ENGROSSED
Senate Bill No. 1002
(By Senators Tomblin, Mr. President, and Sprouse
By Request of the Executive)
____________
[Introduced January 24, 2005; referred to the Committee on
Government Organization.]
____________
A BILL to repeal §
18B-3D-5
of the Code of West Virginia, 1931, as
amended;
to amend said Code by adding thereto a new article,
designated §
5B-1-1, §
5B-1-2, §
5B-1-3, §
5B-1-4, §
5B-1-5,
§
5B-1-6 and §
5B-1-7;
to amend and reenact §
5B-2-2 and §
5B-2-3
of said Code; to amend said Code by adding thereto a new
section, designated §
5B-2-14;
to amend and reenact §5B-2E-3,
§5B-2E-4,
§5B-2E-5,
§5B-2E-6 and
§5B-2E-9
of said Code;
to
amend and reenact §5D-1-4 and §5D-1-5
of said Code
; to amend
said Code by adding thereto a new section, designated
§
5D-1-24
; to amend and reenact §5F-1-2 of said Code; to amend
and reenact §5F-2-1 and §5F-2-2
of said Code
; to amend and
reenact §
7-22-3, §
7-22-6, §
7-22-7, §
7-22-8, §
7-22-10,
§
7-22-11, §
7-22-12, §
7-22-14 and §
7-22-15 of said Code; to
amend and reenact §
8-38-3, §
8-38-6, §
8-38-7, §
8-38-8,
§
8-38-10, §
8-38-11, §
8-38-12, §
8-38-14 and §
8-38-15 of said
Code;
to amend and reenact §
10-5-2 of said Code
; to amend and reenact §
12-7-4 and §
12-7-5
of said Code; to amend and reenact
§13-2C-21
of said Code
; to amend and reenact §
17-24-4 of said
Code; to amend and reenact §
18-9D-1 and §
18-9D-3
of said Code;
to amend and reenact §
18B-3D-1, §
18B-3D-2, §
18B-3D-3 and
§
18B-3D-4 of said Code;
to amend and reenact §
22C-1-4 of said
Code; to amend and reenact §29-22-18a of said Code;
to amend
and reenact §31-15A-3
and §
31-15A-11 of said Code; and to
amend and reenact §
31-18-4 and §
31-18-5
of said Code,
all
relating to the reorganization of the executive branch of
state government; creating a new Department of Commerce in the
executive branch of state government; creating the Office of
Secretary as the Chief Executive Officer of the Department of
Commerce; providing for the transfer to and incorporation in
the Department of Commerce of numerous state divisions,
agencies and boards and allied, advisory, affiliated and
related entities and funds; describing the powers, duties and
authority of the Secretary, administrators, division heads and
employees
of the Department of Commerce; providing for annual
reports by the Secretary of the Department of Commerce to the
Governor; providing for the delegation of powers and duties
for the Secretary of the Department of Commerce; providing for
the confidentiality of information in certain cases; providing
for an appeal in instances relating to the interference of
government by the Department of Commerce; providing for the
appointment, salary, duties and rule-making authority of the
Executive Director of the Economic Development Office;
transferring authority from the
Council for Community and
Economic Development to the West Virginia Economic Development
Office in certain cases; transferring the certified
development community program to the West Virginia Economic
Development Office; providing for the powers and duties of the
West Virginia Economic Development Office;
reconstituting the
Public Energy Authority Board and continuing the Board's
existence; providing for the appointment, duties and authority
of the West Virginia Public Energy Authority Board; providing
certain departments the authority to transfer funds; providing
that certain agencies shall continue as independent agencies
under the executive branch; reconstituting the West Virginia
Educational Broadcasting Authority; providing for the
appointment, powers and duties of the West Virginia
Educational Broadcasting Authority; creating the powers,
duties, authority and compensation of the Executive Director
of the West Virginia Educational Broadcasting Authority;
reconstituting the Jobs Investment Trust Board; providing for
the composition and appointment of the Jobs Investment Trust
Board; creating the powers, duties, authority and compensation
for the Executive Director of the Jobs Investment Trust Board;
reconstituting the School Building Authority; providing for
the powers, duties, authority and compensation for the
Executive Director
of the School Building Authority;
reconstituting the Water Development Authority; providing for
the appointment, powers and duties of the Water Development Authority;
providing the powers, duties, authority and
compensation for the Director
of the Water Development
Authority; reconstituting the West Virginia Infrastructure and
Jobs Development Council; providing for the appointment of the
West Virginia Infrastructure and Jobs Development Council;
providing for the appointment of the Board of Directors of the
West Virginia Housing Development Fund
; and providing the
powers, duties, authority and compensation for the Executive
Director
of the West Virginia H
ousing Development Fund
.
Be it enacted by the Legislature of West Virginia:
That
§
18B-3D-5 of the Code of West Virginia, 1931
, as amended,
be repealed;
that said Code be amended by adding thereto a new
article, designated §
5B-1-1, §
5B-1-2, §
5B-1-3, §
5B-1-4, §
5B-1-5,
§
5B-1-6 and §
5B-1-7
;
that §
5B-2-2 and §
5B-2-3 of said Code be
amended and reenacted; that said Code be amended by adding thereto
a new section, designated §
5B-2-14;
that §5B-2E-3,
§5B-2E-4,
§5B-2E-5,
§5B-2E-6 and
§5B-2E-9
of said Code be amended and
reenacted;
that §5D-1-4 and §5D-1-5
of said Code be amended and
reenacted;
that said Code be amended by adding thereto a new
section, designated §
5D-1-24
;
that §5F-1-2 of said Code be amended
and reenacted; that §5F-2-1 and §5F-2-2
of said Code be amended and
reenacted
; that §
7-22-3, §
7-22-6, §
7-22-7, §
7-22-8, §
7-22-10,
§
7-22-11, §
7-22-12, §
7-22-14 and §
7-22-15 of said Code
be amended
and reenacted; that §
8-38-3, §
8-38-6, §
8-38-7, §
8-38-8, §
8-38-10,
§
8-38-11, §
8-38-12, §
8-38-14 and §
8-38-15 of said Code be amended
and reenacted;
that §10-5-2 of said Code be amended and reenacted
; that §
12-7-4 and §
12-7-5
of said Code
be amended and reenacted;
that §13-2C-21
of said Code be amended and reenacted; that §
17-24-4
of said Code
be amended and reenacted; that §
18-9D-1 and §
18-9D-3
of said Code be amended and reenacted;
that §
18B-3D-1, §
18B-3D-2,
§
18B-3D-3 and §
18B-3D-4 of said Code
be amended and reenacted; that
§
22C-1-4 of said Code be amended and reenacted; that
§29-22-18a of
said Code be amended and reenacted;
that §31-15A-3
and §
31-15A-11
of said Code be amended and reenacted; and that §
31-18-4 and
§
31-18-5
of said Code be amended and reenacted
, all to read as
follows:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 1. DEPARTMENT OF COMMERCE.
§5B-1-1. Department of commerce; office of secretary of department
of commerce.
(a) The secretary of commerce is the chief executive officer
of the department. The governor shall appoint the secretary, by
and with the advice and consent of the Senate, for a term not
exceeding the term of the governor. All references in this code to
the bureau of commerce and the commissioner of the department of
commerce now mean, respectively, the department of commerce and the
secretary of commerce.
(b) The department of commerce is hereby authorized to receive
federal funds.
(c) The secretary serves at the will and pleasure of the
governor. The annual compensation of the secretary is as specified
in section two-a, article seven, chapter six of this code.
§5B-1-2. Agencies, boards, commissions, divisions and offices
comprising the department of commerce.
(a) The department of commerce consists of the following
agencies, boards, commissions, divisions and offices, including all
of the allied, advisory, affiliated or related entities which are
incorporated in and shall be administered as part of the department
of commerce:
(1) Division of labor provided in article one, chapter
twenty-one of this code, which includes:
(A) Occupational safety and health review commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of manufactured housing construction and safety
provided in article nine, chapter twenty-one of this code;
(2) Office of miners' health, safety and training provided in
article one, chapter twenty-two-a of this code. The following
boards are transferred to the office of miners' health, safety and
training for purposes of administrative support and liaison with
the office of the governor:
(A) Board of coal mine health and safety and coal mine safety
and technical review committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of miner training, education and certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine inspectors' examining board provided in article nine,
chapter twenty-two-a of this code;
(3) The West Virginia development office provided in article two, chapter five-b of this code, which includes the tourism
commission provided in article two, chapter five-b of this code and
the office of the tourism commissioner;
(4) Division of natural resources and natural resources
commission provided in article one, chapter twenty of this code;
(5)The Blennerhassett historical state park provided in
article eight, chapter twenty-nine of this code is under the
division of natural resources;
(6) Division of forestry provided in article one-a, chapter
nineteen of this code;
(7) Geological and economic survey provided in article two,
chapter twenty-nine of this code; and
(8) Public land corporation provided in article one-a, chapter
twenty of this code.
(b) The department also includes any other agency, board,
commission, division, office or unit subsequently incorporated in
the department by the Legislature.
§5B-1-3. Powers and duties of secretary, administrators, division
heads and employees.
(a) The secretary has control and supervision of the
department of commerce and is responsible for the work of each of
its employees.
(b) The secretary has the power and authority specified in
this article and article two, chapter five-f of this code and as
specified elsewhere in this code, whether heretofore or hereinafter
enacted by the Legislature.
(c) The secretary has authority to assess agencies, boards,
commissions, divisions and offices in the department of commerce
for the payment of expenses of the office of the secretary.
(d) The secretary may employ professional staff, including,
but not limited to, certified public accountants, economists and
attorneys, assistants and other employees as necessary for the
efficient operation of the department.
(e) The secretary and administrators, division heads and other
employees of the department shall perform the duties specified in
this code for their respective offices or positions and shall also
perform other duties as the governor prescribes.
§5B-1-4. Reports by secretary.
The secretary shall make an annual report to the governor
concerning the conduct of the department. The secretary shall also
make other reports as the governor may require.
§5B-1-5. Delegation of powers and duties by secretary.
The secretary may delegate powers and duties vested in the
secretary to his or her assistants and employees, but the secretary
is responsible for all official acts of the department.
§5B-1-6. Confidentiality of information.
(a) Information provided to secretary under expectation of
confidentiality. -- Information that would be confidential under
the laws of this state when provided to a division, agency, board,
commission or office within the department of commerce is
confidential when that information is provided to the secretary of
the department of commerce or to an employee in the office of the secretary. The confidential information may be disclosed only:
(1) To the applicable agency, board, commission or division of the
department to which the information relates; or (2) in the manner
authorized by provisions of this code applicable to that agency,
board, commission or division. This confidentiality rule is a
specific exemption from disclosure under article one, chapter
twenty-nine-b of this code.
(b) Interdepartmental communication of confidential
information. -- Notwithstanding any provision of this code to the
contrary, information that by statute is confidential in the
possession of any division, agency, board, commission or office of
the department of commerce may be disclosed to the secretary, or an
employee in the office of the secretary, who must safeguard the
information and may not further disclose the information except
under the same conditions, restrictions and limitations applicable
to the administrator of the agency, board, commission, division or
office of the department in whose hands the information is
confidential: Provided, That nothing contained in this section
requires the disclosure to the secretary or to an employee in the
office of the secretary of individually identifiable health care or
other information that, under federal law, may not be disclosed by
the administrator without subjecting the administrator or the
agency, board, commission, division or office to sanctions or other
penalties by the United States or any agency thereof. This
confidentiality rule is a specific exemption from disclosure under
article one, chapter twenty-nine-b of this code.
§5B-1-7. Right of appeal from interference with functioning of
agency.
Upon occasion of a showing that the application of the
authority vested under the provisions of this article may interfere
with the successful functioning of any department, institution or
agency of the government, that department, institution or agency
has the right of appeal to the governor for review of the case and
the decision or conclusion of the governor shall control in
appeals.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-2. Council for community and economic development; members,
appointment and expenses; meetings;
appointment and
compensation of director.
(a) The council for community and economic development, within
the West Virginia development office, is a body corporate and
politic, constituting a public corporation and government
instrumentality. Membership on the council consists of:
(1) No less than nine nor more than eleven members to be
appointed by the governor, with the advice and consent of the
Senate, representing community or regional interests, including
economic development, commerce, banking, manufacturing, the utility
industry, the mining industry, the telecommunications/data
processing industry, small business, labor, tourism or agriculture:
Provided, That one member appointed pursuant to this subsection
shall be a member of a regional planning and development council.
Of the members representing community or regional interests, there shall be at least three members from each congressional district of
the state and they shall be appointed in such a manner as to
provide a broad geographical distribution of members of the
council;
(2) Four at-large members to be appointed by the governor with
the advice and consent of the Senate;
(3) One member to be appointed by the governor from a list of
two persons recommended by the speaker of the House of Delegates:
Provided, That on and after the effective date of the amendment and
reenactment of this section in the year two thousand three, this
subdivision shall be of no force or effect and the term of the
member previously appointed pursuant to this subdivision shall
expire;
(4) One member to be appointed by the governor from a list of
two persons recommended by the president of the Senate: Provided,
That on and after the effective date of the amendment and
reenactment of this section in the year two thousand three, this
subdivision shall be of no force or effect and the term of the
member previously appointed pursuant to this subdivision shall
expire;
(5) The president of the West Virginia economic development
council; and
(6) (4) The chair, or his or her designee, of the tourism
commission created pursuant to the provisions of section eight of
this article.
In addition, the president of the Senate and the speaker of the House of Delegates, or his or her designee, shall serve as ex
officio nonvoting members.
(b) The governor shall appoint the appointed members of the
council to four-year terms. Any member whose term has expired
shall serve until his or her successor has been duly appointed and
qualified. Any person appointed to fill a vacancy shall serve only
for the unexpired term. Except as otherwise provided in this
section, any member is eligible for reappointment. In cases of any
vacancy in the office of a member, the vacancy shall be filled by
the governor in the same manner as the original appointment.
(c) Members of the council are not entitled to compensation
for services performed as members, but are entitled to
reimbursement for all reasonable and necessary expenses actually
incurred in the performance of their duties. A majority of the
voting members constitute a quorum for the purpose of conducting
business. The council shall elect its chair for a term to run
concurrent with the term of office of the member elected as chair.
The chair is eligible for successive terms in that position.
(d) The council governor shall employ appoint an executive
director of the West Virginia development office who is qualified
for the position by reason of his or her extensive education and
experience in the field of professional economic development. The
executive director shall serve at the will and pleasure of the
council governor. The salary of the director shall annually be
fixed by the council governor. The director shall have overall
management responsibility and administrative control and supervision within the West Virginia development office. It is the
intention of the Legislature that the director provide professional
and technical expertise in the field of professional economic and
tourism development in order to support the policy-making functions
of the council, but that the director not be a public officer,
agent, servant or contractor within the meaning of section
thirty-eight, article VI of the constitution of West Virginia and
not be a statutory officer within the meaning of section one,
article two, chapter five-f of this code. Subject to the
provisions of the contract provided in section four of this
article, the director may hire and fire economic development
representatives employed pursuant to the provisions of section five
of this article.
(e) The executive director of the West Virginia development
office may promulgate rules to carry out the purposes and programs
of the West Virginia development office to include generally the
programs available and the procedure and eligibility of
applications relating to assistance under the programs. These
rules are not subject to the provisions of chapter twenty-nine-a of
this code but shall be filed with the secretary of
state:
Provided, That the executive director may adopt any or all of the
rules previously promulgated by the council for community and
economic development.
§5B-2-3. Powers and duties of council for community and economic
development.
(a) The council for community and economic development shall enhance economic growth and development through the development of
a comprehensive economic development strategy for West Virginia.
"Comprehensive economic development strategy" means a plan that
outlines strategies and activities designed to continue, diversify
or expand the economic base of the state as a whole; create jobs;
develop a highly skilled workforce; facilitate business access to
capital, including venture capital; advertise and market the
resources offered by the state with respect to the needs of
business and industry; facilitate cooperation among local, regional
and private economic development enterprises; improve
infrastructure on a state, regional and community level; improve
the business climate generally; and leverage funding from sources
other than the state, including federal and private sources.
(b) The council shall develop a certified development
community program and provide funding assistance to the
participating economic development corporations or authorities
through a matching grant program. The council shall establish
criteria for awarding matching grants to the corporations or
authorities within the limits of funds appropriated by the
Legislature for the program. The matching grants to corporations
or authorities eligible under the criteria shall be in the amount
of thirty thousand dollars for each fiscal year, if sufficient
funds are appropriated by the Legislature. The West Virginia
development office shall recognize existing county, regional or
multicounty corporations or authorities where appropriate.
In developing its plan, the West Virginia development office shall consider resources and technical support available through
other agencies, both public and private, including, but not limited
to, the state college and university systems; the West Virginia
housing development fund; the West Virginia economic development
authority; the West Virginia parkways, economic development and
tourism authority; the West Virginia round table; the West Virginia
chamber of commerce; regional planning and development councils;
regional partnership for progress councils; and state
appropriations.
(c) The council shall promulgate rules to carry out the
purposes and programs of the West Virginia development office to
include generally the programs available, and the procedure and
eligibility of applications relating to assistance under the
programs. These rules are not subject to the provisions of chapter
twenty-nine-a of this code, but shall be filed with the secretary
of state. Any new rules promulgated by the council shall be
promptly submitted to the joint commission created in article three
of this chapter. The current rules shall be submitted to the joint
commission within thirty days of the effective date of this
section.
§5B-2-14. Certified development community program.
The certified development community program is continued and
shall be transferred to and incorporated in and administered as a
program of the West Virginia development office and shall provide
funding assistance to the participating economic development
corporations or authorities through a matching grant program. The West Virginia development office shall establish criteria for
awarding matching grants to the corporations or authorities within
the limits of funds appropriated by the Legislature for the
program. The matching grants to corporations or authorities
eligible under the criteria shall be in the amount of thirty
thousand dollars for each fiscal year, if sufficient funds are
appropriated by the Legislature. The West Virginia development
office shall recognize existing county, regional or multicounty
corporations or authorities where appropriate.
In developing its plan, the West Virginia development office
shall consider resources and technical support available through
other agencies, both public and private, including, but not limited
to, the state college and university systems; the West Virginia
housing development fund; the West Virginia economic development
authority; the West Virginia parkways, economic development and
tourism authority; the West Virginia round table; the West Virginia
chamber of commerce; regional planning and development councils;
regional partnership for progress councils; and state
appropriations.
ARTICLE 2E. WEST VIRGINIA TOURISM DESTINATION ACT.
§5B-2E-3. Definitions.
As used in this article, unless the context clearly indicates
otherwise:
(1) "Agreement" means a tourism development agreement entered
into, pursuant to section six of this article, between the
development office and an approved company with respect to a tourism development project.
(2) "Approved company" means any eligible company approved by
the development office pursuant to section five of this article
seeking to undertake a tourism development project.
(3) "Approved costs" means:
(A) Included costs:
(i) Obligations incurred for labor and to vendors,
contractors, subcontractors, builders, suppliers, delivery persons
and material persons in connection with the acquisition,
construction, equipping, installation or expansion of a tourism
development project;
(ii) The costs of acquiring real property or rights in real
property and any costs incidental thereto;
(iii) The cost of contract bonds and of insurance of all kinds
that may be required or necessary during the course of the
acquisition, construction, equipping, installation or expansion of
a tourism development project which is not paid by the vendor,
supplier, delivery person, contractor or otherwise provided;
(iv) All costs of architectural and engineering services,
including, but not limited to: Estimates, plans and
specifications, preliminary investigations and supervision of
construction, installation, as well as for the performance of all
the duties required by or consequent to the acquisition,
construction, equipping, installation or expansion of a tourism
development project;
(v) All costs required to be paid under the terms of any contract for the acquisition, construction, equipping, installation
or expansion of a tourism development project;
(vi) All costs required for the installation of utilities,
including, but not limited to: Water, sewer, sewer treatment, gas,
electricity, communications and off-site construction of utility
extensions to the boundaries of the real estate on which the
facilities are located, all of which are to be used to improve the
economic situation of the approved company in a manner that allows
the approved company to attract persons; and
(vii) All other costs comparable with those described in this
subdivision;
(B) Excluded costs. -- The term "approved costs" does not
include any portion of the cost required to be paid for the
acquisition, construction, equipping and installation or expansion
of a tourism development project that is financed with governmental
incentives, grants or bonds or for which the eligible taxpayer
elects to qualify for other tax credits, including, but not limited
to, those provided by article thirteen-q, chapter eleven of this
code.
(4) "Base tax revenue amount" means the average monthly amount
of consumers sales and service tax collected by an approved
company, based on the twelve-month period ending immediately prior
to the opening of a new tourism development project for business,
as certified by the state tax commissioner.
(5) "Council" means the council for community and economic
development as provided in article two of this chapter.
(6) "Development office" means the West Virginia development
office as provided in article two of this chapter.
(7) (6) "Crafts and products center" means a facility
primarily devoted to the display, promotion and sale of West
Virginia products and at which a minimum of eighty percent of the
sales occurring at the facility are of West Virginia arts, crafts
or agricultural products.
(8) (7) "Eligible company" means any corporation, limited
liability company, partnership, limited liability partnership, sole
proprietorship, business trust, joint venture or any other entity
operating or intending to operate a tourism development project,
whether owned or leased, within the state that meets the standards
required by the council development office. An eligible company
may operate or intend to operate directly or indirectly through a
lessee.
(9) (8) "Entertainment destination center" means a facility
containing a minimum of two hundred thousand square feet of
building space adjacent or complementary to an existing tourism
attraction, an approved tourism development project or a major
convention facility and which provides a variety of entertainment
and leisure options that contain at least one major theme
restaurant and at least three additional entertainment venues,
including, but not limited to, live entertainment, multiplex
theaters, large-format theaters, motion simulators, family
entertainment centers, concert halls, virtual reality or other
interactive games, museums, exhibitions or other cultural and leisure time activities. Entertainment and food and drink options
shall occupy a minimum of sixty percent of total gross area, as
defined in the application, available for lease and other retail
stores shall occupy no more than forty percent of the total gross
area available for lease.
(10) (9) "Final approval" means the action taken by the
council executive director of the development office qualifying the
eligible company to receive the tax credits provided in this
article.
(11) (10) "Preliminary approval" means the action taken by the
executive director of the development office conditioning final
approval. by the council
(12) (11) "State agency" means any state administrative body,
agency, department, division, board, commission or institution
exercising any function of the state that is not a municipal
corporation or political subdivision.
(13) (12) "Tourism attraction" means a cultural or historical
site, a recreation or entertainment facility, an area of natural
phenomenon or scenic beauty, a West Virginia crafts and products
center or an entertainment destination center. A tourism
development project or attraction shall not include any of the
following:
(A) Lodging facilities, unless:
(i) The facilities constitute a portion of a tourism
development project and represent less than fifty percent of the
total approved cost of the tourism development project, or the facilities are to be located on recreational property owned or
leased by the state or federal government and the facilities have
received prior approval from the appropriate state or federal
agency.
(ii) The facilities involve the restoration or rehabilitation
of a structure that is listed individually in the national register
of historic places or are located in a national register historic
district and certified by the state historic preservation officer
as contributing to the historic significance of the district and
the rehabilitation or restoration project has been approved in
advance by the state historic preservation officer; or
(iii) The facilities involve the construction, reconstruction,
restoration, rehabilitation or upgrade of a full-service lodging
facility or the reconstruction, restoration, rehabilitation or
upgrade of an existing structure into a full-service lodging
facility having not less than five hundred guest rooms, with
construction, reconstruction, restoration, rehabilitation or
upgrade costs exceeding ten million dollars;
(B) Facilities that are primarily devoted to the retail sale
of goods, other than an entertainment destination center, a West
Virginia crafts and products center or a tourism development
project where the sale of goods is a secondary and subordinate
component of the project; and
(C) Recreational facilities that do not serve as a likely
destination where individuals who are not residents of the state
would remain overnight in commercial lodging at or near the new tourism development project or existing attraction.
(14) (13) "Tourism development project" means the acquisition,
including the acquisition of real estate by a leasehold interest
with a minimum term of ten years, construction and equipping of a
tourism attraction; the construction and installation of
improvements to facilities necessary or desirable for the
acquisition, construction, installation or expansion of a tourism
attraction, including, but not limited to, surveys, installation of
utilities, which may include water, sewer, sewage treatment, gas,
electricity, communications and similar facilities; and off-site
construction of utility extensions to the boundaries of the real
estate on which the facilities are located, all of which are to be
used to improve the economic situation of the approved company in
a manner that allows the approved company to attract persons.
(15) (14) "Tourism development project tax credit" means the
tourism development project tax credit allowed by section seven of
this article.
§5B-2E-4. Additional powers and duties of the development office.
The development office has the following powers and duties, in
addition to those set forth in this case, necessary to carry out
the purposes of this article including, but not limited to:
(1) Make preliminary and final approvals of all applications
for tourism development projects and enter into agreements
pertaining to tourism development projects with approved companies;
(2) Employ fiscal consultants, attorneys, appraisers and other
agents as the executive director of the development office finds necessary or convenient for the preparation and administration of
agreements and documents necessary or incidental to any tourism
development project; and
(3) Impose and collect fees and charges in connection with any
transaction.
§5B-2E-5. Tourism development project application; evaluation
standards; consulting services; preliminary and
final approval of projects; limitation of amount
annual tourism development project tax credit.
(a) Each eligible company that seeks to qualify a tourism
development project for the tax credit provided by this article
must file a written application for approval of the project with
the development office.
(b) With respect to each eligible company making an
application to the development office for the tourism development
project tax credit, the development office shall make inquiries and
request documentation, including a completed application, from the
applicant that shall include: A description and location of the
project; capital and other anticipated expenditures for the project
and the sources of funding therefor; the anticipated employment and
wages to be paid at the project; business plans that indicate the
average number of days in a year in which the project will be in
operation and open to the public; and the anticipated revenues and
expenses generated by the project.
(c) Based upon a review of the application and additional
documentation provided by the eligible company, if the executive director of the development office determines that the applicant
and the tourism development project may reasonably satisfy the
criteria for final approval set forth in subsection (d) of this
section, then the director of the development office may grant a
preliminary approval of the applicant and the tourism development
project.
(d) After preliminary approval by the executive director of
the development office, the development office shall engage the
services of a competent consulting firm or firms to analyze the
data made available by the applicant and to collect and analyze
additional information necessary to determine that, in the
independent judgment of the consultant, the tourism development
project:
(1) Likely will attract at least twenty-five percent of its
visitors from outside of this state;
(2) Will have approved costs in excess of one million dollars;
(3) Will have a significant and positive economic impact on
the state considering, among other factors, the extent to which the
tourism development project will compete directly with or
complement existing tourism attractions in the state and the amount
by which increased tax revenues from the tourism development
project will exceed the credit given to the approved company;
(4) Will produce sufficient revenues and public demand to be
operating and open to the public for a minimum of one hundred days
per year; and
(5) Will provide additional employment opportunities in the state.
(e) The applicant shall pay to the development office, prior
to the engagement of the services of a competent consulting firm or
firms pursuant to the provisions of subsection (d) of this section,
for the cost of the consulting report or reports and shall
cooperate with the consulting firm or firms to provide all of the
data that the consultant considers necessary or convenient to make
its determination under said subsection.
(f) The executive director of the development office, within
thirty days following receipt of the consultant's report or
reports, shall decide whether to recommend the tourism development
project to the council for final approval. If the director of the
development office recommends the tourism development project to
the council, he or she shall submit the project application, the
consulting report or reports and other information regarding the
project to the council.
(g) The council shall review all applications properly
submitted to the council for conformance to statutory and
regulatory requirements, review, in light of the consultant's
report or reports, the reasonableness of the project's budget and
timetable for completion and, in addition to the criteria for final
approval set forth in subsection (d) of this section, the following
criteria:
(1) The quality of the proposed tourism development project
and how it addresses economic problems in the area in which the
tourism development project will be located;
(2) Whether there is substantial and credible evidence that
the tourism development project is likely to be started and
completed in a timely fashion;
(3) Whether the tourism development project will, directly or
indirectly, improve the opportunities in the area where the tourism
development project will be located for the successful
establishment or expansion of other industrial or commercial
businesses;
(4) Whether the tourism development project will, directly or
indirectly, assist in the creation of additional employment
opportunities in the area where the tourism development project
will be located;
(5) Whether the project helps to diversify the local economy;
(6) Whether the project is consistent with the goals of this
article;
(7) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(8) The ability of the eligible company to carry out the
tourism development project.
(h) (g) The council development office may establish other
criteria for consideration when approving the applications.
(i) (h) The council executive director of the development
office may give its final approval to the applicant's application
for a tourism development project and may grant to the applicant
the status of an approved company: Provided, That the total amount
of tourism development project tax credits for all approved companies may not exceed one million five hundred thousand dollars
each calendar year. The council executive director of the
development office shall act to approve or not approve any
application within thirty sixty days following the receipt of the
application consultant's report or reports or the receipt of any
additional information requested by the council development office,
whichever is later. The decision by the executive director of the
development office and the council is final.
§5B-2E-6. Agreement between development office and approved
company.
The development office, upon grant of the council's final
approval of an application by the executive director, may enter
into an agreement with any approved company with respect to its
tourism development project. The terms and provisions of each
agreement shall include, but not be limited to:
(1) The amount of approved costs of the project that qualify
for the sales tax credit provided for in section seven of this
article. Within three months of the completion date, the approved
company shall document the actual cost of the project through a
certification of the costs to the development office by an
independent certified public accountant acceptable to the
development office; and
(2) A date certain by which the approved company shall have
completed and opened the tourism development project to the public.
Any approved company that has received final approval may request
and the development office may grant an extension or change, however, in no event shall the extension exceed three years from
the date of final approval to the completion date specified in the
agreement with the approved company.
§5B-2E-9. Promulgation of rules.
The council executive director of the development office may
promulgate rules to implement the tourism development project
application approval process and to describe the criteria and
procedures it has established in connection therewith. These rules
are not subject to the provisions of chapter twenty-nine-a of this
code but shall be filed with the secretary of state.
CHAPTER 5D. PUBLIC ENERGY AUTHORITY.
ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.
§5D-1-4. West Virginia public energy authority continued; West
Virginia public energy board continued; organization
of authority and board; appointment of board members;
term, compensation and expenses; director of
authority; appointment.
(a)The West Virginia public energy authority heretofore
created is hereby continued. The authority is a governmental
instrumentality of the state and a body corporate. The exercise by
the authority of the powers conferred by this article and the
carrying out of its purposes and duties are determined to be
essential governmental functions and for a public purpose.
(b)The authority shall be controlled, managed and operated
by a nine member seven-member board known as the West Virginia public energy authority board which is hereby continued. The board
consists of seven members, including the governor or his or her
designee, the secretary of the department of environmental
protection or his or her designee, the director of the economic
development authority or his or her designee, and four members
representing the general public
. The nine four public members of
the board shall be appointed by the governor, by and with the
advice and consent of the Senate. Two members One member shall be
appointed to serve a term of two years one year; two members one
member shall be appointed to serve a term of three two years; two
members one member shall be appointed to serve a term of four three
years; two members and one member shall be appointed to serve a
term of five four years. and one member shall be appointed to
serve a term of six years
(c) On the thirty-first day of March, two thousand five, the
terms of all appointed members of the board, appointed prior to the
amendment of this section during the first extraordinary session of
the seventy-seventh Legislature, expire. Not later than the
thirty-first day of March, two thousand five, the governor shall
appoint all public members provided in subsection (b) of this
section to assume the duties of the office immediately, pending the
advice and consent of the Senate. The successor of each such
appointed member shall be appointed for a term of five four years,
except that any person appointed to fill a vacancy occurring prior
to the expiration of the term for which his predecessor was
appointed shall be appointed only for the remainder of such term. Each board member shall serve until the appointment of his or her
successor. No more than five three of the public board members
shall at any one time belong to the same political party. No more
than four two public members of the board shall be employed by or
associated with any industry this authority is empowered to affect.
Two members One member of the board shall be persons who have a
person who has significant experience in the advocacy of
environmental protection. Board members may be reappointed to
serve additional terms.
All members of the board shall be citizens of the state.
Before entering upon his or her duties, each member of the board
shall comply with the requirements of article one, chapter six of
this code and give bond in the sum of twenty-five thousand dollars
in the manner provided in article two, chapter six of this code.
The governor may remove any board member for cause as provided in
article six, chapter six of this code.
Annually The governor shall serve as the chairperson and the
board shall annually elect one of its public members as chairman
and another as vice chairman and shall appoint a secretary-
treasurer, who need not be a member of the board. Five Four
members of the board shall constitute a quorum and the affirmative
vote of the majority of members present at any meeting shall be
necessary for any action taken by vote of the board. No vacancy in
the membership of the board shall impair the rights of a quorum by
such vote to exercise all the rights and perform all the duties of
the board and the authority. The person appointed as secretary-treasurer, including a board member if he is so
appointed, shall give bond in the sum of fifty thousand dollars in
the manner provided in article two, chapter six of this code.
Each public member of the board shall receive the same
compensation and expense reimbursement as is paid to members of the
Legislature for their interim duties as recommended by the citizens
legislative compensation commission and authorized by law for each
day or portion thereof engaged in the discharge of official duties.
All such expenses incurred by the board shall be payable solely
from funds of the authority or from funds appropriated to the
authority for such purpose by the Legislature and no liability or
obligation shall be incurred by the authority beyond the extent to
which moneys are available from funds of the authority or from such
appropriations.
There shall also be a director of the authority appointed by
the governor, with the advice and consent of the Senate, who shall
serve at the governor's will and pleasure, who shall be responsible
for managing and administering the daily functions of the authority
and for performing any and all other functions necessary or helpful
to the effective functioning of the authority, together with all
other functions and powers as may be delegated by the board.
§5D-1-5. Powers, duties and responsibilities of authority
generally; termination of certain powers.
The West Virginia public energy authority is hereby granted,
has and may exercise all powers necessary or appropriate to carry
out and effectuate its corporate purpose. The authority shall have the power and capacity to:
(1) Adopt and, from time to time, amend and repeal bylaws
necessary and proper for the regulation of its affairs and the
conduct of its business and rules to implement and make effective
its powers and duties, such rules to be promulgated in accordance
with the provisions of chapter twenty-nine-a of this code.
(2) Adopt and use an official seal and alter the same at
pleasure.
(3) Maintain a principal office and, if necessary, regional
suboffices at locations properly designated or provided.
(4) Sue and be sued in its own name and plead and be impleaded
in its own name and particularly to enforce the obligations and
covenants made under this article. Any actions against the
authority shall be brought in the circuit court of Kanawha County.
(5) Foster, encourage and promote the mineral development
industry.
(6) Represent the state with respect to national initiatives
concerning the mineral development industry and international
marketing activities affecting the mineral development industry.
(7) Engage in strategic planning to enable the state to cope
with changes affecting or which may affect the mineral development
industry.
(8) Acquire, whether by purchase, construction, gift, lease,
lease-purchase or otherwise, any electric power project or natural
gas transmission project. In the event that an electric power
project to be constructed pursuant to this article is designed to utilize coal wastes for the generation of electricity or the
production of other energy, such project shall also be capable of
using coal as its primary energy input: Provided, That it shall be
demonstrated to the authority's satisfaction that quantities of
coal wastes exist in amounts sufficient to provide energy input for
such project for the term of the bonds or notes issued by the
authority to finance the project and are accessible to the project.
(9) Lease, lease with an option by the lessee to purchase,
sell, by installment sale or otherwise, or otherwise dispose of, to
persons other than governmental agencies, any or all of its
electric power projects or natural gas transmission projects for
such rentals or amounts and upon such terms and conditions as the
public energy authority board may deem advisable.
(10) Finance one or more electric power projects or natural
gas transmission projects by making secured loans to persons other
than governmental agencies to provide funds for the acquisition, by
purchase, construction or otherwise, of any such project or
projects.
(11) Issue bonds for the purpose of financing the cost of
acquisition and construction of one or more electric power projects
or natural gas transmission projects or any additions, extensions
or improvements thereto which will be sold, leased with an option
by the lessee to purchase, leased or otherwise disposed of to
persons other than governmental agencies or for the purpose of
loaning the proceeds thereof to persons other than governmental
agencies for the acquisition and construction of said projects or both. Such bonds shall be issued and the payment of such bonds
secured in the manner provided by the applicable provisions of
sections seven, eight, nine, ten, eleven, twelve, thirteen and
seventeen, article two-c, chapter thirteen of this code: Provided,
That the principal and interest on such bonds shall be payable out
of the revenues derived from the lease, lease with an option by the
lessee to purchase, sale or other disposition of or from loan
payments in connection with the electric power project or natural
gas transmission project for which the bonds are issued, or any
other revenue derived from such electric power project or natural
gas transmission project.
(12) In the event that the electric power project or natural
gas transmission project is to be owned by a governmental agency,
apply to the economic development authority for the issuance of
bonds payable solely from revenues as provided in article fifteen,
chapter thirty-one of this code: Provided, That the economic
development authority shall not issue any such bonds except by an
act of general law: Provided, however, That the authority shall
require that in the construction of any such project, prevailing
wages shall be paid as part of a project specific agreement which
also takes into account terms and conditions contained in the West
Virginia - Ohio valley market retention and recovery agreement or
a comparable agreement.
(13) Acquire by gift or purchase, hold and dispose of real and
personal property in the exercise of its powers and the performance
of its duties as set forth in this article.
(14) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems proper, or
by the exercise of the right of eminent domain in the manner
provided in chapter fifty-four of this code, such real property or
parts thereof or rights therein, rights-of-way, property, rights,
easements and interests it deems necessary for carrying out the
provisions of this article, and compensation shall be paid for
public or private lands so taken; and the authority may sell any of
the real property or parts thereof or rights therein,
rights-of-way, property, rights, easements and interests acquired
hereunder in such manner and upon such terms and conditions as the
authority deems proper: Provided, That if the authority determines
that land or an interest therein acquired by the authority through
the exercise of the power of eminent domain for the purpose of this
article is no longer necessary or useful for such purposes, and if
the authority desires to sell such land or interest therein, the
authority shall first offer to sell such land or interest to the
owner or owners from whom it was acquired, at a price equal to its
fair market value: Provided, however, That if the prior owner or
owners shall decline to reacquire the land or interest therein, the
authority shall be authorized to dispose of such property by direct
sale, auction, or competitive bidding. In no case shall such land
or an interest therein acquired under this subdivision be sold for
less than its fair market value. This article does not authorize
the authority to take or disturb property or facilities belonging
to any public utility or to a common carrier, which property or facilities are required for the proper and convenient operation of
such public utility or common carrier, except for the acquisition
of easements or rights-of-way which will not unreasonably interfere
with the operation of the property or facilities of such public
utility or common carrier, and in the event of the taking or
disturbance of property or facilities of public utility or common
carrier, provision shall be made for the restoration, relocation or
duplication of such property or facilities elsewhere at the sole
cost of the authority.
The term "real property" as used in this article is defined to
include lands, structures, franchises and interests in land,
including lands under water and riparian rights, and any and all
other things and rights usually included within the said term, and
includes also any and all interests in such property less than full
title, such as easements, rights-of-way, uses, leases, licenses and
all other incorporeal hereditaments and every estate, interest or
right, legal or equitable, including terms for years and liens
thereon by way of judgments, mortgages or otherwise, and also all
claims for damages for such real estate.
For the purposes of this section, "fair market value" shall be
determined by an appraisal made by an independent person or firm
chosen by the authority. The appraisal shall be performed using
the principles contained in the "Uniform Appraisal Standards for
Federal Land Acquisitions" published under the auspices of the
Interagency Land Acquisition Conference, United States Government
Printing Office, 1972.
(15) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the performance
of its duties and the execution of its powers: Provided, That if
any electric power project or natural gas transmission project is
to be constructed by a person other than a governmental agency, and
with whom the authority has contracted to lease, sell or finance
such project upon its completion, then the authority shall not be
required to comply with the provisions of article twenty-two,
chapter five of this code requiring the solicitation of competitive
bids for the construction of such a project.
(16) Employ managers, superintendents and other employees and
retain or contract with consulting engineers, financial
consultants, accountants, architects, attorneys and such other
consultants and independent contractors as are necessary in its
judgment to carry out the provisions of this article and fix the
compensation or fees thereof. All expenses thereof shall be
payable solely from the proceeds of bonds issued by the economic
development authority, from the proceeds of bonds issued by or loan
payments, lease payments or other payments received by the
authority, from revenues and from funds appropriated for such
purpose by the Legislature.
(17) Receive and accept from any federal agency, or any other
source, grants for or in aid of the construction of any project or
for research and development with respect to electric power
projects, natural gas transmission projects or other energy
projects and receive and accept aid or contribution from any source of money, property, labor or other things of value to be held, used
and applied only for the purpose for which such grants and
contributions are made.
(18) Purchase property coverage and liability insurance for
any electric power project or natural gas transmission project or
other energy project and for the principal office and suboffices of
the authority, insurance protecting the authority and its officers
and employees against liability, if any, for damage to property or
injury to or death of persons arising from its operations and any
other insurance which may be provided for under a resolution
authorizing the issuance of bonds or in any trust agreement
securing the same.
(19) Charge, alter and collect transportation fees and other
charges for the use or services of any natural gas transmission
project as provided in this article.
(20) Charge and collect fees or other charges from any energy
project undertaken as a result of this article.
(21) When the electric power project is owned and operated by
the authority, charge reasonable fees in connection with the making
and providing of electric power and the sale thereof to
corporations, states, municipalities or other entities in the
furtherance of the purposes of this article.
(22) Purchase and sell electricity or other energy produced by
an electric power project in and out of the state of West Virginia.
(23) Enter into wheeling contracts for the transmission of
electric power over the authority's or another party's lines.
(24) Make and enter into contracts for the construction of a
project facility and joint ownership with another utility, and the
provisions of this article shall not constrain the authority from
participating as a joint partner therein.
(25) Make and enter into joint ownership agreements.
(26) Establish or increase reserves from moneys received or to
be received by the authority to secure or to pay the principal of
and interest on the bonds issued by the economic development
authority pursuant to the provisions of article fifteen, chapter
thirty-one of this code or bonds issued by the authority.
(27) Broker the purchase of natural gas for resale to
end-users: Provided, That whenever there are local distribution
company pipelines already in place the authority shall arrange to
transport the gas through such pipelines at the rates approved by
the public service commission of West Virginia.
(28) Engage in market research, feasibility studies,
commercial research and other studies and research pertaining to
electric power projects and natural gas transmission projects or
any other functions of the authority pursuant to this article.
(29) Enter upon any lands, waters and premises in the state
for the purpose of making surveys and examinations as it may deem
necessary or convenient for the purpose of this article and such
entry shall not be deemed a trespass, nor shall an entry for such
purposes be deemed an entry under any condemnation proceedings
which may be then pending, and the authority shall make
reimbursement for any actual damages resulting to such lands, waters and premises as a result of such activities.
(30) Participate in any reorganization proceeding pending
pursuant to the United States Code (being the act of Congress
establishing a uniform system of bankruptcy throughout the United
States, as amended) or any receivership proceeding in a state or
federal court for the reorganization or liquidation of a
responsible buyer or responsible tenant. The authority may file
its claim against any such responsible buyer or responsible tenant
in any of the foregoing proceedings, vote upon any question pending
therein, which requires the approval of the creditors participating
in any reorganization proceeding or receivership, exchange any
evidence of such indebtedness for any property, security or
evidence of indebtedness offered as a part of the reorganization of
such responsible buyer or responsible tenant or of any entity
formed to acquire the assets thereof and may compromise or reduce
the amount of any indebtedness owing to it as a part of any such
reorganization.
(31) Make or enter into management contracts with a second
party or parties to operate any electric power project or any gas
transmission project and associated facilities, or other related
energy project, either during construction or permanent operation.
(32) Do all acts necessary and proper to carry out the powers
expressly granted to the authority in this article.
(33) Nothing herein shall be construed to permit the
transportation of gas produced outside of this state through a
natural gas transmission project.
(34) The authority shall, after consultation with other
agencies of state government having environmental regulatory
functions, promulgate legislative rules pursuant to chapter
twenty-nine-a of this code, to establish standards and principles
to be applied to all projects in assessing the effects of projects
on the environment: Provided, That when a proposed project
requires an environmental impact statement pursuant to the National
Environmental Policy Act of 1969, a copy of the environmental
impact statement shall be filed with the authority and be made
available prior to any final decision or final approval of any
project and prior to the conducting of any public hearings
regarding the project and in any such case, no assessment pursuant
to the legislative rule need be made.
(35) The power and authority granted to the public energy
authority pursuant to this section and section six of this article
to initiate, acquire, construct, finance or issue bonds for
electric power projects and transmission facilities, or to exercise
the power of eminent domain with respect to any project, shall
terminate on the effective date of this section: Provided, That
nothing herein shall be construed to affect the validity of any act
of the public energy authority prior to the effective date of this
section or to impair the rights of bondholders with respect to
bonds or other evidence of indebtedness issued prior to the
effective date of this section. Following the effective date of
this section, the public energy authority may exercise any power
expressly granted pursuant to this section or section six of this article with respect to any project or facility previously
constructed or acquired, any existing contractual obligations, and
any outstanding bonded indebtedness.
The West Virginia public energy authority board shall continue
to exist pursuant to the provisions of article ten, chapter four of
this code until the first day of July, two thousand ten, unless
sooner terminated, continued or reestablished pursuant to the
provisions of that article.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 1. GENERAL PROVISIONS.
§5F-1-2. Executive departments created; offices of secretary
created.
(a) There are created, within the executive branch of the
state government, the following departments:
(1) Department of administration;
(2) Department of education and the arts;
(3) Department of environmental protection;
(4) Department of health and human resources;
(5) Department of military affairs and public safety;
(6) Department of tax and revenue; and
(7) Department of transportation; and
(8) Department of commerce.
(b) Each department will be headed by a secretary appointed by
the governor with the advice and consent of the Senate. Each secretary serves at the will and pleasure of the governor.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
administration:
(1) Building commission provided for in article six, chapter
five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for
(3) Governor's mansion advisory committee provided for in
article five, chapter five-a of this code;
(4) Commission on uniform state laws provided for
(5) Education and state employees grievance board provided for
in article twenty-nine, chapter eighteen of this code and article
six-a, chapter twenty-nine of this code;
(6) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(7) Boundary commission provided for
(8) Public defender services provided for
(9) Division of personnel provided for
(10) The West Virginia ethics commission provided for
(11) Consolidated public retirement board provided for
(b) The department of commerce, labor and environmental
resources and the office of secretary of the department of
commerce, labor and environmental resources are abolished. For
purposes of administrative support and liaison with the office of
the governor, the following agencies and boards, including all
allied, advisory and affiliated entities, are grouped under two
bureaus and one commission as follows The following agencies and
boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are
transferred to and incorporated in and administered as a part of
the department of commerce:
(1) Bureau of commerce:
(A) Division of labor provided for
(i)(A) Occupational safety and health review commission
provided for
(ii)(B) Board of manufactured housing construction and safety
provided for
(B)(2) Office of miners' health, safety and training provided for
(i)(A) Board of coal mine health and safety and coal mine
safety and technical review committee provided for
(ii)(B) Board of miner training, education and certification
provided for
(iii)(C) Mine inspectors' examining board provided for
(C)(3) The West Virginia development office provided for
which
includes:
(i) Economic development authority provided for in article
fifteen, chapter thirty-one of this code; and
(ii) Tourism commission provided for
(D)(4) Division of natural resources and natural resources
commission provided for
for
(E)(5) Division of forestry provided for
(F)(6) Geological and economic survey provided for
(7) Public land corporation provided for in article one-a,
chapter twenty of this code.
(c) The economic development authority provided for in article
fifteen, chapter thirty-one of this code is continued as an
independent agency within the executive branch.
(G)(d) The water development authority and board provided for
(2)(e) Bureau of employment programs provided for
(3)(f) Workers' compensation commission provided for
(c)(g) Bureau of environment is abolished and the following
agencies and boards, including all allied, advisory and affiliated
entities, are transferred to the department of environmental
protection for purposes of administrative support and liaison with
the office of the governor:
(1) Air quality board provided for
(2) Solid waste management board provided for
(3) Environmental quality board, or its successor board, provided for
(4) Surface mine board provided for
(5) Oil and gas inspectors' examining board provided for
(6) Shallow gas well review board provided for
(7) Oil and gas conservation commission provided for
(d)(h) The
following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
education and the arts:
(1) Library commission provided for
(2) Educational broadcasting authority provided for
(3) Joint commission for vocational-technical-occupational
education provided for in article three-a, chapter eighteen-b of
this code;
(4)(3) Division of culture and history provided for
(4)(5) Division of rehabilitation services provided for
(e)(i) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
health and human resources:
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Bureau for public health provided for in article one,
chapter sixteen of this code;
(4) Office of emergency medical services and advisory council
thereto provided for in article four-c, chapter sixteen of this
code;
(5) Health care authority provided for in article
twenty-nine-b, chapter sixteen of this code;
(6) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code;
(7) Women's commission provided for in article twenty, chapter
twenty-nine of this code; and
(8) The child support enforcement division provided for in
chapter forty-eight of this code.
(f)(j) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
military affairs and public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter fifteen
of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) West Virginia state police provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five, chapter fifteen of this code and
emergency response commission provided for in article five-a of
said chapter;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter
twenty-five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority provided
for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(g)(k) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of tax
and revenue:
(1) Tax division provided for in article one, chapter eleven
of this code;
(2) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(3) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of this
code;
(4) Agency of insurance commissioner provided for in article
two, chapter thirty-three of this code;
(5) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven of this code and article
two, chapter sixty of this code;
(6) Board of banking and financial institutions provided for
in article three, chapter thirty-one-a of this code;
(7) Lending and credit rate board provided for in chapter
forty-seven-a of this code; and
(8) Division of banking provided for in article two, chapter
thirty-one-a of this code.
(h)(l) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
transportation:
(1) Division of highways provided for in article two-a,
chapter seventeen of this code;
(2) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this code;
(3) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(4) Driver's licensing advisory board provided for in article
two, chapter seventeen-b of this code;
(5) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(6) State rail authority provided for in article eighteen,
chapter twenty-nine of this code; and
(7) Port authority provided for in article sixteen-b, chapter
seventeen of this code.
(i)(m) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the existence of the position of
administrator and of the agency and the powers, authority and
duties of each administrator and agency are not affected by the
enactment of this chapter.
(j)(n) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the existence, powers, authority
and duties of boards and the membership, terms and qualifications
of members of the boards are not affected by the enactment of this
chapter and all boards which are appellate bodies or were otherwise established to be independent decision makers will not have their
appellate or independent decision-making status affected by the
enactment of this chapter.
(k)(o) Any department previously transferred to and
incorporated in a department created in section two, article one of
this chapter by prior enactment of this section in chapter three,
acts of the Legislature, first extraordinary session, one thousand
nine hundred eighty-nine, and subsequent amendments means a
division of the appropriate department. Wherever reference is made
to any department transferred to and incorporated in a department
created in section two, article one of this chapter, the reference
means a division of the appropriate department and any reference to
a division of a department so transferred and incorporated means a
section of the appropriate division of the department.
(l)(p) When an agency, board or commission is transferred
under a bureau or agency other than a department headed by a
secretary pursuant to this section, that transfer is solely for
purposes of administrative support and liaison with the office of
the governor, a department secretary or a bureau. The bureaus
created by the Legislature upon the abolishment of the department
of commerce, labor and environmental resources in the year one
thousand nine hundred ninety-four will be headed by a commissioner
or other statutory officer of an agency within that bureau Nothing
in this section extends the powers of department secretaries under
section two of this article to any person other than a department
secretary and nothing limits or abridges the statutory powers and duties of statutory commissioners or officers pursuant to this
code.
(m) The amendments to this section effected by the enactment
of Enrolled Senate Bill No. 2013 in the year two thousand three
shall become operative on the first day of October, two thousand
three.
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the
contrary, the secretary of each department shall have plenary power
and authority within and for the department to:
(1) Employ and discharge within the office of the secretary
such employees as may be necessary to carry out the functions of
the secretary, which employees shall serve at the will and pleasure
of the secretary;
(2) Cause the various agencies and boards to be operated
effectively, efficiently and economically and develop goals,
objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the
department;
(3) Eliminate or consolidate positions, other than positions
of administrators or positions of board members, and name a person
to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or
duties to or among employees, other than administrators or board
members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the
governor and transfer within the department funds appropriated to
the various agencies of the department which are not expended due
to cost savings resulting from the implementation of the provisions
of this chapter: Provided, That no more than twenty-five percent
of the funds appropriated to any one agency or board may be
transferred to other agencies or boards within the department:
Provided, however, That no funds may be transferred from a special
revenue account, dedicated account, capital expenditure account or
any other account or funds specifically exempted by the Legislature
from transfer, except that the use of appropriations from the state
road fund transferred to the office of the secretary of the
department of transportation is not a use other than the purpose
for which such funds were dedicated and is permitted: Provided
further, That if the Legislature by subsequent enactment
consolidates agencies, boards or functions, the secretary may
transfer the funds formerly appropriated to such agency, board or
function in order to implement such consolidation. The authority
to transfer funds under this section shall expire on the thirtieth
day of June, one thousand nine hundred eighty-nine two thousand
six;
(7) Enter into contracts or agreements requiring the
expenditure of public funds and authorize the expenditure or
obligating of public funds as authorized by law: Provided, That
the powers granted to the secretary to enter into contracts or
agreements and to make expenditures or obligations of public funds under this provision shall not exceed or be interpreted as
authority to exceed the powers heretofore granted by the
Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
under this chapter;
(8) Acquire by lease or purchase property of whatever kind or
character, and convey or dispose of any property of whatever kind
or character as authorized by law: Provided, That the powers
granted to the secretary to lease, purchase, convey or dispose of
such property shall not exceed or be interpreted as authority to
exceed the powers heretofore granted by the Legislature to the
various commissioners, directors or board members of the various
departments, agencies or boards that comprise and are incorporated
into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one,
chapter twenty-nine-a of this code, to implement and make effective
the powers, authority and duties granted and imposed by the
provisions of this chapter, such promulgation to be in accordance
with the provisions of chapter twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any
rule, as defined in section two, article one, chapter twenty-nine-a
of this code, by any administrator, agency or board within the
department, without which written consent no proposal of a rule shall have any force or effect;
(13) Delegate to administrators such duties of the secretary
as the secretary may deem appropriate, from time to time, to
facilitate execution of the powers, authority and duties delegated
to the secretary; and
(14) Take any other action involving or relating to internal
management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall
engage in a comprehensive review of the practices, policies and
operations of the agencies and boards within their departments to
determine the feasibility of cost reductions and increased
efficiency which may be achieved therein, including, but not
limited to, the following:
(1) The elimination, reduction and restrictions in the use of
the state's vehicle or other transportation fleet;
(2) The elimination, reduction and restrictions in the
preparation of state government publications, including annual
reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in
lease agreements between the state and private sector for offices,
equipment and services;
(4) The adoption of appropriate systems for accounting,
including consideration of an accrual basis financial accounting
and reporting system;
(5) The adoption of revised procurement practices to
facilitate cost-effective purchasing procedures, including consideration of means by which domestic businesses may be assisted
to compete for state government purchases; and
(6) The computerization of the functions of the state agencies
and boards.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, none of the powers granted to the secretaries
herein shall be exercised by the secretary if to do so would
violate or be inconsistent with the provisions of any federal law
or regulation, any federal-state program or federally delegated
program or jeopardize the approval, existence or funding of any
such program and the powers granted to the secretary shall be so
construed.
(d) The layoff and recall rights of employees within the
classified service of the state as provided in subsections five and
six, section ten, article six, chapter twenty-nine of this code
shall be limited to the organizational unit within the agency or
board and within the occupational group established by the
classification and compensation plan for the classified service of
the agency or board in which the employee was employed prior to the
agency or board's transfer or incorporation into the department:
Provided, That the employee shall possess the qualifications
established for the job class. The duration of recall rights
provided in this subsection shall be limited to two years or the
length of tenure, whichever is less. Except as provided in this
subsection, nothing contained in this section shall be construed to
abridge the rights of employees within the classified service of the state as provided in sections ten and ten-a, article six,
chapter twenty-nine of this code or the right of classified
employees of the board of regents to the procedures and protections
set forth in article twenty-six-b, chapter eighteen of this code.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 22. COUNTY ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§7-22-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic
development established in section two, article two, chapter five-b
of this code;
(2) "County commission" means the governing body of a county
of this state;
(3) (2) "Development expenditures" means payments for
governmental functions, programs, activities, facility
construction, improvements and other goods and services which a
district board is authorized to perform or provide under section
five of this article;
(4) (3) "District" means an economic opportunity development
district created pursuant to this article;
(5) (4) "District board" means a district board created
pursuant to section ten of this article; and
(6) (5) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article.
§7-22-6. Notice; hearing.
(a) General. -- A county commission desiring to create an
economic opportunity development district shall conduct a public
hearing.
(b) Notice of hearing. -- Notice of the public hearing shall
be published as a Class I-0 legal advertisement in compliance with
article three, chapter fifty-nine of this code at least twenty days
prior to the scheduled hearing. In addition to the time and place
of the hearing, the notice must also state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The geographic boundaries of the property proposed to be
included in the district; and
(5) The proposed method of financing any costs involved,
including the base and rate of special district excise tax that may
be imposed upon sales of tangible personal property and taxable
services from business locations situated within the proposed
district.
(c) Opportunity to be heard. -- At the time and place set
forth in the notice, the county commission shall afford the
opportunity to be heard to any owner of real property situated in
the proposed district and any residents of the county.
(d) Application to council West Virginia development office.
-- If the county commission, following the public hearing,
determines it advisable and in the public interest to establish an
economic opportunity development district, it shall apply to the council for community and economic development West Virginia
development office for approval of the economic opportunity
development district project pursuant to the procedures provided in
section seven of this article.
§7-22-7. Application to development office for approval of an
economic opportunity development district project.
(a) General. -- The council for community and economic
development office shall receive and act on applications filed with
it by county commissions pursuant to section six of this article.
Each application must include:
(1) A true copy of the notice described in section six of this
article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to
complete the project;
(4) A general description of the capital improvements,
additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the
development expenditures, together with a description of the
reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the
optimum economic viability of the district following its inception:
Provided, That the amounts of the reserves shall not exceed the
amounts that would be required by ordinary commercial capital
market considerations;
(6) A description of the sources and anticipated amounts of
all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(7) A description of the financial contribution of the county
commission to the funding of development expenditures;
(8) Identification of any businesses that the county
commission expects to relocate their business locations from the
district to another place in the state in connection with the
establishment of the district or from another place in this state
to the district: Provided, That for purposes of this article, any
entities shall be designated "relocated entities";
(9) Identification of any businesses currently conducting
business in the proposed economic opportunity development district
that the county commission expects to continue doing business there
after the district is created;
(10) A good faith estimate of the aggregate amount of
consumers sales and service tax that was actually remitted to the
tax commissioner by all business locations identified as provided
in subdivisions (8) and (9) of this subsection with respect to
their sales made and services rendered from their then current
business locations that will be relocated from, or to, or remain in
the district, for the twelve full calendar months next preceding
the date of the application: Provided, That for purposes of this
article, the aggregate amount is designated as "the base tax revenue amount";
(11) A good faith estimate of the gross annual district tax
revenue amount;
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article;
(13) The tax commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the council development office;
(ii) the estimated amount of economic opportunity district excise
tax that will be collected during the first twelve months after the
month in which the tax commissioner would first begin to collect
that tax; and (iii) the estimated amount of economic opportunity
district excise tax that will be collected during the first
thirty-six months after the month in which the tax commissioner
would first begin to collect that tax; and
(14) Any additional information the council development office
may require.
(b) Review of applications. -- The council development office
shall review all project proposals for conformance to statutory and
regulatory requirements, the reasonableness of the project's budget
and timetable for completion and the following criteria:
(1) The quality of the proposed project and how it addresses
economic problems in the area in which the project will be located;
(2) The merits of the project determined by a cost-benefit analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private
sector investment and substantial credible evidence that, but for
the existence of sales tax increment financing, the project would
not be feasible;
(4) Whether the economic opportunity district excise tax
dollars will leverage or be the catalyst for the effective use of
private, other local government, state or federal funding that is
available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve
the opportunities in the area where the project will be located for
the successful establishment or expansion of other industrial or
commercial businesses;
(7) Whether the project will, directly or indirectly, assist
in the creation of additional long-term employment opportunities in
the area and the quality of jobs created in all phases of the
project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the
area, or part of the area, in which the economic opportunity
district is located;
(9) Whether the county commission has a strategy for economic
development in the county and whether the project is consistent with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) The ability of the county commission and the project
developer or project team to carry out the project: Provided, That
no project may be approved by the council development office unless
the amount of all development expenditures proposed to be made in
the first twenty-four months following the creation of the district
results in capital investment of more than fifty million dollars in
the district and the county submits clear and convincing
information, to the satisfaction of the council development office,
that such investment will be made if the council development office
approves the project and the Legislature authorizes the county
commission to levy an excise tax on sales of goods and services
made within the economic opportunity district as provided in this
article.
(c) Additional criteria. -- The council for community and
economic development office may establish other criteria for
consideration when approving the applications.
(d) Action on the application. -- The council for community
and economic development executive director of the development
office shall act to approve or not approve any application within
thirty days following the receipt of the application or the receipt of any additional information requested by the council development
office, whichever is the later.
(e) Certification of project. -- If the council for community
and economic development executive director of the development
office approves a county's economic opportunity district project
application, it he or she shall issue to the county commission a
written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the council development office has determined with
respect to the district's application based on any investigation it
considers reasonable and necessary, including, but not limited to,
any relevant information the council for community and economic
development office requests from the tax commissioner and the tax
commissioner provides to the council development office: Provided,
That in determining the net annual district tax revenue amount, the
council development office may not use a base tax revenue amount
less than that amount certified by the tax commissioner but, in
lieu of confirmation from the tax commissioner of the gross annual
district tax revenue amount, the council development office may use
the estimate of the gross annual district tax revenue amount
provided by the county commission pursuant to subsection (a) of
this section.
(f) Certification of enlargement of geographic boundaries of
previously certified district. -- If the council for community and
economic development executive director of the development office
approves a county's economic opportunity district project
application to expand the geographic boundaries of a previously
certified district, it he or she shall issue to the county
commission a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the council development office has determined with
respect to the district's application based on any investigation it
considers reasonable and necessary, including, but not limited to,
any relevant information the council development office requests
from the tax commissioner and the tax commissioner provides to the
council development office: Provided, That in determining the net
annual district tax revenue amount, the council development office
may not use a base tax revenue amount less than that amount
certified by the tax commissioner but, in lieu of confirmation from
the tax commissioner of the gross annual district tax revenue
amount, the council development office may use the estimate of the
gross annual district tax revenue amount provided by the county
commission pursuant to subsection (a) of this section.
(g) Promulgation of rules. -- The council for community and economic development executive director of the development office
may promulgate rules to implement the economic opportunity
development district project application approval process and to
describe the criteria and procedures it has established in
connection therewith. These rules are not subject to the
provisions of chapter twenty-nine-a of this code but shall be filed
with the secretary of state.
§7-22-8. Establishment of the economic opportunity development
district fund.
(a) General. -- There is hereby created a special revenue
account in the state treasury designated the "economic opportunity
development district fund" which is an interest-bearing account and
shall be invested in the manner described in section nine-c,
article six, chapter twelve of this code with the interest income
a proper credit to the fund.
(b) District subaccount. -- A separate and segregated
subaccount within the account shall be established for each
economic opportunity development district that is approved by the
council executive director of the development office. In addition
to the economic opportunity district excise tax levied and
collected as provided in this article, funds paid into the account
for the credit of any subaccount may also be derived from the
following sources:
(1) All interest or return on the investment accruing to the
subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or donations which are received from any governmental entity or unit
or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for
this purpose.
§7-22-10. Ordinance to create district as approved by development
office and authorized by the Legislature.
(a) General. -- If an economic opportunity development
district project has been approved by the council executive
director of the development office and the levying of a special
district excise tax for the district has been authorized by the
Legislature, all in accordance with this article, the county
commission may create the district by order entered of record as
provided in article one of this chapter: Provided, That the county
commission may not amend, alter or change in any manner the
boundaries of the economic opportunity development district
authorized by the Legislature. In addition to all other
requirements, the order shall contain the following:
(1) The name of the district and a description of its
boundaries;
(2) A summary of any proposed services to be provided and
capital improvements to be made within the district and a
reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that
may be imposed upon sales by businesses for the privilege of
operating within the district, which tax shall be passed on to and
paid by the consumer, and the manner in which the taxes will be imposed, administered and collected, all of which shall be in
conformity with the requirements of this article; and
(4) The district board members' terms, their method of
appointment and a general description of the district board's
powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its
organization and operations not inconsistent with any applicable
laws;
(B) To elect its own officers, to appoint committees and to
employ and fix compensation for personnel necessary for its
operations;
(C) To enter into contracts with any person, agency,
government entity, agency or instrumentality, firm, partnership,
limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and
not-for-profit organizations and generally to do any and all things
necessary or convenient for the purpose of promoting, developing
and advancing the purposes described in section two of this
article;
(D) To amend or supplement any contracts or leases or to enter
into new, additional or further contracts or leases upon the terms
and conditions for consideration and for any term of duration, with
or without option of renewal, as agreed upon by the district board
and any person, agency, government entity, agency or
instrumentality, firm, partnership, limited partnership, limited
liability company or corporation;
(E) To, unless otherwise provided in, and subject to the
provisions of any contracts or leases to operate, repair, manage
and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use
thereof and incidental thereto to provide services, such as retail
stores and restaurants, and to effectuate incidental purposes,
grant leases, permits, concessions or other authorizations to any
person or persons upon the terms and conditions for consideration
and for the term of duration as agreed upon by the district board
and any person, agency, governmental department, firm or
corporation;
(F) To delegate any authority given to it by law to any of its
officers, committees, agents or employees;
(G) To apply for, receive and use grants-in-aid, donations and
contributions from any source or sources and to accept and use
bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or construction
or in any other lawful manner and hold title thereto in its own
name and to sell, lease or otherwise dispose of all or part of any
real property which it may own, either by contract or at public
auction, upon the approval by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease
and dispose of all or part of any personal property which it may
own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that there exists a continuing need for redevelopment expenditures and
that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable
notes and other evidences of indebtedness therefor, on the terms as
the district shall determine, and give security therefor as is
requisite, including, without limitation, a pledge of the
district's rights in its subaccount of the economic opportunity
development district fund;
(K) To acquire (either directly or on behalf of the
municipality) an interest in any entity or entities that own any
real property situate in the district, to contribute capital to any
entity or entities and to exercise the rights of an owner with
respect thereto; and
(L) To expend its funds in the execution of the powers and
authority given in this section, which expenditures, by the means
authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and use,
in the public interest and for the general welfare of the people of
West Virginia, to alleviate and prevent economic deterioration and
to relieve the existing critical condition of unemployment existing
within the state.
(b) Additional contents of order. -- The county commission's
order shall also state the general intention of the county
commission to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of order. -- Upon entry of an order establishing an economic opportunity development district
excise tax, a certified copy of the order shall be mailed to the
state auditor, as ex officio the chief inspector and supervisor of
public offices, the state treasurer and the tax commissioner.
§7-22-11. District board; duties.
(a) General. -- The county commission of a county that has
been authorized by the Legislature to establish an economic
opportunity development district, in accordance with this article,
shall provide, by order entered of record, for the appointment of
a district board to oversee the operations of the district:
Provided, That the county commission may, by order, in lieu of
appointing a separate district board, designate itself to act as
the district board.
(b) Composition of board. -- If a separate district board is
to be appointed, it shall be made up of at least seven members, two
of which shall be owners, or representatives of owners, of real
property situated in the economic opportunity development district
and the other five shall be residents of the county within which
the district is located.
(c) Annual report. -- The district board, in addition to the
duties prescribed by the order creating the district, shall submit
an annual report to the county commission and the council
development office containing:
(1) An itemized statement of its receipts and disbursements
for the preceding fiscal year;
(2) A description of its activities for the preceding fiscal year;
(3) A recommended program of services to be performed and
capital improvements to be made within the district for the coming
fiscal year; and
(4) A proposed budget to accomplish its objectives.
(d) Conflict of interest exception. -- Nothing in this article
prohibits any member of the district board from also serving on the
board of directors of a nonprofit corporation with which the county
commission may contract to provide specified services within the
district.
(e) Compensation of board members. -- Each member of the
district board may receive reasonable compensation for services on
the board in the amount determined by the county commission:
Provided, That when a district board is not created for the
district but the work of the board is done by the county
commission, the county commissioners shall receive no additional
compensation.
§7-22-12. Special district excise tax authorized.
(a) General. -- The county commission of a county, authorized
by the Legislature to levy a special district excise tax for the
benefit of an economic opportunity development district, may, by
order entered of record, impose that tax on the privilege of
selling tangible personal property and rendering select services in
the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax
imposed pursuant to this section shall be identical to the base of the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the district: Provided, That
except for the exemption provided in section nine-f of said
article, all exemptions and exceptions from the consumers sales and
service tax shall also apply to the special district excise tax and
sales of gasoline and special fuel shall not be subject to special
district excise tax but shall remain subject to the tax levied by
said article.
(c) Tax rate. -- The rate of a special district excise tax
levied pursuant to this section shall be stated in an order entered
of record by the county commission and equal to the general rate of
tax on each dollar of gross proceeds from sales of tangible
personal property and services subject to the tax levied by section
three, article fifteen, chapter eleven of this code. The tax on
fractional parts of a dollar shall be levied and collected in
conformity with the provision of said section.
(d) Collection by tax commissioner. -- The order of the county
commission imposing a special district excise tax shall provide for
the tax to be collected by the tax commissioner in the same manner
as the tax levied by section three, article fifteen, chapter eleven
of this code is administered, assessed, collected and enforced.
(e) Deposit of net tax collected. --
(1) The order of the county commission imposing a special
district excise tax shall provide that the tax commissioner deposit
the net amount of tax collected in the special economic opportunity development district fund to the credit of the county commission's
subaccount therein for the economic opportunity development
district and that the money in the subaccount may only be used to
pay for development expenditures as provided in this article except
as provided in subsection (f) of this section.
(2) The state treasurer shall withhold from the county
commission's subaccount in the economic opportunity development
district fund and shall deposit in the general revenue fund of this
state, on or before the twentieth day of each calendar month next
following the effective date of a special district excise tax, a
sum equal to one twelfth of the base tax revenue amount last
certified by the council development office pursuant to section
seven of this article.
(f) Effective date of special district excise tax. -- Any
taxes imposed pursuant to the authority of this section shall be
effective on the first day of the calendar month that begins sixty
days after the date of adoption of an order entered of record
imposing the tax or the first day of any later calendar month
expressly designated in the order.
(g) Copies of order. -- Upon entry of an order levying a
special district excise tax, a certified copy of the order shall be
mailed to the state auditor, as ex officio the chief inspector and
supervisor of public offices, the state treasurer and the tax
commissioner.
§7-22-14. Modification of included area; notice; hearing.
(a) General. -- The order creating an economic opportunity development district may not be amended to include additional
contiguous property until after the amendment is approved by the
council executive director of the development office in the same
manner as an application to approve the establishment of the
district is acted upon under section seven of this article and the
amendment is authorized by the Legislature.
(b) Limitations. -- Additional property may not be included in
the district unless it is situated within the boundaries of the
county and is contiguous to the then current boundaries of the
district.
(c) Public hearing required. --
(1) The county commission of any county desiring to amend its
order shall designate a time and place for a public hearing upon
the proposal to include additional property. The notice shall meet
the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the county
commission shall afford the opportunity to be heard to any owners
of real property either currently included in or proposed to be
added to the existing district and to any other residents of the
county.
(d) Application to council West Virginia development office.
-- Following the hearing, the county commission may, by resolution,
apply to the council for community and economic development office
to approve inclusion of the additional property in the district.
(e) Consideration by council the executive director of the
development office. -- Before the council for community and economic development executive director of the development office
approves inclusion of the additional property in the district, the
council development office shall determine the amount of taxes
levied by article fifteen, chapter eleven of this code that were
collected by businesses located in the area the county commission
proposes to add to the district in the same manner as the base
amount of tax was determined when the district was first created.
The state treasurer shall also deposit one twelfth of this
additional tax base amount into the general revenue fund each
month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council
executive director of the development office approves amending the
boundaries of the district, the Legislature must amend section nine
of this article to allow levy of the special district excise tax on
business located in geographic area to be included in the district.
After the Legislature amends said section, the county commission
may then amend its order: Provided, That the order may not be
effective any earlier than the first day of the calendar month that
begins sixty days after the effective date of the act of the
Legislature authorizing the levy on the special district excise tax
on businesses located in the geographic area to be added to the
boundaries of the district for which the tax is levied or a later
date as set forth in the order of the county commission.
(g) Collection of special district excise tax. -- All
businesses included in a district because of the boundary amendment
shall on the effective date of the order, determined as provided in subsection (f) of this section, collect the special district excise
tax on all sales on tangible property or services made from
locations in the district on or after the effective date of the
county commission's order or a later date as set forth in the
order.
§7-22-15. Abolishment and dissolution of district; notice;
hearing.
(a) General. -- Except upon the express written consent of the
council for community and economic development executive director
of the development office and of all the holders or obligees of any
indebtedness or other instruments the proceeds of which were
applied to any development or redevelopment expenditures or any
indebtedness the payment of which is secured by revenues payable
into the fund provided under section eight of this article or by
any public property, a district may only be abolished by the county
commission when there is no outstanding indebtedness, the proceeds
of which were applied to any development or redevelopment
expenditures or the payment of which is secured by revenues payable
into the fund provided under section eight of this article, or by
any public property, and following a public hearing upon the
proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing
required by subsection (a) of this section shall be provided by
first-class mail to all owners of real property within the district
and shall be published as a Class I-0 legal advertisement in
compliance with article three, chapter fifty-nine of this code at least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the
abolishment of any economic opportunity development district, any
funds or other assets, contractual rights or obligations, claims
against holders of indebtedness or other financial benefits,
liabilities or obligations existing after full payment has been
made on all existing contracts, bonds, notes or other obligations
of the district are transferred to and assumed by the county
commission. Any funds or other assets transferred shall be used
for the benefit of the area included in the district being
abolished.
(d) Reinstatement of district. -- Following abolishment of a
district pursuant to this section, its reinstatement requires
compliance with all requirements and procedures set forth in this
article for the initial development, approval, establishment and
creation of an economic opportunity development district.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 38. MUNICIPAL ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§8-38-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic
development established in section two, article two, chapter five-b
of this code; (2) "Development expenditures" means payments for
governmental functions, programs, activities, facility
construction, improvements and other goods and services which a
district board is authorized to perform or provide under section five of this article;
(3) (2) "District" means an economic opportunity development
district created pursuant to this article;
(4) (3) "District board" means a district board created
pursuant to section ten of this article;
(5) (4) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article; and
(6) (5) "Municipality" is a word of art and shall mean, for
the purposes of this article, only Class I and Class II cities as
classified in section three, article one of this chapter.
§8-38-6. Notice; hearing.
(a) General. -- A municipality desiring to create an economic
opportunity development district shall conduct a public hearing.
(b) Notice of hearing. -- Notice of the public hearing shall
be published as a Class I-0 legal advertisement in compliance with
article three, chapter fifty-nine of this code at least twenty days
prior to the scheduled hearing. In addition to the time and place
of the hearing, the notice must also state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The geographic boundaries of the property proposed to be
included in the district; and
(5) The proposed method of financing any costs involved,
including the base and rate of special district excise tax that may be imposed upon sales of tangible personal property and taxable
services from business locations situated within the proposed
district.
(c) Opportunity to be heard. -- At the time and place set
forth in the notice, the municipality shall afford the opportunity
to be heard to any owner of real property situated in the proposed
district and any residents of the municipality.
(d) Application to council West Virginia development office.
-- If the municipality, following the public hearing, determines it
advisable and in the public interest to establish an economic
opportunity development district, it shall apply to the council for
community and economic development West Virginia development office
for approval of the economic opportunity development district
project pursuant to the procedures provided in section seven of
this article.
§8-38-7. Application to development office for community and
economic development for approval of an economic
opportunity development district project.
(a) General. -- The council for community and economic
development office shall receive and act on applications filed with
it by municipalities pursuant to section six of this article. Each
application must include:
(1) A true copy of the notice described in section six of this
article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to complete the project;
(4) A general description of the capital improvements,
additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the
development expenditures, together with a description of the
reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the
optimum economic viability of the district following its inception:
Provided, That the amounts of the reserves shall not exceed the
amounts that would be required by ordinary commercial capital
market considerations;
(6) A description of the sources and anticipated amounts of
all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(7) A description of the financial contribution of the
municipality to the funding of development expenditures;
(8) Identification of any businesses that the municipality
expects to relocate their business locations from the district to
another place in the state in connection with the establishment of
the district or from another place in this state to the district:
Provided, That for purposes of this article, any entities shall be
designated "relocated entities";
(9) Identification of any businesses currently conducting business in the proposed economic opportunity development district
that the municipality expects to continue doing business there
after the district is created;
(10) A good faith estimate of the aggregate amount of
consumers sales and service tax that was actually remitted to the
tax commissioner by all business locations identified as provided
in subdivisions (8) and (9) of this subsection with respect to
their sales made and services rendered from their then current
business locations that will be relocated from, or to, or remain in
the district, for the twelve full calendar months next preceding
the date of the application: Provided, That for purposes of this
article, the aggregate amount is designated as "the base tax
revenue amount";
(11) A good faith estimate of the gross annual district tax
revenue amount;
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article;
(13) The tax commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the council development office;
(ii) the estimated amount of economic opportunity district excise
tax that will be collected during the first twelve months after the
month in which the tax commissioner would first begin to collect
that tax; and (iii) the estimated amount of economic opportunity district excise tax that will be collected during the first
thirty-six months after the month in which the tax commissioner
would first begin to collect that tax; and
(14) Any additional information the council development office
may require.
(b) Review of applications. -- The council development office
shall review all project proposals for conformance to statutory and
regulatory requirements, the reasonableness of the project's budget
and timetable for completion and the following criteria:
(1) The quality of the proposed project and how it addresses
economic problems in the area in which the project will be located;
(2) The merits of the project determined by a cost-benefit
analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private
sector investment and substantial credible evidence that, but for
the existence of sales tax increment financing, the project would
not be feasible;
(4) Whether the economic opportunity development district
excise tax dollars will leverage or be the catalyst for the
effective use of private, other local government, state or federal
funding that is available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve the opportunities in the area where the project will be located for
the successful establishment or expansion of other industrial or
commercial businesses;
(7) Whether the project will, directly or indirectly, assist
in the creation of additional long-term employment opportunities in
the area and the quality of jobs created in all phases of the
project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the
area, or part of the area, in which the economic opportunity
district is located;
(9) Whether the municipality has a strategy for economic
development in the municipality and whether the project is
consistent with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) The ability of the municipality and the project developer
or project team to carry out the project: Provided, That no
project may be approved by the council development office unless
the amount of all development expenditures proposed to be made in
the first twenty-four months following the creation of the district
results in capital investment of more than fifty million dollars in
the district and the municipality submits clear and convincing
information, to the satisfaction of the council development office, that such investment will be made if the council development office
approves the project and the Legislature authorizes the
municipality to levy an excise tax on sales of goods and services
made within the economic opportunity development district as
provided in this article.
(c) Additional criteria. -- The council for community and
economic development office may establish other criteria for
consideration when approving the applications.
(d) Action on the application. -- The council for community
and economic development executive director of the development
office shall act to approve or not approve any application within
thirty days following the receipt of the application or the receipt
of any additional information requested by the council development
office, whichever is the later.
(e) Certification of project. -- If the council for community
and economic development executive director of the development
office approves a municipality's economic opportunity district
project application, it he or she shall issue to the municipality
a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated
net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the council for community and economic development
office has determined with respect to the district's application based on any investigation it considers reasonable and necessary,
including
, but not limited to, any relevant information the council
for community and economic development office requests from the tax
commissioner and the tax commissioner provides to the council
development office: Provided, That in determining the net annual
district tax revenue amount, the council development office may not
use a base tax revenue amount less than that amount certified by
the tax commissioner but, in lieu of confirmation from the tax
commissioner of the gross annual district tax revenue amount, the
council development office may use the estimate of the gross annual
district tax revenue amount provided by the municipality pursuant
to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of
previously certified district. -- If the council for community and
economic development executive director of the development office
approves a municipality's economic opportunity district project
application to expand the geographic boundaries of a previously
certified district, it he or she shall issue to the municipality a
written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the council development office has determined with
respect to the district's application based on any investigation it considers reasonable and necessary, including, but not limited to,
any relevant information the council development office requests
from the tax commissioner and the tax commissioner provides to the
council development office: Provided, That in determining the net
annual district tax revenue amount, the council development office
may not use a base tax revenue amount less than that amount
certified by the tax commissioner but, in lieu of confirmation from
the tax commissioner of the gross annual district tax revenue
amount, the council development office may use the estimate of the
gross annual district tax revenue amount provided by the
municipality pursuant to subsection (a) of this section.
(g) Promulgation of rules. -- The council for community and
economic development executive director of the development office
may promulgate rules to implement the economic opportunity
development district project application approval process and to
describe the criteria and procedures it has established in
connection therewith. These rules are not subject to the
provisions of chapter twenty-nine-a of this code but shall be filed
with the secretary of state.
§8-38-8. Establishment of the economic opportunity development
district fund.
(a) General. -- There is hereby created a special revenue
account in the state treasury designated the "economic opportunity
development district fund" which is an interest-bearing account and
shall be invested in the manner described in section nine-c,
article six, chapter twelve of this code with the interest income a proper credit to the fund.
(b) District subaccount. -- A separate and segregated
subaccount within the account shall be established for each
economic opportunity development district that is approved by the
council executive director of the development office. In addition
to the economic opportunity district excise tax levied and
collected as provided in this article, funds paid into the account
for the credit of any subaccount may also be derived from the
following sources:
(1) All interest or return on the investment accruing to the
subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or
donations which are received from any governmental entity or unit
or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for
this purpose.
§8-38-10. Ordinance to create district as approved by development
office and authorized by the Legislature.
(a) General. -- If an economic opportunity development
district project has been approved by the council for community and
economic development executive director of the development office
and the levying of a special district excise tax for the district
has been authorized by the Legislature, all in accordance with this
article, the municipality may create the district by ordinance
entered of record as provided in article one of this chapter:
Provided, That the municipality may not amend, alter or change in any manner the boundaries of the economic opportunity development
district authorized by the Legislature. In addition to all other
requirements, the ordinance shall contain the following:
(1) The name of the district and a description of its
boundaries;
(2) A summary of any proposed services to be provided and
capital improvements to be made within the district and a
reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that
may be imposed upon sales by businesses for the privilege of
operating within the district, which tax shall be passed on to and
paid by the consumer, and the manner in which the taxes will be
imposed, administered and collected, all of which shall be in
conformity with the requirements of this article; and
(4) The district board members' terms, their method of
appointment and a general description of the district board's
powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its
organization and operations not inconsistent with any applicable
laws;
(B) To elect its own officers, to appoint committees and to
employ and fix compensation for personnel necessary for its
operations;
(C) To enter into contracts with any person, agency,
government entity, agency or instrumentality, firm, partnership,
limited partnership, limited liability company or corporation, including both public and private corporations, and for-profit and
not-for-profit organizations and generally to do any and all things
necessary or convenient for the purpose of promoting, developing
and advancing the purposes described in section two of this
article;
(D) To amend or supplement any contracts or leases or to enter
into new, additional or further contracts or leases upon the terms
and conditions for consideration and for any term of duration, with
or without option of renewal, as agreed upon by the district board
and any person, agency, government entity, agency or
instrumentality, firm, partnership, limited partnership, limited
liability company or corporation;
(E) To, unless otherwise provided in, and subject to the
provisions of any contracts or leases to operate, repair, manage,
and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use
thereof and incidental thereto to provide services, such as retail
stores and restaurants, and to effectuate incidental purposes,
grant leases, permits, concessions or other authorizations to any
person or persons upon the terms and conditions for consideration
and for the term of duration as agreed upon by the district board
and any person, agency, governmental department, firm or
corporation;
(F) To delegate any authority given to it by law to any of its
officers, committees, agents or employees;
(G) To apply for, receive and use grants-in-aid, donations and contributions from any source or sources and to accept and use
bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or construction
or in any other lawful manner and hold title thereto in its own
name and to sell, lease or otherwise dispose of all or part of any
real property which it may own, either by contract or at public
auction, upon the approval by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease
and dispose of all or part of any personal property which it may
own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that
there exists a continuing need for redevelopment expenditures and
that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable
notes and other evidences of indebtedness therefor, on the terms as
the district shall determine, and give security therefor as is
requisite, including, without limitation, a pledge of the
district's rights in its subaccount of the economic opportunity
development district fund;
(K) To acquire (either directly or on behalf of the
municipality) an interest in any entity or entities that own any
real property situate in the district, to contribute capital to any
entity or entities and to exercise the rights of an owner with
respect thereto; and
(L) To expend its funds in the execution of the powers and authority given in this section, which expenditures, by the means
authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and use,
in the public interest and for the general welfare of the people of
West Virginia, to alleviate and prevent economic deterioration and
to relieve the existing critical condition of unemployment existing
within the state.
(b) Additional contents of ordinance. -- The municipality's
ordinance shall also state the general intention of the
municipality to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of ordinance. -- Upon
enactment of an ordinance establishing an economic opportunity
development district excise tax, a certified copy of the ordinance
shall be mailed to the state auditor, as ex officio the chief
inspector and supervisor of public offices, the state treasurer and
the tax commissioner.
§8-38-11. District board; duties.
(a) General. -- The council of a municipality that has been
authorized by the council for community and economic development
office to establish an economic opportunity development district,
in accordance with this article, shall provide, by ordinance, for
the appointment of a district board to oversee the operations of
the district: Provided, That the municipality may, in the
ordinance, in lieu of appointing a separate district board,
designate itself to act as the district board.
(b) Composition of board. -- If a separate district board is
to be appointed, it shall be made up of at least seven members, two
of which shall be owners, or representatives of owners, of real
property situated in the economic opportunity development district
and the other five shall be residents of the municipality within
which the district is located.
(c) Annual report. -- The district board, in addition to the
duties prescribed by the ordinance creating the district, shall
submit an annual report to the municipality and the council
development office containing:
(1) An itemized statement of its receipts and disbursements
for the preceding fiscal year;
(2) A description of its activities for the preceding fiscal
year;
(3) A recommended program of services to be performed and
capital improvements to be made within the district for the coming
fiscal year; and
(4) A proposed budget to accomplish its objectives.
(d) Conflict of interest exception. -- Nothing in this article
prohibits any member of the district board from also serving on the
board of directors of a nonprofit corporation with which the
municipality may contract to provide specified services within the
district.
(e) Compensation of board members. -- Each member of the
district board may receive reasonable compensation for services on
the board in the amount determined by the municipality: Provided, That when a district board is not created for the district but the
work of the board is done by the municipality, the members shall
receive no additional compensation.
§8-38-12. Special district excise tax authorized.
(a) General. -- The council of a municipality, authorized by
the Legislature to levy a special district excise tax for the
benefit of an economic opportunity development district, may, by
ordinance, impose that tax on the privilege of selling tangible
personal property and rendering select services in the district in
accordance with this section.
(b) Tax base. -- The base of a special district excise tax
imposed pursuant to this section shall be identical to the base of
the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the district: Provided, That
except for the exemption provided in section nine-f of said
article, all exemptions and exceptions from the consumers sales and
service tax shall also apply to the special district excise tax and
sales of gasoline and special fuel shall not be subject to special
district excise tax but shall remain subject to the tax levied by
said article.
(c) Tax rate. -- The rate of a special district excise tax
levied pursuant to this section shall be stated in an ordinance
enacted by the municipality and equal to the general rate of tax on
each dollar of gross proceeds from sales of tangible personal
property and services subject to the tax levied by section three, article fifteen, chapter eleven of this code. The tax on
fractional parts of a dollar shall be levied and collected in
conformity with the provision of said section.
(d) Collection by tax commissioner. -- The ordinance of the
municipality imposing a special district excise tax shall provide
for the tax to be collected by the tax commissioner in the same
manner as the tax levied by section three, article fifteen, chapter
eleven of this code is administered, assessed, collected and
enforced.
(e) Deposit of net tax collected. --
(1) The ordinance of the municipality imposing a special
district excise tax shall provide that the tax commissioner deposit
the net amount of tax collected in the special economic opportunity
development district fund to the credit of the municipality's
subaccount therein for the economic opportunity development
district and that the money in the subaccount may only be used to
pay for development expenditures as provided in this article except
as provided in subsection (f) of this section.
(2) The state treasurer shall withhold from the municipality's
subaccount in the economic opportunity development district fund
and shall deposit in the general revenue fund of this state, on or
before the twentieth day of each calendar month next following the
effective date of a special district excise tax, a sum equal to one
twelfth of the base tax revenue amount last certified by the
council development office pursuant to section seven of this
article.
(f) Effective date of special district excise tax. -- Any
taxes imposed pursuant to the authority of this section shall be
effective on the first day of the calendar month that begins at
least sixty days after the date of enactment of the ordinance
imposing the tax or at any later date expressly designated in the
ordinance that begins on the first day of a calendar month.
(g) Copies of ordinance. -- Upon enactment of an ordinance
levying a special district excise tax, a certified copy of the
ordinance shall be mailed to the state auditor, as ex officio the
chief inspector and supervisor of public offices, the state
treasurer and the tax commissioner.
§8-38-14. Modification of included area; notice; hearing.
(a) General. -- The ordinance creating an economic opportunity
development district may not be amended to include additional
contiguous property until after the amendment is approved by the
council for community and economic development executive director
of the development office in the same manner as an application to
approve the establishment of the district is acted upon under
section seven of this article.
(b) Limitations. -- Additional property may not be included in
the district unless it is situated within the boundaries of the
municipality and is contiguous to the then current boundaries of
the district.
(c) Public hearing required. --
(1) The council of any municipality desiring to amend its
ordinance shall designate a time and place for a public hearing upon the proposal to include additional property. The notice shall
meet the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the
municipality shall afford the opportunity to be heard to any owners
of real property either currently included in or proposed to be
added to the existing district and to any other residents of the
municipality.
(d) Application to council West Virginia development office.
-- Following the hearing, the municipality may, by resolution,
apply to the council for community and economic development office
to approve inclusion of the additional property in the district.
(e) Consideration by council the executive director of the
development office. -- Before the council for community and
economic development executive director of the development office
approves inclusion of the additional property in the district, the
council development office shall determine the amount of taxes
levied by article fifteen, chapter eleven of this code that were
collected by businesses located in the area the municipality
proposes to add to the district in the same manner as the base
amount of tax was determined when the district was first created.
The state treasurer shall also deposit one twelfth of this
additional tax base amount into the general revenue fund each
month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council
executive director of the development office for community and
economic development approves amending the boundaries of the district, the Legislature must amend section nine of this article
to allow levy of the special district excise tax on business
located in geographic area to be included in the district. After
the Legislature amends said section, the municipality may then
amend its ordinance: Provided, That the ordinance may not be
effective any earlier than the first day of the calendar month that
begins sixty days after the effective date of the amended ordinance
imposing the levy of the special district excise tax on businesses
located in the geographic area to be added to the boundaries of the
district for which the tax is levied or the first day of a later
calendar month as set forth in the ordinance of the municipality.
(g) Collection of special district excise tax. -- All
businesses included in a district because of the boundary amendment
shall on the effective date of the ordinance, determined as
provided in subsection (f) of this section, collect the special
district excise tax on all sales on tangible property or services
made from locations in the district on or after the effective date
of the municipality's ordinance or a later date as set forth in the
ordinance.
§8-38-15. Abolishment and dissolution of district; notice;
hearing.
(a) General. -- Except upon the express written consent of the
council for community and economic development executive director
of the development office and of all the holders or obligees of any
indebtedness or other instruments the proceeds of which were
applied to any development or redevelopment expenditures or any indebtedness, the payment of which is secured by revenues payable
into the fund provided under section eight of this article or by
any public property, a district may only be abolished by the
municipality when there is no outstanding indebtedness the proceeds
of which were applied to any development or redevelopment
expenditures or the payment of which is secured by revenues payable
into the fund provided under section eight of this article, or by
any public property, and following a public hearing upon the
proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing
required by subsection (a) of this section shall be provided by
first-class mail to all owners of real property within the district
and shall be published as a Class I-0 legal advertisement in
compliance with article three, chapter fifty-nine of this code at
least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the
abolishment of any economic opportunity development district, any
funds or other assets, contractual rights or obligations, claims
against holders of indebtedness or other financial benefits,
liabilities or obligations existing after full payment has been
made on all existing contracts, bonds, notes or other obligations
of the district are transferred to and assumed by the municipality.
Any funds or other assets transferred shall be used for the benefit
of the area included in the district being abolished.
(d) Reinstatement of district. -- Following abolishment of a
district pursuant to this section, its reinstatement requires compliance with all requirements and procedures set forth in this
article for the initial development, approval, establishment and
creation of an economic opportunity development district.
CHAPTER 10. PUBLIC LIBRARIES; PUBLIC RECREATION; ATHLETIC
ESTABLISHMENTS; MONUMENTS AND MEMORIALS; ROSTER OF
SERVICEMEN; EDUCATIONAL BROADCASTING AUTHORITY.
ARTICLE 5. EDUCATIONAL BROADCASTING AUTHORITY.
§10-5-2. West Virginia educational broadcasting authority;
members; organization; officers; employees;
meetings; expenses.
The West Virginia educational broadcasting authority,
heretofore created, is hereby continued as a public benefit
corporation. It The authority
shall consist of eleven voting
members, who shall be residents of the state, of whom one shall be
including the governor or his or her designee,
the state
superintendent of schools, one shall be a member of the West
Virginia board of education to be selected by it annually and one
shall be a member of the university of West Virginia board of
trustees West Virginia higher education policy commission to be
selected by it annually. and one shall be a member of the board of
directors of the state college system to be selected by it annually
The other seven members shall be appointed by the governor by and
with the advice and consent of the Senate for overlapping terms of
seven years, one term expiring each year. except that the
appointment to fill the membership position for the term expiring in the year one thousand nine hundred eighty-three, shall be for a
term of six years Not less than one appointive member shall come
from each congressional district. Employees of noncommercial
broadcasting stations in West Virginia are not eligible for
appointment to the authority. The present members of the authority
shall continue to serve out the terms to which they were appointed
Any vacancy among the appointive members shall be filled by the
governor by appointment for the unexpired term.
The chairperson and vice chairperson of the authority as of
the effective date of this section shall continue in their
respective offices until their successors are elected. Thereafter,
at its annual meeting in each year the authority shall elect one of
its members as chairperson and one as vice chairperson. The
authority is authorized to select an executive director and such
other personnel as may be necessary to perform its duties and to
fix the compensation of such personnel to be paid out of moneys
appropriated for this purpose. The executive director shall keep
a record of the proceedings of the authority and shall perform such
other duties as it may prescribe
There shall also be an executive director of the authority
appointed by the governor, with the advice and consent of the
Senate, who shall serve at the governor's will and pleasure, who shall be responsible for managing and administering the daily
functions of the authority and for performing any and all other
functions necessary or helpful to the effective functioning of the
authority together with all other functions and powers as may be
delegated by the authority.
The authority is authorized to
establish such office or offices as may be necessary for the proper
performance of its duties.
The authority shall hold an annual meeting and may meet at
such other times and places as may be necessary, such meetings to
be held upon its own resolution or at the call of the chairperson
of the authority. The members shall serve without compensation but
may be reimbursed for actual expenses incident to the performance
of their duties upon presentation to the chairperson of an itemized
sworn statement thereof.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 7. JOBS INVESTMENT TRUST FUND.
§12-7-4. Jobs investment trust board; composition; appointment,
term of private members; chairman; quorum.
(a) The jobs investment trust board is continued. The board
is a public body corporate and established to improve and otherwise
promote economic development in this state.
(b) The board consists of thirteen members, five of whom serve
by virtue of their respective positions. These five are the
governor or his or her designee; the president of West Virginia
university or his or her designee; the president of Marshall
university or his or her designee; the chancellor of the higher education policy commission or his or her designee; and the
executive director of the West Virginia housing development fund.
and the executive director of the West Virginia development office
One member shall be appointed by the governor from a list of two
names submitted by the board of directors of the housing
development fund. One member shall be appointed by the governor
from a list of two names submitted by the commissioner of the
division of tourism. The other six members shall be appointed from
the general public by the governor. Of the members of the general
public appointed by the governor, one shall be an attorney with
experience in finance and investment matters, one shall be a
certified public accountant, one shall be a representative of
labor, one shall be experienced or involved in innovative business
development and two shall be present or past executive officers of
companies listed on a major stock exchange or large privately held
companies: Provided, That all appointments made pursuant to the
provisions of this article shall be by and with the advice and
consent of the Senate.
(c) A vacancy on the board shall be filled by appointment by
the governor for the unexpired term in the same manner as the
original appointment. Any person appointed to fill a vacancy
serves only for the unexpired term.
(d) The governor may remove any appointed member in case of
incompetency, neglect of duty, moral turpitude or malfeasance in
office and the governor may declare the office vacant and fill the
vacancy as provided in other cases of vacancy.
(e) The chairman of the board shall be elected by the board
from among the members of the board The governor or his or her
designee shall serve as the chairperson and the board shall
annually elect one of its public members as vice chairperson and
shall appoint a secretary, who need not be a member of the board
and who shall keep records of its proceedings.
(f) Seven members of the board is a quorum. No action may be
taken by the board except upon the affirmative vote of at least a
majority of those members present or participating by any other
means as described in subsection (g) of this section, but in no
event fewer than six of the members serving on the board.
(g) Members of the board may participate in a meeting of the
board by means of conference telephone or similar communication
equipment by means of which all persons participating in the
meeting can hear each other and participation in a board meeting
pursuant to this subsection constitutes presence in person at the
meeting.
(h) The members of the board, including the chairman, may
receive no compensation for their services as members of the board,
but are entitled to their reasonable and necessary expenses
actually incurred in discharging their duties under this article.
(i) The board shall meet on a quarterly basis or more often if
necessary.
(j) The governor shall appoint a member for a four-year term.
Any member whose term has expired serves until his or her successor
has been duly appointed and qualified. Any member is eligible for reappointment.
(k) Additionally, one member of the West Virginia House of
Delegates, to be appointed by the speaker of the House of
Delegates, and one member of the West Virginia Senate, to be
appointed by the president of the Senate, shall serve as advisory
members of the jobs investment trust board and, as advisory
members, shall be ex officio, nonvoting members.
§12-7-5. Management and control of jobs investment trust vested in
board; officers; liability; authority of executive
director to act on behalf of board; relationship to
higher education institutions.
(a) It is the duty of the board to manage and control the jobs
investment trust. In order to carry out the day-to-day management
and control of the trust and effectuate the purposes of this
article, the board shall appoint an executive director who is or
has been a senior executive of a major financial institution,
brokerage firm, investment firm or similar institution, with
extensive experience in capital market development. The board
shall fix the executive director's duties. The board shall fix the
compensation of the executive director and the compensation shall,
at least in part, be incentive based. The executive director
serves at the will and pleasure of the board There shall be an
executive director of the jobs investment trust appointed by the
governor, with the advice and consent of the Senate, who shall
serve at the governor's will and pleasure, who shall be responsible
for the managing and administering the daily functions of the jobs investment trust and for performing any and all other functions
necessary or helpful to the effective functioning of the jobs
investment trust, together with all other functions and powers as
may be delegated by the board. The compensation of the director
shall annually be fixed by the governor.
(b) The board shall elect a secretary annually, who need not
be a member of the board, to keep a record of the proceedings of
the board.
(c) The members and officers of the board are not liable
personally, either jointly or severally, for any debt or obligation
created by the board.
(d) The acts of the board are solely the acts of its
corporation and are not those of an agent of the state. No debt or
obligation of the board is a debt or obligation of the state.
(e) Upon the affirmative vote of at least a majority of those
members in attendance or participating by such other means as
described in subsection (g), section four of this article in a
meeting of the board, but in no event fewer than six of the members
serving on the board, the board may approve any action to be taken
and authorize the executive director for and on behalf of the board
to execute and deliver all instruments, agreements or other
documents that are required or are reasonably necessary to
effectuate the decisions or acts of the board.
(f) The West Virginia housing development fund shall provide
office space and staff support services for the director and the
board shall act as fiscal agent for the board and, as such, shall provide accounting services for the board, invest all funds as
directed by the board, service all investment activities of the
board and shall make the disbursements of all funds as directed by
the board, for which the West Virginia housing development fund
shall be reasonably compensated as determined by the board.
(g) The board and the executive director shall involve
students and faculty members of state institutions of higher
education in the board's activities in order to enhance the
opportunities at the institutions for learning and for
participation in the board's investment activities and in the
economic development of the state, whether in research, financial
analysis, management participation or in such other ways as the
board and the executive director may, in their discretion, find
appropriate.
CHAPTER 13. PUBLIC BONDED INDEBTEDNESS.
ARTICLE 2C. INDUSTRIAL DEVELOPMENT AND COMMERCIAL DEVELOPMENT
BOND ACT.
§13-2C-21. Ceiling on issuance of private activity bonds;
establishing procedure for allocation and
disbursements; reservation of funds; limitations;
unused allocation; expirations and carryovers.
(a) Private activity bonds (as defined in Section 141(a) of
the United States Internal Revenue Code of 1986, other than those
described in Section 146(g) of the Internal Revenue Code) issued
pursuant to this article, including bonds issued by the West Virginia public energy authority pursuant to subsection (11),
section five, article one, chapter five-d of this code or under
article eighteen, chapter thirty-one of this code, during any
calendar year may not exceed the ceiling established by Section
146(d) of the United States Internal Revenue Code. It is hereby
determined and declared as a matter of legislative finding: (i)
That, in an attempt to promote economic revitalization of
distressed urban and rural areas, certain special tax incentives
will be provided for empowerment zones and enterprise communities
to be designated from qualifying areas nominated by state and local
governments, all as set forth by Section 1391, et seq., of the
United States Internal Revenue Code; (ii) that qualified businesses
operating in enterprise communities and empowerment zones will be
eligible to finance property and provide other forms of financial
assistance as provided for in Section 1394 of the United States
Internal Revenue Code; and (iii) that it is in the best interest of
this state and its citizens to facilitate the acquisition,
construction and equipping of projects within designated
empowerment zones and enterprise communities by providing an
orderly mechanism for the commitment of the annual ceiling for
private activity bonds for these projects. It is hereby further
determined and declared as a matter of legislative finding: (i)
That the production of bituminous coal in this state has resulted
in coal waste which is stored in areas generally referred to as gob
piles; (ii) that gob piles are unsightly and have the potential to
pollute the environment in this state; (iii) that the utilization of the materials in gob piles to produce alternative forms of
energy needs to be encouraged; (iv) that Section 142(a)(6) of the
United States Internal Revenue Code of 1986 permits the financing
of solid waste disposal facilities through the issuance of private
activity bonds; and (v) that it is in the best interest of this
state and its citizens to facilitate the construction of facilities
for the generation of power through the utilization of coal waste
by providing an orderly mechanism for the commitment of the annual
ceiling for private activity bonds for these projects.
(b) On or before the first day of each calendar year, the
executive director of the development office shall determine the
state ceiling for the year based on the criteria of the United
States Internal Revenue Code. The annual ceiling shall be
allocated among the several issuers of bonds under this article or
under article eighteen, chapter thirty-one of this code as follows:
(1) For the calendar year two thousand one, fifty million
dollars and for each subsequent calendar year, forty percent of the
state ceiling for that year shall be allocated to the West Virginia
housing development fund for the purpose of issuing qualified
mortgage bonds, qualified mortgage certificates or bonds for
qualified residential rental projects;
(2) The amount remaining after the allocation to the West
Virginia housing development fund described in subdivision (1) of
this subsection shall be retained by the West Virginia development
office and shall be referred to in this section as the "state
allocation";
(3) Thirty-five percent of the state allocation shall be set
aside by the development office to be made available for lessees,
purchasers or owners of proposed projects, hereafter in this
section referred to as "nonexempt projects", which do not qualify
as exempt facilities as defined by United States Internal Revenue
Code. All reservations of private activity bonds for nonexempt
projects shall be approved and awarded by the committee based upon
an evaluation of general economic benefit and any rule that the
council for community and economic development office promulgates
pursuant to section three two, article two, chapter five-b of this
code: Provided, That all requests or reservations of funds from
projects described in this subsection are submitted to the
development office on or before the first day of November of each
calendar year: Provided, however, That on the fifteenth day of
November of each calendar year the uncommitted portion of this part
of the state allocation shall revert to and become part of the
state allocation portion described in subsection (g) of this
section; and
(4) Ten percent of the state allocation shall be made
available for lessees, purchasers or owners of proposed commercial
or industrial projects which qualify as exempt facilities under
Section 1394 of the United States Internal Revenue Code. All
reservations of private activity bonds for the projects shall be
approved and awarded by the committee based upon an evaluation of
general economic benefit and any rule that the council for
community and economic development office promulgates pursuant to section three two, article two, chapter five-b of this code:
Provided, That all requests for reservations of funds from projects
described in this subsection shall be submitted to the development
office on or before the first day of November of each calendar
year: Provided, however, That on the fifteenth day of November of
each calendar year the uncommitted portion of this part of the
state allocation shall revert to and become part of the state
allocation portion described in subsection (g) of this section.
(c) The remaining fifty-five percent of the state allocation
shall be made available for lessees, purchasers or owners of
proposed commercial or industrial projects which qualify as exempt
facilities as defined by Section 142(a) of the United States
Internal Revenue Code. All reservations of private activity bonds
for exempt facilities shall be approved and awarded by the
committee based upon an evaluation of general economic benefit and
any rule that the council for community and economic development
office promulgates pursuant to section three two, article two,
chapter five-b of this code: Provided, That no reservation may be
in an amount in excess of fifty percent of this portion of the
state allocation: Provided, however, That all requests for
reservations of funds from projects described in this subsection
shall be submitted to the development office on or before the first
day of November of each calendar year: Provided further, That on
the fifteenth day of November of each calendar year the uncommitted
portion of this part of the state allocation shall revert to and
become part of the state allocation portion described in subsection (g) of this section.
(d) No reservation may be made for any project until the
governmental body seeking the reservation submits a notice of
reservation of funds as provided in subsection (e) of this section.
The governmental body shall first adopt an inducement resolution
approving the prospective issuance of bonds and setting forth the
maximum amount of bonds to be issued. Each governmental body
seeking a reservation of funds following the adoption of the
inducement resolution shall submit a notice of inducement signed by
its clerk, secretary or recorder or other appropriate official to
the development office. The notice shall include information
required by the development office pursuant to any rule of the
council for community and economic development office.
Notwithstanding the foregoing, when a governmental body proposes to
issue bonds for the purpose of (i) Constructing, acquiring or
equipping a project described in subdivision (3) or (4), subsection
(b) of this section; or (ii) constructing an energy producing
project which relies, in whole or in part, upon coal waste as fuel,
to the extent the project qualifies as a solid waste facility under
Section 142(a)(6) of the United States Internal Revenue Code of
1986, the project may be awarded a reservation of funds from the
state allocation available for three years subsequent to the year
in which the notice of reservation of funds is submitted, at the
discretion of the executive director of the development office:
Provided, That no discretionary reservation may be made for any
single project described in this subsection in an amount in excess of thirty-five percent of the state allocation available for the
year subsequent to the year in which the request is made.
(e) Currently with or following the submission of its notice
of inducement, the governmental body at any time considered
expedient by it may submit its notice of reservation of funds which
shall include the following information:
(1) The date of the notice of reservation of funds;
(2) The identity of the governmental body issuing the bonds;
(3) The date of inducement and the prospective date of
issuance;
(4) The name of the entity for which the bonds are to be
issued;
(5) The amount of the bond issue or, if the amount of the bond
issue for which a reservation of funds has been made has been
increased, the amount of the increase;
(6) The type of issue; and
(7) A description of the project for which the bonds are to be
issued.
(f) The development office shall accept the notice of
reservation of funds no earlier than the first calendar workday of
the year for which a reservation of funds is sought: Provided,
That a notice of reservation of funds with respect to a project
described in subdivision (4), subsection (b) of this section or an
energy producing project that is eligible for a reservation of
funds for a year subsequent to the year in which the notice of
reservation of funds is submitted may contain an application for funds from a subsequent year's state allocation. Upon receipt of
the notice of reservation of funds, the development office shall
immediately note upon the face of the notice the date and time of
reception.
(g) If the bond issue for which a reservation has been made
has not been finally closed within one hundred twenty days of the
date of the reservation to be made by the committee, or the
thirty-first day of December following the date of reservation if
sooner and a statement of bond closure which has been executed by
the clerk, secretary, recorder or other appropriate official of the
governmental body reserving the bond issue has not been received by
the development office within that time, then the reservation shall
expire and be considered to have been forfeited and the funds
reserved shall be released and revert to the portion of the state
allocation from which the funds were originally reserved and shall
then be made available for other qualified issues in accordance
with this section and the Internal Revenue Code: Provided, That as
to any reservation for a nonexempt project or any reservation for
a project described in subdivision (4), subsection (b) of this
section that is forfeited on or after the first day of November in
any calendar year, the reservation shall revert to the state
allocation for allocation by the industrial revenue bond allocation
review committee: Provided, however, That as to any notice of
reservation of funds received by the development office during the
month of December in any calendar year with respect to any project
qualifying as an elective carry forward pursuant to Section 146(f)(5) of the Internal Revenue Code, the notice of reservation
of funds and the reservation to which the notice relates may not
expire or be subject to forfeiture: Provided further, That any
unused state ceiling as of the thirty-first day of December in any
year not otherwise subject to a carry forward pursuant to Section
146(f) of the Internal Revenue Code shall be allocated to the West
Virginia housing development fund which shall be considered to have
elected to carry forward the unused state ceiling for the purpose
of issuing qualified mortgage bonds, qualified mortgage credit
certificates or bonds for qualified residential rental projects,
each as defined in the Internal Revenue Code. All requests for
subsequent reservation of funds upon loss of a reservation pursuant
to this section shall be treated in the same manner as a new notice
of reservation of funds in accordance with subsections (d) and (e)
of this section.
(h) Once a reservation of funds has been made for a project
described in subdivision (4), subsection (b) of this section,
notwithstanding the language of subsection (g) of this section, the
reservation shall remain fully available with respect to the
project until the first day of October in the year from which the
reservation was made at which time, if the bond issue has not been
finally closed, the reservation shall expire and be considered
forfeited and the funds reserved are released as provided in said
subsection.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 24. WASTE TIRE REMEDIATION.
§17-24-4. Division of highways to administer funds for wastetire
remediation; rules authorized; duties of commissioner.
(a) The division of highways shall administer all funds made
available to the division for remediation of waste tire piles and
for the proper disposal of waste tires removed from waste tire
piles. The commissioner of the division of highways may: (i)
Propose for legislative promulgation in accordance with article
three, chapter twenty-nine-a of this code emergency and legislative
rules necessary to implement the provisions of this article; and
(ii) administer all funds appropriated by the Legislature to carry
out the requirements of this article and any other funds from
whatever source, including, but not limited to, federal, state or
private grants.
(b) The commissioner also has the following powers:
(1) To apply and carry out the provisions of this article and
the rules promulgated under this article.
(2) To investigate, from time to time, the operation and
effect of this article and of the rules promulgated under this
article and to report his or her findings and recommendations to
the Legislature and the governor.
(c) The provisions of articles two-a and four of this chapter
and the policy, rules, practices and procedures under those
articles shall be followed by the commissioner in carrying out the
purposes of this article.
(d) On or before the first day of June, two thousand one, the
commissioner shall determine the location, approximate size and potential risk to the public of all waste tire piles in the state
and establish, in descending order, a waste tire remediation list.
(e) The commissioner may contract with the department of
health and human resources or the division of corrections, or both,
to remediate or assist in remediation of waste tire piles
throughout the state. Use of available department of health and
human resources and the division of corrections work programs shall
be given priority status in the contract process so long as such
programs prove a cost-effective method of remediating waste tire
piles.
(f) Waste tire remediation shall be stopped and the division
of environmental protection notified upon the discovery of any
potentially hazardous material at a remediation site. The division
of environmental protection shall respond to the notification in
accordance with the provisions of article eighteen, chapter
twenty-two of this code.
(g) The commissioner may establish a tire disposal program
within the division to provide for a cost effective and efficient
method to accept passenger car and light truck waste tires at such
division of highways county headquarters as have sufficient space
for temporary storage of waste tires and personnel to accept and
handle waste tires. The commissioner may pay a fee for each tire
an individual West Virginia resident or West Virginia business
brings to the division. The commissioner may establish a limit on
the number of tires an individual or business may be paid for
during any calendar month. The commissioner may in his or her discretion authorize commercial businesses to participate in the
collection program: Provided, That no person or business who has
a waste tire pile subject to remediation under this article may
participate in this program.
(h) The commissioner may pledge not more than two and one-half
million dollars annually of the moneys appropriated, deposited or
accrued in the A. James Manchin fund created by section six of this
article, to the payment of debt service, including the funding of
reasonable reserves, on bonds issued by the water development
authority pursuant to section seventeen-a, article fifteen-a,
chapter thirty-one of this code to finance infrastructure projects
relating to waste tire processing facilities located in this state:
Provided, That a waste tire processing facility shall be determined
by the solid waste management board, established pursuant to the
provisions of article three, chapter twenty-two-c of this code, to
meet all applicable federal and state environmental laws and rules
and regulations and to aid the state in efforts to promote and
encourage recycling and use of constituent component parts of waste
tires in an environmentally sound manner: Provided, however, That
the waste tire processing facility shall have a capital cost of not
less than three hundred million dollars and the council for
community and economic West Virginia development office shall
determine that the waste tire processing facility is a viable
economic development project of benefit to the state's economy.
CHAPTER 18. EDUCATION.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-1. School building authority; powers.
(a)The school building authority shall consist of ten
persons nine members, including the governor or his or her
designee, of whom one shall be the state superintendent of schools,
ex officio; three shall be two members of the state board of
education, elected annually by the state board; and six shall be
citizens of the state five members representing the general public,
appointed by the governor, by and with the advice and consent of
the senate, who are knowledgeable in matters relevant to the issues
addressed by the authority, one of whom shall be representative of
the interests of the construction trades.
(b)The citizen appointments shall be made as soon as
possible after the effective date of this section, and no two
citizen appointees shall be residents within the same region. Two
of the initial appointments shall be for two-year terms, and two
shall be for four-year terms, with all successive appointments
being for four-year terms. Until such appointments take effect,
the state board as constituted under the provisions of section one,
article two of this chapter may act as the authority with such
power as was granted them under the prior enactment of this
section. On the thirty-first day of March, two thousand five, the
terms of all appointed members of the authority, appointed prior to
the amendment of this section during the first extraordinary
session of the seventy-seventh Legislature, shall expire. Not
later than the thirty-first day of March, two thousand five, the
governor shall appoint all public members provided for in subsection (a) of this section, to assume the duties of the office
immediately, pending the advice and consent of the Senate. One
member shall be appointed to serve a term of one year; one member
shall be appointed to serve a term of two years; one member shall
be appointed to serve a term of three years; one member shall be
appointed to serve a term of four years; and one member shall be
appointed to serve a term of five years.
The successor of each
such appointed public member shall be appointed for a term of five
years, except that any person appointed to fill a vacancy occurring
prior to the expiration of the term for which his predecessor was
appointed shall be appointed only for the remainder of such term.
Each board member shall serve until the appointment of his
successor. Not less than one public member shall come from each
congressional district.
(c) The governor may remove any appointed member in case of
incompetency, neglect of duty, moral turpitude or malfeasance in
office and the governor may declare the office vacant and fill the
vacancy as provided in other cases of vacancy.
(d)The school building authority shall meet at least
quarterly and the public members shall be reimbursed for reasonable
and necessary expenses actually incurred in the performance of
their official duties from funds appropriated or otherwise made
available for such purposes upon submission of an itemized
statement therefor. The state superintendent of schools shall
serve as president of the authority The governor or his or her
designee shall serve as the chairperson and the authority shall annually elect one of its public members as vice chairperson and
shall appoint a secretary, who need not be a member of the
authority who shall keep records of its proceedings.
There shall also be an executive director of the authority
appointed by the governor, with the advice and consent of the
Senate, who shall serve at the governor's will and pleasure, who
shall be responsible for managing and administering the daily
functions of the authority and for performing any and all other
functions necessary or helpful to the effective functioning of the
authority, together with all other functions and powers as may be
delegated by the authority. The compensation of the executive
director shall annually be fixed by the governor.
(e)The acts performed by the members of the state board of
education in their capacity as members of the school building
authority are solely the acts of the authority.
§18-9D-3. Powers of authority.
The school building authority has the power:
(1) To sue and be sued, plead and be impleaded;
(2) To have a seal and alter the same at pleasure;
(3) To contract to acquire and to acquire, in the name of the
authority, by purchase, lease-purchase not to exceed a term of
twenty-five years, or otherwise, real property or rights or
easements necessary or convenient for its corporate purposes and to
exercise the power of eminent domain to accomplish those purposes;
(4) To acquire, hold and dispose of real and personal property
for its corporate purposes;
(5) To make bylaws for the management and rule of its affairs;
(6) To appoint, contract with and employ attorneys, bond
counsel, accountants, construction and financial experts,
underwriters, financial advisers, trustees and managers officers
and such other employees and agents as may be necessary in the
judgment of the authority and to fix their compensation: Provided,
That contracts entered into by the school building authority in
connection with the issuance of bonds under this article to provide
professional and technical services, including, without limitation,
accounting, actuarial, underwriting, consulting, trustee, bond
counsel, legal services and contracts relating to the purchase or
sale of bonds are subject to the provisions of article three,
chapter five-a of this code: Provided, however, That
notwithstanding any other provisions of this code, any authority of
the attorney general of this state relating to the review of
contracts and other documents to effectuate the issuance of bonds
under this article shall be exclusively limited to the form of the
contract and document: Provided further, That the attorney general
of this state shall complete all reviews of contracts and documents
relating to the issuance of bonds under this article within ten
calendar days of receipt of the contract and document for review;
(7) To make contracts and to execute all instruments necessary
or convenient to effectuate the intent of and to exercise the
powers granted to it by this article;
(8) To renegotiate all contracts entered into by it whenever,
due to a change in situation, it appears to the authority that its interests will be best served;
(9) To acquire by purchase, eminent domain or otherwise all
real property or interests in the property necessary or convenient
to accomplish the purposes of this article;
(10) To require proper maintenance and insurance of any
project authorized under this section, including flood insurance
for any facility within the one hundred year flood plain at which
authority funds are expended;
(11) To charge rent for the use of all or any part of a
project or buildings at any time financed, constructed, acquired or
improved, in whole or in part, with the revenues of the authority;
(12) To assist any county board of education that chooses to
acquire land, buildings and capital improvements to existing school
buildings and property for use as public school facilities, by
lease from a private or public lessor for a term not to exceed
twenty-five years with an option to purchase pursuant to an
investment contract with the lessor on such terms and conditions as
may be determined to be in the best interests of the authority, the
state board of education and the county board of education,
consistent with the purposes of this article, by transferring funds
to the state board of education as provided in subsection (d),
section fifteen of this article for the use of the county board of
education;
(13) To accept and expend any gift, grant, contribution,
bequest or endowment of money and equipment to, or for the benefit
of, the authority or any project under this article, from the state of West Virginia or any other source for any or all of the purposes
specified in this article or for any one or more of such purposes
as may be specified in connection with the gift, grant,
contribution, bequest or endowment;
(14) To enter on any lands and premises for the purpose of
making surveys, soundings and examinations;
(15) To contract for architectural, engineering or other
professional services considered necessary or economical by the
authority to provide consultative or other services to the
authority or to any regional educational service agency or county
board requesting professional services offered by the authority, to
evaluate any facilities plan or any project encompassed in the
plan, to inspect existing facilities or any project that has
received or may receive funding from the authority or to perform
any other service considered by the authority to be necessary or
economical. Assistance to the region or district may include the
development of preapproved systems, plans, designs, models or
documents; advice or oversight on any plan or project; or any other
service that may be efficiently provided to regional educational
service agencies or county boards by the authority;
(16) To provide funds on an emergency basis to repair or
replace property damaged by fire, flood, wind, storm, earthquake or
other natural occurrence, the funds to be made available in
accordance with guidelines of the school building authority;
(17) To transfer moneys to custodial accounts maintained by
the school building authority with a state financial institution from the school construction fund and the school improvement fund
created in the state treasury pursuant to the provisions of section
six of this article, as necessary to the performance of any
contracts executed by the school building authority in accordance
with the provisions of this article;
(18) To enter into agreements with county boards and persons,
firms or corporations to facilitate the development of county board
projects and county board facilities plans. The county board
participating in an agreement shall pay at least twenty-five
percent of the cost of the agreement. Nothing in this section
shall be construed to supersede, limit or impair the authority of
county boards to develop and prepare their projects or plans;
(19) To encourage any project or part thereof to provide
opportunities for students to participate in supervised, unpaid
work-based learning experiences related to the student's program of
study approved by the county board. The work-based learning
experience must be conducted in accordance with a formal training
plan approved by the instructor, the employer and the student and
which sets forth at a minimum the specific skills to be learned,
the required documentation of work-based learning experiences, the
conditions of the placement, including duration and safety
provisions, and provisions for supervision and liability insurance
coverage as applicable. Projects involving the new construction
and renovation of vocational-technical and adult education
facilities should provide opportunities for students to participate
in supervised work-based learning experiences, to the extent practical, which meet the requirements of this subdivision.
Nothing in this subdivision may be construed to affect registered
youth apprenticeship programs or the provisions governing those
programs; and
(20) To do all things necessary or convenient to carry out the
powers given in this article.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 3D. WORKFORCE DEVELOPMENT INITIATIVE.
§18B-3D-1. Legislative findings and intent.
(a) The Legislature finds that a recent statewide study of the
workforce training needs of employers throughout the state provided
a clear message from the business community:
(1) The needs of employers are rapidly changing and training
providers must be more responsive or the state economy will suffer;
(2) Information specific to West Virginia, once again
emphasizes the critical link between education and economic
development that empowering youth and adults with the knowledge and
skills they need to succeed in the competitive work world also
results in a workforce which enables businesses and communities to
prosper;
(3) Although employers are generally satisfied with the
quality of the West Virginia workforce and the study provides
additional support that the measures adopted in the Jobs Through
Education Act will bring continued improvement, workforce needs are
not static, critical skill shortages currently exist and the
establishment of a workforce development system that responds more quickly to the evolving skill requirements of employers is needed.
(b) The Legislature further finds that a study of community
and technical education in West Virginia performed by the national
center for higher education management systems called attention to
problems in providing needed workforce education and found that
there is a need to:
(1) Jump-start development of community college and
postsecondary workforce development initiatives;
(2) Provide incentives for existing public postsecondary
providers to respond jointly to both short- and long-term needs of
employers and other clients;
(3) Provide funding for explicit incentives for partnerships
between employers and public postsecondary institutions to develop
comprehensive community college and workforce development services;
and
(4) Allocate funds competitively on the basis of proposals
submitted by providers.
(c) It is further the intent of the Legislature that the
granting of funds under this article will promote the development
of comprehensive community and technical colleges as set forth in
article three-c of this chapter.
(d) It is the intent of the Legislature through the grant of
funds under this article to provide limited seed money to address
some of the specific areas where improvement is needed, including:
(1) Improving employer awareness and access to services
available through the state's education institutions;
(2) Providing designated professionals and resources to
support workforce education through the state's education
institutions;
(3) Assisting with the modernization and procurement of
equipment needed for workforce training programs: Provided, That
any equipment purchased or upgraded with grant funds awarded under
the provisions of this article may not be sold, disposed of or used
for purposes other than those specified in the grant without prior
approval of the council development office;
(4) Increasing the capacity of the state's education
institutions to respond rapidly to employer needs for workforce
education and training on an on-going basis through the development
of a client-focused, visible point of contact for program
development and delivery, service referral and needs assessment,
such as a workforce development center; and
(5) Maximizing the use of available resources for workforce
education and training through partnerships with public vocational,
technical and adult education centers and private training
providers.
(e) It is further the intent of the Legislature that
consideration and partnering opportunities be given to small
businesses on an equal basis with larger businesses for the
purposes of this article and that the seed money will assist
providers in becoming self-sustaining through partnerships with
business and industry which will include cost-sharing initiatives
and fees charged for the use of services.
(f) The Legislature intends that grants of funds made under
the provisions of this article will be competitive among applicants
who meet all of the criteria established in this article and such
other criteria as may be specified by the council development
office. Subject to the availability of funds, more than one
competition may be held during the same fiscal year and the dollar
range of awards granted in successive competitions shall be
prorated based on the number of months remaining in the fiscal
year. Subject to annual review and justification, it is the intent
of the Legislature to renew grant awards made under this article
each year for not more than five years following the initial grant
award.
§18B-3D-2. Workforce development initiative program created;
program administration.
(a) For the purposes of this article, "Council Development
office" means the council for community and economic development as
defined in section two, West Virginia development office provided
in article two, chapter five-b of this code.
(b) There is hereby created under the council development
office, a workforce development initiative program to administer
and oversee grants to community and technical colleges to achieve
the purposes of this article in accordance with legislative intent.
The primary responsibility of the council development office as it
relates to the workforce development initiative program is to
administer the state fund for community and technical college and
workforce development including setting criteria for grant applications, receiving applications for grants, making
determinations on distribution of funds and evaluating the
performance of workforce development initiatives.
(c) The council executive director of the development office
shall review and approve the expenditure of all grant funds,
including development of application criteria, the review and
selection of applicants for funding, and the annual review and
justification of applicants for grant renewal.
(1) To aid in decisionmaking, the council executive director
of the development office shall appoint an advisory committee
consisting of the vice chancellor for community and technical
colleges, the secretary of education and the arts or a designee,
the assistant state superintendent for technical and adult
education, the chair of the council for community and technical
college education, and the chair of the West Virginia workforce
investment council. The advisory committee shall review all
applications for workforce development initiative grants and make
a report including recommendations for distributing grant funds to
the council executive director of the development office. The
advisory committee also shall make recommendations on methods to
share among the community and technical colleges any curricula
developed as a result of a workforce development initiative grant.
(2) When determining which grant proposals will be funded, the
council executive director of the development office shall give
special consideration to proposals by community and technical
colleges that involve businesses with fewer than fifty employees.
(3) The council executive director of the development office
also shall weigh each proposal to avoid awarding grants which will
have the ultimate effect of providing unfair advantage to employers
new to the state who will be in direct competition with established
local businesses.
(d) The council executive director of the development office
may allocate a reasonable amount, not to exceed five percent up to
a maximum of fifty thousand dollars of the funds available for
grants on an annual basis, for general program administration.
(e) The head of the council executive director of the
development office shall report to the legislative oversight
commission on workforce investment for economic development on the
status of the workforce development initiative program by the first
day of December, two thousand four five, and annually thereafter by
the first day of December.
(f) Moneys appropriated or otherwise available for the
workforce development initiative program shall be allocated by line
item to an appropriate account. Any moneys remaining in the fund
at the close of a fiscal year shall be carried forward for use in
the next fiscal year.
(g) Nothing in this article requires a specific level of
appropriation by the Legislature.
§18B-3D-3. Mission of the workforce development initiative
program.
(a) The statewide mission of the workforce development
initiative program is to develop a strategy to strengthen the quality of the state's workforce by linking the existing
postsecondary education capacity to the needs of business, industry
and other employers. Available funding will be used to provide
explicit incentives for partnerships between employers and
community and technical colleges to develop comprehensive workforce
development services. Funds will be granted on the basis of
proposals developed according to criteria established by the
council development office.
(b) The mission of any community and technical college
accepting a workforce development initiative grant is to:
(1) Become client-focused and develop programs that meet
documented employer needs;
(2) Involve and collaborate with employers in the development
of programs;
(3) Develop customized training programs that provide for the
changing needs of employers and that are offered at flexible times
and locations to accommodate employer scheduling;
(4) Develop partnerships with other public and private
providers, including small business development centers and,
vocational, technical and adult education centers, and with
business and labor, to fulfill the workforce development needs of
the service area;
(5) Establish cooperative arrangements with the public school
system for the seamless progression of students through programs of
study that begin at the secondary level and conclude at the
community and technical college level, particularly with respect to career and technical education certificates, associate of applied
science and selected associate of science degree programs for
students seeking immediate employment, individual entrepreneurship
skills, occupational development, skill enhancement and career
mobility.
(6) Assist in the on-going assessment of the workforce
development needs of the service area; and
(7) Serve as a visible point of contact and referral for
services to meet the workforce development needs of the service
area.
§18B-3D-4. Grant application procedures.
(a) In order to participate in the workforce development
initiative grant program, a community and technical college must
meet the following conditions:
(1) Establish a consortia committee as required by section
seven, article three-c of this chapter. The consortia committee or
a subcommittee thereof shall participate in the development of and
approve applications for funding grants under the provisions of
this article and shall approve the workforce development initiative
budget;
(2) Develop a plan to achieve measurable improvements in the
quality of the workforce within its service area over a five-year
period. The plan must be developed in partnership with employers,
local vocational schools, and other workforce education providers;
(3) Establish a special revolving fund under the jurisdiction
of the consortia committee dedicated solely to workforce development initiatives for the purposes provided in this article.
Any fees or revenues generated from workforce development
initiatives funded by a competitive grant shall be deposited into
this fund.
(b) To be eligible to receive a workforce development
initiative grant, a community and technical college must provide at
least the following information in its application:
(1) Identification of the specific business or business sector
training needs that will be met if a workforce development
initiative grant is received;
(2) A commitment from the private sector to provide a match of
one dollar, cash and in-kind, for each dollar of state grant money
received except in cases where the community and technical college
can demonstrate in the grant application that it would be a
hardship for the business being served to provide such a match. In
those cases only, the match required may be reduced to one private
dollar, cash and in-kind, for every three dollars of state grant
money provided. In the case of awards for the modernization of
procurement of equipment, the council development office may
establish a separate match requirement of up to one dollar, cash
and in-kind, for each dollar of state grant money received;
(3) An agreement to share with other community and technical
colleges any curricula developed using funds from a workforce
development initiative grant;
(4) A specific plan showing how the community and technical
college will collaborate with local postsecondary vocational institutions to maximize the use of existing facilities, personnel
and equipment;
(5) An acknowledgment that acceptance of a grant under the
provisions of this article commits the community and technical
college and its consortia committee to such terms, conditions and
deliverables as is specified by the council development office in
the request for applications, including, but not limited to, the
measures by which the performance of the workforce development
initiative will be evaluated.
(c) Applications submitted by community and technical colleges
may be awarded funds for programs which meet the requirements of
this article that are operated on a collaborative basis at
facilities under the jurisdiction of the public schools and
utilized by both secondary and post-secondary students.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,
COMMISSIONS AND COMPACTS.
ARTICLE 1. WATER DEVELOPMENT AUTHORITY.
§22C-1-4. Water development authority; water development board;
organization of authority and board; appointment of
board members; their term of office, compensation and
expenses; director of authority; compensation.
(a) The water development authority is continued. The
authority is a governmental instrumentality of the state and a body
corporate. The exercise by the authority of the powers conferred
by this article and the carrying out of its purposes and duties are essential governmental functions and for a public purpose.
(b) The authority is controlled, managed and operated by the
seven-member board known as the water development board. The
governor or his or her designee, the director of the division of
environmental protection, or his or her designee and the
commissioner of the bureau for public health and the state officer
or employee who, in the judgment of the governor, is most
responsible for economic or community development or his or her
designee are members ex officio of the board. The governor shall
designate annually the member who is the state officer or employee
most responsible for economic or community development. The other
four members of the board are appointed by the governor, by and
with the advice and consent of the Senate, for terms of two, three,
four and six years, respectively. The successor of each such
appointed member shall be appointed for a term of six years in the
same manner the original appointments were made, except that any
person appointed to fill a vacancy occurring prior to the
expiration of the term for which his or her predecessor was
appointed shall be appointed only for the remainder of such term.
Each board member serves until the appointment and qualification of
his or her successor. No more than two of the appointed board
members shall at any one time belong to the same political party.
Appointed board members may be reappointed to serve additional
terms.
(c) All members of the board shall be citizens of the state.
Each appointed member of the board, before entering upon his or her duties, shall comply with the requirements of article one, chapter
six of this code and give bond in the sum of twenty-five thousand
dollars in the manner provided in article two of said chapter. The
governor may remove any board member for cause as provided in
article six of said chapter.
(d) Annually
chair and another as vice chair and shall
appoint a secretary-treasurer, who need not be a member of the
board. Four members of the board is a quorum and the affirmative
vote of four members is necessary for any action taken by vote of
the board. No vacancy in the membership of the board impairs the
rights of a quorum by such vote to exercise all the rights and
perform all the duties of the board and the authority. The person
appointed as secretary-treasurer, including a board member if he or
she is appointed, shall give bond in the sum of fifty thousand
dollars in the manner provided in article two, chapter six of this
code.
(e) The governor or his or her designee, the secretary of the
division of environmental protection and the commissioner of the
bureau for public health and the state officer or employee most
responsible for economic or community development shall not receive
any compensation for serving as board members. Each of the four
appointed members of the board shall receive an annual salary of
twelve thousand dollars, payable in monthly installments. Each of
the seven board members shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of his or
her duties as a member of the board. All expenses incurred by the
board are payable solely from funds of the authority or from funds
appropriated for that purpose by the Legislature and no liability
or obligation shall be incurred by the authority beyond the extent
to which moneys are available from funds of the authority or from
such appropriations.
(f) There shall also be a director of the authority appointed
by the board governor, with the advice and consent of the Senate,
who shall serve at the governor's will and pleasure, who shall be
responsible for managing and administering the daily functions of
the authority and for performing any and all other functions
necessary or helpful to the effective functioning of the authority,
together with all other functions and powers as may be delegated by
the board. The compensation of the director shall annually be
fixed by the board governor.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18a. State excess lottery revenue fund.
(a) There is continued a special revenue fund within the state
lottery fund in the state treasury which is designated and known as
the "state excess lottery revenue fund". The fund consists of all
appropriations to the fund and all interest earned from investment
of the fund and any gifts, grants or contributions received by the
fund. All revenues received under the provisions of sections ten-b
and ten-c, article twenty-two-a of this chapter and under article twenty-two-b of this chapter, except the amounts due the commission
under section 29-22B-1408(a)(1) of this chapter, shall be deposited
in the state treasury and placed into the "state excess lottery
revenue fund". The revenue shall be disbursed in the manner
provided in this section for the purposes stated in this section
and shall not be treated by the auditor and the state treasurer as
part of the general revenue of the state.
(b) For the fiscal year beginning the first day of July, two
thousand two, the commission shall deposit: (1) Sixty-five million
dollars into the subaccount of the state excess lottery revenue
fund hereby created in the state treasury to be known as the
"general purpose account" to be expended pursuant to appropriation
of the Legislature; (2) ten million dollars into the education
improvement fund for appropriation by the Legislature to the
"promise scholarship fund" created in section seven, article seven,
chapter eighteen-c of this code; (3) nineteen million dollars into
the economic development project fund created in subsection (d) of
this section for the issuance of revenue bonds and to be spent in
accordance with the provisions of said subsection; (4) twenty
million dollars into the school building debt service fund created
in section six, article nine-d, chapter eighteen of this code for
the issuance of revenue bonds; (5) forty million dollars into the
West Virginia infrastructure fund created in section nine, article
fifteen-a, chapter thirty-one of this code to be spent in
accordance with the provisions of said article; (6) ten million
dollars into the higher education improvement fund for higher education; and (7) five million dollars into the state park
improvement fund for park improvements. For the fiscal year
beginning the first day of July, two thousand three, the commission
shall deposit: (1) Sixty-five million dollars into the general
purpose account to be expended pursuant to appropriation of the
Legislature; (2) seventeen million dollars into the education
improvement fund for appropriation by the Legislature to the
"promise scholarship fund" created in section seven, article seven,
chapter eighteen-c of this code; (3) nineteen million dollars into
the economic development project fund created in subsection (d) of
this section for the issuance of revenue bonds and to be spent in
accordance with the provisions of said subsection; (4) twenty
million dollars into the school building debt service fund created
in section six, article nine-d, chapter eighteen of this code for
the issuance of revenue bonds; (5) forty million dollars into the
West Virginia infrastructure fund created in section nine, article
fifteen-a, chapter thirty-one of this code to be spent in
accordance with the provisions of said article; (6) ten million
dollars into the higher education improvement fund for higher
education; and (7) five million dollars into the state park
improvement fund for park improvements.
(c) For the fiscal year beginning the first day of July, two
thousand four, and subsequent fiscal years, the commission shall
deposit: (1) Sixty-five million dollars into the general purpose
account to be expended pursuant to appropriation of the
Legislature; (2) twenty-seven million dollars into the education improvement fund for appropriation by the Legislature to the
"promise scholarship fund" created in section seven, article seven,
chapter eighteen-c of this code; (3) nineteen million dollars into
the economic development project fund created in subsection (d) of
this section for the issuance of revenue bonds and to be spent in
accordance with the provisions of said subsection; (4) nineteen
million dollars into the school building debt service fund created
in section six, article nine-d, chapter eighteen of this code for
the issuance of revenue bonds; (5) forty million dollars into the
West Virginia infrastructure fund created in section nine, article
fifteen-a, chapter thirty-one of this code to be spent in
accordance with the provisions of said article; (6) ten million
dollars into the higher education improvement fund for higher
education; and (7) five million dollars into the state park
improvement fund for park improvements. No portion of the
distributions made as provided in this subsection and subsection
(b) of this section, except distributions made in connection with
bonds issued under subsection (d) of this section, may be used to
pay debt service on bonded indebtedness until after the Legislature
expressly authorizes issuance of the bonds and payment of debt
service on the bonds through statutory enactment or the adoption of
a concurrent resolution by both houses of the Legislature. Until
subsequent legislative enactment or adoption of a resolution that
expressly authorizes issuance of the bonds and payment of debt
service on the bonds with funds distributed under this subsection
and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (d) of this section,
the distributions may be used only to fund capital improvements
that are not financed by bonds and only pursuant to appropriation
of the Legislature.
(d) The Legislature finds and declares that in order to
attract new business, commerce and industry to this state, to
retain existing business and industry providing the citizens of
this state with economic security and to advance the business
prosperity of this state and the economic welfare of the citizens
of this state, it is necessary to provide public financial support
for constructing, equipping, improving and maintaining economic
development projects, capital improvement projects and
infrastructure which promote economic development in this state.
(1) The West Virginia economic development authority created
and provided for in article fifteen, chapter thirty-one of this
code shall, by resolution, in accordance with the provisions of
this article and article fifteen, chapter thirty-one of this code,
and upon direction of the governor, issue revenue bonds of the
economic development authority in no more than two series to pay
for all or a portion of the cost of constructing, equipping,
improving or maintaining projects under this section or to refund
the bonds at the discretion of the authority. Any revenue bonds
issued on or after the first day of July, two thousand two, which
are secured by state excess lottery revenue proceeds shall mature
at a time or times not exceeding thirty years from their respective
dates. The principal of, and the interest and redemption premium, if any, on, the bonds shall be payable solely from the special fund
provided in this section for the payment.
(2) There is continued in the state treasury a special revenue
fund named the "economic development project fund" into which shall
be deposited on and after the first day of July, two thousand two,
the amounts to be deposited in said fund as specified in
subsections (b) and (c) of this section. The economic development
project fund shall consist of all such moneys, all appropriations
to the fund, all interest earned from investment of the fund and
any gifts, grants or contributions received by the fund. All
amounts deposited in the fund shall be pledged to the repayment of
the principal, interest and redemption premium, if any, on any
revenue bonds or refunding revenue bonds authorized by this
section, including any and all commercially customary and
reasonable costs and expenses which may be incurred in connection
with the issuance, refunding, redemption or defeasance thereof.
The West Virginia economic development authority may further
provide in the resolution and in the trust agreement for priorities
on the revenues paid into the economic development project fund as
may be necessary for the protection of the prior rights of the
holders of bonds issued at different times under the provisions of
this section. The bonds issued pursuant to this subsection shall
be separate from all other bonds which may be or have been issued
from time to time under the provisions of this article.
(3) After the West Virginia economic development authority has
issued bonds authorized by this section and after the requirements of all funds have been satisfied, including any coverage and
reserve funds established in connection with the bonds issued
pursuant to this subsection, any balance remaining in the economic
development project fund may be used for the redemption of any of
the outstanding bonds issued under this subsection which, by their
terms, are then redeemable or for the purchase of the outstanding
bonds at the market price, but not to exceed the price, if any, at
which redeemable, and all bonds redeemed or purchased shall be
immediately canceled and shall not again be issued.
(4) Bonds issued under this subsection shall state on their
face that the bonds do not constitute a debt of the state of West
Virginia; that payment of the bonds, interest and charges thereon
cannot become an obligation of the state of West Virginia; and that
the bondholders' remedies are limited in all respects to the
"special revenue fund" established in this subsection for the
liquidation of the bonds.
(5) The West Virginia economic development authority shall
expend the bond proceeds from the revenue bond issues authorized
and directed by this section for such projects as may be certified
under the provision of this subsection: Provided, That the bond
proceeds shall be expended in accordance with the requirements and
provisions of article five-a, chapter twenty-one of this code and
either article twenty-two or twenty-two-a, chapter five of this
code, as the case may be: Provided, however, That if such bond
proceeds are expended pursuant to article twenty-two-a, chapter
five of this code and if the design-build board created under said article determines that the execution of a design-build contract in
connection with a project is appropriate pursuant to the criteria
set forth in said article and that a competitive bidding process
was used in selecting the design builder and awarding such
contract, such determination shall be conclusive for all purposes
and shall be deemed to satisfy all the requirements of said
article.
(6) For the purpose of certifying the projects that will
receive funds from the bond proceeds, a committee is hereby
established and comprised of the governor, or his or her designee
the secretary of the department of tax and revenue, the executive
director of the West Virginia development office and six persons
appointed by the governor: Provided, That at least one citizen
member must be from each of the state's three congressional
districts. The committee shall meet as often as necessary and make
certifications from bond proceeds in accordance with this
subsection. The committee shall meet within thirty days of the
effective date of this section.
(7) Applications for grants submitted on or before the first
day of July, two thousand two, shall be considered refiled with the
committee. Within ten days from the effective date of this section
as amended in the year two thousand three, the lead applicant shall
file with the committee any amendments to the original application
that may be necessary to properly reflect changes in facts and
circumstances since the application was originally filed with the
committee.
(8) When determining whether or not to certify a project, the
committee shall take into consideration the following:
(A) The ability of the project to leverage other sources of
funding;
(B) Whether funding for the amount requested in the grant
application is or reasonably should be available from commercial
sources;
(C) The ability of the project to create or retain jobs,
considering the number of jobs, the type of jobs, whether benefits
are or will be paid, the type of benefits involved and the
compensation reasonably anticipated to be paid persons filling new
jobs or the compensation currently paid to persons whose jobs would
be retained;
(D) Whether the project will promote economic development in
the region and the type of economic development that will be
promoted;
(E) The type of capital investments to be made with bond
proceeds and the useful life of the capital investments; and
(F) Whether the project is in the best interest of the public.
(9) No grant may be awarded to an individual or other private
person or entity. Grants may be awarded only to an agency,
instrumentality or political subdivision of this state or to an
agency or instrumentality of a political subdivision of this state.
The project of an individual or private person or entity may be
certified to receive a low-interest loan paid from bond proceeds.
The terms and conditions of the loan, including, but not limited to, the rate of interest to be paid and the period of the
repayment, shall be determined by the economic development
authority after considering all applicable facts and circumstances.
(10) Prior to making each certification, the committee shall
conduct at least one public hearing, which may be held outside of
Kanawha County. Notice of the time, place, date and purpose of the
hearing shall be published in at least one newspaper in each of the
three congressional districts at least fourteen days prior to the
date of the public hearing.
(11) The committee may not certify a project unless the
committee finds that the project is in the public interest and the
grant will be used for a public purpose. For purposes of this
subsection, projects in the public interest and for a public
purpose include, but are not limited to:
(A) Sports arenas, fields parks, stadiums and other sports and
sports-related facilities;
(B) Health clinics and other health facilities;
(C) Traditional infrastructure, such as water and wastewater
treatment facilities, pumping facilities and transmission lines;
(D) State-of-the-art telecommunications infrastructure;
(E) Biotechnical incubators, development centers and
facilities;
(F) Industrial parks, including construction of roads, sewer,
water, lighting and other facilities;
(G) Improvements at state parks, such as construction,
expansion or extensive renovation of lodges, cabins, conference facilities and restaurants;
(H) Railroad bridges, switches and track extension or spurs on
public or private land necessary to retain existing businesses or
attract new businesses;
(I) Recreational facilities, such as amphitheaters, walking
and hiking trails, bike trails, picnic facilities, restrooms, boat
docking and fishing piers, basketball and tennis courts, and
baseball, football and soccer fields;
(J) State-owned buildings that are registered on the national
register of historic places;
(K) Retail facilities, including related service, parking and
transportation facilities, appropriate lighting, landscaping and
security systems to revitalize decaying downtown areas; and
(L) Other facilities that promote or enhance economic
development, educational opportunities or tourism opportunities
thereby promoting the general welfare of this state and its
residents.
(12) Prior to the issuance of bonds under this subsection, the
committee shall certify to the economic development authority a
list of those certified projects that will receive funds from the
proceeds of the bonds. Once certified, the list may not thereafter
be altered or amended other than by legislative enactment.
(13) If any proceeds from sale of bonds remain after paying
costs and making grants and loans as provided in this subsection,
the surplus may be deposited in an account created in the state
treasury to be known as the "economic development project bridge loan fund" to be administered by the council for community and
economic development economic development authority created in
section two, article two fifteen, chapter five-b thirty-one of this
code. Expenditures from the fund are not authorized from
collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions of article two, chapter five-a of
this code. Loan repayment amounts, including the portion
attributable to interest shall be paid into the fund created in
this subdivision.
(e) If the commission receives revenues in an amount that is
not sufficient to fully comply with the requirements of subsections
(b), (c) and (h) of this section, the commission shall first make
the distribution to the economic development project fund; second,
make the distribution or distributions to the other funds from
which debt service is to be paid; third, make the distribution to
the education improvement fund for appropriation by the Legislature
to the promise scholarship fund; and fourth, make the distribution
to the general purpose account: Provided, That, subject to the
provisions of this subsection, to the extent such revenues are not
pledged in support of revenue bonds which are or may be issued from
time to time under this section, the revenues shall be distributed
on a pro rata basis.
(f) For the fiscal year beginning on the first day of July,
two thousand two, and each fiscal year thereafter, the commission shall, after meeting the requirements of subsections (b), (c) and
(h) of this section and after transferring to the state lottery
fund created under section eighteen of this article an amount equal
to any transfer from the state lottery fund to the excess lottery
fund pursuant to subsection (f), section eighteen of this article,
deposit fifty percent of the amount by which annual gross revenue
deposited in the state excess lottery revenue fund exceeds two
hundred twenty-five million dollars in a fiscal year in a separate
account in the state lottery fund to be available for appropriation
by the Legislature.
(g) When bonds are issued for projects under subsection (d) of
this section or for the school building authority, infrastructure,
higher education or park improvement purposes described in this
section that are secured by profits from lotteries deposited in the
state excess lottery revenue fund, the lottery director shall
allocate first to the economic development project fund an amount
equal to one tenth of the projected annual principal, interest and
coverage requirements on any and all revenue bonds issued, or to be
issued, on or after the first day of July, two thousand two, as
certified to the lottery director; and second, to the fund or funds
from which debt service is paid on bonds issued under this section
for the school building authority, infrastructure, higher education
and park improvements an amount equal to one tenth of the projected
annual principal, interest and coverage requirements on any and all
revenue bonds issued, or to be issued, on or after the first day of
April, two thousand two, as certified to the lottery director. In the event there are insufficient funds available in any month to
transfer the amounts required pursuant to this subsection, the
deficiency shall be added to the amount transferred in the next
succeeding month in which revenues are available to transfer the
deficiency.
(h) In fiscal year two thousand four and thereafter, prior to
the distributions provided in subsection (c) of this section, the
lottery commission shall deposit into the general revenue fund
amounts necessary to provide reimbursement for the refundable
credit allowable under section twenty-one, article twenty-one,
chapter eleven of this code.
(i) (1) The Legislature considers the following as priorities
in the expenditure of any surplus revenue funds:
(A) Providing salary and/or increment increases for
professional educators and public employees;
(B) Providing adequate funding for the public employees
insurance agency; and
(C) Providing funding to help address the shortage of
qualified teachers and substitutes in areas of need, both in number
of teachers and in subject matter areas.
(2) The provisions of this subsection may not be construed by
any court to require any appropriation or any specific
appropriation or level of funding for the purposes set forth in
this subsection.
(j) The Legislature further directs the governor to focus
resources on the creation of a prescription drug program for senior citizens by pursuing a medicaid waiver to offer prescription drug
services to senior citizens; by investigating the establishment of
purchasing agreements with other entities to reduce costs; by
providing discount prices or rebate programs for seniors; by
coordinating programs offered by pharmaceutical manufacturers that
provide reduced cost or free drugs; by coordinating a collaborative
effort among all state agencies to ensure the most efficient and
cost effective program possible for the senior citizens of this
state; and by working closely with the state's congressional
delegation to ensure that a national program is implemented. The
Legislature further directs that the governor report his progress
back to the joint committee on government and finance on an annual
basis beginning in November of the year two thousand one until a
comprehensive program has been fully implemented.
CHAPTER 31. CORPORATIONS.
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-3. West Virginia infrastructure and jobs development
council continued; members of council; staff of
council.
(a) The West Virginia infrastructure and jobs development
council is hereby continued. The council is a governmental
instrumentality of the state. The exercise by the council of the
powers conferred by this article and the carrying out of its
purpose and duties shall be considered and held to be, and are
hereby determined to be, essential governmental functions and for a public purpose.
(b) The council shall consist of eleven members, including the
governor or his or her designee, the executive director of the
housing development fund or his or her designee, the director of
the division of environmental protection or his or her designee,
the director of the economic development authority or his or her
designee, the director of the water development authority or his or
her designee, the executive director of the state development
office or his or her designee, the director of the division of
health or his or her designee, the chairman of the public service
commission or his or her designee, and four members representing
the general public: Provided, That there shall be at least one
member representing the general public from each congressional
district: Provided, however, That after the expiration of the term
of office of the members first appointed as representatives of the
general public, no more than one member representing the general
public may be a resident of the same county. The governor shall
appoint the public members of the council who shall serve
three-year staggered terms. The commissioner of the division of
highways, the executive director of the state rail authority, two
members of the West Virginia Senate, two members of the West
Virginia House of Delegates, one representative of the board of
directors of the state college system and one representative of the
board of trustees of the university of West Virginia shall serve as
advisory members of the council. The governor shall appoint the
legislative members of the council: Provided further, That no more than three of the legislative members may be of the same political
party. The governor shall appoint the representatives of the
governing boards from a list of three names submitted by each
governing board. The advisory members shall be ex officio,
nonvoting members of the council.
(c) The council shall annually elect one of its members
governor or his or her designee shall serve as chairman, and the
council shall annually appoint a vice chairperson and shall appoint
a secretary, who need not be a member of the council and who shall
keep records of its proceedings. Six members of the council shall
constitute a quorum and the affirmative vote of at least the
majority of those members present shall be necessary for any action
taken by vote of the council. No vacancy in the membership of the
council impairs the rights of a quorum by such vote to exercise all
the rights and perform all the duties of the council.
(d) No member of the council who serves by virtue of his or
her office shall receive any compensation or reimbursement of
expenses for serving as a member. The members of the council who
represent the general public shall receive reimbursement for actual
expenses incurred in the service of the council.
(e) The council shall meet at least monthly to review projects
and infrastructure projects requesting funding assistance and
otherwise to conduct its business, and shall meet more frequently
if necessary. Notwithstanding any other provision of this article
to the contrary, the economic development authority shall not be
subject to council review with regard to any action taken pursuant to the authority established in article fifteen, chapter thirty-one
of this code nor shall the governor's civil contingent fund be
subject to council review with regard to projects or infrastructure
projects funded through the governor's civil contingent fund.
(f) The water development authority shall provide office space
for the council, and each governmental agency represented on the
council shall provide staff support for the council in the manner
determined by the council from time to time.
(g) The council shall invite to all its meetings one or more
representatives of the United States department of agriculture
rural economic community development, the United States economic
development agency and the United States army corps of engineers or
any successors thereto. The council shall also invite such other
appropriate parties as may be necessary to effectuate the purposes
of this article.
§31-15A-11. Reservation of funds for projects and infrastructure
projects.
Eighty percent of the funds deposited in the West Virginia
infrastructure fund shall be dedicated for the purpose of providing
funding for the cost of projects as defined in subsection (n),
section two of this article. Twenty percent of the funds deposited
in the West Virginia infrastructure fund shall be dedicated for the
purpose of providing funding for costs of infrastructure projects
as defined in subsection (l), section two of this article. Project
sponsors of infrastructure projects shall follow the application
process as established by this article: Provided, That notwithstanding any provision of this article to the contrary, all
applications for any infrastructure project shall be submitted to
the council for community and economic development, or its
successor, executive director of the West Virginia development
office for review, recommendation and approval regarding
infrastructure project funding.
ARTICLE 18. WEST VIRGINIA HOUSING DEVELOPMENT FUND.
§31-18-4. Composition; board of directors; appointment, term,
etc., of private members; chairman and vice chairman;
quorum.
(a) There is continued as a governmental instrumentality of
the state of West Virginia, a public body corporate to be known as
the West Virginia housing development fund.
(b) The housing development fund is created and established to
serve a public corporate purpose and to act for the public benefit
and as a governmental instrumentality of the state of West
Virginia, to act on behalf of the state and its people in improving
and otherwise promoting their health, welfare and prosperity.
(c) The housing development fund shall be governed by a board
of directors, consisting of eleven members, four of whom shall be
the governor, the attorney general, the commissioner of
agriculture, and the state treasurer, or their designated
representatives as public directors, and seven of whom shall be
chosen from the general public residing in the state, as private
directors. No more than four of the private directors shall be
from the same political party.
(d) Upon organization of the housing development fund, the
governor shall appoint, by and with the advice and consent of the
Senate, the seven private directors to take office and to exercise
all powers thereof immediately, with two each appointed for terms
of two years and three years, and with three each appointed for
terms of four years, respectively, as the governor shall designate;
at the expiration of said terms and for all succeeding terms, the
governor shall appoint a successor to the office of private
director for a term of four years in each case.
(e) In cases of any vacancy in the office of a private
director, such vacancy shall be filled by appointment by the
governor for the unexpired term.
(f) The governor may remove any private director whom he or
she may appoint in case of incompetency, neglect of duty, gross
immorality, or malfeasance in office; and he or she may declare his
or her office vacant and may appoint a person for such vacancy as
provided in other cases of vacancy.
(g) The governor or his or her designee shall serve as the
chairman and the board of directors shall annually elect one of its
public members as vice chairman, of the board of directors shall be
designated by the governor from among the directors and shall
appoint a secretary, who need not be a member of the board and who
shall keep records of its proceedings.
(h) Six members of the board of directors shall constitute a
quorum. No vacancy in the membership of the board shall impair the
right of a quorum to exercise all the rights and perform all the duties of the board of directors.
(i) No action shall be taken by the board of directors except
upon the affirmative vote of at least six of the directors.
(j) The directors, including the chairman, vice chairman and
the treasurer of the board of directors, and the secretary of the
board of directors, shall receive no compensation for their
services but shall be entitled to their reasonable and necessary
expenses actually incurred in discharging their duties under this
article.
§31-18-5. Management and control of housing development fund
vested in board; officers; liability.
(a) The management and control of the housing development fund
shall be vested solely in the board of directors in accordance with
the provisions of this article.
(b) The chairman shall be the chief executive officer of the
housing development fund and, in his or her absence, the vice
chairman shall act as chief executive officer.
(c) The board of directors may appoint a chief administrative
officer and may fix his title, duties and compensation. There
shall be an executive director of the housing development fund
appointed by the governor, with the advice and consent of the
Senate, who shall serve at the governor's will and pleasure, who
shall be responsible for managing and administering the daily
functions of the housing development fund and for performing any
and all other functions necessary or helpful to the effective
functioning of the housing development fund, together with all other functions and powers as may be delegated by the board of
directors. The compensation of the executive director shall
annually be fixed by the governor.
(d) The board of directors of the housing development fund
shall annually elect from its membership a treasurer and shall
annually elect a secretary, who need not be a member of the board,
to keep a record of the proceedings of the housing development
fund.
(e) The treasurer of the housing development fund shall be
custodian of all funds of the housing development fund and shall be
bonded in such amount as the other members of the board of
directors may designate.
(f) The directors and officers of the West Virginia housing
development fund shall not be liable personally, either jointly or
severally, for any debt or obligation created by the West Virginia
housing development fund.