ENROLLED
Senate Bill No. 646
(By Senators Caldwell, Plymale, Edgell, White, Dempsey, Sprouse, Unger and
Oliverio)
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[Passed March 8, 2003; in effect from passage.]
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AN ACT to amend chapter eighteen-b of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twelve-a; and to
amend and reenact section two, article five of said chapter,
all relating to higher education; centers for economic
development and technology advancement generally; findings and
purpose; definitions; authorizing doctoral institutions to
enter into agreements with centers; setting forth requirements
for governing bodies; powers and duties of governing bodies;
providing for appointment of president; qualifications; powers
and duties of president; authorizing agreements; terms and
conditions; authorizing audit of center operations; clarifying
issues of conflicts of interest; prohibiting waiver of
sovereign immunity; clarifying issues of debt obligations of
centers; student financial aid; and expanding definition of
"eligible institution" for purposes of higher education grant program.
Be it enacted by the Legislature of West Virginia:
That chapter eighteen-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article twelve-a; and that
section two, article five of said chapter be amended and reenacted,
all to read as follows:
ARTICLE 12A. CENTERS FOR ECONOMIC DEVELOPMENT AND TECHNOLOGY
ADVANCEMENT.
§18B-12A-1. Legislative findings and purpose.
(a) The Legislature finds that economic development in West
Virginia depends in part on the effective and efficient management
of research grants and opportunities at doctoral institutions of
higher education, on collaborations developed between doctoral
institutions and businesses and industry and on the advancement and
commercialization of new and evolving technologies. It is in the
best interests of citizens of the state to develop programs which
promote these goals and contribute to the general economic welfare
of citizens. In order to enhance the competitive position of
doctoral institutions in the current environment for research and
economic development, expenditures for equipment and material for
research projects must be handled efficiently and effectively and
the acquisition and use of grant funds should be simplified and
expedited through the use of centers for economic development and technology advancement.
(b) The purpose of this article is to provide a mechanism for
doctoral institutions to enter into agreements with centers for
economic development and technology advancement to provide research
assistance; to provide maximum flexibility as to the form of
organization of centers so as to encourage and facilitate private
sector participation in and support of research and economic
development grants and opportunities in collaboration with doctoral
institutions; to expedite the acquisition, administration and
management of research and development grants and opportunities
; to
provide technical assistance in the commercialization of research
opportunities; and to authorize doctoral institutions to contract
with centers organized for the purpose of providing these services.
§18B-12A-2. Definitions.
The following words used in this article have the meaning
ascribed to them in this section unless the context clearly
indicates a different meaning:
(a) "Agreement" means any
agreement or contractual
relationship being entered into between a doctoral institution and
a center pursuant to the provisions of this article.
(b) "Center" means a center for economic development and
technology advancement created
pursuant to section three of this
article.
(c) "Governing body" means the governing body of a center
created pursuant to the provisions of this article.
(d)
"President" means the chief executive officer of a center
employed pursuant to section
five of this article.
(e) "Doctoral institution" means a state institution of higher
education as defined in subsection (d), section one, article eight
of this chapter.
§18B-12A-3. Establishment of centers for economic development and
technology advancement; doctoral institutions authorized to
enter into agreements.
There is authorized the establishment of independent entities
to be known as centers for economic development and technology
advancement. Each center shall be formed with respect to a
specific doctoral institution and each center shall meet the
following conditions:
(1) Representatives from private sector business and industry
constitute a majority of the voting members of the governing body
of each center;
(2) The president of the appropriate doctoral institution or
a senior member of the doctoral institution's administrative staff
is a member of the appropriate governing body.
(3) Each center shall be organized as one of the following:
(A) A nonprofit, nonstock corporation under the general
corporation laws of the state exclusively for charitable,
educational or scientific purposes within the meaning of section 501(c) of the Internal Revenue Code of 1986, as amended; or
(B) A corporation, partnership, limited partnership, limited
liability company or other form of entity authorized to be formed
under this code.
§18B-12A-4. Powers and duties of governing bodies and centers.
The primary responsibility of each center is to
foster and
support economic development and the advancement and
commercialization of new and emerging technologies through
collaboration agreements between business-industry
and the
respective doctoral institution. To that end, the governing body
of each center has the following powers and duties:
(a) To adopt and amend, from time to time, a statement of
purpose and scope of operations. When the governing body amends
the purpose or scope of a center, the governing body shall advise
the appropriate doctoral institution of the changes;
(b) To employ a president subject to the provisions of section
five of this article;
(c) To approve employment of other staff recommended by the
president as being necessary and appropriate to carry out the
purpose and scope of the center;
(d)
To
serve as fiscal agent and provide additional services,
including, but not limited to, evaluation of technology,
verification and assessment of market applications, grant
administration and human resource management for any entity associated with the doctoral institution
if the entity is engaged
in business-industry collaborations, technology advancement and
commercialization activities and research into new areas of
economic development;
(e)
To meet as a governing body: Provided, That centers
created under this article are exempt from the provisions of
section three, article nine-a, chapter six of this code and from
the provisions of article one, chapter twenty-nine-b of this code;
(f) To receive, purchase, hold, lease, use, sell and dispose
of real and personal property of all classes, including all kinds
of intellectual property, subject to the provisions of section ten
of this article;
(g) To receive and accept from any public or private agency,
corporation, association, person, partnership, company or any other
organization or entity of any nature whatsoever grants to be
expended in accomplishing the objectives of this article and to
receive and accept from the state, from any municipality, county or
other political subdivision of the state and from any other source,
aid or contributions of either money, property or other things of
value to be held, used and applied only for the purposes for which
the grants and contributions may be made;
(h) To accept and expend any gift, grant, contribution,
bequest, endowment or other money for the purposes of this article
and to make a maximum effort to encourage external support for the center's programs. Any transfer of endowment or other assets by
the doctoral institution to a center or by the center to the
doctoral institution for management or investment shall be
formalized in a memorandum of agreement to assure, at a minimum,
that any restrictions governing the future disposition of funds are
preserved;
(i) To make, amend and repeal bylaws and rules consistent with
the provisions of this article to carry into effect the purpose and
scope of the center and, subject to such directions and limitations
as may be contained in its governing documents, to delegate the
exercise of any of its powers to the president except for the power
to approve budgets; to make, amend or repeal its governing
documents; or to alter the purpose or scope of the center;
(j) In addition to the powers and duties provided for in this
section and any other powers and duties that may be assigned to it
by law or agreement, each center has such other powers and duties
as may be necessary or expedient to accomplish the objectives of
this article or as provided by law.
§18B-12A-5. Appointment of president; qualifications.
(a) The governing body of each center shall employ
a president
who shall be the chief executive officer of the center and who
shall serve at the will and pleasure of the governing body;
(b) The center shall be under the control and supervision of
the president who, with the approval of the governing body, may employ staff as is necessary to carry out the center's purpose and
scope;
(c) The governing body shall set the qualifications for the
position of president and shall conduct a thorough search for
qualified candidates. A qualified candidate is one who meets at
least the following criteria:
(1) Possesses a broad understanding of the relationship
between public and private sector research, the advancement and
commercialization of new and emerging technologies and economic
development
and has significant experience and an established
professional reputation in these fields;
(2) Holds, at a minimum, a bachelor's degree in a field
related to the duties and responsibilities of the position of
president;
(3) Demonstrates specifically that he or she has developed
effective and successful grant management skills, as well as skill
in
fostering collaborations between business-industry and doctoral
institutions;
(4) Demonstrates strong communication skills and the ability
to work with all types of businesses and industry, government
agencies and higher education institutions; and
(5) Possesses other skills, qualifications or attributes as
the governing body may consider appropriate or desirable.
§18B-12A-6. Agreements; required provisions.
(a) Notwithstanding section ten, article three, chapter twelve
of this code or any other provision of law to the contrary, each
doctoral institution is hereby authorized to enter into agreements
with one or more centers: Provided, That each center is formed with
respect to that specific doctoral institution and meets the
conditions set forth either in paragraph (A) or paragraph (B),
subdivision (2), section three of this article.
(b) Any agreement with a center shall benefit the doctoral
institution or one or more of its schools, departments or
institutes whose purpose is to further economic development,
training, education and technology research and development in its
region.
(c) On the effective date of the agreement, the center is
charged with the responsibility of serving as fiscal agent for
specified sponsored projects conducted by the faculty, staff and
students of the doctoral institution pursuant to terms of the
agreement and grants shall be accepted by the center on behalf of
the doctoral institution and assigned to the center for fiscal
management.
(d) If an agreement is terminated, the funds, contributions or
grants paid or held by the center and not encumbered or committed
prior to termination shall be distributed as provided for in the
agreement.
(e)
If part of the agreement, a center may utilize both center employees and personnel of the doctoral institution. The center
may pay the costs incurred by the doctoral institution, including
personnel funded on grants and contracts, fringe benefits of
personnel funded on grants and contracts, administrative support
costs and other costs which may require reimbursement. The center
may include as costs any applicable overhead and fringe benefit
assessments necessary to recover the costs expended by the doctoral
institution, pursuant to the terms of the agreement, and the
doctoral institution may be reimbursed for expenses incurred by it
pursuant to the agreement.
§18B-12A-7. Audit.
The operations of the center are subject to an audit by an
independent auditor.
§18B-12A-8. Conflicts of interest.
Notwithstanding any other provision of this code to the
contrary, officers and employees of a governing board and the
affected doctoral institution may hold appointments to offices of
the center and be members of its governing body or officers or
employees of other entities contracting with either the center or
a governing board of a doctoral institution. The governing body
shall make an annual report of these appointments
to the doctoral
institution.
§18B-12A-9. No waiver of sovereign immunity.
Nothing contained in this article may be construed to waive or abrogate in any way the sovereign immunity of the state or to
deprive the governing board of a doctoral institution, a doctoral
institution or any officer or employee of a doctoral institution of
sovereign immunity.
§18B-12A-10. Not obligation of the state.
Obligations of a governing body or its center do not
constitute debts or obligations of a doctoral institution, the
governing board of a doctoral institution or the state.
ARTICLE 5. HIGHER EDUCATION GRANT PROGRAM.
§18C-5-2. Definitions.
(a) "Approved institution of higher education" means:
(1) A state institution of higher education as defined in
section two, article one, chapter eighteen-b of this code;
Alderson-Broaddus college, Appalachian Bible college, Bethany
college, the college of West Virginia, Davis and Elkins college,
Ohio Valley college, Salem-Teikyo college, the university of
Charleston, West Virginia Wesleyan college and Wheeling Jesuit
college, all in West Virginia; and
(2) Any other regionally or nationally accredited institution
of higher education in this state, public or private, approved by
the vice chancellor for administration if the institution has been
licensed for a minimum of fifteen years subject to the provisions
of section five, article three of this chapter and section four,
article one-b of this chapter.
(b) "Grant" or "grant program" means a grant or the grant
program authorized and established by the provisions of this
article.
(c) "Senior administrator" means the vice chancellor for
administration, as provided in section two, article one, chapter
eighteen-b of this code.