement with any a state agency spending unit from which it
receives funds to allow the funds to be transferred request
transfer of the funds to their investment account with the
investment management board or the state treasurer.
(d) Moneys held in the various funds and accounts administered
by the board shall be invested as permitted by this article and
subject to the restrictions contained in this article. For the
consolidated fund, the treasurer shall maintain records of the
deposits and withdrawals of each participant and the performance of
the various funds and accounts. The board shall report the
earnings on the various funds under management to the state
treasurer at the times determined by the state treasurer. The
board shall also establish rules for the administration of the various funds and accounts established by this section as it
considers necessary for the administration of the funds and
accounts, including, but not limited to: (1) The specification of
amounts which may be deposited in any fund or account and minimum
periods of time for which deposits will be retained; and (2)
creation of reserves for losses: Provided, That in the event any
moneys made available to the board may not lawfully be combined for
investment or deposited in the consolidated fund established by
this section, the board may create special accounts and may
administer and invest those moneys in accordance with the
restrictions specially applicable to those moneys.
§12-6-9e. Legislative findings; loans for industrial development;
availability of funds and interest rates.
(a) The Legislature hereby finds and declares that the
citizens of the state benefit from the creation of jobs and
businesses within the state; that a business and industrial
development loan program provides for economic growth and
stimulation within the state; that loans from pools established in
the consolidated fund will assist in providing the needed capital
to assist business and industrial development; and that time
constraints relating to business and industrial development
projects prohibit duplicative review by both the board and West
Virginia economic development authority board. The Legislature
further finds and declares that an investment in the West Virginia enterprise capital fund, LLC, of moneys in the consolidated fund as
hereinafter provided will assist in creating jobs and businesses
within the state and providing the needed risk capital to assist
business and industrial development. This section is enacted in
view of these findings.
(b) The board shall make available, subject to cash
availability, in the form of a revolving loan, up to one hundred
fifty million dollars from the consolidated fund to loan the West
Virginia economic development authority for business or industrial
development projects authorized by section seven, article fifteen,
chapter thirty-one of this code and to consolidate existing loans
authorized to be made to the West Virginia economic development
authority pursuant to this section and pursuant to section twenty,
article fifteen, chapter thirty-one of this code which authorizes
a one hundred fifty million dollar revolving loan and article
eighteen-b, chapter thirty-one of this code which authorizes a
fifty million dollar investment pool: Provided, That the West
Virginia economic development authority may not loan more than
fifteen million dollars for any one business or industrial
development project. The revolving loan authorized by this
subsection shall be secured by one note at a variable interest rate
equal to the twelve-month average of the board's yield on its cash
liquidity pool. The rate shall be set on the first day of July and
the rate shall be adjusted annually on the same date. The maximum annual adjustment may not exceed one percent. Monthly payments
made by the West Virginia economic development authority to the
board shall be calculated on a one hundred twenty-month
amortization. The revolving loan shall be secured by a security
interest that pledges and assigns the cash proceeds of collateral
from all loans under this revolving loan pool. The West Virginia
economic development authority may also pledge as collateral
certain revenue streams from other revolving loan pools which
source of funds does not originate from federal sources or from the
board.
The outstanding principal balance of the revolving loan from
the board to the West Virginia economic development authority may
at no time exceed one hundred three percent of the aggregate
outstanding principal balance of the business and industrial loans
from the West Virginia economic development authority to economic
development projects funded from this revolving loan pool. This
provision shall be certified annually by an independent audit of
the West Virginia economic development authority financial records.
(c) The interest rates and maturity dates on the loans made by
the West Virginia economic development authority for business and
industrial development projects authorized by section seven,
article fifteen, chapter thirty-one of this code shall be at
competitive rates and maturities as determined by the West Virginia
economic development authority board.
(d) Any and all outstanding loans made by the board, or any
predecessor entity, to the West Virginia economic development
authority shall be refunded by proceeds of the revolving loan
contained in this section and no loans may be made hereafter by the
board to the West Virginia economic development authority pursuant
to section twenty, article fifteen, chapter thirty-one of this code
or article eighteen-b of said chapter.
(e) The trustees of the board shall bear no fiduciary
responsibility as provided in section eleven of this article with
specific regard to the revolving loan contemplated in this section.
(f) Subject to cash availability, the board shall make
available to the West Virginia economic development authority from
the consolidated fund a nonrecourse loan in an amount up to
twenty-five million dollars for the purpose of the West Virginia
economic development authority making a loan or loans, from time to
time, to the West Virginia enterprise advancement corporation, an
affiliated nonprofit corporation of the West Virginia economic
development authority. The respective loans authorized by this
subsection by the board to the West Virginia economic development
authority and by the West Virginia economic development authority
to the West Virginia enterprise advancement corporation shall each
be evidenced by one note and shall each bear interest at the rate
of three percent per annum. The proceeds of any and all loans made
by the West Virginia economic development authority to the West Virginia enterprise advancement corporation pursuant to this
subsection shall be invested by the West Virginia enterprise
corporation in the West Virginia enterprise capital fund, LLC, the
manager of which is the West Virginia enterprise advancement
corporation. The loan to West Virginia economic development
authority authorized by this subsection shall be nonrevolving, and
advances thereunder shall be made at times and in amounts as may be
requested or directed by the West Virginia economic development
authority, upon reasonable notice to the board, the loan authorized
by this subsection is not subject to or included in the limitations
set forth in subsection (b) of this section with respect to the
fifteen million dollar limitation for any one business or
industrial development project and limitation of one hundred three
percent of outstanding loans, and may not be included in the
revolving fund loan principal balance for purposes of calculating
the loan amortization in subsection (b) of this section. The loan
authorized by this subsection to the West Virginia economic
development authority
shall be classified by the board as a
long-term, fixed income investment, shall bear interest on the
outstanding principal balance thereof at the rate of three percent
per annum payable annually on or before the thirtieth day of June
of each year, and the principal of which shall be repaid no later
than the thirtieth day of June, two thousand twenty-two, in annual
installments due on or before the thirtieth day of June of each year, which annual installments shall commence no later than the
thirtieth day of June, two thousand and three, in annual principal
amounts as may be agreed upon between the board and the West
Virginia economic development authority, and which annual
installments need not be equal. The loan authorized by this
subsection shall be nonrecourse and shall be payable by the West
Virginia economic development authority
solely from amounts or
returns received by the West Virginia economic development
authority
in respect of the loan authorized by this subsection to
the West Virginia enterprise advancement corporation, whether in
the form of interest, dividends, realized capital gains, return of
capital or otherwise, in all of which the board shall have a
security interest to secure repayment of the loan to the West
Virginia economic development authority
authorized by this
subsection. Any and all loans from the West Virginia economic
development authority
to the West Virginia enterprise advancement
corporation made pursuant to this subsection shall also bear
interest on the outstanding principal balance thereof at the rate
of three percent per annum payable annually on or before the
thirtieth day of June of each year, shall be nonrecourse and shall
be payable by the West Virginia enterprise advancement corporation
solely from amounts of returns received by the West Virginia
enterprise advancement corporation in respect of its investment in
the West Virginia enterprise capital fund, LLC, whether in the form of interest, dividends, realized capital gains, return of capital
or otherwise, in all of which the board shall have a security
interest to secure repayment of the loan to the West Virginia
economic development authority
authorized by this subsection. In
the event the amounts or returns received by the West Virginia
enterprise corporation in respect of its investment in the West
Virginia enterprise capital fund, LLC, are not adequate to pay when
due the principal or interest installments, or both, with respect
to the loan from the West Virginia economic development authority
and, as a result thereof, the West Virginia economic development
authority
is unable to pay the principal or interest installments,
or both, with respect to the loan authorized by this subsection by
the board to the West Virginia economic development authority, the
principal or interest, or both, as the case may be, due on the loan
made to the West Virginia economic development authority
pursuant
to this subsection shall be deferred, and any and all such past-due
principal and interest payments shall promptly be paid to the
fullest extent possible upon receipt by the West Virginia
enterprise advancement corporation of moneys in respect of its
investments in the West Virginia enterprise capital fund, LLC. The
trustees or the board shall bear no fiduciary responsibility as
provided in section eleven, article six, chapter twelve of this
code with regard to the loan authorized by this subsection.
(g) The authority of the investment management board to make loans pursuant to this section expires on the thirtieth day of
June, two thousand three. Beginning the first day of July, two
thousand three, the provisions of this section are superseded by
the provisions of section ten, article six-c of this chapter. All
rights, duties and responsibilities of the investment management
board arising out of all loans made pursuant to this section and
outstanding on the thirtieth day of June, two thousand three, are
hereby transferred to the state treasurer effective the first day
of July, two thousand three.
§12-6-12. Investment restrictions.
(a) The board shall hold in equity investments no more than
sixty percent of the assets managed by the board and no more than
sixty percent of the assets of any individual participant plan. or
the consolidated fund
(b) The board shall hold in international securities no more
than twenty percent of the assets managed by the board and no more
than twenty percent of the assets of any individual participant
plan. or the consolidated fund
(c) The board may not at the time of purchase hold more than
five percent of the assets managed by the board in the equity
securities of any single company or association: Provided, That if
a company or association has a market weighting of greater than
five percent in the Standard & Poor's 500 index of companies, the
board may hold securities of that equity equal to its market weighting.
(d) The board shall at all times limit its asset allocation
and types of securities to the following:
(1) The board may not hold more than twenty percent of the
aggregate participant plan assets in commercial paper. Any
commercial paper at the time of its acquisition shall be in one of
the two highest rating categories by an agency nationally known for
rating commercial paper;
(2) At no time shall the board hold more than seventy-five
percent of the assets managed by the board in corporate debt. Any
corporate debt security at the time of its acquisition shall be
rated in one of the six highest rating categories by a nationally
recognized rating agency; and
(3) No security may be purchased by the board unless the type
of security is on a list approved by the board. The board may
modify the securities list at any time and shall give notice of
that action pursuant to subsection (g), section three of this
article and shall review the list at its annual meeting.
(e) Notwithstanding the investment limitations set forth in
this section, it is recognized that the assets managed by the
board, or the assets of the consolidated fund or participant plans,
whether considered in the aggregate or individually, may
temporarily exceed the investment limitations in this section due
to market appreciation, depreciation and rebalancing limitations. Accordingly, the limitations on investments set forth in this
section shall not be considered to have been violated if the board
rebalances the assets it manages or the assets of the consolidated
fund or participant plans, whichever is applicable, to comply with
the limitations set forth in this section at least once every six
months based upon the latest available market information and any
other reliable market data that the board considers advisable to
take into consideration.
(f) The board, at the annual meeting provided for in
subsection (h), section three of this article, shall review,
establish and modify, if necessary, the investment objectives of
the individual participant plans as incorporated in the investment
policy statements of the respective trusts so as to provide for the
financial security of the trust funds giving consideration to the
following:
(1) Preservation of capital;
(2) Diversification;
(3) Risk tolerance;
(4) Rate of return;
(5) Stability;
(6) Turnover;
(7) Liquidity; and
(8) Reasonable cost of fees.
§12-6-13. Board to manage certain investments; exceptions.
All duties vested by law in any agency, commission, official
or other board of the state relating to the investment of moneys,
and the acquisition, sale, exchange or disposal of securities or
any other investment are hereby transferred to the board:
Provided, That neither this section nor any other section of this
article applies to the duties vested by law in any agency,
commission, official or other board of the state relating to the
investment of moneys and the acquisition, sale, exchange or
disposal of securities or any other investments that are
transferred to the state treasurer pursuant to article six-c of
this chapter to the "board of the school fund", and or to the
"school fund" established by section four, article XII of the state
constitution. Provided, however, That funds under the control of
the municipal bond commission may, in the discretion of the
commission, be made available to the board for investment to be
invested by the commission as provided in article three, chapter
thirteen of this code
§12-6-16. Existing investments.
The board shall be is vested with ownership of all securities
or other investments that were lawfully held by the board of
investments or the West Virginia trust fund as of the effective
date of this article under prior enactments of this article. All
obligations and assets of the board of investments and the West
Virginia trust fund, inc., shall be are vested in the West Virginia investment management board as of the effective date of this
article under prior enactments of this article. On the first day
of July, two thousand three, the investment management board shall
transfer the consolidated fund, all moneys, obligations, assets,
securities and other investments of the consolidated fund and all
records, properties and any other document or item pertaining to
the consolidated fund in its possession or under its control to the
state treasurer.
§12-6-19. Authorization for loans by the board.
(a) The board, upon request of the state building commission,
shall transfer moneys as a loan to the state building commission in
an amount not to exceed in the aggregate twenty-one million dollars
for the purposes of financing or refinancing the projects specified
in subsections (b) and (d), section eight, article six, chapter
five of this code. The money borrowed shall bear interest during
the term of the loan at a fixed rate not to exceed the interest
rate on treasury notes, bills or bonds of the same term as the term
of the loan the week of closing on the loan as reported by the
treasury of the United States. Loans made under this subsection
shall be repaid in regular monthly or semiannual payments, or as
funds are made available by the budget office of department of
administration, and shall be paid in full not later than
twenty-five years from the date the loans are made with terms and
conditions mutually agreed upon by the state building commission and the investment management board.
(b) The state investment management board shall upon request
of the state building commission transfer moneys as a loan to the
state building commission in an amount not to exceed in the
aggregate one hundred thirty-seven million dollars for the purposes
of financing construction of regional jails, correctional
facilities or building extensions or improvements to regional jails
and correctional facilities. Prior to the expenditure of any loan
proceeds, the regional jail and correctional facility authority
shall certify a list of projects to the state building commission
and the joint committee on government and finance that shall be
funded from loan proceeds. This certified list cannot thereafter
be altered or amended other than by legislative enactment. The
state building commission shall borrow money as needed by the
regional jail and correctional facility authority. The investment
management board shall transfer loan proceeds to the authority for
expenditure. The money borrowed shall bear interest during the
term of the loan at a fixed rate not to exceed the interest rate on
treasury notes, bills or bonds of the same term as the term of the
loan the week of closing on the loan as reported by the treasury of
the United States.
(c) The regional jail and correctional facility authority
shall expend the loan proceeds received under the provisions of
subsection (b) of this section to proceed with the projects included in the letter submitted to the joint committee on
government and finance dated the fifteenth day of January, one
thousand nine hundred ninety-seven: Provided, That the letter
shall not be construed to prioritize any project or projects which
are included in the letter: Provided, however, That the authority
may also expend loan proceeds for any expansion to any existing
regional jail or any expansion to a regional jail under
construction upon the effective date of this section.
(d) Loans made under this section for the projects specified
in subsection (b) of this section and in subsection (d), section
eight, article six, chapter five of this code shall be repaid in
annual payments of not less than twelve million dollars per year by
appropriation of the Legislature to the board. The amount
transferred for loans under subsection (a) or (b) of this section
shall not exceed that amount which the board determines is
reasonable given the cash flow needs of the consolidated fund. The
board shall make transfers for loans first for the project
specified in subsection (d), section eight, article six, chapter
five of this code, second for the projects specified in subsection
(b) of this section and third for projects specified in subsection
(b), section eight, article six, chapter five of this code which
are in imminent danger of default in payment. The board shall take
the steps necessary to increase the liquidity of the consolidated
fund over a period of the next five years to allow for the loans provided in this section without increasing the risk of loss in the
consolidated fund.
(e) Authority for making additional loans pursuant to this
section expires on the thirtieth day of June, two thousand three.
All rights, duties and responsibilities of the investment
management board arising out of all loans made pursuant to this
section and outstanding on the first day of July, two thousand
three, are hereby transferred to the state treasurer.
ARTICLE 6C. WEST VIRGINIA CONSOLIDATED FUND INVESTMENT ACT.
§12-6C-1. Purposes and objects; how article cited.
This article, cited as the "West Virginia Consolidated Fund
Investment Act", is enacted to provide investment and management
services for the consolidated fund, comprised of the operating
funds of the state and of political subdivisions, for the purposes
of making state moneys more accessible to state government,
enabling investment managers to focus on the consolidated fund and
allowing the West Virginia investment management board to focus on
long-term investment of the trust estates it manages pursuant to
article six of this chapter.
§12-6C-2. Legislative findings.
(a) The Legislature finds and declares that the consolidated
fund should benefit from financial professionals dedicated to and
focused on the sound administration, investment and management of
the fund.
(b) The Legislature finds and declares that the state
treasurer currently enters into agreements on behalf of the West
Virginia investment management board with and provides reporting
services for participants in the consolidated fund.
(c) The Legislature finds and declares that the transfer of
the consolidated fund to the state treasurer will allow for
management of the fund within state government and will encourage
better cash management of state moneys.
(d) The Legislature finds and declares that in accomplishing
these purposes, the state treasurer is acting in all respects for
the benefit of the citizens of the state in managing and investing
the consolidated fund.
(e) The Legislature further finds and declares that it is in
the best interests of the state, its citizens and the political
subdivisions for the state treasurer to manage and invest the
consolidated fund to: (1) Provide focused investment services for
the operating funds of the state and of its political subdivisions;
(2) provide better management of all state funds within state
government; and (3) allow the West Virginia investment management
board to focus on the long-term investment of the trust estates it
manages pursuant to article six of this chapter.
§12-6C-3. Definitions.
As used in this article, unless a different meaning clearly
appears from the context:
(1) "Consolidated fund" means the investment fund transferred
to the state treasurer by the investment management board and
continued pursuant to section five of this article;
(2) "Local government funds" or "moneys of a political
subdivision" means the moneys of a political subdivision, including
policemen's pension and relief funds, firemen's pension and relief
funds and volunteer fire department funds, transferred to the state
treasurer for deposit;
(3) "Participant" means any state government spending unit or
political subdivision which transfers moneys to the board for
investment;
(4) "Political subdivision" means and includes a county,
municipality or any agency, authority, board, county board of
education, commission or instrumentality of a county or
municipality and regional councils created pursuant to the
provisions of section five, article twenty-five, chapter eight of
this code;
(5) "Securities" means all bonds, notes, debentures or other
evidences of indebtedness and other lawful investment instruments;
and
(6) "State funds" means all moneys of the state which may be
lawfully invested except the "school fund" established by section
four, article XII of the state constitution.
§12-6C-4. Powers of the state treasurer.
The state treasurer may exercise all powers necessary or
appropriate to carry out and effectuate the purposes of this
article. The state treasurer may:
(1) Enter into contracts and execute and deliver instruments
utilizing the policies and procedures of the state treasurer's
office;
(2) Acquire (by purchase, gift or otherwise), hold, use and
dispose of real and personal property, deeds, mortgages and other
instruments;
(3) Promulgate and enforce policies and rules for the
management of the consolidated fund;
(4) Notwithstanding any other provision of law to the
contrary, specifically article one-b, chapter five of this code;
articles three and seven, chapter five-a of this code, retain and
contract with legal, accounting, financial and investment managers,
advisors and consultants;
(5) Acquire (by purchase, gift or otherwise), hold, exchange,
pledge, lend and sell or otherwise dispose of securities and invest
funds in investments authorized by this article;
(6) Maintain accounts with banks, securities dealers and
financial institutions both within and outside this state;
(7) Engage in financial transactions whereby securities are
purchased by the state treasurer under an agreement providing for
the resale of the securities to the original seller at a stated price;
(8) Engage in financial transactions whereby securities held
by the state treasurer are sold under an agreement providing for
the repurchase of the securities by the state treasurer at a stated
price;
(9) Consolidate and manage moneys, securities and other assets
of the consolidated fund and accounts of the state and the moneys
of political subdivisions which may be made available to the state
treasurer under the provisions of this article;
(10) Abide by agreements entered into by the state treasurer
with political subdivisions of the state for investment of moneys
of the political subdivisions by the state treasurer;
(11) Charge and collect administrative fees from participants,
including political subdivisions, for services in connection with
the consolidated fund;
(12) Exercise all powers generally granted to and exercised by
the holders of investment securities with respect to management of
the investment securities;
(13) Utilize any contract or agreement of the investment
management board and the state treasurer's office and enter into
contracts or agreements, including without limitation entering into
a contract or agreement with one or more banking institutions in or
outside the state for the custody, safekeeping and management of
securities held by the state treasurer and with any investment manager and investment advisor needed;
(14) Make and, from time to time, amend and repeal policies,
rules, regulations and procedures not inconsistent with the
provisions of this article;
(15)Hire employees, consultants, managers and advisors as the
state treasurer considers necessary and fix their compensation and
prescribe their duties;
(16)Develop, implement and maintain investment accounts;
(17)Offer assistance and seminars to spending units and to
political subdivisions; and
(18) Establish one or more investment funds, pools or
participant accounts for the purpose of investing the moneys and
assets for which the state treasurer, a custodian or otherwise is
authorized to invest pursuant to this article. Interests in each
fund, pool or participant account are designated as units and the
state treasurer shall adopt industry standard accounting procedures
to determine the unit value of each fund, pool or participant
account. The securities in each investment fund, pool or
participant account are the property of the state treasurer and
each fund, pool or participant account is considered an investment
pool, investment fund or investment participant account.
§12-6C-5. Consolidated fund continued; management.
(a) The "consolidated fund" is the special investment fund
managed by the West Virginia investment management board through the thirtieth day of June, two thousand three. The consolidated
fund is hereby continued and is vested in the state treasurer on
the first day of July, two thousand three. References elsewhere in
this code to the entity investing the moneys of the consolidated
fund, to the West Virginia board of investments, to the West
Virginia trust fund or to the West Virginia investment management
board in connection with investing the moneys of the consolidated
fund, means the state treasurer.
(b) Each spending unit authorized to invest moneys shall
unless prohibited by law request the state treasurer to invest its
moneys. Based upon spending unit representations, the state
treasurer shall deposit the moneys in the investment funds or pools
of the consolidated fund for investment or send the moneys to the
West Virginia investment management board for investment.
(c) Each political subdivision of this state through its
treasurer or equivalent financial officer may enter into agreements
with the state treasurer for the investment of moneys of the
political subdivision. Any political subdivision may enter into an
agreement with a state spending unit from which it receives moneys
to allow the state treasurer to invest the moneys.
(d) Moneys held in the various funds and accounts administered
by the state treasurer are invested as permitted by this article
and subject to the restrictions contained in this article.
(e) The state treasurer shall maintain records of the deposits and withdrawals of each participant and the performance of the
various funds, pools and accounts.
(f) The state treasurer shall establish policies for the
administration of the various funds, pool and accounts authorized
by this article as it determines necessary. The policies may
specify the minimum amounts and timing of deposits and withdrawals,
and any other matters authorized by the state treasurer.
§12-6C-6. Management and control of fund; staff; liability.
(a) The management and control of the consolidated fund is
vested solely in the state treasurer in accordance with the
provisions of this article.
(b) The state treasurer may utilize the staff of his or her
office, employ personnel and contract with any person or entity
needed to perform the tasks related to operating the consolidated
fund.
(c) The state treasurer shall retain an internal auditor to
report directly to the state treasurer and shall fix his or her
compensation. As a minimum qualification, an internal auditor must
be a certified public accountant with at least three years
experience as an auditor. The internal auditor shall develop an
internal audit plan for the testing of procedures and the security
of transactions.
(d) The state treasurer and employees of the state treasurer
performing work in connection with the consolidated fund are not liable personally, either jointly or severally, for any debt or
obligation created by the state treasurer.
(e) Transactions, contracts and agreements for the
consolidated fund are exempt from the provisions of article one-b,
chapter five of this code and articles three and seven, chapter
five-a of this code. However, the transactions, contracts and
agreements are subject to the purchasing policies and procedures of
the state treasurer's office.
§12-6C-7. Administration of consolidated fund.
(a) In the administration of the consolidated fund continued
by this article, the state treasurer may:
(1) Purchase, retain, hold, transfer and exchange and sell, at
public or private sale, the whole or any part of the fund or pools
upon such terms and conditions as the state treasurer considers
advisable;
(2) Invest and reinvest the fund and pools or any part thereof
in fixed income securities as provided in this article;
(3) Carry the securities and other property held in trust
either in the name of the state treasurer or in the name of a
nominee of the state treasurer;
(4) Vote, in person or by proxy, all securities held; to join
in or to dissent from and oppose the reorganization,
recapitalization, consolidation, merger, liquidation or sale of
corporations or property; to exchange securities for other securities issued in connection with or resulting from any
transaction; to pay any assessment or expense which the state
treasurer considers advisable for the protection of any interest as
holder of the securities; to exercise any option appurtenant to any
securities for the conversion of any securities into other
securities; and to exercise or sell any rights issued upon or with
respect to the securities of any corporation, all upon terms the
state treasurer considers advisable;
(5) Prosecute, defend, compromise, arbitrate or otherwise
adjust or settle claims in favor of or against the state treasurer;
(6) Employ and pay from the fund any investment advisers,
brokers, counsel, managers and any other assistants and agents the
state treasurer considers advisable;
(7) Develop, implement and modify an asset allocation plan and
investment policy for each fund or pool; and
(8) Create a local government investment pool, a program to
purchase certificates of deposit from West Virginia financial
institutions that are depositories and any funds, pools or
participant accounts needed.
(b) All income and earnings are free from anticipation,
alienation, assignment or pledge by, and free from attachment,
execution, appropriation or control by or on behalf of, any and all
creditors of any beneficiary by any proceeding at law, in equity,
in bankruptcy or insolvency.
(c)The state treasurer shall render an annual accounting not
more than one hundred twenty days following the close of the fiscal
year.
§12-6C-8. Asset allocation; investment policies; authorized
investments; restrictions.
(a) The state treasurer shall develop, adopt, review or modify
an asset allocation plan for the consolidated fund annually.
(b) The state treasurer shall adopt, review, modify or cancel
the investment policy of each fund or pool created annually. For
each participant directed account the state treasurer may
authorize, the state treasurer shall create an account and develop
an investment policy. The state treasurer shall review all
participant directed accounts and investment policies annually for
modification.
(c) The state treasurer shall consider the following when
adopting, reviewing, modifying or canceling investment policies:
(1) Preservation of capital;
(2) Risk tolerance;
(3) Credit standards;
(4) Diversification;
(5) Rate of return;
(6) Stability and turnover;
(7) Liquidity;
(8) Reasonable costs and fees;
(9) Permissible investments;
(10) Maturity ranges;
(11) Internal controls;
(12) Safekeeping and custody;
(13) Valuation methodologies;
(14) Calculation of earnings and yields;
(15) Performance benchmarks and evaluation; and
(16) Reporting.
(d) No security may be purchased by the state treasurer unless
the type of security is on a list approved by the state treasurer.
The state treasurer shall review the list annually.
(e) Notwithstanding the restrictions which are otherwise
provided by law with respect to the investment of funds, the state
treasurer and all participants, now and in the future, are
authorized to invest funds of the consolidated fund in these
securities:
(1) Obligations of, or obligations that are insured as to
principal and interest by, the United States of America or any
agency, association or corporation thereof, obligations and
securities of United States-chartered, owned or sponsored
enterprises and obligations and securities considered moral
obligations of the United States government, including without
limitation:
(i) United States treasury;
(ii) Export-import bank of the United States;
(iii) Farmers home administration;
(iv) Federal farm credit banks;
(v) Federal home loan banks;
(vi) Federal home loan mortgage corporation;
(vii) Federal intermediate credit banks;
(viii) Federal land banks;
(ix) Federal national mortgage association;
(x) Government national mortgage association;
(xi) Merchant marine bonds;
(xii) Student loan marketing association; and
(xiii) Tennessee valley authority.
(2) Commercial paper with one of the two highest commercial
paper credit ratings by a nationally recognized investment rating
firm;
(3) Corporate debt rated in one of the six highest rating
categories by a nationally recognized rating agency;
(4) State and local government, or any instrumentality or
agency thereof, securities with one of the three highest ratings by
a nationally recognized rating agency;
(5) Repurchase agreements involving the purchase of United
States treasury securities and repurchase agreements fully
collateralized by obligations of the United States government or
its agencies or instrumentalities;
(6) Reverse repurchase agreements involving the purchase of
United States Treasury securities and reverse repurchase agreements
fully collateralized by obligations of the United States government
or its agencies or instrumentalities;
(7) Asset-backed securities rated in the highest category by
a nationally recognized rating agency, but excluding mortgage-
backed securities;
(8) Investments in accordance with the linked deposit program,
a program using West Virginia banks to obtain certificates of
deposit, loans and any other programs authorized by the
Legislature; and
(9) Any other fixed income security recommended to the
treasurer by an investment advisor in accordance with this article.
§12-6C-9. Investment authority for consolidated fund transferred
to state treasurer.
All duties vested by law in state spending units and the West
Virginia investment management board relating to the consolidated
fund are hereby transferred to the state treasurer, including,
without limitation, the investment of moneys, and the acquisition,
sale, exchange or disposal of securities or any other investment:
Provided, That neither this section nor any other section of this
article applies to the "board of the school fund" and the "school
fund" established by section four, article XII of the state
constitution: Provided, however, That the municipal bond commission may make funds under its control available to the state
treasurer for investment.
§12-6C-10. Legislative findings; loans for industrial development;
availability of funds and interest rates.
(a) The Legislature hereby finds and declares that the
citizens of the state benefit from the creation of jobs and
businesses within the state; that business and industrial
development loan programs provide for economic growth and
stimulation within the state; that loans from pools established in
the consolidated fund will assist in providing the needed capital
to assist business and industrial development; and that time
constraints relating to business and industrial development
projects prohibit duplicative review by both the state treasurer
and West Virginia economic development authority board. The
Legislature further finds and declares that an investment in the
West Virginia enterprise capital fund, LLC, of moneys in the
consolidated fund as hereinafter provided will assist in creating
jobs and businesses within the state and providing the needed risk
capital to assist business and industrial development. This
section is enacted in view of these findings.
(b) The state treasurer shall make available, subject to a
liquidity determination, in the form of a revolving loan, up to one
hundred fifty million dollars from the consolidated fund to loan
the West Virginia economic development authority for business or industrial development projects authorized by section seven,
article fifteen, chapter thirty-one of this code and to consolidate
existing loans authorized to be made to the West Virginia economic
development authority pursuant to this section and pursuant to
section twenty, article fifteen, chapter thirty-one of this code
which authorizes a one hundred fifty million-dollar revolving loan
and article eighteen-b, chapter thirty-one of this code which
authorizes a fifty million-dollar investment pool: Provided, That
the West Virginia economic development authority may not loan more
than fifteen million dollars for any one business or industrial
development project. The revolving loan authorized by this
subsection is secured by one note at a variable interest rate equal
to the twelve-month average of the board's yield on its cash
liquidity pool. The rate is set on the first day of July and
adjusted annually on the same date. The maximum annual adjustment
may not exceed one percent. Monthly payments made by the West
Virginia economic development authority to the state treasurer are
calculated on a one hundred twenty-month amortization. The
revolving loan is secured by a security interest that pledges and
assigns the cash proceeds of collateral from all loans under this
revolving loan pool. The West Virginia economic development
authority may also pledge as collateral certain revenue streams
from other revolving loan pools which source of funds does not
originate from federal sources.
The outstanding principal balance of the revolving loan from
the state treasurer to the West Virginia economic development
authority may at no time exceed one hundred three percent of the
aggregate outstanding principal balance of the business and
industrial loans from the West Virginia economic development
authority to economic development projects funded from this
revolving loan pool. The independent audit of the West Virginia
economic development authority financial records shall annually
certify the one hundred three percent requirement.
(c) The interest rates and maturity dates on the loans made by
the West Virginia economic development authority for business and
industrial development projects authorized by section seven,
article fifteen, chapter thirty-one of this code are at competitive
rates and maturities as determined by the West Virginia economic
development authority board.
(d) Any and all outstanding loans made by the state treasurer,
or any predecessor person or entity, to the West Virginia economic
development authority are refundable by proceeds of the revolving
loan contained in this section and the state treasurer shall make
no loans to the West Virginia economic development authority
pursuant to section twenty, article fifteen, chapter thirty-one of
this code or article eighteen-b of said chapter.
(e) The state treasurer shall bear no fiduciary responsibility
with regard to any of the loans contemplated in this section.
(f) Subject to cash availability, the state treasurer shall
make available to the West Virginia economic development authority
from the consolidated fund a nonrecourse loan in an amount up to
twenty-five million dollars, for the purpose of the West Virginia
economic development authority making a loan or loans from time to
time to the West Virginia enterprise advancement corporation, an
affiliated nonprofit corporation of the West Virginia economic
development authority. The respective loans authorized by this
subsection by the state treasurer to the West Virginia economic
development authority and by the West Virginia economic development
authority to the West Virginia enterprise advancement corporation
shall each be evidenced by one note and shall each bear interest at
the rate of three percent per annum. The proceeds of any and all
loans made by the West Virginia economic development authority to
the West Virginia enterprise advancement corporation pursuant to
this subsection shall be invested by the West Virginia enterprise
corporation in the West Virginia enterprise capital fund, LLC, the
manager of which is the West Virginia enterprise advancement
corporation. The loan to West Virginia economic development
authority authorized by this subsection shall be nonrevolving, and
advances thereunder shall be made at times and in amounts as may be
requested or directed by the West Virginia economic development
authority, upon reasonable notice to the state treasurer, the loan
authorized by this subsection is not subject to or included in the limitations set forth in subsection (b) of this section with
respect to the fifteen million-dollar limitation for any one
business or industrial development project and limitation of one
hundred three percent of outstanding loans and may not be included
in the revolving fund loan principal balance for purposes of
calculating the loan amortization in subsection (b) of this
section. The loan authorized by this subsection to the West
Virginia economic development authority
shall be classified by the
state treasurer as a long-term, fixed income investment, shall bear
interest on the outstanding principal balance thereof at the rate
of three percent per annum payable annually on or before the
thirtieth day of June of each year, and the principal of which
shall be repaid no later than the thirtieth day of June, two
thousand twenty-two, in annual installments due on or before the
thirtieth day of June of each year, which annual installments shall
commence no later than the thirtieth day of June, two thousand
three, in annual principal amounts as may be agreed upon between
the state treasurer and the West Virginia economic development
authority and which annual installments need not be equal. The
loan authorized by this subsection shall be nonrecourse and shall
be payable by the West Virginia economic development authority
solely from amounts or returns received by the West Virginia
economic development authority
in respect of the loan authorized by
this subsection to the West Virginia enterprise advancement corporation, whether in the form of interest, dividends, realized
capital gains, return of capital or otherwise, in all of which the
state treasurer shall have a security interest to secure repayment
of the loan to the West Virginia economic development authority
authorized by this subsection. Any and all loans from the West
Virginia economic development authority
to the West Virginia
enterprise advancement corporation made pursuant to this subsection
shall also bear interest on the outstanding principal balance
thereof at the rate of three percent per annum payable annually on
or before the thirtieth day of June of each year, shall be
nonrecourse and shall be payable by the West Virginia enterprise
advancement corporation solely from amounts of returns received by
the West Virginia enterprise advancement corporation in respect of
its investment in the West Virginia enterprise capital fund, LLC,
whether in the form of interest, dividends, realized capital gains,
return of capital or otherwise, in all of which the state treasurer
shall have a security interest to secure repayment of the loan to
the West Virginia economic development authority
authorized by this
subsection. In the event the amounts or returns received by the
West Virginia enterprise corporation in respect of its investment
in the West Virginia enterprise capital fund, LLC, are not adequate
to pay when due the principal or interest installments, or both,
with respect to the loan from the West Virginia economic
development authority
and, as a result thereof, the West Virginia economic development authority
is unable to pay the principal or
interest installments, or both, with respect to the loan authorized
by this subsection by the state treasurer to the West Virginia
economic development authority, the principal or interest, or both,
as the case may be, due on the loan made to the West Virginia
economic development authority
pursuant to this subsection shall be
deferred, and any and all such past-due principal and interest
payments shall promptly be paid to the fullest extent possible upon
receipt by the West Virginia enterprise advancement corporation of
moneys in respect of its investments in the West Virginia
enterprise capital fund, LLC. The state treasurer shall bear no
fiduciary responsibility with regard to any loans authorized by
this code.
§12-6C-11. Securities handling.
In financial transactions whereby securities are purchased by
the state treasurer under an agreement providing for the resale of
the securities to the original seller at a stated price, the state
treasurer shall take physical possession of the securities,
directly, by a custodian bank or through a neutral third party:
Provided, That an agreement with a neutral third party may not
waive liability for the handling of the securities: Provided,
however, That when the state treasurer is unable to take
possession, directly, by a custodian bank or through a mutual third
party, the state treasurer may leave securities in a segregated account with the original seller, provided the amount of the
securities with any one seller may not exceed one hundred fifty
million dollars.
§12-6C-12. Standard of care.
(a) The "Uniform Prudent Investor Act" codified in article
six-c, chapter forty-four of this code is the standard for any
investments made under this article. Investments are further
subject to the following:
(1) The state treasurer shall diversify fund investment so as
to minimize the risk of large losses unless, under the
circumstances, it is clearly prudent not to do so;
(2) The state treasurer shall defray reasonable expenses of
investing and managing the consolidated fund by charging fees as
provided in this article; and
(3) The state treasurer shall discharge his or her duties in
accordance with the documents and instruments consistent with the
provisions of this article.
(b) Duties of the state treasurer apply only with respect to
those assets deposited with or otherwise held for the consolidated
fund.
§12-6C-13. Existing investments.
The investment management board shall transfer the cash,
securities and other investments of the consolidated fund it holds,
maintains or administers to the state treasurer on the first day of July, two thousand three, which will lawfully vest the state
treasurer with ownership of all securities or other investments of
the consolidated fund.
§12-6C-14. Annual audits; financial statements; information.
(a) The state treasurer shall have an annual financial and
compliance audit of the assets, funds, pools and participant
accounts managed under this article made by a certified public
accounting firm which has a minimum staff of ten certified public
accountants and which is a member of the American institute of
certified public accountants and, if doing business in West
Virginia, a member of the West Virginia society of certified public
accountants.
(b) The state treasurer shall produce monthly financial
statements for the assets managed by the state treasurer and send
them to the governor, president of the Senate, speaker of the House
of Delegates and legislative auditor and provide copies as
reasonably requested.
(c) Each quarter the state treasurer shall deliver a report
for the prior quarter to the council of finance and administration.
(d) The state treasurer shall contract with an investment
consulting or a certified public accounting firm meeting the
criteria set out in subsection (a) of this section for an annual
audit of the reported returns of the assets of the consolidated
fund.
(e) Unless specifically otherwise stated, copies of the
reports required in this section shall be furnished to the
governor, state auditor, president of the Senate, speaker of the
House of Delegates, council of finance and administration,
legislative librarian and upon request to any legislator,
legislative committee, financial institution, member of the media,
and the public.
(f) The state treasurer shall provide any other information
requested in writing by the council of finance and administration
or any member of the Legislature.
§12-6C-15. Reports to participants.
(a) On a monthly basis, the state treasurer shall provide an
itemized statement of a spending unit's or other participant's
account in the consolidated fund to each state spending unit and
any other entity investing moneys in the consolidated fund. The
statement shall include the beginning balance, contributions,
withdrawals, income distributed, change in value and ending
balance.
(b) The state treasurer shall prepare annually, or more
frequently if determined necessary by the state treasurer, a report
of its operations and the performance of the various funds, pools
and participant accounts administered under this article. The
state treasurer shall furnish copies of the report to each
participant, the governor, state auditor, president of the Senate, speaker of the House of Delegates, legislative auditor, and upon
request to any legislative committee, any legislator, any banking
institution or state or federal savings and loan association in
this state and any member of the news media. The state treasurer
shall also keep the reports available for inspection by any citizen
of this state.
§12-6C-16. Legal status of spending units continued.
Except as otherwise provided in this article, every state
spending unit shall retain all of the powers and shall exercise all
of the functions and duties vested in or imposed upon it by law, as
to any fund or account.
§12-6C-17. Authorization for loans by the state treasurer.
(a) Any loans made the consolidated fund prior to its transfer
to the state treasurer shall remain in existence and in accordance
with the terms and conditions of the loan.
(b) The state treasurer shall continue the work of the
investment management board in taking the steps necessary to
increase the liquidity of the consolidated fund to allow for any
loans authorized by the Legislature without increasing the risk of
loss.
§12-6C-18. Creation of fee account and investment account;
budget.
(a) The state treasurer may charge fees, which are subtracted
from the total amount of assets in the consolidated fund, for the reasonable and necessary expenses incurred by the state treasurer
in rendering services. All fees collected shall be deposited in a
special account in the state treasury to be known as the
"Consolidated Fund Fee Account". Expenditures from the fund shall
be for the fulfillment of the provisions of this article.
(b) There is hereby created in the state treasury the
"Consolidated Fund Investment Account" for use in receiving funds
for investment, disbursing funds from investments and processing
investment transactions.
(c) All fees dedicated, identified or readily identifiable to
an entity, fund, pool or participant account shall be charged to
that entity, fund, pool or participant account and all other fees
shall be charged as a percentage of assets under management.
Annually, the state treasurer shall adopt a fee schedule and a
budget reflecting fee schedules.
________
(NOTE: This bill transfers the consolidated fund from the
investment management board to the state treasurer, and amends
various provisions to reflect the fund transfer. In addition, the
bill allows federal and state savings and loan associations to
become depositories; allows the treasurer to allow out-of-state
banks to become depositories for disbursement accounts if the
needed services cannot be provided by an in-state bank; requires
the Legislature and the treasurer to determine whether funds are
state funds, except bond proceeds; requires outside accounts to be
authorized by the treasurer, except trust and investment accounts
related to bonds, and to comply with the procedures established by
the treasurer; allows only the treasurer to enter into contracts
for banking goods and services, except for the auditor obtaining
the purchasing card and bond issuers; enables spending units to pay fees associated with bank, charge and other cards; requires
spending units to notify the unclaimed property division when stale
dated checks contain federal funds of the amount of the funds and
which account should receive the funds; transfers responsibility
for the West Virginia check card from the auditor to the treasurer;
allows the treasurer to
authorize spending units to collect fees to
cover costs of accepting bank, charge and other cards by issuing
legislative and emergency rules; and transfers authority for
issuing loans through the economic development authority and making
loans for the West Virginia enterprise capital fund, LLC, from the
investment management board to the state treasurer.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§12-6C is new; therefore, strike-throughs and underscoring
have been omitted.)
_______
GOVERNMENT ORGANIZATION COMMITTEE AMENDMENTS
On page eight, section two, line three, after the word "unit"
by striking out the comma and the words "as defined in section one,
article one, chapter five-a of this code,";
On page eight, section two, line seven, after the word
"bonds." by adding the following: As used in this chapter, a
spending unit means a department, agency or institution of state
government for which an appropriation is requested or to which an
appropriation is made by the Legislature.;
On page ten, section twelve, line ten, by striking out the
word "deposited";
On page twenty-three, section three, line twenty, by striking
out the word "purchasing" and inserting in lieu thereof the word
"payment";
On page thirty-six, section eight, line fourteen, by striking
out the word "their" and inserting in lieu thereof the word "its";
On page thirty-six, section eight, line fifteen, after the
word "treasurer." by inserting the following: Nothing herein shall
preclude political subdivisions, including, without limitation, any
board of trustees of policemen pension and relief funds, any board
of trustees of firemen pension and relief funds and volunteer fire
departments, from investing in equities with the investment
management board if authorized by this code.;
On pages forty-eight through fifty-one, by striking out all of
section nineteen;
On page fifty-five, section four, line twenty, after the word
"board" by striking out the word "and" and inserting in lieu
thereof the words "in effect on the first day of July, two thousand
three, and any contract or agreement of";
On page fifty-seven, section five, lines eleven through
fourteen, by striking out the words "Based upon spending unit
representations, the state treasurer shall deposit the moneys in
the investment funds or pools of the consolidated fund for
investment or send the moneys to the West Virginia investment
management board for investment." and inserting in lieu thereof the
following: The state treasurer shall transfer the moneys to the
investment funds or pools of the consolidated fund or the
investment management board specified by the spending unit.;
On page fifty-seven, section five, line twenty, after the word
"moneys." by inserting the following: The state treasurer shall
transfer the moneys to the investment funds or pools of the
consolidated fund or the investment management board specified by
the political subdivision.;
And,
On page sixty-five, section ten, line twenty-three, by
striking out the word "fifty" and inserting in lieu thereof the
word "seventy-five".