Upon expiration of the recess, the Senate reconvened and
proceeded to the ninth order of business.
Eng. House Bill No. 2118, Adjusting the retirement benefits
for all members of the West Virginia state police retirement
system.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-12. Awards and benefits to dependents of member - When
member dies in performance of duty, etc.; dependent child
scholarship and amount.
The surviving spouse, the dependent child or children or
dependent parent or parents of any member who has lost or shall
lose loses his or her life by reason of injury, illness or disease
resulting from an occupational risk or hazard inherent in or
peculiar to the service required of members while the member was or
shall be is engaged in the performance of his or her duties as a
member of the division, or the survivor of a member who dies from
any cause after having been retired pursuant to the provisions of section nine of this article, shall be is entitled to receive and
shall be paid from the fund benefits as follows: To the surviving
spouse annually, in equal monthly installments during his or her
lifetime, one or the other of two amounts, which shall become
immediately available and which shall be the greater of:
(1) An amount equal to seven nine tenths of the base salary
received in the preceding twelve-month employment period by the
deceased member: Provided, That if the member had not been
employed with the division for twelve months prior to his or her
death, the amount of monthly salary shall be annualized for the
purpose of determining the benefit; or
(2) The sum of six ten thousand dollars.
In addition thereto, the surviving spouse shall be is entitled
to receive and there shall be paid to such that person one hundred
fifty dollars monthly for each dependent child or children. If the
surviving spouse dies or if there is no surviving spouse, there
shall be paid monthly to each dependent child or children from the
fund a sum equal to one fourth third of the surviving spouse's
entitlement. If there is no surviving spouse and no dependent
child or children, there shall be paid annually in equal monthly
installments from the fund to the dependent parents of the deceased
member during their joint lifetimes a sum equal to the amount which
a surviving spouse, without children, would have received: Provided, That when there is but one dependent parent surviving,
that parent is entitled to receive during his or her lifetime one
half the amount which both parents, if living, would have been
entitled to receive.
Any person qualifying as a surviving dependent child under
this section shall is, in addition to any other benefits due under
this or other sections of this article, be entitled to receive a
scholarship to be applied to the career development education of
that person. This sum, up to but not exceeding seven thousand five
hundred dollars, shall be paid from the fund to any university or
college in this state or to any trade or vocational school or other
entity in this state approved by the board to offset the expenses
of tuition, room and board, books, fees or other costs incurred in
a course of study at any of these institutions so long as the
recipient makes application to the board on an approved form and
under such any rules as the board may provide provides and
maintains scholastic eligibility as defined by the institution or
the board. The board may, by appropriate rules, define age
requirements, physical and mental requirements, scholastic
eligibility, disbursement methods, institutional qualifications and
other requirements as necessary and not inconsistent with this
section.
Awards and benefits for a surviving spouse or dependents of a member received under any section or any of the provisions of this
retirement system shall be in lieu of receipt of any benefits for
these persons under the provisions of any other state retirement
system. Receipt of benefits under any other state retirement
system shall be in lieu of any right to receive any benefits under
this retirement system so that only a single receipt of state
retirement benefits shall occur.
The bill (Eng. H. B. No. 2118), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
McCabe, McKenzie, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--31.
The nays were: None.
Absent: Love, Minard and Snyder--3.
Having been engrossed, the bill (Eng. H. B. No. 2118) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, McCabe,
McKenzie, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe,
Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--31.
The nays were: None.
Absent: Love, Minard and Snyder--3.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2118) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2003.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Love, Minard and Snyder--3.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2118) takes effect July 1, 2003.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2239, Requiring foreign
collection agencies to obtain a certificate of authority from the
secretary of state.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 31D. WEST VIRGINIA BUSINESS CORPORATION ACT.
ARTICLE 15. FOREIGN CORPORATIONS.
§31D-15-1501. Authority to transact business and jurisdiction over
foreign corporations.
(a) A foreign corporation may not transact business conduct
affairs in this state until it obtains a certificate of authority
from the secretary of state.
(b) The following activities, among others, do not constitute
conducting affairs within the meaning of subsection (a) of this
section:
(1) Maintaining, defending or settling any proceeding;
(2) Holding meetings of the board of directors or shareholders
or carrying on other activities concerning internal corporate
affairs;
(3) Maintaining bank accounts;
(4) Selling through independent contractors;
(5) Soliciting or obtaining orders, whether by mail or through
employees or agents or otherwise, if the orders require acceptance
outside this state before they become contracts;
(6) Creating or acquiring indebtedness, mortgages and security
interests in real or personal property;
(7) Securing or collecting debts or enforcing mortgages and
security interests in property securing the debts: Provided, That
this exemption does not include debts collected by collection
agencies as defined in subdivision (b), section two, article
sixteen, chapter forty-seven of this code;
(8) Owning, without more, real or personal property;
(9) Conducting an isolated transaction that is completed
within thirty days and that is not one in the course of repeated
transactions of a like nature;
(10) Conducting affairs in interstate commerce;
(11) Granting funds or other gifts;
(12) Distributing information to its shareholders or members;
(13) Effecting sales through independent contractors;
(14) The acquisition by purchase of lands secured by mortgage
or deeds;
(15) Physical inspection and appraisal of property in West Virginia as security for deeds of trust or mortgages and
negotiations for the purchase of loans secured by property in West
Virginia; and
(16) The management, rental, maintenance and sale or the
operating, maintaining, renting or otherwise dealing with selling
or disposing of property acquired under foreclosure sale or by
agreement in lieu of foreclosure sale.
(c) The list of activities in subsection (b) of this section
is not exhaustive.
(d) A foreign corporation is deemed to be transacting business
in this state if:
(1) The corporation makes a contract to be performed, in whole
or in part, by any party thereto in this state;
(2) The corporation commits a tort, in whole or in part, in
this state; or
(3) The corporation manufactures, sells, offers for sale or
supplies any product in a defective condition and that product
causes injury to any person or property within this state
notwithstanding the fact that the corporation had no agents,
servants or employees or contacts within this state at the time of
the injury.
(e) A foreign corporation's making of a contract, the
committing of a manufacture or sale, offer of sale or supply of defective product as described in subsection (d) of this section is
deemed to be the agreement of that foreign corporation that any
notice or process served upon, or accepted by, the secretary of
state in a proceeding against that foreign corporation arising
from, or growing out of, contract, tort or manufacture or sale,
offer of sale or supply of the defective product has the same legal
force and validity as process duly served on that corporation in
this state.
CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.
ARTICLE 14. FOREIGN CORPORATIONS.
§31E-14-1401. Authority to conduct affairs required.
(a) A foreign corporation may not conduct affairs in this
state until it obtains a certificate of authority from the
secretary of state.
(b) The following activities, among others, do not constitute
conducting affairs within the meaning of subsection (a) of this
section:
(1) Maintaining, defending, or settling any proceeding;
(2) Holding meetings of the board of directors or members or
carrying on other activities concerning internal corporate affairs;
(3) Maintaining bank accounts;
(4) Selling through independent contractors;
(5) Soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance
outside this state before they become contracts;
(6) Creating or acquiring indebtedness, mortgages, and
security interests in real or personal property: Provided, That
this exemption does not include debts collected by collection
agencies as defined in subdivision (b), section two, article
sixteen, chapter forty-seven of this code;
(7) Securing or collecting debts or enforcing mortgages and
security interests in property securing the debts;
(8) Owning, without more, real or personal property;
(9) Conducting an isolated transaction that is completed
within thirty days and that is not one in the course of repeated
transactions of a like nature;
(10) Conducting affairs in interstate commerce;
(11) Granting funds or other gifts;
(12) Distributing information to its shareholders or members;
(13) Effecting sales through independent contractors;
(14) The acquisition by purchase of lands secured by mortgage
or deeds;
(15) Physical inspection and appraisal of property in West
Virginia as security for deeds of trust or mortgages and
negotiations for the purchase of loans secured by property in West
Virginia; and
(16) The management, rental, maintenance and sale; or the
operating, maintaining, renting or otherwise, dealing with selling
or disposing of property acquired under foreclosure sale or by
agreement in lieu of foreclosure sale.
(c) The list of activities in subsection (b) of this section
is not exhaustive.
(d) A foreign corporation is to be deemed to be conducting
affairs in this state if:
(1) The corporation makes a contract to be performed, in whole
or in part, by any party thereto, in this state;
(2) The corporation commits a tort, in whole or in part, in
this state; or
(3) The corporation manufactures, sells, offers for sale or
supplies any product in a defective condition and that product
causes injury to any person or property within this state
notwithstanding the fact that the corporation had no agents,
servants or employees or contacts within this state at the time of
the injury.
(e) A foreign corporation's making of a contract, the
committing of a manufacture or sale, offer of sale or supply of
defective product as described in subsection (d) of this section is
deemed to be the agreement of that foreign corporation that any
notice or process served upon, or accepted by, the secretary of state in a proceeding against that foreign corporation arising
from, or growing out of, contract, tort or manufacture or sale,
offer of sale or supply of the defective product has the same legal
force and validity as process duly served on that corporation in
this state.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 16. COLLECTION AGENCIES.
§47-16-2. Definitions.
The following words and terms as used in this article shall be
construed as follows:
(a) "Claim" means any obligation for the payment of money due
or asserted to be due to another person, firm, corporation or
association.
(b) "Collection agency" means and includes all persons, firms,
corporations and associations: (1) Directly or indirectly engaged
in the business of soliciting from or collecting for others any
account, bill or indebtedness originally due or asserted to be owed
or due another and all persons, firms, corporations and
associations directly or indirectly engaged in asserting, enforcing
or prosecuting those claims; (2) which, in attempting to collect or
in collecting his, her or its own accounts or claims, uses a
fictitious name or names other than his, her or its own name; (3)
which attempts to or does give away or sell to others any system or series of letters or forms for use in the collection of accounts or
claims which assert or indicate directly or indirectly that the
claims or accounts are being asserted or collected by any person,
firm, corporation or association other than the creditor or owner
of the claim or account; or (4) directly or indirectly engaged in
the business of soliciting, or who holds himself or herself out as
engaged in the business of soliciting, debts of any kind owed or
due, or asserted to be owed or due, to any solicited person, firm,
corporation or association for fee, commission or other
compensation.
The term "collection agency" shall not mean or include: (1)
Regular employees of a single creditor or of a collection agency
licensed hereunder; (2) banks; (3) trust companies; (4) savings and
loan associations; (5) building and loan associations; (6)
industrial loan companies; (7) small loan companies; (8) abstract
companies doing an escrow business; (9) duly licensed real estate
brokers or agents when the claims or accounts being handled by such
broker or agent are related to or in connection with such brokers'
or agents' regular real estate business; (10) express and telegraph
companies subject to public regulation and supervision; (11)
attorneys-at-law handling claims and collections in their own names
and not operating a collection agency under the management of a
layman; or (12) any person, firm, corporation or association acting under the order of any court of competent jurisdiction; or (13) any
person collecting a debt owed to another person only where: (A)
Both persons are related by wholly owned, common ownership or
affiliated by wholly owned corporate control; (B) the person
collecting the debt acts only on behalf of persons related as
described in paragraph (A) of this subdivision; and (C) debt
collection is not the principal business of the person collecting
the debt.
(c) "Commissioner" means the state tax commissioner or his or
her agent.
(d) "Customer" means any person, firm, corporation or
association who has filed, assigned or sold any claim or chose in
action with or to a collection agency for collection.
(e) "Licensee" means any person holding a business franchise
registration certificate under section two, article twelve, chapter
eleven of this code and under the provisions of this article.
(f) "Trust account" means a special account established by a
collection agency with a banking institution in this state wherein
funds collected on behalf of a customer shall be deposited.
The bill (Eng. Com. Sub. for H. B. No. 2239), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Plymale, Prezioso, Ross, Rowe, Sharpe,
Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--31.
The nays were: Hunter and Oliverio--2.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2239) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Plymale, Prezioso, Ross, Rowe, Sharpe,
Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--31.
The nays were: Hunter and Oliverio--2.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2239) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2240, Allowing persons
purchasing or renewing hunting or fishing licenses to donate to the
"hunters helping the hungry program".
On second reading, coming up out of regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk and considered simultaneously:
On page nine, section thirty-four, after line forty-three, by
adding a new section, designated section forty-three, to read as
follows:
§20-2-43. Class E, Class EE, Class F, Class H and Class J licenses
for nonresidents.
The licenses in this section shall be are required of
nonresidents to hunt, trap or fish in West Virginia.
(1) A Class E license shall be is a nonresident hunting and
trapping license and shall entitle entitles the licensee to hunt or
trap all legal species of wild animals and wild birds in all
counties of the state except when other licenses or permits are
required. The fee therefor shall be for the license is one hundred
dollars.
(2) A Class EE license shall be is a nonresident bear hunting
license and shall entitle entitles the licensee to hunt bear in all counties of the state except when additional licenses or permits
are required. The fee therefor shall be for the license is one
hundred fifty dollars.
(3) A Class F license shall be is a nonresident fishing
license and shall entitle entitles the licensee to fish for all
fish in all counties of the state except when additional licenses
or permits are required. The fee therefor shall be for the license
is thirty dollars. Trout fishing is not permitted with a Class F
license unless such the license has affixed thereto to it an
appropriate trout stamp as prescribed by the division of natural
resources.
(4) A Class H license shall be is a nonresident small game
hunting license and shall entitle entitles the licensee to hunt
small game in all counties of the state, except when additional
licenses or permits are required, for a period of six days
beginning with the date it is issued.
The fee therefor shall be for the license is twenty dollars.
As used in this section, "small game" means all game except bear,
deer, and wild turkey and wild boar.
(5) A Class J license is a nonresident small game shooting
preserve license and entitles the licensee to hunt small game on
designated shooting preserves, except when additional licenses or
permits are required, for a period of six days beginning with the date it is issued. The fee for the license is ten dollars.;
And,
On page two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That sections thirty, thirty-three, thirty-four and forty-
three, article two, chapter twenty of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and
reenacted; and that said article be further amended by adding
thereto a new section, designated section thirty-three-a, all to
read as follows:.
On motion of Senator Helmick, the following amendment to the
Finance committee amendments to the bill (Eng. Com. Sub. for H. B.
No. 2240) was reported by the Clerk and adopted:
On page two, section forty-three, line thirteen, by striking
out the words "deer and wild turkey" and inserting in lieu thereof
the words "deer, wild turkey and wild boar".
The question now being on the adoption of the Finance
committee amendments, as amended, the same was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 2240), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2240) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2240) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2240--A Bill to amend and
reenact sections thirty, thirty-three, thirty-four and forty-three,
article two, chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further amend
said article by adding thereto a new section, designated section
thirty-three-a, all relating generally to hunting and fishing
license applications and fees; statement of eligibility for
license; false statement; electronic application for license to
apprise applicant of hunters helping the hungry program; voluntary
donations; creating subaccount designated "hunters helping the
hungry fund"; authorized expenditures; establishing a Class J
license for small game preserves; and technical amendments.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2363, Authorizing the tax commissioner to
suspend a business registration certificate if any business
neglects to pay real property taxes thirty days after the
delinquent tax list is published.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 11. TAXATION.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-5. Time for which registration certificate granted; power
of tax commissioner to suspend or cancel certificate; refusal
to renew.
(a) Registration period. -- All business registration
certificates issued under the provisions of section four of this
article shall be are for the period of one year beginning the first
day of July and ending the thirtieth day of the following June:
Provided, That beginning on or after the first day of July, one
thousand nine hundred ninety-nine, all business registration
certificates issued under the provisions of section four of this
article shall be issued for two fiscal years of this state, subject
to the following transition rule. If the first year for which a
business was issued a business registration certificate under this
article began on the first day of July of an even-numbered calendar
year, then the tax commissioner may issue a renewal certificate to
that business for the period beginning the first day of July, one
thousand nine hundred ninety-nine, and ending the thirtieth day of June, two thousand, upon receipt of fifteen dollars for each such
one-year certificate. Thereafter, only certificates covering two
fiscal years of this state shall be issued.
(b) Revocation or suspension of certificate. --
(1) The tax commissioner may cancel or suspend a business
registration certificate at any time during a registration period
if:
(A) The registrant filed an application for a business
registration certificate, or an application for renewal thereof,
for the registration period that was false or fraudulent.
(B) The registrant willfully refused or neglected to file a
tax return or to report information required by the tax
commissioner for any tax imposed by or pursuant to this chapter.
(C) The registrant willfully refused or neglected to pay any
tax, additions to tax, penalties or interest, or any part thereof,
when they became due and payable under this chapter, determined
with regard to any authorized extension of time for payment.
(D) The registrant neglected to pay over to the tax
commissioner on or before its due date, determined with regard to
any authorized extension of time for payment, any tax imposed by
this chapter which the registrant collects from any person and
holds in trust for this state.
(E) The registrant abused the privilege afforded to it by article fifteen or fifteen-a of this chapter to be exempt from
payment of the taxes imposed by such articles on some or all of the
registrant's purchases for use in business upon issuing to the
vendor a properly executed exemption certificate, by failing to
timely pay use tax on taxable purchase for use in business, or by
failing to either pay the tax or give a properly executed exemption
certificate to the vendor.
(F) The registrant has failed to pay in full delinquent
personal property taxes owing.
(2) Before canceling or suspending any such business
registration certificate, the tax commissioner shall give written
notice of his or her intent to suspend or cancel the business
registration certificate of the taxpayer, the reason for the
suspension or cancellation, the effective date of the cancellation
or suspension and the date, time and place where the taxpayer may
appear and show cause why such business registration certificate
should not be canceled or suspended. This written notice shall be
served on the taxpayer in the same manner as a notice of assessment
is served under article ten of this chapter, not less than twenty
days prior to the date of such the show cause informal hearing.
The taxpayer may appeal cancellation or suspension of its business
registration certificate in the same manner as a notice of
assessment is appealed under article ten ten-a of this chapter: Provided, That the filing of a petition for appeal shall does not
stay the effective date of the suspension or cancellation. A stay
may be granted only after a hearing is held on a motion to stay
filed by the registrant, upon finding that state revenues will not
be jeopardized by the granting of the stay. The tax commissioner
may, in his or her discretion and upon such terms as he or she may
specify, agree to stay the effective date of the cancellation or
suspension until another date certain.
(3) On or before the first day of August, two thousand three,
the tax commissioner shall propose for promulgation legislative
rules through which ancillary procedures may be provided, pursuant
to authorization by the Legislature, to streamline the tax
commissioner's suspension of business registration certificates for
failure to pay delinquent personal property taxes pursuant to
paragraph (F), subdivision (1), subsection (b) of this section. If
the rules proposed for promulgation are authorized by the
Legislature and include requirements that county sheriffs provide
the tax commissioner or the registrant with information or notice,
then those requirements shall have the same force and effect as if
set forth herein. No provision of this subdivision may be
construed to restrict in any manner the authority of the tax
commissioner to suspend such certificates for failure to pay
delinquent personal property taxes under paragraph (C) or (F), subdivision (1), subsection (b) of this section or under any other
provision of this code prior to the authorization of the rules.
(c) Refusal to renew. -- The tax commissioner may refuse to
issue or renew a business registration certificate if the
registrant is delinquent in the payment of any tax administered by
the tax commissioner under article ten of this chapter or the
corporate license tax imposed by article twelve-c of this chapter,
until the registrant pays in full all such the delinquent taxes
including interest and applicable additions to tax and penalties.
In his or her discretion and upon such terms as he or she may
specify, the tax commissioner may enter into an installment payment
agreement with such the taxpayer in lieu of the complete payment.
Failure of the taxpayer to fully comply with the terms of the
installment payment agreement shall render the amount remaining due
thereunder immediately due and payable and the tax commissioner may
suspend or cancel the business registration certificate in the
manner hereinbefore provided in this section.
(d) Refusal to renew due to delinquent personal property tax.
-- The tax commissioner shall refuse to issue or renew a business
registration certificate when informed in writing, signed by the
county sheriff, that personal property owned by the applicant and
used in conjunction with the business activity of the applicant is
subject to delinquent property taxes: Provided, That the tax commissioner may prescribe alternative means for electronic
transmission and handling of the notice from county sheriffs that
personal property owned by the applicant and used in conjunction
with the business activity of the applicant is subject to
delinquent property taxes. The tax commissioner shall forthwith
notify the applicant that the commissioner will not act upon the
application until information is provided evidencing that the taxes
due are either exonerated or paid.
_____(e) Fees for suspension or revocation of the business
registration certificate. -- The county shall pay to the tax
commissioner a cost reimbursement fee in the amount of twenty-five
dollars for each taxpayer applicant for which notice is sent by the
county sheriff, that personal property owned by the taxpayer
applicant and used in conjunction with the business activity of the
taxpayer applicant is subject to delinquent property taxes under
subsection (d) of this section. The county shall pay to the tax
commissioner a cost reimbursement fee in the amount of twenty-five
dollars for each suspension of a business registration certificate
for failure to pay delinquent personal property taxes where such
suspension is issued by the tax commissioner at the request of a
county sheriff or other county official pursuant to under paragraph
(C) or (F), subdivision (1) of this section. The fee shall be added
by the sheriff to the delinquent taxpayer's tax payable as a penalty.
CHAPTER 11A. COLLECTION AND ENFORCEMENT OF PROPERTY TAXES.
ARTICLE 2. DELINQUENCY AND METHODS OF ENFORCING PAYMENT.
§11A-2-11. Delinquent lists; oath.
The sheriff, after ascertaining which of the taxes assessed in
his or her county are delinquent, shall, on or before the first day
of May next succeeding the year for which the taxes were assessed,
prepare the following delinquent lists, arranged by districts and
alphabetically by name of the person charged, and showing in
respect to each the amount of taxes remaining delinquent on April
thirtieth: (1) A list of property in the landbook improperly
entered or not ascertainable; (2) a list of other delinquent real
estate; and (3) a list of all other delinquent taxes: Provided,
That the list shall conclude with a notice, substantially as
follows: "Any person holding a West Virginia business registration
certificate under the authority of article twelve, chapter eleven
of this code who does not pay all delinquent personal property
taxes may have his or her license to do business in this state
suspended until the delinquency is cured."
The sheriff on returning each list shall, at the foot thereof,
subscribe an oath, which shall be subscribed before and certified
by some person duly authorized to administer oaths, in from form or
effect as follows:
I, _________, sheriff (or deputy sheriff or collector) of the
County of __________, do swear that the foregoing list is, to the
best of my knowledge and belief, complete and accurate, and that I
have received none of the taxes listed therein.
Except for the oath, the tax commissioner state auditor shall
prescribe the form of the delinquent lists.
The following amendment to the Judiciary committee amendment
to the bill, from the Committee on Finance, was reported by the
Clerk and adopted:
On page six, section five, by striking out all of subsection
(e) and inserting in lieu thereof a new subsection (e), to read as
follows:
(e) Fund created, fees for suspension, cancellation,
nonrenewal or nonissuance of business registration certificate,
fund deposits and expenditures. --
_____(1) Local tax compliance account. -- There is hereby
established in the state treasury a special revenue revolving
account to be known as the "Local Tax Compliance Account". The
local tax compliance account shall be a revolving fund. Deposits
and appropriations made to the account shall not be deemed to have
expired at the end of any fiscal period. Expenditures from the
account shall be used for general tax administration by the tax
division of the department of tax and revenue and for operation of the tax division.
_____(2) Fees, penalty, information exchange. -
_____(A) The county shall pay to the tax commissioner a fee in the
amount of fifteen percent of all amounts of delinquent property
tax, interest, additions to tax and penalties (other than the
penalty imposed under this subsection) collected from each taxpayer
for which the tax commissioner has suspended or canceled the
business registration certificate by reason of a property tax
delinquency, pursuant to a request of the sheriff or other county
official. The fee shall be calculated based on the amount of tax,
interest, additions to tax and penalties collected by the county
from the taxpayer out of the total liability for tax, interest,
additions to tax and penalties that was due and owing at the time
the business registration certificate suspension or cancellation
was issued by the tax commissioner.
_____(B) The county shall pay to the tax commissioner a fee in the
amount of fifteen percent of all amounts of delinquent property
tax, interest, additions to tax and penalties (other than the
penalty imposed under this subsection) collected from each taxpayer
for which the tax commissioner has refused to issue or renew the
business registration certificate pursuant to notice sent by the
county sheriff of a property tax delinquency under subsection (d)
of this section. The fee shall be calculated based on the amount of tax, interest, additions to tax and penalties collected by the
county from the taxpayer out of the total liability for tax,
interest, additions to tax and penalties that was due and owing at
the time the refusal to issue or renew the business registration
certificate was asserted by the tax commissioner.
_____(C) The amount of the fifteen percent fee imposed under this
subsection shall be added by the sheriff to the delinquent
taxpayer's tax payable as an additional penalty, and shall be
payable to the county in the same manner as property tax due.
_____(D) Notwithstanding the provisions of section five-d, article
ten of this chapter, and notwithstanding any other provision of
this code to the contrary, the tax commissioner and county
employees and officials are hereby authorized to exchange such tax
information as may be necessary to efficiently administer a
property tax compliance program for suspension, revocation,
nonrenewal or nonissuance or business registration certificates of
taxpayers having property tax delinquencies pursuant to this
section.
_____(3) Deposits, expenditures. -
_____(A) All fees established in this subsection shall be remitted
by the county to the tax commissioner not later than thirty days
after collection or partial collection of the tax, interest,
additions to tax and penalties, or any part or component thereof, on which the fee is based.
_____(B) All fees established by this subsection and received by
the tax commissioner shall be deposited by the tax commissioner
into the local tax compliance account created in this section. The
tax commissioner is authorized to use moneys in the local tax
compliance account for operation of the tax division and for
general tax administration.
The question now being on the adoption of the Judiciary
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. H. B. No. 2363), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. H. B. No. 2363) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2363) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2414, Relating to
thoroughbred breeders association.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That sections ten, thirteen and thirteen-b, article twenty-
three, chapter nineteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted, all
to read as follows:
ARTICLE 23. HORSE AND DOG RACING.
Part Vii. Taxation of Horse and Dog Racing and Pari-mutuel Wagering;
Disposition of Revenues.
§19-23-10. Daily license tax; pari-mutuel pools tax; how taxes
paid; alternate tax; credits.
(a) Any racing association conducting thoroughbred racing at
any horse racetrack in this state shall pay each day upon which
horse races are run a daily license tax of two hundred fifty
dollars. Any racing association conducting harness racing at any
horse racetrack in this state shall pay each day upon which horse
races are run a daily license tax of one hundred fifty dollars.
Any racing association conducting dog races shall pay each day upon
which dog races are run a daily license tax of one hundred fifty
dollars. In the event thoroughbred racing, harness racing, dog
racing, or any combination of the foregoing are conducted on the
same day at the same racetrack by the same racing association, only
one daily license tax in the amount of two hundred fifty dollars
shall be paid for that day. Any daily license tax shall not apply
to any local, county or state fair, horse show or agricultural or livestock exposition at which horse racing is conducted for not
more than six days.
(b) Any racing association licensed by the racing commission
to conduct thoroughbred racing and permitting and conducting pari-
mutuel wagering under the provisions of this article shall, in
addition to the daily license tax set forth in subsection (a) of
this section, pay to the racing commission, from the commission
deducted each day by the licensee from the pari-mutuel pools on
thoroughbred racing a tax calculated on the total daily
contribution of all pari-mutuel pools conducted or made at any and
every thoroughbred race meeting of the licensee licensed under the
provisions of this article. The tax, on the pari-mutuel pools
conducted or made each day during the months of January, February,
March, October, November and December, shall from the effective
date of this section and for fiscal year one thousand nine hundred
eighty-five be calculated at two and six-tenths percent; for fiscal
year one thousand nine hundred eighty-six, be calculated at two and
three-tenths percent; for fiscal year one thousand nine hundred
eighty-seven, be calculated at two percent of the pool; for fiscal
year one thousand nine hundred eighty-eight, be calculated at one
and one-half percent; for fiscal year one thousand nine hundred
eighty-nine, be calculated at one percent of the pool; for fiscal
year one thousand nine hundred ninety, seven tenths of one percent, and for fiscal year one thousand nine hundred ninety-one and each
fiscal year thereafter be calculated at four tenths of one percent
of the pool; and, on the pari-mutuel pools conducted or made each
day during all other months, shall from the effective date of this
section and for fiscal year one thousand nine hundred eighty-five,
be calculated at three and six-tenths percent; for fiscal year one
thousand nine hundred eighty-six, be calculated at three and three-
tenths percent; for fiscal year one thousand nine hundred eighty-
seven, be calculated at three percent of the pool; for fiscal year
one thousand nine hundred eighty-eight, be calculated at two and
one-half percent; for fiscal year one thousand nine hundred eighty-
nine, be calculated at two percent of the pool; for fiscal year one
thousand nine hundred ninety, be calculated at one and seven-tenths
percent of the pool; and for fiscal year one thousand nine hundred
ninety-one and each fiscal year thereafter, be calculated at one
and four-tenths percent of the pool: Provided, That out of the
amount realized from the three tenths of one percent decrease in
the tax effective for fiscal year one thousand nine hundred ninety-
one and thereafter, which decrease correspondingly increases the
amount of commission retained by the licensee, the licensee shall
annually expend or dedicate: (i) One half of the realized amount
for capital improvements in its barn area at the track, subject to
the racing commission's prior approval of the plans for the improvements; and (ii) the remaining one half of the realized
amount for capital improvements as the licensee may determine
appropriate at the track. The term "capital improvement" shall be
as defined by the internal revenue code: Provided, however, That
any racing association operating a horse racetrack in this state
having an average daily pari-mutuel pool on horse racing of two
hundred eighty thousand dollars or less per day for the race
meetings of the preceding calendar year shall, in lieu of payment
of the pari-mutuel pool tax, calculated as in this subsection, be
permitted to conduct pari-mutuel wagering at the horse racetrack on
the basis of a daily pari-mutuel pool tax fixed as follows: On the
daily pari-mutuel pool not exceeding three hundred thousand dollars
the daily pari-mutuel pool tax shall be one thousand dollars plus
the otherwise applicable percentage rate imposed by this subsection
of the daily pari-mutuel pool, if any, in excess of three hundred
thousand dollars: Provided further, That upon the effective date
of the reduction of the daily pari-mutuel pool tax to one thousand
dollars from the former two thousand dollars, the association or
licensee shall daily deposit five hundred dollars into the special
fund for regular purses established by subdivision (1), subsection
(b), section nine of this article: And provided further, That if
an association or licensee qualifying for the foregoing alternate
tax conducts more than one racing performance, each consisting of up to ten thirteen races in a calendar day, the association or
licensee shall pay both the daily license tax imposed in subsection
(a) of this section and the alternate tax in this subsection for
each performance: And provided further, That a licensee qualifying
for the foregoing alternate tax is excluded from participation in
the fund established by section thirteen-b of this article: And
provided further, That this exclusion shall not apply to any
thoroughbred racetrack at which the licensee has participated in
the West Virginia thoroughbred development fund for more than four
consecutive years prior to the thirty-first day of December, one
thousand nine hundred ninety-two.
(c) Any racing association licensed by the racing commission
to conduct harness racing and permitting and conducting pari-mutuel
wagering under the provisions of this article shall, in addition to
the daily license tax required under subsection (a) of this
section, pay to the racing commission, from the commission deducted
each day by the licensee from the pari-mutuel pools on harness
racing, as a tax, three percent of the first one hundred thousand
dollars wagered, or any part thereof; four percent of the next one
hundred fifty thousand dollars; and five and three-fourths percent
of all over that amount wagered each day in all pari-mutuel pools
conducted or made at any and every harness race meeting of the
licensee licensed under the provisions of this article.
(d) Any racing association licensed by the racing commission
to conduct dog racing and permitting and conducting pari-mutuel
wagering under the provisions of this article shall, in addition to
the daily license tax required under subsection (a) of this
section, pay to the racing commission, from the commission deducted
each day by the licensee from the pari-mutuel pools on dog racing,
as a tax, four percent of the first fifty thousand dollars or any
part thereof of the pari-mutuel pools, five percent of the next
fifty thousand dollars of the pari-mutuel pools, six percent of the
next one hundred thousand dollars of the pari-mutuel pools, seven
percent of the next one hundred fifty thousand dollars of the pari-
mutuel pools, and eight percent of all over three hundred fifty
thousand dollars wagered each day: Provided, That the licensee
shall deduct daily from the pari-mutuel tax an amount equal to one
tenth of one percent of the daily pari-mutuel pools in dog racing
in fiscal year one thousand nine hundred ninety; fifteen hundredths
of one percent in fiscal year one thousand nine hundred ninety-one;
two tenths of one percent in fiscal year one thousand nine hundred
ninety-two; one quarter of one percent in fiscal year one thousand
nine hundred ninety-three; and three tenths of one percent in
fiscal year one thousand nine hundred ninety-four and every fiscal
year thereafter. The amounts deducted shall be paid to the racing
commission to be deposited by the racing commission in a banking institution of its choice in a special account to be known as "West
Virginia Racing Commission-Special Account-West Virginia Greyhound
Breeding Development Fund". The purpose of the fund is to promote
better breeding and racing of greyhounds in the state through
awards and purses to bona fide resident owners of accredited West
Virginia whelped greyhounds. In order to be eligible to receive an
award or purse through the fund, the owner of the accredited West
Virginia whelped greyhound must be a bona fide resident of this
state. To qualify as a bona fide resident of West Virginia, an
owner may not claim residency in any other state. An owner must
prove bona fide residency by providing to the commission personal
income tax returns filed in the state of West Virginia for the most
recent tax year and the three previous tax years, has real or
personal property in this state on which the owner has paid real or
personal property taxes during the most recent tax year and the
previous three tax years and an affidavit stating that the owner
claims no other state of residency. The racing commission and the
West Virginia greyhound owners and breeders association shall
maintain a registry for West Virginia bred greyhounds. The moneys
shall be expended by the racing commission for purses for stake
races, supplemental purse awards, administration, promotion and
educational programs involving West Virginia whelped dogs, owned by
residents of this state under rules and regulations promulgated by the racing commission. The racing commission shall pay out of the
greyhound breeding development fund to each of the licensed dog
racing tracks the sum of seventy-five thousand dollars for the
fiscal year ending the thirtieth day of June, one thousand nine
hundred ninety-four. The licensee shall deposit the sum into the
special fund for regular purses established under the provisions of
section nine of this article. The funds shall be expended solely
for the purpose of supplementing regular purses under rules and
regulations promulgated by the racing commission.
Supplemental purse awards will be distributed as follows:
Supplemental purses shall be paid directly to the owner of an
accredited greyhound or, if the greyhound is leased, the owner may
choose to designate a percentage of the purse earned directly to
the lessor as agreed to via a written purse distribution form on
file with the racing commission.
The owner of accredited West Virginia whelped greyhounds that
earn a purse at any West Virginia meet will receive a bonus award
calculated at the end of each month as a percentage of the fund
dedicated to the owners as purse supplements, which shall be a
minimum of fifty percent of the total moneys deposited into the
West Virginia greyhound breeding development fund monthly:
Provided, That to be considered an accredited West Virginia whelped
greyhound, a dog must be domiciled in the state of West Virginia at least twelve months from the whelping date.
The total amount of the fund available for the owners' awards
shall be distributed according to the ratio of purses earned by an
accredited greyhound to the total amount earned in races by all
accredited West Virginia whelped greyhounds for that month as a
percentage of the funds dedicated to the owners' purse supplements.
The owner of an accredited West Virginia whelped greyhound
shall file a purse distribution form with the racing commission for
a percentage of his or her dog's earnings to be paid directly to
the lessor registered owner or owners of the greyhound.
Distribution shall be made on the fifteenth day of each month for
the preceding month's achievements.
In no event shall purses earned at a meet held at a track
which did not make contributions to the West Virginia greyhound
breeder's development fund out of the daily pool on the day the
meet was held qualify or count toward eligibility for supplemental
purse awards.
Any balance in the purse supplement funds after all
distributions have been made for the year revert to the general
account of the fund for distribution in the following year.
In an effort to further promote the breeding of quality West
Virginia whelped greyhounds, a bonus purse supplement shall be
established in the amount of fifty thousand dollars per annum, to be paid in equal quarterly installments of twelve thousand five
hundred dollars per quarter using the same method to calculate and
distribute these funds as the regular supplemental purse awards.
This bonus purse supplement is for three years only, commencing on
the first day of July, one thousand nine hundred ninety-three, and
ending the thirtieth day of June, one thousand nine hundred
ninety-six. This money would come from the current existing
balance in the greyhound development fund.
Each pari-mutuel greyhound track shall provide stakes races
for accredited West Virginia whelped greyhounds: Provided, That
each pari-mutuel track shall have one juvenile and one open stake
race annually. The racing commission shall oversee and approve
racing schedules and purse amounts.
Ten percent of the deposits into the greyhound breeding
development fund beginning the first day of July, one thousand nine
hundred ninety-three and continuing each year thereafter, shall be
withheld by the racing commission and placed in a special revenue
account hereby created in the state treasury called the
"administration, promotion and educational account". The racing
commission is authorized to expend the moneys deposited in the
administration, promotion and educational account at such times and
in such amounts as the commission determines to be necessary for
purposes of administering and promoting the greyhound development program: Provided, That beginning with fiscal year one thousand
nine hundred ninety-five and in each fiscal year thereafter in
which the commission anticipates spending any money from the
account, the commission shall submit to the executive department
during the budget preparation period prior to the Legislature
convening before that fiscal year for inclusion in the executive
budget document and budget bill, the recommended expenditures, as
well as requests of appropriations for the purpose of
administration, promotion and education. The commission shall make
an annual report to the Legislature on the status of the
administration, promotion and education account, including the
previous year's expenditures and projected expenditures for the
next year.
The racing commission, for the fiscal year one thousand nine
hundred ninety-four only, may expend up to thirty-five thousand
dollars from the West Virginia greyhound breeding development fund
to accomplish the purposes of this section without strictly
following the requirements in the previous paragraph.
(e) All daily license and pari-mutuel pools tax payments
required under the provisions of this section shall be made to the
racing commission or its agent after the last race of each day of
each horse or dog race meeting, and the pari-mutuel pools tax
payments shall be made from all contributions to all pari-mutuel pools to each and every race of the day.
(f) Every association or licensee subject to the provisions of
this article, including the changed provisions of sections nine and
ten of this article, shall annually submit to the racing commission
and the Legislature financial statements, including a balance
sheet, income statement, statement of change in financial position
and an audit of any electronic data system used for pari-mutuel
tickets and betting, prepared in accordance with generally accepted
auditing standards, as certified by an experienced public
accountant or a certified public accountant.
§19-23-13. Disposition of funds for payment of outstanding and
unredeemed pari-mutuel tickets; publication of notice;
irredeemable tickets; stake races for dog tracks.
(a) All moneys held by any licensee for the payment of
outstanding and unredeemed pari-mutuel tickets, if not claimed
within ninety days after the close of a horse or dog race meeting
or the televised racing day, as the case may be, in connection with
which the tickets were issued, shall be turned over by the licensee
to the racing commission within fifteen days after the expiration
of the ninety-day period, and the licensee shall give any
information required by the racing commission concerning the
outstanding and unredeemed tickets. The moneys shall be deposited
by the racing commission in a banking institution of its choice in a special account to be known as "West Virginia Racing Commission
Special Account - Unredeemed Pari-Mutuel Tickets." Notice of the
amount, date and place of each deposit shall be given by the racing
commission, in writing, to the state treasurer. The racing
commission shall then cause to be published a notice to the holders
of the outstanding and unredeemed pari-mutuel tickets, notifying
them to present their unredeemed tickets for payment at the
principal office of the racing commission within ninety days from
the date of the publication of the notice. The notice shall be
published within fifteen days following the receipt of the
outstanding and unredeemed pari-mutuel ticket moneys by the
commission from the licensee as a Class I legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code, and the publication area for the publication shall be
the county in which the horse or dog race meeting was held and the
county in which the televised racing day wagering was conducted in
this state.
(b) Any outstanding and unredeemed pari-mutuel tickets that
are not presented for payment within ninety days from the date of
the publication of the notice are thereafter irredeemable, and the
moneys theretofore held for the redemption of the pari-mutuel
tickets shall become the property of the racing commission and
shall be expended as provided in this subsection. The racing commission shall maintain separate accounts for each licensee and
shall record in each separate account the moneys turned over by the
licensee and the amount expended at the licensee's track for the
purposes set forth in this subsection. The moneys in the West
Virginia racing commission special account - unredeemed pari-mutuel
tickets shall be expended as follows:
(1) To the owner of the winning horse in any horse race at a
horse race meeting held or conducted by any licensee: Provided,
That the owner of the horse is at the time of the horse race a bona
fide resident of this state, a sum equal to ten percent of the
purse won by the horse at that race. The commission may require
proof that the owner was, at the time of the race, a bona fide
resident of this state. Upon proof by the owner that he or she
filed a personal income tax return in this state for the previous
two years and that he or she owned real or personal property in
this state and paid taxes in this state on real or personal
property for the previous two years, he or she shall be presumed to
be a bona fide resident of this state; and
(2) To the breeder (that is, the owner of the mare) of the
winning horse in any horse race at a horse race meeting held or
conducted by any licensee: Provided, That the mare foaled in this
state, a sum equal to ten percent of the purse won by the horse;
and
(3) To the owner of the stallion which sired the winning horse
in any horse race at a horse race meeting held or conducted by any
licensee: Provided, That the mare which foaled the winning horse
was served by a stallion standing and registered in this state, a
sum equal to ten percent of the purse won by the horse; and
(4) To those horse racing licensees not participating in the
thoroughbred development fund authorized in section thirteen-b of
this article, the unexpended balance of the licensee's account not
expended as provided in subdivisions (1), (2) and (3) of this
subsection: Provided, That all moneys distributed under this
subdivision shall be expended solely for capital improvements at
the licensee's track: Provided, however, That the capital
improvements must be approved, in writing, by the West Virginia
racing commission before funds are expended by the licensee for
that capital improvement; and
(5) When the moneys in the special account, known as the West
Virginia racing commission special account - unredeemed pari-mutuel
tickets will more than satisfy the requirements of subdivisions
(1), (2), (3) and (4) of this subsection, the West Virginia racing
commission shall have the authority to expend the excess moneys
from unredeemed horse racing pari-mutuel tickets as purse money in
any race conditioned exclusively for West Virginia bred or sired
horses, and to expend the excess moneys from unredeemed dog racing pari-mutuel tickets in supplementing purses and establishing stake
races and dog racing handicaps at the dog tracks: Provided, That
subject to the availability of funds, the commission shall, after
the requirements of subdivisions (1), (2), (3) and (4) of this
subsection have been satisfied:
(A) Transfer annually two hundred thousand dollars to the West
Virginia racing commission special account - West Virginia
greyhound breeding development fund; and
(B) Transfer annually two hundred thousand dollars into a
separate account to be used for stakes races for West Virginia bred
greyhounds at dog racetracks.; and
(C) Transfer annually two hundred thousand dollars to a trust
maintained and administered by the organization which is recognized
by the West Virginia racing commission, pursuant to a legislative
rule proposed for promulgation by the commission and authorized by
the Legislature, as the representative of the majority of the
active jockeys in West Virginia, for the purpose of providing
health and disability benefits to eligible active or disabled West
Virginia jockeys and their dependents in accordance with
eligibility criteria established by said organization. For
purposes of this section in determining health benefits, an
eligible active jockey is one who rides at least one hundred mounts
per calendar year of which fifty-one must be in the state of West Virginia: Provided, That a jockey is not eligible for health
benefits if he or she receives health benefits from any other
state; and
(D) After all payments to satisfy the requirements of (A), (B)
and (C) of this proviso have been satisfied, the commission shall
have authority to transfer one hundred fifty thousand dollars left
from all uncashed pari-mutuel tickets to the trust maintained and
administered by the organization which is recognized by the West
Virginia racing commission, pursuant to legislative rule proposed
for promulgation by the commission and authorized by the
Legislature as the representative of the majority of the active
jockeys in West Virginia.
(c) The commission shall submit to the legislative auditor a
quarterly report and accounting of the income, expenditures and
unobligated balance in the special account created by this section
known as the West Virginia racing commission special account -
unredeemed pari-mutuel tickets.
(d) Nothing contained in this article shall prohibit one
person from qualifying for all or more than one of the aforesaid
awards or for awards under section thirteen-b of this article.
(e) The cost of publication of the notice provided for in this
section shall be paid from the funds in the hands of the state
treasurer collected from the pari-mutuel pools' tax provided for in section ten of this article, when not otherwise provided in the
budget; but no such costs shall be paid unless an itemized account
thereof, under oath, be first filed with the state auditor.
§19-23-13b. West Virginia thoroughbred development fund;
distribution; restricted races; nonrestricted purse
supplements; preference for West Virginia accredited
thoroughbreds.
(a) The racing commission shall deposit moneys required to be
withheld by an association or licensee in subsection (b), section
nine of this article in a banking institution of its choice in a
special account to be known as "West Virginia racing commission
special account -- West Virginia thoroughbred development fund".
Notice of the amount, date and place of the deposit shall be given
by the racing commission, in writing, to the state treasurer. The
purpose of the fund is to promote better breeding and racing of
thoroughbred horses in the state through awards and purses for
accredited breeders/raisers, sire owners and thoroughbred race
horse owners. A further objective of the fund is to aid in the
rejuvenation and development of the present horse tracks now
operating in West Virginia for capital improvements, operations or
increased purses: Provided, That five percent of the deposits
required to be withheld by an association or licensee in subsection
(b), section nine of this article shall be placed in a special revenue account hereby created in the state treasury called the
"administration and promotion account".
(b) The racing commission is authorized to expend the moneys
deposited in the administration and promotion account at times and
in amounts as the commission determines to be necessary for
purposes of administering and promoting the thoroughbred
development program: Provided, That during any fiscal year in
which the commission anticipates spending any money from the
account, the commission shall submit to the executive department
during the budget preparation period prior to the Legislature
convening before that fiscal year for inclusion in the executive
budget document and budget bill the recommended expenditures, as
well as requests of appropriations for the purpose of
administration and promotion of the program. The commission shall
make an annual report to the Legislature on the status of the
administration and promotion account, including the previous year's
expenditures and projected expenditures for the next year.
(c) The fund and the account established in subsection (a) of
this section shall operate on an annual basis.
(d) Funds in the thoroughbred development fund shall be
expended for awards and purses except as otherwise provided in this
section. Annually, the first three hundred thousand dollars of the
fund shall be available for distribution for stakes races. One of the stakes races shall be the West Virginia futurity and the second
shall be the Frank Gall memorial stakes. The remaining races may
be chosen by the committee set forth in subsection (g) of this
section.
(e) Awards and purses shall be distributed as follows:
(1) The breeders/raisers of accredited thoroughbred horses
that earn a purse at any West Virginia meet shall receive a bonus
award calculated at the end of the year as a percentage of the fund
dedicated to the breeders/raisers, which shall be sixty percent of
the fund available for distribution in any one year. The total
amount available for the breeders'/raisers' awards shall be
distributed according to the ratio of purses earned by an
accredited race horse to the total amount earned in the races by
all accredited race horses for that year as a percentage of the
fund dedicated to the breeders/raisers. However, no breeder/raiser
may receive from the fund dedicated to breeders'/raisers' awards an
amount in excess of the earnings of the accredited horse at West
Virginia meets. In addition, should a horse's breeder and raiser
qualify for the same award on the same horse, they will each be
awarded one half of the proceeds. The bonus referred to in this
subdivision may only be paid on the first one hundred thousand
dollars of any purse and not on any amounts in excess of the first
one hundred thousand dollars.
(2) The owner of a West Virginia sire of an accredited
thoroughbred horse that earns a purse in any race at a West
Virginia meet shall receive a bonus award calculated at the end of
the year as a percentage of the fund dedicated to sire owners,
which shall be fifteen percent of the fund available for
distribution in any one year. The total amount available for the
sire owners' awards shall be distributed according to the ratio of
purses earned by the progeny of accredited West Virginia stallions
in the races for a particular stallion to the total purses earned
by the progeny of all accredited West Virginia stallions in the
races. However, no sire owner may receive from the fund dedicated
to sire owners an amount in excess of thirty-five percent of the
accredited earnings for each sire. The bonus referred to in this
subdivision shall only be paid on the first one hundred thousand
dollars of any purse and not on any amounts in excess of the first
one hundred thousand dollars.
(3) The owner of an accredited thoroughbred horse that earns
a purse in any race at a West Virginia meet shall receive a
restricted purse supplement award calculated at the end of the
year, which shall be twenty-five percent of the fund available for
distribution in any one year, based on the ratio of the earnings in
the races of a particular race horse to the total amount earned by
all accredited race horses in the races during that year as a percentage of the fund dedicated to purse supplements. However,
the owners may not receive from the fund dedicated to purse
supplements an amount in excess of thirty-five percent of the total
accredited earnings for each accredited race horse. The bonus
referred to in this subdivision shall only be paid on the first one
hundred thousand dollars of any purse and not on any amounts in
excess of the first one hundred thousand dollars.
(4) In no event may purses earned at a meet held at a track
which did not make a contribution to the thoroughbred development
fund out of the daily pool on the day the meet was held qualify or
count toward eligibility for an award under this subsection.
(5) Any balance in the breeders/raisers, sire owners and purse
supplement funds after yearly distributions shall first be used to
fund the races established in subsection (g) of this section. Any
amount not so used shall revert back into the general account of
the thoroughbred development fund for distribution in the next
year.
Distribution shall be made on the fifteenth day of each
February for the preceding year's achievements.
(f) The remainder, if any, of the thoroughbred development
fund that is not available for distribution in the program provided
for in subsection (e) of this section in any one year is reserved
for regular purses, marketing expenses and for capital improvements in the amounts and under the conditions provided in this
subsection.
(1) Fifty percent of the remainder shall be reserved for
payments into the regular purse fund established in subsection (b),
section nine of this article.
(2) Up to five hundred thousand dollars per year shall be
available for:
(A) Capital improvements at the eligible licensed horse racing
tracks in the state; and
(B) Marketing and advertising programs above and beyond two
hundred fifty thousand dollars for the eligible licensed horse
racing tracks in the state: Provided, That moneys shall be
expended for capital improvements or marketing and advertising
purposes as described in this subsection only in accordance with a
plan filed with and receiving the prior approval of the racing
commission, and on a basis of fifty-percent participation by the
licensee and fifty-percent participation by moneys from the fund,
in the total cost of approved projects: Provided, however, That
funds approved for one track may not be used at another track
unless the first track ceases to operate or is viewed by the
commission as unworthy of additional investment due to financial or
ethical reasons.
(g) (1) Each pari-mutuel thoroughbred horse track shall provide at least one restricted race per two racing days.:
Provided, That, if there are sufficient additional funds available
under the provisions of subdivision (4) of this subsection, each
pari-mutuel thoroughbred horse track may provide one restricted
race per race day.
(2) The restricted races established in this subsection shall
be administered by a three-member committee consisting of:
(A) The racing secretary;
(B) A member appointed by the authorized representative of a
majority of the owners and trainers at the thoroughbred track; and
(C) A member appointed by a majority of the thoroughbred
breeders.
(3) The purses for the restricted races established in this
subsection shall be twenty percent larger than the purses for
similar type races at each track.
(4) Restricted races shall be funded by each racing
association from:
(A) Moneys placed in the general purse fund up to a maximum of
three hundred fifty thousand dollars per year.
(B) Moneys as provided in subdivision (5), subsection (e) of
this section, which shall be placed in a special fund called the
"West Virginia accredited race fund".
(5) The racing schedules, purse amounts and types of races are subject to the approval of the West Virginia racing commission.
(h) As used in this section, "West Virginia-bredfoal" means a
horse that was born in the state of West Virginia.
(i) To qualify for the West Virginia accredited race fund, the
breeder must qualify under one of the following:
(1) The breeder of the West Virginia-bred foal is a West
Virginia resident;
(2) The breeder of the West Virginia-bred foal is not a West
Virginia resident, but keeps his or her breeding stock in West
Virginia year round; or
(3) The breeder of the West Virginia-bred foal is not a West
Virginia resident and does not qualify under subdivision (2) of
this subsection, but either the sire of the West Virginia-bred foal
is a West Virginia stallion, or the mare is covered that year
exclusively by a West Virginia stallion following the birth of that
West Virginia-bred foal.
(j) No association or licensee qualifying for the alternate
tax provision of subsection (b), section ten of this article is
eligible for participation in any of the provisions of this
section: Provided, That the provisions of this subsection do not
apply to a thoroughbred race track at which the licensee has
participated in the West Virginia thoroughbred development fund for
a period of more than four consecutive calendar years prior to the thirty-first day of December, one thousand nine hundred ninety-two.
(k) From the first day of July, two thousand one, West
Virginia accredited thoroughbred horses have preference for entry
in all accredited races at a thoroughbred race track at which the
licensee has participated in the West Virginia thoroughbred
development fund for a period of more than four consecutive
calendar years prior to the thirty-first day of December, one
thousand nine hundred ninety-two.
The bill (Eng. Com. Sub. for H. B. No 2414), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Sprouse, Unger, White and Tomblin (Mr. President)--30.
The nays were: Harrison, Smith and Weeks--3.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2414) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Plymale, Prezioso, Ross, Sharpe, Sprouse, Unger, White and
Tomblin (Mr. President)--27.
The nays were: Guills, Harrison, Oliverio, Rowe, Smith and
Weeks--6.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2414) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2414--A Bill to amend and
reenact sections ten, thirteen and thirteen-b, article
twenty-three, chapter nineteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating to horse
and dog racing generally; increasing from ten to thirteen the
number of racing performances during a calendar day by an
association or licensee before the payment of both the daily
license tax and the alternative tax imposed by section ten of said
article; creating bona fide resident of West Virginia for participation in the greyhound dog whelping fund; defining proof of
bona fide residency; deleting provisions related to payment to
lessors; deleting provisions relating to contributions to the
jockey fund from the uncashed pari-mutuel ticket fund; and
increasing the amount of restricted thoroughbred horse races in
certain circumstances.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2477, Permitting residents
of nursing homes and similar facilities to retain the homestead
exemption and Class II property designation.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 4. ASSESSMENT OF REAL PROPERTY.
§11-4-3. Definitions.
For the purpose of giving effect to the "Tax Limitations
Amendment", this chapter shall be interpreted in accordance with
the following definitions, unless the context clearly requires a
different meaning:
"Owner" means the person, as defined in section ten, article
two, chapter two of this code, who is possessed of the freehold,
whether in fee or for life. A person seized or entitled in fee
subject to a mortgage or deed of trust securing a debt or liability
is considered the owner until the mortgagee or trustee takes
possession, after which the mortgagee or trustee shall be
considered the owner. A person who has an equitable estate of
freehold, or is a purchaser of a freehold estate who is in
possession before transfer of legal title is also considered the
owner.
"Used and occupied by the owner thereof exclusively for
residential purpose" means actual habitation by the owner or the
owner's spouse of all or a portion of a parcel of real property as
a primary place of abode to the exclusion of any commercial use:
Provided, That if the parcel of real property was unoccupied at the
time of assessment and either: (a) Was used and occupied by the
owner thereof exclusively for residential purposes on the first day
of July of the previous year assessment date; or (b) was unimproved
on the first of July of the previous year but a building
improvement for residential purposes was subsequently constructed
thereon between that date and the time of assessment; or (c) is
retained by the property owner for noncommercial purposes and was
most recently used and occupied by the owner or the owner's spouse as a residence, and the owner, as a result of illness, accident or
infirmity, is residing with a family member or is a resident in a
nursing home, personal care home, rehabilitation center or similar
facility, then the property shall be considered "used and occupied
by the owner thereof exclusively for residential purpose":
Provided, however, That nothing herein contained shall permit an
unoccupied or unimproved property to be considered "used and
occupied by the owner thereof exclusively for residential purposes"
for more than one year unless the owner, as a result of illness,
accident or infirmity, is residing with a family member or is a
resident of a nursing home, personal care home, rehabilitation
center or similar facility. If a license is required for an
activity on the premises or if an activity is conducted thereon
which involves the use of equipment of a character not commonly
employed solely for domestic as distinguished from commercial
purposes, the use may not be considered to be exclusively
residential.
"Family member" means a person who is related by common
ancestry, adoption or marriage, including, but not limited to,
persons related by lineal and collateral consanguinity.
"Farm" means a tract or contiguous tracts of land used for
agriculture, horticulture or grazing and includes all real property
designated as "wetlands" by the United States army corps of engineers or the United States fish and wildlife service.
"Occupied and cultivated" means subjected as a unit to farm
purposes, whether used for habitation or not, and, although parts
may be lying fallow, in timber or in wastelands.
ARTICLE 6B. HOMESTEAD PROPERTY TAX EXEMPTION.
§11-6B-2. Definitions.
For purposes of this article, the term:
(1) "Assessed value" means the value of property as determined
under article three of this chapter.
(2) "Claimant" means a person who is age sixty-five or older
or who is certified as being permanently and totally disabled, and
who owns a homestead that is used and occupied by the owner thereof
exclusively for residential purposes: Provided, That: (1) If the
property was most recently used and occupied by the owner or the
owner's spouse thereof exclusively for residential purposes; (2)the
owner, as a result of illness, accident or infirmity, is residing
with a family member or is a resident of a nursing home, personal
care home, rehabilitation center or similar facility; and (3) the
property is retained by the owner for noncommercial purposes, then
the owner of that property may continue to claim a homestead
property tax exemption on the property.
_____(3)"Family member" means a person who is related by common
ancestry, adoption or marriage, including, but not limited to, persons related by lineal and collateral consanguinity.
_____(3) (4) "Homestead" means a single family residential house,
including a mobile or manufactured or modular home, and the land
surrounding such structure; or a mobile or manufactured or modular
home regardless of whether the land upon which such mobile or
manufactured or modular home is situated is owned or leased.
(4) (5) "Owner" means the person who is possessed of the
homestead, whether in fee or for life. A person seized or entitled
in fee subject to a mortgage or deed of trust shall be deemed
considered the owner. A person who has an equitable estate of
freehold or is a purchaser of a freehold estate who is in
possession before transfer of legal title shall also be deemed
considered the owner. Personal property mortgaged or pledged
shall, for the purpose of taxation, be deemed considered the
property of the party in possession.
(5) (6) "Permanently and totally disabled" means a person who
is unable to engage in any substantial gainful activity by reason
of any medically determinable physical or mental condition which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve
months.
(6) (7) "Sixty-five years of age or older" includes a person
who attains the age of sixty-five on or before the thirtieth day of June following the July first assessment day.
(7) (8) "Used and occupied exclusively for residential
purposes" means that the property is used as an abode, dwelling or
habitat for more than six consecutive months of the calendar year
prior to the date of application by the owner thereof; and that the
property is used only as an abode, dwelling or habitat to the
exclusion of any commercial use: Provided, That failure to satisfy
this six-month period shall not prevent allowance of a homestead
exemption to a former resident in accordance with section three of
this article.
(8) (9) "Tax year" means the calendar year following the July
first assessment day.
(9) (10) "Resident of this state" means an individual who is
domiciled in this state for more than six months of the calendar
year.
§11-6B-4. Claim for exemption; renewals; waiver of exemption.
(a) General. -- No exemption shall be allowed under this
article unless a claim of exemption is filed with the assessor of
the county in which the homestead is located, on or before the
first day of October December following the July first assessment
day. In the case of sickness, absence or other disability of the
claimant, the claim may be filed by the claimant or his or her duly
authorized agent.
(b) Claims for disability exemption. -- Each claim for
exemption based on the owner being permanently and totally disabled
shall include one of the following forms of documentation in
support of said claim: (1) A written certification by a doctor of
medicine or doctor of osteopathy licensed to practice their
particular profession in this state that the claimant is
permanently and totally disabled; (2) a written certification by
the social security administration that the claimant is currently
receiving benefits for permanent and total disability; (3) a copy
of the letter from the social security administration originally
awarding benefits to the claimant for permanent and total
disability and a copy of a current check for such benefits, marked
void; (4) a current social security health insurance (medicare)
card in the name of the claimant and a copy of a current check to
the claimant, marked void, for benefits from the social security
administration for permanent and total disability; (5) a written
certification signed by the veterans administration certifying that
a person is totally and permanently disabled; (6) any lawfully
recognized workers' compensation documentation certifying that a
person is totally and permanently disabled; (7) any lawfully
recognized pneumoconiosis documentation certifying that a person is
totally and permanently disabled; or (8) any other lawfully
recognized documentation certifying that a person is totally and permanently disabled.
(c) Renewals. --
(1) Senior citizens. -- If the claimant is age sixty-five or
older, then after the claimant has filed for the exemption once
with his or her assessor, there shall be no need for that claimant
to refile unless the claimant moves to a new homestead.
(2) Disabled. -- If the claimant is permanently and totally
disabled, then after the claimant has filed for the exemption once
with his or her assessor, and signed a statement certifying that he
or she will notify the assessor if he or she is no longer eligible
for an exemption on the basis of being permanently and totally
disabled and that the claimant will notify the assessor within
thirty days of the discontinuance of the receipt of benefits for
permanent and total disability, if the claimant originally claimed
receipt of said benefits to document his or her claim for
exemption, there shall be no need for that claimant to refile,
unless the claimant moves to a new homestead.
(3) Waiver of exemption. -- Any person not filing his or her
claim for exemption on or before the first day of October December
shall be determined to have waived his or her right to exemption
for the next tax year.
(4) Residential care exception. -- For purposes of this
section, an otherwise qualified claimant who, as a result of illness, accident or infirmity, resides with a family member or is
a resident at a nursing home, personal care home, rehabilitation
center or similar facility is not considered to have moved to a new
homestead.
§11-6B-5. Determination; notice of denial of claim or exemption.
(a) The assessor shall, as soon as practicable after a claim
for exemption is filed, review that claim and either approve or
deny it. If the exemption is denied, the assessor shall promptly,
but not later than the first day of November January, serve the
claimant with written notice explaining why the exemption was
denied and furnish a form for filing with the county commission
should the claimant desire to take an appeal. The notice required
or authorized by this section shall be served on the claimant or
his or her authorized representative either by personal service or
by certified mail.
(b) In the event that the assessor shall have information
sufficient to form a reasonable belief that a claimant, after
having been originally granted an exemption, is not eligible for
said exemption, he or she shall deny the exemption on the next
assessment date and shall promptly, but no later than the first day
of November January, serve the claimant with written notice
explaining the reasons for the denial and furnish a form for filing
with the county commission should the claimant desire to take an appeal.
§11-6B-6. Appeals procedure.
(a) Notice of appeal; thirty days. -- Any claimant aggrieved
by the denial of his or her claim for exemption or the subsequent
denial of his or her exemption may appeal to the county commission
within thirty days after receipt of written notice explaining why
the exemption was denied.
(b) Review; determination; appeal. -- The county commission
shall complete its review and issue its determination within sixty
days after receipt of the notice of appeal from the claimant as
soon as practicable after receipt of the notice of appeal, but in
no event later than the twenty-eighth day of February of the tax
year for which the exemption is first applied. In conducting its
review, the county commission may hold a hearing on the claim. The
assessor or the claimant may apply to the circuit court of the
county for review of the determination of the county commission in
the same manner as is provided for appeals from the county
commission in section twenty-five, article three of this chapter.
The bill (Eng. Com. Sub. for H. B. No. 2477), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2477) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2477) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2700, Adding health maintenance
organization review committee to the definition of "review
organizations".
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 3C. HEALTH CARE PEER REVIEW ORGANIZATION PROTECTION.
§30-3C-1. Definitions.
As used in this article:
"Health care professionals" means individuals who are licensed
to practice in any health care field under the laws of this state;
"Peer review" means the procedure for evaluation by health
care professionals of the quality and efficiency of services
ordered or performed by other health care professionals, including
practice analysis, inpatient hospital and extended care facility
utilization review, medical audit, ambulatory care review and
claims review;
"Professional society" includes medical, psychological,
nursing, dental, optometric, pharmaceutical, chiropractic and
podiatric organizations having as members at least a majority of the eligible licentiates in the area or health care facility or
agency served by the particular organization; and
"Review organization" means any committee or organization
engaging in peer review, including a hospital utilization review
committee, a hospital tissue committee, a medical audit committee,
a health insurance review committee, a health maintenance
organization review committee, hospital, medical, dental and health
service corporation review committee, a hospital plan corporation
review committee, a professional health service plan review
committee or organization, a dental review committee, a physicians'
advisory committee, a podiatry advisory committee, a nursing
advisory committee, any committee or organization established
pursuant to a medical assistance program, and any committee
established by one or more state or local professional societies or
institutes, to gather and review information relating to the care
and treatment of patients for the purposes of: (i) Evaluating and
improving the quality of health care rendered; (ii) reducing
morbidity or mortality; or (iii) establishing and enforcing
guidelines designed to keep within reasonable bounds the cost of
health care. It shall also mean any hospital board committee or
organization reviewing the professional qualifications or
activities of its medical staff or applicants for admission
thereto, and any professional standards review organizations established or required under state or federal statutes or
regulations.
The bill (Eng. H. B. No. 2700), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. H. B. No. 2700) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2700) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2700--A Bill to amend and reenact section
one, article three-c, chapter thirty of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, relating to peer
review organization protection; and adding to the definition of
"review organization" a health maintenance organization review
committee and a hospital, medical, dental and health service
corporation review committee.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2702, Eliminating the
examination assessment fee on risk retention groups.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 32. RISK RETENTION ACT.
§33-32-5. Tax on premiums collected.
(a) Each risk retention group shall pay to the commissioner,
annually on the first day of March of each year, a tax at the rate
of two percent of the taxable premiums on policies or contracts of
insurance covering property or risks in this state and on risk and
property situated elsewhere upon which no premium tax is otherwise
paid during the previous year. Each risk retention group shall is
also be subject to the additional premium taxes levied by sections
fourteen-a and fourteen-d, article three of this chapter. and the
examination assessment fee levied by section nine [§ 33-2-9] of
article two of this chapter.
(b) The taxes provided for in this section shall constitute
all taxes collectible under the laws of this state from any risk
retention group, and no other premium tax or other taxes shall be
levied or collected from any risk retention group by the state or
any county, city or municipality within this state, except ad
valorem taxes. Each risk retention group shall be subject to the
same interests, additions, fines and penalties for nonpayment as
are generally applicable to insurers.
(c) To the extent that a risk retention group utilizes uses
insurance agents, each agent shall keep a complete and separate
record of all policies procured from each risk retention group.
which The record shall be open to examination by the commissioner,
as provided in section nine, article two of this chapter. These
records shall, for each policy and each kind of insurance provided
thereunder under the policy, include the following:
(1) The limit of liability;
(2) The time period covered;
(3) The effective date;
(4) The name of the risk retention group which issued the
policy;
(5) The gross premium charged; and
(6) The amount of return premiums, if any.
The bill (Eng. Com. Sub. for H. B. No. 2702), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2702) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2702) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2748, Preventing mail order or internet
sales of tobacco products to persons under eighteen years of age.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto two new articles, designated articles nine-d and nine-e,
all to read as follows:
ARTICLE 9D. DELIVERY SALES OF TOBACCO.
§16-9D-1. Definitions.
For purposes of this article:
(a) "Adult" means a person who is at least the legal minimum
purchase age, as defined by article nine-a, section two of this
chapter.
(b) "Consumer" means an individual who does not hold a
business registration certificate in this state for the business of
selling tobacco products as a wholesale or retail dealer.
(c) "Delivery sale" means any sale of cigarettes to a
consumer in this state where either: (1) The purchaser submits the
order for such sale by means of a telephonic or other method of
voice transmission, the mails or any other delivery service or the
internet or other online service; or (2) the cigarettes are
delivered by use of the mails or a delivery service. A sale of cigarettes shall be a delivery sale regardless of whether or not
the seller is located within this state. A sale of cigarettes not
for personal consumption to a person who holds a business
registration certificate as a wholesale dealer or a retail dealer
shall not be a delivery sale.
(d) "Delivery service" means any person who is engaged in the
commercial delivery of letters, packages or other containers.
(e) "Department" means the state tax department.
(f) "Legal minimum purchase age" is at least eighteen years of
age as defined by article nine-a, section two of this chapter for
the purchase of cigarettes in this state.
(g) "Mails" or "mailing" means the shipment of cigarettes
through the United States postal service.
(h) "Shipping container" means a container in which
cigarettes are shipped in connection with a delivery sale.
(i) "Shipping documents" means bills of lading, airbills or
any other documents used to evidence the undertaking by a delivery
service to deliver letters, packages or other containers.
16-9D-2. Requirements for delivery sales.
(a) No person shall make a delivery sale of cigarettes to any
individual who is under the legal minimum purchase age in this
state.
(b) Each person accepting a purchase order for a delivery sale shall comply with:
(1) The age verification requirements set forth in section
three of this article;
(2) The disclosure requirements set forth in subdivision (3),
subsection (a), section three of this article;
(3) The shipping requirements set forth in section four of
this article;
(4) The registration and reporting requirements set forth in
section five of this article;
(5) The tax collection requirements set forth in section six
of this article; and
(6) All other laws of this state generally applicable to sales
of cigarettes that occur entirely within this state, including, but
not limited to, those laws imposing: (i) Excise taxes; (ii) sales
taxes; (iii) license and revenue-stamping requirements; and (iv)
escrow or other payment obligations.
§16-9D-3. Age verification requirements.
(a) No person shall mail, ship or otherwise deliver cigarettes
in connection with a delivery sale unless, prior to the first
delivery sale to a consumer, the person:
(1) Obtains from the prospective consumer a certification that
includes a reliable confirmation that the consumer is at least the
legal minimum purchase age and a statement signed by the prospective consumer in writing that certifies the prospective
consumer's address and that the consumer is at least eighteen years
of age. The statement shall also confirm: (i) That the
prospective consumer understands that it is illegal to sign another
person's name to the certification; (ii) that the sale of
cigarettes to individuals under the legal minimum purchase age is
illegal; and (ii) that the purchase of cigarettes by individuals
under the legal minimum purchase age is illegal under the laws of
this state;
(2) Verifies the information contained in the certification
provided by the prospective consumer against an appropriate
database of government records available to the distributor or
seller, or obtains simultaneous with the certificate as provided
for in subdivision (1) of this subsection, a photocopy or other
image of the valid, government-issued identification stating the
date of birth or age of the individual placing the order;
(3) Sends to the prospective consumer, via e-mail or other
means, a notice that contains: (A) A prominent and clearly legible
statement that cigarette sales to a consumer below the legal
minimum purchase age is illegal; (B) a prominent and clearly
legible statement that consists of one of the warnings set forth in
Section 4(a)(1) of the federal Cigarette Labeling and Advertising
Act, 15 U. S. C. §1333(a)(1), rotated on a quarterly basis; (C) a prominent and clearly legible statement that sales of cigarettes
are restricted to those consumers who provide verifiable proof of
age in accordance with section three of this article; and (D) a
prominent and clearly legible statement that cigarette sales are
subject to excise and sales taxes in this state, and an explanation
of how such taxes have been, or are to be, paid with respect to the
delivery sale;
(4) In the case of an order for cigarettes pursuant to an
advertisement on the internet, receives payment for the delivery
sale from the prospective consumer by a credit or debit card or
check that has been issued in the consumer's name.
(b) Persons accepting purchase orders for delivery sales may
request that prospective consumers provide their e-mail addresses.
§16-9D-4. Shipping requirements.
(a) Each person who mails, ships or otherwise delivers
cigarettes in connection with a delivery sale:
(1) Shall include as part of the bill of lading or other
shipping documents a clear and conspicuous statement providing as
follows: "Cigarettes: West Virginia Law Prohibits Shipping to
Individuals Under 18 and Requires the Payment of all Applicable
Taxes";
(2) Shall use a method of mailing, shipping or delivery that
obligates the delivery service to require: (i) The consumer placing the purchase order for the delivery sale, or another adult
of legal minimum purchase age, to sign to accept delivery of the
shipping container; and (ii) proof, in the form of a valid,
government-issued identification bearing a photograph of the
individual who signs to accept delivery of the shipping container,
demonstrating that he is either the addressee or another adult of
legal minimum purchase age; and
(3) Shall provide to the delivery service retained for such
delivery sale evidence of full compliance with section seven of
this article.
(b) A delivery service shall be in violation of this article
if it: (1) Ships or otherwise delivers cigarettes in connection
with a delivery sale without first receiving evidence of compliance
with section seven of this article; or (2) fails to comply with the
requirements described in subsection (a) of this section or
described in section six of this article:
(1) When obligated to do so under a method of shipping or
delivery;
(2) When delivering any container pursuant to shipping
documents containing the statement described in subdivision one of
subsection (a) of this section; or
(3) When delivering any container that the delivery service
otherwise has reason to know contains cigarettes.
(c) If the person accepting a purchase order for a delivery
sale delivers the cigarettes without using a delivery service, that
person shall comply with all requirements of this article
applicable to a delivery service and shall be in violation of the
provisions of this article upon failure to comply with the
requirements.
§16-9D-5. Registration and reporting requirements.
(a) Prior to making delivery sales or mailing, shipping or
otherwise delivering cigarettes in connection with any such sales,
every person shall file with the department a statement setting
forth the seller's name, trade name and the address of the seller's
principal place of business and any other place of business.
(b) Not later than the tenth day of each calendar month, each
person that has made a delivery sale or mailed, shipped or
otherwise delivered cigarettes in connection with any such sale
during the previous calendar month shall file with the department
a memorandum or a copy of the invoice that provides for each and
every delivery sale:
(1) The name and address of the consumer to whom the delivery
sale was made;
(2) The brand or brands of the cigarettes that were sold in
the delivery sale; and
(3) The quantity of cigarettes that were sold in the delivery sale.
(c) Any person that satisfies the requirements of 15 U. S. C.
§376 shall be deemed to satisfy the requirements of this section.
§16-9D-6. Collection of taxes.
Each person accepting a purchase order for a delivery sale
shall collect and remit to the department all cigarette taxes
imposed by this state with respect to such delivery sale, except
that the collection and remission shall not be required to the
extent the person has obtained proof, in the form of the presence
of applicable tax stamps or otherwise, that the taxes already have
been paid to this state.
§16-9D-7. Penalties.
(a) Except as otherwise provided in this section, a first
violation of any provision of this article shall be a misdemeanor
and punishable by a fine of five hundred dollars or five times the
retail value of the cigarettes involved, whichever is greater.
(b) Any person who knowingly violates any provision of this
article, or who knowingly and falsely submits a certification under
section three of this article in another person's name, shall be
guilty of a misdemeanor be fined one thousand dollars or ten times
the retail value of the cigarettes involved, whichever is greater,
or confined not more than six months, or both.
(c) Any person failing to collect or remit to the department any tax required in connection with a delivery sale shall be
assessed, in addition to any other penalty, a penalty of five times
the retail value of the cigarettes involved.
(d) Any cigarettes sold or attempted to be sold in a delivery
sale that does not meet the requirements of this article shall be
forfeited to this state and destroyed. All fixtures, equipment and
all other materials and personal property on the premises of any
person who, with the intent to defraud this state, violates any of
the requirements of this article shall be forfeited to this state.
§16-9D-8. Enforcement.
For violations of this article resulting in a delivery of
tobacco products in this state, the prosecuting attorney of the
county where the delivery is made shall have the power to prosecute
the violation and to bring any action necessary to prevent further
violations. The attorney general or any person who holds a valid
permit under 26 U. S. C. §5712 may bring any actions required to
enforce all other requirements of this article and to prevent all
other violations of its provisions.
ARTICLE 9E. COUNTERFEIT CIGARETTES
.
§16-9E-1. Definition.
As used in this article, "counterfeit cigarettes" means
cigarettes that: (a) Have false manufacturing labels; (b) are not
manufactured by the manufacturer indicated on the container; or (c) have a false tax stamp affixed to the container.
§16-9E-2. Prohibition of counterfeit cigarettes.
It shall be unlawful for any person to knowingly possess or
sell counterfeit cigarettes and all counterfeit cigarettes and the
equipment, materials and personal property used in substantial
connection with a knowing violation of this article may be seized
and destroyed by any law-enforcement agency of this state.
§16-9E-3. Penalties.
(a) Any person who knowingly violates the provisions of this
article with a total quantity of less than two cartons of
cigarettes shall, for the first offense, be punished by a civil
penalty of no more than one thousand dollars and for a second or
subsequent offense involving a total quantity of less than two
cartons of cigarettes shall be punished by a civil penalty of no
more than five thousand dollars and the revocation for a period of
six months of any business held by the person.
(b) Any person who knowingly violates the provisions of this
article with a total quantity of two or more cartons of cigarettes
shall, for the first offense, be punished by a civil penalty of no
more than two thousand dollars and for a second or subsequent
offense involving a total quantity of two or more cartons of
cigarettes shall be punished by a civil penalty of no more than
fifty thousand dollars and the revocation for a period of one year of any business registration certificate held by the person.
§16-9E-4. Enforcement.
The attorney general, the prosecuting attorney for the county
in which counterfeit cigarettes are found or any person who holds
a valid permit under 26 U. S. C. §5712 may bring an action in the
circuit court of that county to prevent or restrain violations of
this article by any person or any person controlling that person.
The bill (Eng. H. B. No. 2748), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Sprouse, Unger, White and Tomblin (Mr.
President)--31.
The nays were: Smith and Weeks--2.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. H. B. No. 2748) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Sprouse, Unger, White and Tomblin (Mr. President)--31.
The nays were: Smith and Weeks--2.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2748) passed.
The following amendment to the title of the bill, from the
Committee on Health and Human Resources, was reported by the Clerk
and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2748--A Bill to amend chapter sixteen of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto two new articles, designated articles
nine-d and nine-e, all relating to restricting delivery sales of
tobacco products and prohibiting possession of counterfeit
cigarettes; defining terms; specifying requirements for
verification of age and identity of purchasers; requiring notices
to consumers; establishing requirements for shipping and shippers;
establishing requirements for registration and reporting to the department of tax and revenue; requiring payment of taxes;
providing for forfeiture of tobacco products and personal property;
prohibiting the possession or sale of counterfeit cigarettes; and
providing for civil and criminal penalties.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2753, Prohibiting
participation in animal fighting ventures and making violations a
felony.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-19a. Animal fighting ventures prohibited.
(a) It is unlawful for any person to engage in, be employed at
or to purchase or sell an admission to any animal fighting venture.
(b) Any person who violates the provisions of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one hundred dollars and not more than one
thousand dollars, or confined in the county jail not exceeding one year, or both so fined and confined, and may be divested of
ownership and control of such animals and be liable for all costs
for their care and maintenance: Provided, That if the animal is a
wild animal, game animal or fur-bearing animal, as defined in
section two, article one, chapter twenty of this code, or wildlife
not indigenous to West Virginia, or of a canine, feline, porcine,
bovine or equine species, whether wild or domesticated, the person
who violates the provisions of this section is guilty of a felony
and, upon conviction thereof, shall be fined not less than one
thousand dollars and not more than five thousand dollars, and
imprisoned in a state correctional facility for not less than one
nor more than five years, or both fined and imprisoned,
§61-8-19b. Attendance at animal fighting ventures prohibited;
penalty.
(a) It is unlawful for any person to knowingly attend an
animal fighting venture involving animals as provided in subsection
(a) and (b), section nineteen-a, article eight of this chapter.
(b) Any person who violates the provisions of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one hundred dollars and not more than one
thousand dollars, or confined in the county or regional jail not
more than one year, or both fined and imprisoned.
The bill (Eng. Com. Sub. for H. B. No. 2753), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2753) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Edgell, Facemyer, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--30.
The nays were: Dempsey, Fanning and Love--3.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2753) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2764, Defining the content of subpoenas
that may be issued by the insurance commissioner.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-4. Authority to take depositions, subpoena witnesses, etc.
(a) For the purpose of any investigation or proceeding under
this chapter, the commissioner or any officer designated by him or
her may administer oaths and affirmations, subpoena witnesses,
compel their attendance, take evidence and require the production
of any books, papers, correspondences, memoranda, agreements or
other documents or records which the commissioner considers
relevant or material to the inquiry. The commissioner's authority
to subpoena witnesses and documents outside the state shall exist
to the maximum extent permissible under federal constitutional law.
(b) Subpoenas may be issued to any person and may require that person, among other things, to:
(1) Testify under oath;
(2) Answer written interrogatories under oath;
(3) Produce documents and tangible things; and
(4) Permit inspection and copying of documents.
(c) Content of subpoena. -- A subpoena shall:
(1) Describe generally the nature of the investigation;
(2) If the subpoena requires testimony under oath, specify the
date, time and place for the taking of testimony;
(3) If the subpoena requires answers to written
interrogatories, contain a copy of the written interrogatories;
(4) If the subpoena requires the production of tangible things
or documents:
(A) Describe the things and documents to be produced with
reasonable specificity; and
(B) Specify a date, time and place at which the things and
documents are to be produced;
(5) Notify the person to whom the subpoena is directed of the
obligation to supplement responses;
(6) Advise the person to whom the subpoena is directed that
the person may be represented by counsel; and
(7) Identify a member of the office of the insurance
commissioner who may be contacted in reference to the subpoena.
(d) For subpoenas to corporations and other entities, the
following apply:
(1) A subpoena directed to a corporation, partnership or other
business entity that requires testimony under oath shall describe
with reasonable particularity the subject matter of the testimony;
(2) An entity that receives a subpoena to answer written
interrogatories or to testify under oath shall designate one or
more of its officers, agents, employees or other authorized persons
familiar with the subject matter specified in the subpoena to
respond to the subpoena on its behalf;
(3) The persons designated by an entity to respond to a
subpoena on its behalf shall answer the interrogatories or testify
as to all matters known or reasonably available to the entity; and
(4) A subpoena directed to an entity that requires testimony
under oath or answers to written interrogatories shall advise the
entity of its obligations under this section.
(e) Effect of other proceedings. -- The institution or
pendency of administrative or judicial proceedings against a person
by the commissioner does not relieve the person of his or her
obligation to respond to a subpoena issued under this section.
(f) Subpoenas for interrogatories and answers and requests for
production of documents or tangible things and answers propounded
and obtained under this section pursuant to an investigation are exempted from disclosure under the provisions of article one,
chapter twenty-nine-b of this code and are not open to public
inspection. The commissioner may not disclose facts or information
obtained from the investigation except as the official duty of the
commissioner requires.
(g) Nothing in this section prohibits the commissioner from
providing information or receiving information from any local,
state, federal or international law-enforcement authorities,
including any prosecuting authority; from complying with subpoenas
or other lawful process in criminal proceedings or other action by
the state; or from taking action as may otherwise be provided in
this article.
The bill (Eng. H. B. No. 2764), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. H. B. No. 2764) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2764) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2764--A Bill to amend and reenact section
four, article two, chapter thirty-three of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to the subpoena power of the insurance commissioner; setting forth requirements for contents of subpoena; providing for
subpoenas to be issued to persons and to corporations; providing
that pendency of another action does not relieve a person's duty to
respond to subpoena of the commissioner; and providing that
evidence produced in response to subpoena and interrogatories are
exempt from the disclosure requirements of the freedom of
information act.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2797, Authorizing the DMV to reimburse
members of the motor vehicle dealer advisory board and the
motorcycle safety awareness board for necessary expenses.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,
CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS;
SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.
§17A-6-18a. Motor vehicle dealers advisory board.
(a) There is created continued a motor vehicle dealers
advisory board to assist and to advise the commissioner on the
administration of laws regulating the motor vehicle industry; to
work with the commissioner in developing new laws, rules or
policies regarding the motor vehicle industry; and to give the
commissioner such any further advice and assistance as he or she
may, from time to time, require.
The board shall consist of nine members and the commissioner
of motor vehicles, or his or her representative, who shall be an ex
officio member. Two members shall represent new motor vehicle
dealers, with one of these two members representing dealers that
sell less than one hundred new vehicles per year; one member shall
represent used motor vehicle dealers; one member shall represent
wrecker/dismantler/rebuilders; one member shall represent
automobile auctions; one member shall represent recreational
dealers; one member shall represent the West Virginia attorney
general's office; and two members shall represent consumers. All
of the representatives, except the attorney general representative
who shall be designated by the attorney general, shall be appointed
by the governor with the advice and consent of the Senate, with no
more than five representatives being from the same political party.
The appointed members shall serve without compensation
The terms of the board members shall be for three years commencing the first day of July, one thousand nine hundred
ninety-six. Two members shall be appointed to serve one year, two
members shall be appointed to serve two years and five members
shall be appointed to serve three years. Successive appointments
shall be for the full three years. The attorney general
representative shall serve continuously.
The board shall meet at least four times annually and at the
call of the commissioner.
(b) The commissioner shall consult with the board before he or
she takes any disciplinary action against a dealer, an automobile
auction or a license service to revoke or suspend a license, place
the licensee on probation or levy a civil penalty, unless the
commissioner determines that the consultation would endanger a
criminal investigation.
(c) The commissioner may consult with the board by mail, by
facsimile, by telephone or at a meeting of the board, but the
commissioner is not bound by the recommendations of the board. The
commissioner shall give members seven days from the date of a
mailing or other notification to respond to proposed actions,
except in those instances when the commissioner determines that the
delay in acting creates a serious danger to the public's health or
safety or would unduly compromise the effectiveness of the action.
(d) No action taken by the commissioner shall be is subject to challenge or rendered invalid on account of his or her failure to
consult with the board.
(e) The appointed members shall serve without compensation;
however, members are entitled to reimbursement of travel and other
necessary expenses actually incurred while engaged in legitimate
board activities in accordance with the guidelines of the travel
management office of the department of administration or its
successor agency.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 1D. MOTORCYCLE SAFETY EDUCATION.
§17B-1D-8. Motorcycle safety awareness board continued.
(a) The motorcycle safety and education committee created
pursuant to subsection (f), of section forty-four, article fifteen,
chapter seventeen-c of this code will terminate on the thirtieth
day of June, two thousand one.
(b) Effective the first day of July, two thousand one, there
There is created continued an eight-member motorcycle safety
awareness board consisting of four ex officio members and four
nongovernmental members. The ex officio members are the motorcycle
safety program coordinator, as appointed under section two of this
article, or a designee; the superintendent of the state police or
a designee; the commissioner of the bureau for public health or a
designee; and the commissioner of the division of tourism or a designee. The four nongovernmental members are a licensed
motorcycle operator who will be appointed for an initial term of
one year; a member of American bikers aimed toward education
(ABATE) or the West Virginia confederation of motorcycle clubs who
will be appointed for an initial term of one year; a licensed
insurance agent who has a valid motorcycle endorsement who will be
appointed for an initial term of two years; and an owner of a
motorcycle dealership or supplier of aftermarket nonfranchised
motorcycle supplies who will be appointed for an initial term of
three years. The motorcycle safety program coordinator shall serve
as chair of the board. The nongovernmental members will shall be
appointed by the governor with the advice and consent of the
Senate. and will serve without compensation The terms will be are
for three years, except for the initial appointments which will be
staggered according to the provisions of this article. Members may
be reappointed to the board. Any nongovernmental member who is
absent without good cause from three consecutive meetings of the
board may be removed from the board and a new member appointed by
the governor.
(c) (b) The board may recommend to the superintendent of the
state police types and makes of protective helmets, eye protection
devices and equipment offered for sale, purchased or used by any
person. The board may make recommendations to the commissioner of motor vehicles regarding the use of the moneys in the motorcycle
safety fund created under section seven of this article. The board
shall report annually to the Legislature on or before the first day
of each regular legislative session.
(c) The appointed members shall serve without compensation;
however, members are entitled to reimbursement of travel and other
necessary expenses actually incurred while engaged in legitimate
board activities in accordance with the guidelines of the travel
management office of the department of administration or successor
agency.
The bill (Eng. H. B. No. 2797), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. H. B. No. 2797) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2797) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2799, Relating to the West
Virginia state police and the reemployment of recently retired
troopers.
On second reading, coming up out of regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk, considered simultaneously, and
adopted:
On page three, section fifty-one, line twenty, after the word
"superintendent" by inserting the words "and subject to executive
order of the governor specifying circumstances warranting such
reemployment and establishing beginning and end dates for such
reemployment,";
And,
On page seven, section fifty-one, after line one hundred one,
by adding a new subsection, designated subsection (m), to read as
follows:
(m) The provisions of this section shall terminate on the
first day of April, two thousand four.
The bill (Eng. Com. Sub. for H. B. No. 2799), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2799) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2799) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2799) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2818, Authorizing the county
commissions of growth counties to include the transfer of
development rights as part of a zoning ordinance.
On second reading, coming up out of regular order, was
reported by the Clerk.
At the request of Senator Kessler, unanimous consent being
granted, further consideration of the bill was deferred until the
conclusion of bills on today's second reading calendar.
Eng. Com. Sub. for House Bill No. 2828, Increasing certain
county clerk, circuit clerk, assessor, sheriff, prosecuting
attorney and magistrate court fees.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page three, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 11. TAXATION.
ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.
§11-1C-7. Duties of county assessors; property to be appraised at
fair market value; exceptions; initial equalization; valuation
plan.
(a) Except for property appraised by the state tax
commissioner under section ten of this article and property
appraised and assessed under article six of this chapter, all
assessors shall, within three years of the approval of the county
valuation plan required pursuant to this section, appraise all real
and personal property in their jurisdiction at fair market value
except for special valuation provided for farmland and managed
timberland. They shall utilize the procedures and methodologies
established by the property valuation training and procedures
commission and the valuation system established by the tax
commissioner.
(b) In determining the fair market value of the property in
their jurisdictions, assessors may use as an aid to valuation any
information available on the character and values of such property
including, but not limited to, the updated information found on any
statewide electronic data processing system network established
pursuant to section twenty-one, article one-a of this chapter.
Valuations shall not be based exclusively on such statewide
electronic data processing system network, and usage of the information on such files as an aid to proper valuation shall not
constitute an implementation of the statewide mass reappraisal of
property.
(c) Before beginning the valuation process, each assessor
shall develop a county valuation plan for using information
currently available, for checking its accuracy and for correcting
any errors found. The plan must be submitted to the tax
commissioner on or before the first day of December, one thousand
nine hundred ninety, for review and approval, and such plan must be
revised as necessary and resubmitted every three years thereafter.
Whenever a plan is submitted to the tax commissioner, a copy shall
also be submitted to the county commission of that county and the
property valuation training and procedures commission, and that
county commission and the property valuation training and
procedures commission may forward comments to the tax commissioner.
The tax commissioner shall respond to any plan submitted or
resubmitted within sixty days of its receipt. The valuation
process shall not begin nor shall funds provided in section eight
of this article be available until the plan has received approval
by the tax commissioner: Provided, That any initial plan that has
not received approval by the commissioner prior to the first day of
May, one thousand nine hundred ninety-one, shall be submitted on or
by such date to the valuation commission for resolution prior to the first day of July, one thousand nine hundred ninety-one, by
which date all counties shall have an approved valuation plan in
effect.
(d) Upon approval of the valuation plan, the assessor shall
immediately begin implementation of the valuation process. Any
change in value discovered subsequent to the certification of
values by the assessor to the county commission, acting as the
board of equalization and review, in any given year shall be placed
upon the property books for the next certification of values:
Provided, That notwithstanding any other provision of this code to
the contrary, the property valuation training and procedures
commission may authorize the tax commissioner to approve a
valuation plan and the board of public works to submit such a plan
which would permit the placement of proportionately uniform
percentage changes in values on the books that estimate the
percentage difference between the current assessed value and sixty
percent of the fair market value for classes or identified
sub-classes of property and distribute the change between the two
tax years preceding the tax year beginning on the first day of
July, one thousand nine hundred ninety-three. This procedure may
be used in lieu of placing individual values on the books at sixty
percent of value as discovered, or may be in addition to such
valuation. If such procedure is adopted by a county, then property whose reevaluation is the responsibility of the board of public
works and the state tax commissioner shall have its values
estimated and placed on the books in like manner. Such estimates
shall be based on the best information obtained by the assessor,
the board of public works and the tax commissioner, and the changes
shall move those values substantially towards sixty percent of fair
market value, such sixty percent to be reached on or before the
first day of July, one thousand nine hundred ninety-three.
(e) (1) The county assessor shall establish and maintain as
official records of the county tax maps of the entire county drawn
to scale or aerial maps, which maps shall indicate all property and
lot lines, set forth dimensions or areas, indicate whether the land
is improved, and identify the respective parcels or lots by a
system of numbers or symbols and numbers, whereby the ownership of
such parcels and lots can be ascertained by reference to the
appropriate records: Provided, That all such records shall be
established and maintained and the sale or reproduction of
microfilm, photography and maps shall be in accordance with
legislative rules promulgated by the commission.
_____(2) Upon resolution of a county commission approving the
increase of fee, the following fees apply in addition to any fee
charged by the assessor or the map sales unit of the property tax
division of the department of tax and revenue for the sale or reproduction of microfilm, photography and maps pursuant to the
legislative rules referenced in subdivision (1) of this subsection:
_____(A) For a full map sheet, an additional fee of three dollars
per copy shall be charged, which shall be deposited in the
courthouse facilities improvement fund created by section six,
article twenty-six, chapter twenty-nine of this code;
_____(B) For a parcel reproduction on 8 ½ x 11" or 8 ½ x 14" paper,
an additional fee of one dollar and fifty cents per copy shall be
charged, which shall be deposited in the courthouse facilities
improvement fund created by section six, article twenty-six,
chapter twenty-nine of this code; and
_____(C) For all other map sizes, an additional fee of two dollars
per copy shall be charged, which shall be deposited in the
courthouse facilities improvement fund created by section six,
article twenty-six, chapter twenty-nine of this code.
(f) Willing and knowing refusal of the assessor or the county
commission to comply with and effect the provisions of this
article, or to correct any deficiencies as may be ordered by the
tax commissioner with the concurrence of the valuation commission
under any authority granted pursuant to this article or other
provisions of this code, shall constitute grounds for removal from
office. Such removal may be appealed to the circuit court.
CHAPTER 11A. COLLECTION AND ENFORCEMENT OF PROPERTY TAXES.
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE
AND UNAPPROPRIATED LANDS.
§11A-3-26. Certificate of redemption issued by clerk; recordation;
disposition of redemption money.
(a) Upon payment of the sum necessary to redeem, the clerk
shall execute a certificate of redemption in duplicate, which
certificate shall specify the real estate redeemed, or the part
thereof or the interest therein, as the case may be, together with
any changes in respect thereto which were made in the landbook and
in the record of delinquent lands; shall specify the year or years
for which payment was made; and shall state that it is a receipt
for the money paid and a release of the tax lien on the real estate
redeemed. The original certificate shall be retained in the files
in the clerk's office and one copy shall be delivered to the person
redeeming. The clerk shall make any necessary changes in his
record of delinquent lands and shall note the fact of redemption on
such record, and shall record the certificate in a separate volume
provided for the purpose.
Upon resolution of a county commission approving the increase
of fee, the fee for issuing the certificate of redemption shall be
twenty-five thirty-five dollars, of which ten dollars of that
amount shall be deposited in the courthouse facilities improvement
fund created by section six, article twenty-six, chapter twenty-nine of this code.
(b) All certificates of redemption issued by the clerk in each
year shall be numbered consecutively and shall be filed by the
clerk in numerical order. Reference to the year and number of the
certificate shall be included in the notation of redemption
required herein. No fee shall be charged by the clerk for any
recordation, filing or notation required by this section.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-1. Costs in civil actions.
Upon resolution of a county commission approving the increase
of fee, the following costs shall be charged in magistrate courts
in civil actions and shall be collected in advance:
(a) For filing and trying any civil action and for all
services connected therewith, but excluding services regarding
enforcement of judgment, the following amounts dependent upon the
amount of damages sought in the complaint:
Where the action is for five hundred
dollars or less $25.00 30.00
Where the action is for more than five hundred dollars but not
more than one thousand dollars $30.00 35.00
Where the action is for more than one thousand dollars but not
more than two thousand dollars $35.00 40.00
Where the action is for more than two
thousand dollars $45.00 50.00
Where the action seeks relief other
than money damages $25.00 30.00
__On and after the first day of July, one thousand nine hundred
ninety-six, Five dollars from each of the filing fees listed above
will shall be deposited in the court security fund created by the
provisions of section fourteen, article three, chapter fifty-one of
this code.
On or after approval of a county commission to increase fees
dedicated to the courthouse facilities improvement fund, five
dollars from each of the filing fees listed above shall be
deposited in the courthouse facilities improvement fund created by
section six, article twenty-six, chapter twenty-nine of this code.
(b) For each service regarding enforcement of a judgment
including execution, suggestion, garnishment
and suggestee execution $5.00
(c) For each bond filed in a case $1.00
(d) For taking deposition of witness for each hour or
portion thereof $ 1.00
(e) For taking and certifying acknowledgment of a deed or
other writing or taking oath upon an affidavit $ .50
(f) For mailing any matter required or provided by law to be mailed by certified or registered mail with
return receipt $1.00
Costs incurred in a civil action shall be reflected in any
judgment rendered thereon. The provisions of section one, article
two, chapter fifty-nine of this code, relating to the payment of
costs by poor persons, shall be applicable to all costs in civil
actions.
§50-3-2. Costs in criminal proceedings.
(a) In each criminal case before a magistrate court in which
the defendant is convicted, whether by plea or at trial, there is
imposed, in addition to other costs, fines, forfeitures or
penalties as may be allowed by law: (1) Costs in the amount of
fifty-five sixty dollars. Upon resolution of a county commission
approving the increase of fee, of which five dollars of that amount
shall be deposited in the courthouse facilities improvement fund
created by section six, article twenty-six, chapter twenty-nine of
this code; and (2) an amount equal to the one-day per diem provided
for in subsection (h), section ten, article twenty, chapter
thirty-one of this code. A magistrate may not collect costs in
advance. Notwithstanding any other provision of this code, a
person liable for fines and court costs in a criminal proceeding in
which the defendant is confined in a jail or prison and not
participating in a work release program shall not be held liable for the fines and court costs until ninety days after completion of
the term in jail or prison. A magistrate court shall deposit five
dollars from each of the criminal proceedings fees collected
pursuant to this section in the court security fund created in
section fourteen, article three, chapter fifty-one of this code.
A magistrate court shall, on or before the tenth day of the month
following the month in which the fees imposed in this section were
collected, remit an amount equal to the one-day per diem provided
for in subsection (h), section ten, article twenty, chapter
thirty-one of this code from each of the criminal proceedings in
which the fees specified in this section were collected to the
magistrate court clerk or if there is no magistrate court clerk to
the clerk of the circuit, together with information as may be
required by the rules of the supreme court of appeals and the rules
of the office of chief inspector. These moneys are paid to the
sheriff who shall distribute the moneys solely in accordance with
the provisions of section fifteen, article five, chapter seven of
this code. Amendments made to this section during the regular
session of the Legislature, two thousand one, are effective after
the thirtieth day of June, two thousand one.
(b) A magistrate shall assess costs in the amount of two
dollars and fifty cents for issuing a sheep warrant and the
appointment and swearing appraisers and docketing the proceedings.
(c) In each criminal case which must be tried by the circuit
court but in which a magistrate renders some service, costs in the
amount of ten dollars shall be imposed by the magistrate court and
is certified to the clerk of the circuit court in accordance with
the provisions of section six, article five, chapter sixty-two of
this code.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-10. Fees to be charged by clerk of county commission.
For the purpose of this section, the word "page" is defined as
being a paper writing of not more than legal size, 8 ½" x 14".
The clerk of the county commission shall charge and collect
the following fees:
(a) When a writing is admitted to record, for receiving proof
of acknowledgment thereof, entering an order in connection
therewith, endorsing clerk's certificate of recordation thereon and
indexing in a proper index, where the writing is a:
(1) Deed of conveyance (with or without a
plat), trust deed, fixture filing or security
agreement concerning real estate lease $10.00
(2) Financing, continuation, termination or
other statement or writing permitted to be filed
under chapter forty-six of this code$10.00
(3) Plat or map (with no deed of conveyance)$10.00
(4) Service discharge record No Charge
(5) Any document or writing other than those
referenced in subdivisions (1), (2), (3) and (4)
of this subsection $5.00
(6) If any document or writing contains more
than five pages, for each additional page$1.00
(b) For administering any oath other than
oaths by officers and employees of the state,
political subdivisions of the state, or a public
or quasi public entity of the state or a political
subdivision of the state, taken in his or her
official capacity $5.00
(c) (1) Upon resolution of a county commission approving the
increase of fee, for issuance of marriage license and other duties
pertaining to the marriage license (including preparation of the
application, administrating the oath, registering and recording
the license, mailing acknowledgment of minister's return to one of
the licensees and notification to a licensee after sixty days of
the nonreceipt of the minister's return)$25.00 35.00
__(2) (1) One dollar of the marriage license fee received
pursuant to this subsection shall be paid by the county clerk into the state treasury as a state registration fee in the same manner
that license taxes are paid into the treasury under article twelve,
chapter eleven of this code;
(3) (2) Fifteen dollars of the marriage license fee received
pursuant to this subsection shall be paid by the county clerk into
the state treasury for the family protection shelter support act in
the same manner that license taxes are paid into the treasury under
article twelve, chapter eleven of this code;
(3) Upon resolution of a county commission approving the
increase of fee, ten dollars of the marriage license fee received
pursuant to this subsection shall be deposited in the courthouse
facilities improvement fund created by section six, article twenty-
six, chapter twenty-nine of this code.
(d) (1) For a copy of any writing or document, if it is not
otherwise provided for$1.50
(2) If the copy of the writing or document contains more
than two pages, for each additional page $1.00
(3) For annexing the seal of the commission or clerk to any
paper $1.00
(4) For a certified copy of a birth certificate, death
certificate or marriage license $5.00
§59-1-11. Fees to be charged by clerk of circuit court.
(a) The clerk of a circuit court shall charge and collect for services rendered as such clerk the following fees, and such fees
shall be paid in advance by the parties for whom such services are
to be rendered:
(1) For instituting any civil action under the rules of civil
procedure, any statutory summary proceeding, any extraordinary
remedy, the docketing of civil appeals, or any other action, cause,
suit or proceeding, eighty-five one hundred fifteen dollars, of
which thirty dollars of that amount shall be deposited in the
courthouse facilities improvement fund created by section six,
article twenty-six, chapter twenty-nine of this code;
(2) Beginning on and after the first day of January, two
thousand two, Upon resolution of a county commission approving the
increase of fee, for instituting an action for medical professional
liability, two hundred fifty sixty dollars, of which ten dollars of
that amount shall be deposited in the courthouse facilities
improvement fund created by section six, article twenty-six,
chapter twenty-nine of this code;
(3) Beginning on and after the first day of July, one thousand
nine hundred ninety-nine, for instituting an action for divorce,
separate maintenance or annulment, one hundred thirty-five
dollars;
(4) For petitioning for the modification of an order involving
child custody, child visitation, child support or spousal support, eighty-five dollars; and
(5) For petitioning for an expedited modification of a child
support order, thirty-five dollars.
(b) In addition to the foregoing fees, the following fees
shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for
use in any other court or otherwise to go out of the office, for
each page, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) For issuing or renewing a suggestee execution, including
copies, postage, registered or certified mail fees and the fee
provided by section four, article five-a, chapter thirty-eight of
this code, three dollars;
(6) For vacation or modification of a suggestee execution, one
dollar;
(7) For docketing and issuing an execution on a transcript of
judgment from magistrate's court, three dollars;
(8) Upon resolution of a county commission approving the
increase of fee, for arranging the papers in a certified question,
writ of error, appeal or removal to any other court, five ten
dollars, of which five dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six,
article twenty-six, chapter twenty-nine of this code;
(9) For postage and express and for sending or receiving
decrees, orders or records, by mail or express, three times the
amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or
defendant, to be paid by the party requesting the same, fifty
cents; and
(11) For additional service (plaintiff or appellant) where any
case remains on the docket longer than three years, for each
additional year or part year, twenty dollars;
(12) Upon resolution of a county commission approving the
increase of fee, for processing of criminal bond, twenty-five
dollars per bond, which shall be deposited in the courthouse
facilities improvement fund created by section six, article twenty-
six, chapter twenty-nine of this code; and
__(13) Upon resolution of a county commission approving the
increase of fee, for processing of bail piece, ten dollars per bail
piece, which shall be deposited in the courthouse facilities
improvement fund created by section six, article twenty-six,
chapter twenty-nine of this code.
(c) The clerk shall tax the following fees for services in any
criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five dollars; and
(2) Upon resolution of a county commission approving the
increase of fee, in the case of any felony, sixty-five seventy-five
dollars, of which ten dollars of that amount shall be deposited in
the courthouse facilities improvement fund created by section six,
article twenty-six, chapter twenty-nine of this code;
(d) No such clerk shall be required to handle or accept for
disbursement any fees, cost or amounts, of any other officer or
party not payable into the county treasury, except it be on order
of the court or in compliance with the provisions of law governing
such fees, costs or accounts.
§59-1-28a. Disposition of filing fees in civil actions and fees
for services in criminal cases.
(a) Except for those payments to be made from amounts equaling
filing fees received for the institution of divorce actions as
prescribed in subsection (b) of this section, and except for those
payments to be made from amounts equaling filing fees received for
the institution of actions for divorce, separate maintenance and
annulment as prescribed in subsection (b) of this section, for each
civil action instituted under the rules of civil procedure, any
statutory summary proceeding, any extraordinary remedy, the
docketing of civil appeals, or any other action, cause, suit or
proceeding in the circuit court, the clerk of the court shall, at the end of each month, pay into the funds or accounts described in
this subsection an amount equal to the amount set forth in this
subsection of every filing fee received for instituting the action
as follows:
(1) Into the regional jail and correctional facility authority
fund in the state treasury established pursuant to the provisions
of section ten, article twenty, chapter thirty-one of this code,
the amount of sixty dollars; and
(2) Into the court security fund in the state treasury
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code, the amount of five dollars.
(b) For each action for divorce, separate maintenance or
annulment instituted in the circuit court, the clerk of the court
shall, at the end of each month, report to the supreme court of
appeals, the number of actions filed by persons unable to pay, and
pay into the funds or accounts in this subsection an amount equal
to the amount set forth in this subsection of every filing fee
received for instituting the divorce action as follows:
(1) Into the regional jail and correctional facility authority
fund in the state treasury established pursuant to the provisions
of section ten, article twenty, chapter thirty-one of this code,
the amount of ten dollars;
(2) Into the special revenue account of the state treasury, established pursuant to section six hundred four, article two,
chapter forty-eight of this code, an amount of thirty dollars;
(3) Into the family court fund established under section
twenty-two, article two-a, chapter fifty-one of this code, an
amount of seventy dollars; and
(4) Into the court security fund in the state treasury,
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code, the amount of five dollars.
(c) Notwithstanding any provision of subsection (a) or (b) of
this section to the contrary, the clerk of the court shall, at the
end of each month, pay into the family court fund established under
section twenty-two, article two-a, chapter fifty-one of this code
an amount equal to the amount of every fee received for petitioning
for the modification of an order involving child custody, child
visitation, child support or spousal support as determined by
subdivision (3), subsection (a), section eleven of this article and
for petitioning for an expedited modification of a child support
order as provided in subdivision (4), subsection (a), section
eleven of this article.
(d) The clerk of the court from which a protective order is
issued shall, at the end of each month, pay into the family court
fund established under section twenty-two, article two-a, chapter
fifty-one of this code an amount equal to every fee received pursuant to the provisions of section five hundred eight, article
twenty-seven, chapter forty-eight of this code.
(e) The clerk of each circuit court shall, at the end of each
month, pay into the regional jail and correctional facility
authority fund in the state treasury an amount equal to forty
dollars of every fee for service received in any criminal case
against any respondent convicted in such court and shall pay an
amount equal to five dollars of every such fee into the court
security fund in the state treasury established pursuant to the
provisions of section fourteen, article three, chapter fifty-one of
this code.
(f) Beginning the first day of January, two thousand two, the
clerk of the circuit court shall, at the end of each month, pay
into the medical liability fund established under article twelve-b,
chapter twenty-nine of this code an amount equal to one hundred
sixty-five dollars of every filing fee received for instituting a
medical professional liability action.
(g) Upon resolution of a county commission approving the
increase of fee, the clerk of the circuit court shall, at the end
of each month, pay into the courthouse facilities improvement fund
created by section six, article twenty-six, chapter twenty-nine of
this code, those amounts received by the clerk which are dedicated
for deposit in the fund.
ARTICLE 2. COSTS GENERALLY.
§59-2-17. Fees of prosecuting attorney.
The clerk shall include in the costs, for fees of the
prosecuting attorney, the following:
(a) Upon resolution of a county commission approving the
increase of fee, in cases of misdemeanor, or an action upon a bond
for a violation of the license laws, ten fifteen dollars, of which
five dollars of that amount shall be deposited in the courthouse
facilities improvement fund created by section six, article
twenty-six, chapter twenty-nine of this code;
(b) In a case of bastardy, ten dollars;
(c) In a suit or proceeding upon a forfeited recognizance upon
behalf of the state, five percent upon the amount recovered and
paid into the treasury;
(d) Upon resolution of a county commission approving the
increase of fee, in cases of felony, thirty thirty-five dollars, of
which five dollars of that amount shall be deposited in the
courthouse facilities improvement fund created by section six,
article twenty-six, chapter twenty-nine of this code;
(e) In any other case of the state, if a different fee is not
prescribed, ten dollars.
Such fees shall be collected and accounted for as provided in
article one of this chapter, but shall not in any case be paid out of the county or state treasury.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-4. License to carry deadly weapons; how obtained.
(a) Except as provided in subsection (h) of this section, any
person desiring to obtain a state license to carry a concealed
deadly weapon shall apply to the sheriff of his or her county for
such a license, and shall pay to the sheriff, at the time of
application, and upon resolution of a county commission approving
the increase of fee, a fee of sixty seventy-five dollars, of which
fifteen dollars of that amount shall be deposited in the courthouse
facilities improvement fund created by section six, article
twenty-six, chapter twenty-nine of this code. Concealed weapons
permits may only be issued for pistols or revolvers. Each
applicant shall file with the sheriff, a complete application, as
prepared by the superintendent of the West Virginia state police,
in writing, duly verified, which sets forth only the following
licensing requirements:
(1) The applicant's full name, date of birth, social security
number and a description of the applicant's physical features;
(2) That, on the date the application is made, the applicant
is a bona fide resident of this state and of the county in which
the application is made and has a valid driver's license or other state-issued photo identification showing such residence;
(3) That the applicant is twenty-one years of age or older:
Provided, That any individual who is less than twenty-one years of
age and possesses a properly issued concealed weapons license as of
the effective date of this article shall be licensed to maintain
his or her concealed weapons license notwithstanding the provisions
of this section requiring new applicants to be at least twenty-one
years of age: Provided, however, That upon a showing of any
applicant who is eighteen years of age or older that he or she is
required to carry a concealed weapon as a condition for employment,
and presents satisfactory proof to the sheriff thereof, then he or
she shall be issued a license upon meeting all other conditions of
this section. Upon discontinuance of employment that requires the
concealed weapons license, if the individual issued the license is
not yet twenty-one years of age, then the individual issued the
license is no longer eligible and must return his or her license to
the issuing sheriff;
(4) That the applicant is not addicted to alcohol, a
controlled substance or a drug, and is not an unlawful user
thereof;
(5) That the applicant has not been convicted of a felony or
of an act of violence involving the misuse of a deadly weapon;
(6) That the applicant has no criminal charges pending and is not currently serving a sentence of confinement, parole, probation
or other court-ordered supervision, because of a charge of domestic
violence as provided for in section twenty-eight, article two of
this chapter, or is the subject of a restraining order as a result
of a domestic violence act as defined in that section, or because
of a verified petition of domestic violence as provided for in
article two-a, chapter forty-eight of this code or is subject to a
protective order as provided for in that article;
(7) That the applicant is physically and mentally competent to
carry such weapon;
(8) That the applicant has not been adjudicated to be mentally
incompetent;
(9) That the applicant has qualified under the minimum
requirements set forth in subsection (d) of this section for
handling and firing such weapon: Provided, That this requirement
shall be waived in the case of a renewal applicant who has
previously qualified;
(10) That the applicant authorizes the sheriff of the county,
or his or her designee, to conduct an investigation relative to the
information contained in the application.
(b) The sheriff shall conduct an investigation which shall
verify that the information required in subdivisions (1), (2), (3),
(5), (6), (8) and (9), subsection (a) of this section are true and correct.
(c) The sixty dollar application fee and any fees for
replacement of lost or stolen licenses received by the sheriff
shall be deposited by the sheriff into a concealed weapons license
administration fund. Such fund shall be administered by the
sheriff and shall take the form of an interest bearing account with
any interest earned to be compounded to the fund. Any funds
deposited in this concealed weapon license administration fund are
to be expended by the sheriff to pay for the costs associated with
issuing concealed weapons licenses. Any surplus in the fund on
hand at the end of each fiscal year may be expended for other
law-enforcement purposes or operating needs of the sheriff's
office, as the sheriff may deem appropriate.
(d) All persons applying for a license must complete a
training course in handling and firing a handgun. The successful
completion of any of the following courses fulfills this training
requirement:
(1) Any official national rifle association handgun safety or
training course;
(2) Any handgun safety or training course or class available
to the general public offered by an official law-enforcement
organization, community college, junior college, college or private
or public institution or organization or handgun training school utilizing instructors duly certified by such institution;
(3) Any handgun training or safety course or class conducted
by a handgun instructor certified as such by the state or by the
national rifle association;
(4) Any handgun training or safety course or class conducted
by any branch of the United States military, reserve or national
guard.
A photocopy of a certificate of completion of any of the
courses or classes or an affidavit from the instructor, school,
club, organization or group that conducted or taught said course or
class attesting to the successful completion of the course or class
by the applicant or a copy of any document which shows successful
completion of the course or class shall constitute evidence of
qualification under this section.
(e) All concealed weapons license applications must be
notarized by a notary public duly licensed under article four,
chapter twenty-nine of this code. Falsification of any portion of
the application constitutes false swearing and is punishable under
the provisions of section two, article five, chapter sixty-one of
this code.
(f) If the information in the application is found to be true
and correct, the sheriff shall issue a license. The sheriff shall
issue or deny the license within forty-five days after the application is filed if all required background checks authorized
by this section are completed.
(g) Before any approved license shall be issued or become
effective, the applicant shall pay to the sheriff a fee in the
amount of fifteen dollars which the sheriff shall forward to the
superintendent of the West Virginia state police within thirty days
of receipt. Any such license shall be valid for five years
throughout the state, unless sooner revoked.
(h) All persons holding a current and valid concealed weapons
license as of the sixteenth day of December, one thousand nine
hundred ninety-five, shall continue to hold a valid concealed
weapons license until his or her license expires or is revoked as
provided for in this article: Provided, That all reapplication
fees shall be waived for applications received by the first day of
January, one thousand nine hundred ninety-seven, for any person
holding a current and valid concealed weapons license as of the
sixteenth day of December, one thousand nine hundred ninety-five,
which contains use restrictions placed upon the license as a
condition of issuance by the issuing circuit court. Any licenses
reissued pursuant to this subsection will be issued for the time
period of the original license.
(i) Each license shall contain the full name, social security
number and address of the licensee and a space upon which the signature of the licensee shall be signed with pen and ink. The
issuing sheriff shall sign and attach his or her seal to all
license cards. The sheriff shall provide to each new licensee a
duplicate license card, in size similar to other state
identification cards and licenses, suitable for carrying in a
wallet, and such license card is deemed a license for the purposes
of this section.
(j) The superintendent of the West Virginia state police shall
prepare uniform applications for licenses and license cards showing
that such license has been granted and shall do any other act
required to be done to protect the state and see to the enforcement
of this section.
(k) In the event an application is denied, the specific
reasons for the denial shall be stated by the sheriff denying the
application. Any person denied a license may file, in the circuit
court of the county in which the application was made, a petition
seeking review of the denial. Such petition shall be filed within
thirty days of the denial. The court shall then determine whether
the applicant is entitled to the issuance of a license under the
criteria set forth in this section. The applicant may be
represented by counsel, but in no case shall the court be required
to appoint counsel for an applicant. The final order of the court
shall include the court's findings of fact and conclusions of law. If the final order upholds the denial, the applicant may file an
appeal in accordance with the rules of appellate procedure of the
supreme court of appeals.
(l) In the event a license is lost or destroyed, the person to
whom the license was issued may obtain a duplicate or substitute
license for a fee of five dollars by filing a notarized statement
with the sheriff indicating that the license has been lost or
destroyed.
(m) The sheriff shall, immediately after the license is
granted as aforesaid, furnish the superintendent of the West
Virginia state police a certified copy of the approved application.
It shall be the duty of the sheriff to furnish to the
superintendent of the West Virginia state police at any time so
requested a certified list of all such licenses issued in the
county. The superintendent of the West Virginia state police shall
maintain a registry of all persons who have been issued concealed
weapons licenses.
(n) All licensees must carry with them a state-issued photo
identification card with the concealed weapons license whenever the
licensee is carrying a concealed weapon. Any licensee who fails to
have in his or her possession a state-issued photo identification
card and a current concealed weapons license while carrying a
concealed weapon shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty or more than
two hundred dollars for each offense.
(o) The sheriff shall deny any application or revoke any
existing license upon determination that any of the licensing
application requirements established in this section have been
violated by the licensee.
(p) No person who is engaged in the receipt, review or in the
issuance or revocation of a concealed weapon license shall incur
any civil liability as the result of the lawful performance of his
or her duties under this article.
(q) Notwithstanding the provisions of subsection (a) of this
section, with respect to application by a former law-enforcement
officer honorably retired from agencies governed by article
fourteen, chapter seven; article fourteen, chapter eight; article
two, chapter fifteen; and article seven, chapter twenty of this
code, an honorably retired officer is exempt from payment of fees
and costs as otherwise required by this section, and the
application of the honorably retired officer shall be granted
without proof or inquiry by the sheriff as to those requirements
set forth in subdivision (9), subsection (a) of this section, if
the officer meets the remainder of the requirements of this section
and has the approval of the appropriate chief law-enforcement
officer.
The bill (Eng. Com. Sub. for H. B. No. 2828), as amended, was
then ordered to third reading.
Senator Chafin moved that the constitutional rule requiring a
bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning, Guills, Helmick,
Hunter, Jenkins, Kessler, Love, McCabe, Minard, Minear, Oliverio,
Plymale, Prezioso, Ross, Rowe, Sharpe, Unger, White and Tomblin
(Mr. President)--26.
The nays were: Boley, Facemyer, Harrison, McKenzie, Smith,
Sprouse and Weeks--7.
Absent: Snyder--1.
So, less than four fifths of the members present and voting
having voted in the affirmative, the President declared the motion
to suspend the constitutional rule rejected.
Eng. House Bill No. 2847, Making the law-enforcement agency
that places a person under arrest responsible for that person's
initial transportation to a regional or county jail.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 7. COMPENSATION OF ELECTED COUNTY OFFICIALS.
§7-7-13. Allowance for expenses of sheriff.
The county commission of every county having a population of
thirty thousand or less as determined by the latest official census
available and which, as provided in section two-a, article eight of
this chapter, has directed the sheriff as jailer to feed prisoners
shall, in addition to his or her compensation, allow to the sheriff
for keeping and feeding each prisoner, other than federal prisoners
or prisoners held under civil process as provided by law, not more
than five dollars per day for each prisoner.
The limitation per day shall not include cost of personal
service, bed or bedding, soaps and disinfectants and items of like
kind, the cost of which shall be paid out of the allowance fixed by
the county commission under the provisions of present law.
All supplies of whatever kind for keeping and feeding
prisoners shall be purchased upon the requisition of the sheriff
under rules and regulations prescribed by the county commission.
At the end of each month the sheriff shall file with the county
commission a detailed statement showing the name of each prisoner,
date of commitment, date of discharge, the number of days in jail
and an itemized statement showing each purchase and the cost for
keeping and feeding prisoners.
The county commission of every county shall allow the actual
and necessary expenses incurred by the sheriff in the discharge of
his or her duties, including, but not limited to: those incurred
in arresting, pursuing or transporting persons accused or convicted
of crimes and offenses; in the cost of law-enforcement and safety
equipment; in conveying or transporting a prisoner from and to jail
to participate in court proceedings; and in conveying or
transferring any person to or from any state institution where he
or she may be committed from his or her county, where the sheriff
is authorized to convey or transfer the person: Provided, That the
law-enforcement agency that places a person under arrest shall be
responsible for the person's initial transportation to a regional
or county jail, except where there is a preexisting agreement
between the county and the political body the other law-enforcement
agency serves. Any person transported to the regional jail as
provided for by the provisions of this section shall, upon
conviction for the offense causing his or her incarceration, pay
the reasonable costs of the transportation. The money is to be
collected by the court of conviction at the current mileage
reimbursement rate. The county commission shall allow the actual
and necessary expenses incurred in serving summonses, notices or
other official papers in connection with the sheriff's office.
Every sheriff shall file monthly, under oath, an accurate account of all the actual and necessary expenses incurred by him or
her, his or her deputies, assistants and employees in the
performance and discharge of their official duties supported by
verified accounts before reimbursement thereof shall be allowed by
the county commission. Reimbursement, properly allowed, shall be
made from the general county fund.
The bill (Eng. H. B. No. 2847), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Dempsey, Edgell, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--31.
The nays were: Deem and Facemyer--2.
Absent: Snyder--1.
Having been engrossed, the bill (Eng. H. B. No. 2847) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--32.
The nays were: Deem--1.
Absent: Snyder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2847) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2847--A Bill to amend and reenact section
thirteen, article seven, chapter seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to the law-enforcement agency that places a person under
arrest being responsible for the person's initial transportation to
a regional or county jail, except where a transportation agreement
exists between the other agency and the sheriff; and requiring
convicted persons to pay cost of transportation.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2865, Upgrading the criminal
offense of damaging or destroying real or personal property owned
by a railroad company or public utility.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That section twenty-nine, article three, chapter sixty-one of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-29. Damage or destruction of railroad or public utility
company property, or real or personal property used for
producing, generating, transmitting, distributing, treating or
collecting electricity, natural gas, water, wastewater,
stormwater, telecommunications or cable service; penalties;
restitution.
(a) Any person who shall wilfully or maliciously destroy or
injure any of the wires, poles, insulators, or other knowingly and
willfully damages or destroys any real or personal property
belonging to any telephone, telegraph or owned by a railroad company, or any public utility company, or any real or personal
property used for producing, generating, transmitting,
distributing, treating or collecting electricity, natural gas,
water, wastewater, stormwater, telecommunications or cable service,
shall be is guilty of a misdemeanor and, upon conviction thereof,
shall be imprisoned in the county jail not exceeding twelve months,
and be fined not exceeding five hundred dollars, at the discretion
of the court more than two thousand dollars, or confined in the
county or regional jail not more than one year, or both.
_____(b) Any person who knowingly and willfully damages or destroys
any real or personal property owned by a railroad company or public
utility company, or any real or personal property used for
producing, generating, transmitting, distributing, treating or
collecting electricity, natural gas, water, wastewater, stormwater,
telecommunications or cable service causing serious bodily injury
to another is guilty of a felony and, upon conviction thereof,
shall be fined not less than five thousand dollars nor more than
fifty thousand dollars, or confined in a state correctional
facility not less than one nor more than five years, or both.
_____(c) Nothing in this section may be construed to limit or
restrict the ability of an entity referred to in subsection (a) or
(b) of this section or a property owner or other person who has
been damaged or injured as a result of a violation of this section from seeking recovery for damages arising from violation of this
section.
The bill (Eng. Com. Sub. for H. B. No. 2865), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks and Tomblin (Mr.
President)--32.
The nays were: Hunter and White--2.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2865) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks and Tomblin (Mr.
President)--32.
The nays were: Hunter and White--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2865) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2865--A Bill to amend and
reenact section twenty-nine, article three, chapter sixty-one of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, relating to crimes against property; and increasing
penalties for damaging or destroying real or personal property
owned by a railroad company or public utility or any real or
personal property used for producing, generating, transmitting,
distributing, treating or collecting electricity, natural gas,
water, wastewater, stormwater, telecommunications or cable service.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2878, Allowing certain municipalities
providing advanced life support ambulance services to examine,
train and employ fire medics.
On second reading, coming up out of regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Government Organization, were reported by the Clerk, considered
simultaneously, and adopted:
On page two, section twenty-a, line six, by striking out the
word "licensed" and inserting in lieu thereof the word "certified";
On page two, section twenty-a, line ten, by striking out the
word "a";
And,
On page two, section twenty-a, line eleven, by striking out
the word "license" and inserting in lieu thereof the word
"certification".
The bill (Eng. H. B. No. 2878), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2878) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2878) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2880, Underground storage
tanks registration fees.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 17. UNDERGROUND STORAGE TANK ACT.
§22-17-20. Appropriation of funds; underground storage tank
administrative fund.
(a) The director shall collect annual registration fees from
owners of underground storage tanks. The registration fee
collected under this section shall may not exceed twenty-five fifty
dollars per tank per year. All such These registration fees and
the net proceeds of all civil fines, civil penalties and
forfeitures collected under this article, including accrued
interest, shall be paid into the state treasury into a special fund
designated "the underground storage tank administrative fund" to be
used to defray the cost of administering this article in accordance
with rules promulgated pursuant to section six of this article.
Upon passage of the amendment to this section in the regular
session of the Legislature in the year two thousand three, the
secretary shall promulgate an emergency rule in accordance with
article three, chapter twenty-nine-a of this code, implementing the
increase in registration fees enacted during that session. This
fee of up to fifty dollars is effective for the fiscal year ending
the thirtieth day of June, two thousand three.
(b) The total fee assessed shall be sufficient to assure a
balance in the fund of not to exceed four seven hundred thousand
dollars at the beginning of each year.
(c) Any amount received pursuant to subsection (a) of this
section which exceeds the annual balance required in subsection (b)
of this section shall be deposited into the leaking underground
storage tank response fund established pursuant to this article to
be used for the purposes set forth therein.
(d) (c) The net proceeds of all fines, penalties and
forfeitures collected under this article shall be appropriated as
directed by article XII, section 5 of the constitution of West
Virginia. For the purposes of this section, the net proceeds of
such fines, penalties and forfeitures are the proceeds remaining
after deducting therefrom those sums appropriated by the
Legislature for defraying the cost of administering this article.
In making the appropriation for defraying the cost of administering
this article, the Legislature shall first take into account the
sums included in such the special fund prior to before deducting
such additional sums as that may be needed from the civil fines,
civil penalties and forfeitures collected pursuant to this article.
At the end of each fiscal year any unexpended balance of such the
collected civil fines, civil penalties, forfeitures and
registration fees shall not be transferred to the general revenue fund but shall remain in the fund.
Senator Bowman requested unanimous consent that the bill (Eng.
Com. Sub. for H. B. No. 2880) lie over one day, retaining its place
on the calendar.
Which consent was not granted, Senator Minear objecting.
On motion of Senator Bowman, the bill was laid over one day,
retaining its place on the calendar.
Eng. House Bill No. 2915, Authorizing continued payment of
Class VI rate of compensation to the prosecuting attorney of Wetzel
County.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
ARTICLE 7. COMPENSATION OF ELECTED COUNTY OFFICIALS.
§7-7-4. Compensation of elected county officials and county
commissioners for each class of county; effective date.
(a) (1) All county commissioners shall be paid compensation
out of the county treasury in amounts and according to the schedule
set forth in subdivision (2) of this subsection for each class of
county as determined by the provisions of section three of this article: Provided, That as to any county having a tribunal in lieu
of a county commission, the county commissioners of the county may
be paid less than the minimum compensation limits of the county
commission for the particular class of such county.
(2) COUNTY COMMISSIONERS
Class I $ 20,000
Class II $ 15,500
Class III $ 14,000
Class IV $ 10,000
Class V $ 7,000
Class VI $ 4,000
(3) The compensation, set out in subdivision (2) of this
subsection, shall be paid on and after the first day of January,
one thousand nine hundred eighty-five, to each county commissioner.
Within each county, every county commissioner whose term of office
commenced prior to the first day of January, one thousand nine
hundred eighty-five, shall receive the same annual compensation as
commissioners commencing a term of office on or after that date by
virtue of the new duties imposed upon county commissioners pursuant
to the provisions of chapter fifteen, acts of the Legislature,
first extraordinary session, one thousand nine hundred
eighty-three.
(4) For the purpose of determining the compensation to be paid to the elected county officials of each county, the compensations
for each office by class, set out in subdivision (5) of this
subsection, are established and shall be used by each county
commission in determining the compensation of each of their county
officials other than compensation of members of the county
commission.
(5) OTHER ELECTED OFFICIALS
County Circuit Prosecuting
Sheriff Clerk Clerk Assessor Attorney
Class I $24,200 $31,300 $31,300 $24,200 $41,500
Class II $24,200 $28,000 $28,000 $24,200 $39,500
Class III $24,200 $28,000 $28,000 $24,200 $30,000
Class IV $22,300 $24,000 $24,000 $22,300 $26,500
Class V $20,400 $22,000 $22,000 $20,400 $23,500
Class VI $17,200 $17,200 $17,200 $17,200 $17,000
(6) Any county clerk, circuit clerk, joint clerk of the county
commission and circuit court, if any, county assessor, sheriff and
prosecuting attorney of a Class I county, any assessor of a Class
II and Class III county, any sheriff of a Class II and Class III
county and any prosecuting attorney of a Class II county shall
devote full-time to his or her public duties to the exclusion of
any other employment: Provided, That any public official, whose
term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not
be restricted on his or her outside activities during the remainder
of the term for which he or she is elected. The compensation, set
out in subdivision (5) of this subsection, shall be paid on and
after the first day of January, one thousand nine hundred
eighty-five, to each elected county official.
(7) In the case of a county that has a joint clerk of the
county commission and circuit court, the compensation of the joint
clerk shall be fixed in an amount twenty-five percent higher than
the compensation would be fixed for the county clerk if it had
separate offices of county clerk and circuit clerk.
(8) The Legislature finds that the duties imposed upon county
clerks by the provisions of chapter sixty-four, acts of the
Legislature, regular session, one thousand nine hundred eighty-two,
and by chapter fifteen, acts of the Legislature, first
extraordinary session, one thousand nine hundred eighty-three,
constitute new and additional duties for county clerks and as such
justify the additional compensation provided in this section
without violating the provisions of section thirty-eight, article
VI of the constitution of West Virginia.
(9) The Legislature further finds that the duties imposed upon
circuit clerks by the provisions of chapters sixty-one and one
hundred eighty-two, acts of the Legislature, regular session, one thousand nine hundred eighty-one, and by chapter sixty, acts of the
Legislature, regular session, one thousand nine hundred
eighty-three, constitute new and additional duties for circuit
clerks and as such justify the additional compensation provided by
this section without violating the provisions of section
thirty-eight, article VI of the constitution of West Virginia.
(b) (1) Prior to the primary election in the year one thousand
nine hundred ninety-two, and for the fiscal year beginning on the
first day of July, one thousand nine hundred ninety-two, or for any
subsequent fiscal year if the approval, set out in subdivision (2)
of this subsection, is not granted for any fiscal year, and at
least thirty days prior to the meeting to approve the county
budget, the commission shall provide notice to the public of the
date and time of the meeting and that the purpose of the meeting of
the county commission is to decide upon their budget certification
to the auditor.
(2) Upon submission by the county commission to the auditor of
a proposed annual budget which contains anticipated receipts into
the county's general revenue fund, less anticipated moneys from the
unencumbered fund balance, equal to anticipated receipts into the
county's general revenue fund, less anticipated moneys from the
unencumbered fund balance and any federal or state special grants,
for the immediately preceding fiscal year, plus such additional amount as is necessary for payment of the increases in the salaries
set out in subdivisions (3) and (5) of this subsection, and related
employment taxes over that paid for the immediately preceding
fiscal year, and upon approval thereof by the auditor, which
approval shall not be granted for any proposed annual budget
containing anticipated receipts which are unreasonably greater or
lesser than that of the immediately preceding fiscal year, for the
purpose of determining the compensation to be paid to the elected
county officials of each county office by class are established and
shall be used by each county commission in determining the
compensation of each of their county officials: Provided, That as
to any county having a tribunal in lieu of a county commission, the
county commissioners of the county may be paid less than the
minimum compensation limits of the county commission for the
particular class of the county.
(3) COUNTY COMMISSIONERS
Class I $24,000
Class II $18,600
Class III $16,800
Class IV $12,000
Class V $ 8,400
(4) If the approval, set out in subdivision (2) of this
subsection, is granted, the compensation, set out in subdivision (3) of this subsection, shall be paid on and after the first day of
January, one thousand nine hundred ninety-three, to each county
commissioner. Within each county, every county commissioner shall
receive the same annual compensation by virtue of the new duties
imposed upon county commissioners pursuant to the provisions of
chapter one hundred seventy-two, acts of the Legislature, second
regular session, one thousand nine hundred ninety and chapter five,
acts of the Legislature, third extraordinary session, one thousand
nine hundred ninety.
(5) OTHER ELECTED OFFICIALS
County Circuit Prosecuting
Sheriff Clerk Clerk Assessor Attorney
Class I $29,040 $37,560 $37,560 $29,040 $59,500
Class II $29,040 $33,600 $33,600 $29,040 $59,500
Class III $29,040 $33,600 $33,600 $29,040 $36,000
Class IV $26,760 $28,800 $28,800 $26,760 $31,800
Class V $24,480 $26,400 $26,400 $24,480 $28,200
Class VI $24,480 $26,400 $26,400 $24,480 $28,200
(6) Any county clerk, circuit clerk, joint clerk of the county
commission and circuit court, if any, county assessor, sheriff and
prosecuting attorney of a Class I county, any assessor of a Class
II and Class III county, any sheriff of a Class II and Class III
county and any prosecuting attorney of a Class II county shall devote full-time to his or her public duties to the exclusion of
any other employment: Provided, That any public official, whose
term of office begins when his or her county's classification
imposes no restriction on his or her outside activities, shall not
be restricted on his or her outside activities during the remainder
of the term for which he or she is elected. If the approval, set
out in subdivision (2) of this subsection, is granted, the
compensation, set out in subdivision (5) of this subsection, shall
be paid on and after the first day of January, one thousand nine
hundred ninety-three, to each elected county official.
(7) In the case of a county that has a joint clerk of the
county commission and circuit court, the compensation of the joint
clerk shall be fixed in an amount twenty-five percent higher than
the compensation would be fixed for the county clerk if it had
separate offices of county clerk and circuit clerk.
(8) Prior to the primary election in the year one thousand
nine hundred ninety-two, in the case of a Class III, Class IV or
Class V county which has a part-time prosecuting attorney, the
county commission may find that such facts and circumstances exist
that require the prosecuting attorney to devote full-time to his or
her public duties for the four-year term, beginning the first day
of January, one thousand nine hundred ninety-three. If the county
commission makes such a finding, it may by proper order adopted and entered, require the prosecuting attorney who takes office on the
first day of January, one thousand nine hundred ninety-three, to
devote full-time to his or her public duties and the county
commission shall then compensate said prosecuting attorney at the
same rate of compensation as that of a prosecuting attorney in a
Class II county.
(9) For any county: (A) Which on and after the first day of
July, one thousand nine hundred ninety-four, is classified as a
Class II county; and (B) which prior to such date was classified as
a Class III, Class IV or Class V county and maintained a part-time
prosecuting attorney, the county commission may elect to maintain
the prosecuting attorney as a part-time prosecuting attorney:
Provided, That prior to the first day of January, one thousand nine
hundred ninety-six, the county commission shall make a finding, by
proper order and entered, whether to maintain a full-time or part-
time prosecuting attorney. The part-time prosecuting attorney
shall be compensated at the same rate of compensation as that of a
prosecuting attorney in the class for the county prior to being
classified as a Class II county.
(c) (1) Prior to the primary election in the year one thousand
nine hundred ninety-six, and for the fiscal year beginning on the
first day of July, one thousand nine hundred ninety-six, or for any
subsequent fiscal year if the approval, set out in subdivision (2) of this subsection, is not granted for any fiscal year, and at
least thirty days prior to the meeting to approve the county
budget, the commission shall provide notice to the public of the
date and time of the meeting and that the purpose of the meeting of
the county commission is to decide upon their budget certification
to the auditor.
(2) Upon submission by the county commission to the auditor of
a proposed annual budget which contains anticipated receipts into
the county's general revenue fund, less anticipated moneys from the
unencumbered fund balance, equal to anticipated receipts into the
county's general revenue fund, less anticipated moneys from the
unencumbered fund balance and any federal or state special grants,
for the fiscal year beginning the first day of July, one thousand
nine hundred ninety-six, plus such additional amount as is
necessary for payment of the increases in the salaries set out in
subdivisions (3) and (6) of this subsection, and related employment
taxes over that paid for the immediately preceding fiscal year, and
upon approval thereof by the auditor, which approval shall not be
granted for any proposed annual budget containing anticipated
receipts which are unreasonably greater or lesser than that of the
immediately preceding fiscal year for the purpose of determining
the compensation to be paid to the elected county officials of each
county office by class are established and shall be used by each county commission in determining whether county revenues are
sufficient to pay the compensation mandated herein for their county
officials: Provided, That as to any county having a tribunal in
lieu of a county commission, the county commissioners of the county
may be paid less than the minimum compensation limits of the county
commission for the particular class of the county: Provided,
however, That should there be an insufficient projected increase in
revenues to pay the increased compensation and related employment
taxes, then the compensation of that county's elected officials
shall remain at the level in effect at the time certification was
sought.
(3) COUNTY COMMISSIONERS
Class I $28,000
Class II $27,500
Class III $27,000
Class IV $26,500
Class V $26,000
Class VI $21,500
Class VII $21,000
Class VIII $19,000
Class IX $18,500
Class X $15,000
(4) The compensation, set out in subdivision (3) of this subsection, shall be paid on and after the first day of January,
one thousand nine hundred ninety-seven, to each county
commissioner. Every county commissioner in each county, whose term
of office commenced prior to or on or after the first day of
January, one thousand nine hundred ninety-seven, shall receive the
same annual compensation by virtue of legislative findings of extra
duties as set forth in section one of this article.
(5) For the purpose of determining the compensation to be paid
to the elected county officials of each county, the compensations
for each county office by class, set out in subdivision (6) of this
subsection, are established and shall be used by each county
commission in determining the compensation of each of their county
officials other than compensation of members of the county
commission.
(6) OTHER ELECTED OFFICIALS
County Circuit Prosecuting
Sheriff Clerk Clerk Assessor Attorney
Class I $34,000 $42,000 $42,000 $34,000 $76,000
Class II $33,500 $41,500 $41,500 $33,500 $74,000
Class III $33,250 $40,500 $40,500 $33,250 $72,000
Class IV $33,000 $40,250 $40,250 $33,000 $70,000
Class V $32,750 $40,000 $40,000 $32,750 $68,000
Class VI $32,500 $37,500 $37,500 $32,500 $45,000
Class VII $32,250 $37,000 $37,000 $32,250 $43,000
Class VIII $32,000 $36,500 $36,500 $32,000 $41,000
Class IX $31,750 $36,000 $36,000 $31,750 $38,000
Class X $29,000 $32,000 $32,000 $29,000 $35,000
(7) The compensation, set out in subdivision (6) of this
subsection, shall be paid on and after the first day of January,
one thousand nine hundred ninety-seven, to each elected county
official. Any county clerk, circuit clerk, joint clerk of the
county commission and circuit court, if any, county assessor or
sheriff of a Class I through Class V county, inclusive, any
assessor or any sheriff of a Class VI through Class IX county,
inclusive, shall devote full-time to his or her public duties to
the exclusion of any other employment: Provided, That any public
official, whose term of office begins when his or her county's
classification imposes no restriction on his or her outside
activities, shall not be restricted on his or her outside
activities during the remainder of the term for which he or she is
elected.
(8) In the case of a county that has a joint clerk of the
county commission and circuit court, the compensation of the joint
clerk shall be fixed in an amount twenty-five percent higher than
the compensation would be fixed for the county clerk if it had
separate offices of county clerk and circuit clerk.
(9) Any prosecuting attorney of a Class I through Class V
county, inclusive, shall devote full-time to his or her public
duties to the exclusion of any other employment: Provided, That
any county which under the prior provisions of this section was
classified as a Class II county and elected to maintain a part-time
prosecutor may continue to maintain a part-time prosecutor, until
such time as the county commission, on request of the part-time
prosecutor, approves and makes a finding, by proper order entered,
that the prosecuting attorney shall devote full-time to his or her
public duties. The county commission shall then compensate said
prosecuting attorney at the same rate of compensation as that of a
prosecuting attorney in a Class V county: Provided, however, That
any county which under the prior provisions of this section was
classified as a Class II county and which did not elect to maintain
a part-time prosecutor shall maintain a full-time prosecuting
attorney and shall compensate said prosecuting attorney at the same
rate of compensation as that of a prosecuting attorney in a Class
V county: Provided further, That, until the first day of January,
two thousand one, when a vacancy occurs in the office of
prosecuting attorney prior to the end of a term, the county
commission of a Class IV or Class V county may elect to allow the
position to become part-time for the end of that term, and
thereafter the position of prosecuting attorney shall become full-time.
(d) (1) The increased salaries to be paid to the county
commissioners and the other elected county officials described in
this subsection on and after the first day of July, two thousand
two, are set out in subdivisions (5) and (7) of this subsection.
Every county commissioner and elected county official in each
county, whose term of office commenced prior to or on or after the
first day of July, two thousand two, shall receive the same annual
salary by virtue of legislative findings of extra duties as set
forth in section one of this article.
(2) Before the increased salaries, as set out in subdivisions
(5) and (7) of this subsection, are paid to the county
commissioners and the elected county officials, the following
requirements must be met:
(A) The auditor has certified that the proposed annual county
budget for the fiscal year beginning the first days of July, two
thousand two, has increased over the previous fiscal year in an
amount sufficient for the payment of the increase in the salaries,
set out in subdivisions (5) and (7) of this subsection, and the
related employment taxes: Provided, That the auditor may not
approve the budget certification for any proposed annual county
budget containing anticipated receipts which are unreasonably
greater or lesser than that of the previous year. For purposes of this subdivision, the term "receipts" does not include unencumbered
fund balance or federal or state grants; and
(B) Each county commissioner or other elected official
described in this subsection in office on the effective date of the
increased salaries provided by this subsection who desires to
receive the increased salary has prior to that date filed in the
office of the clerk of the county commission his or her written
agreement to accept the salary increase. The salary for the person
who holds the office of county commissioner or other elected
official described in this subsection who fails to file the written
agreement as required by this paragraph shall be the salary for
that office in effect immediately prior to the effective date of
the increased salaries provided by this subsection until the person
vacates the office or his or her term of office expires, whichever
first occurs.
(3) If there is an insufficient projected increase in revenues
to pay the increased salaries and the related employment taxes,
then the salaries of that county's elected officials and
commissioners shall remain at the level in effect at the time
certification was sought.
(4) In any county having a tribunal in lieu of a county
commission, the county commissioners of that county may be paid
less than the minimum salary limits of the county commission for that particular class of the county.
(5) COUNTY COMMISSIONERS
Class I $30,800
Class II $30,250
Class III $29,700
Class IV $29,150
Class V $28,600
Class VI $23,650
Class VII $23,100
Class VIII $20,900
Class IX $20,350
Class X $16,500
(6) For the purpose of determining the salaries to be paid to
the elected county officials of each county, the salaries for each
county office by class, set out in subdivision (7) of this
subsection, are established and shall be used by each county
commission in determining the salaries of each of their county
officials other than salaries of members of the county commission.
(7) OTHER ELECTED OFFICIALS
County Circuit Prosecuting
Sheriff Clerk Clerk Assessor Attorney
Class I $37,400 $46,200 $46,200 $37,400 $83,600
Class II $36,850 $45,650 $45,650 $36,850 $81,400
Class III $36,575 $44,550 $44,550 $36,575 $79,200
Class IV $36,300 $44,295 $44,295 $36,300 $77,000
Class V $36,025 $44,000 $44,000 $36,025 $74,800
Class VI $35,750 $41,250 $41,250 $35,750 $49,500
Class VII $35,475 $40,700 $40,700 $35,475 $47,300
Class VIII $35,200 $40,150 $40,150 $35,200 $45,100
Class IX $34,925 $39,600 $39,600 $34,925 $41,800
Class X $31,900 $35,200 $35,200 $31,900 $38,500
(8) Any county clerk, circuit clerk, joint clerk of the county
commission and circuit court, if any, county assessor or sheriff of
a Class I through Class V county, inclusive, any assessor or any
sheriff of a Class VI through Class IX county, inclusive, shall
devote full-time to his or her public duties to the exclusion of
any other employment: Provided, That any public official, whose
term of office begins when his or her county's classification
imposes no restriction on his or her outside activities, may not be
restricted on his or her outside activities during the remainder of
the term for which he or she is elected.
(9) In the case of a county that has a joint clerk of the
county commission and circuit court, the salary of the joint clerk
shall be fixed in an amount twenty-five percent higher than the
salary would be fixed for the county clerk if it had separate
offices of county clerk and circuit clerk.
(10) Any prosecuting attorney of a Class I through Class V
county, inclusive, shall devote full-time to his or her public
duties to the exclusion of any other employment: Provided, That
any county which under the prior provisions of this section was
classified as a Class II county and elected to maintain a part-time
prosecutor may continue to maintain a part-time prosecutor, until
such time as the county commission, on request of the part-time
prosecutor, approves and makes a finding, by proper order entered,
that the prosecuting attorney shall devote full-time to his or her
public duties. The county commission shall then compensate said
prosecutor at the same salary as that of a prosecuting attorney in
a Class V county: Provided, however, That any county which under
the prior provisions of this section was classified as a Class II
county and which did not elect to maintain a part-time prosecutor
shall maintain a full-time prosecuting attorney and shall
compensate said prosecuting attorney at the same salary as that of
a prosecuting attorney in a Class V county: Provided further,
That, until the first day of January, two thousand three, when a
vacancy occurs in the office of prosecuting attorney prior to the
end of a term, the county commission of a Class IV or Class V
county may elect to allow the position to become part-time for the
end of that term and thereafter the position of prosecuting
attorney shall become full-time.
(e) Notwithstanding any provision of this code to the
contrary, effective the first day of January, two thousand five,
the prosecuting attorney of Mingo County shall become a part-time
position with a salary as that of a prosecuting attorney in a class
VI county.
__(f) Notwithstanding any provision of this code to the
contrary, the position of prosecuting attorney of Wetzel County
shall be a part-time position regardless of the county's
classification with the salary as that of a prosecuting attorney in
a Class VI county.
On motion of Senator Oliverio, the following amendment to the
Judiciary committee amendment to the bill (Eng. H. B. No. 2915) was
reported by the Clerk:
On page eighteen, section four, lines nineteen through twenty-
three, by striking out all of subsection (e).
The question being on the adoption of Senator Oliverio's
amendment to the Judiciary committee amendment to the bill (Eng. H.
B. No. 2915), the same was put and did not prevail.
The question now being on the adoption of the Judiciary
committee amendment to the bill, the same was put and prevailed.
The bill (Eng. H. B. No. 2915), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Plymale, Prezioso, Ross, Rowe, Sharpe,
Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--31.
The nays were: Boley, Guills and Oliverio--3.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2915) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard,
Minear, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder,
Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: Boley, McKenzie and Oliverio--3.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2915) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2915--A Bill to amend and reenact section
four, article seven, chapter seven of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, relating to
making the prosecuting attorney of Mingo County a part-time
position; and making the Wetzel County prosecuting attorney to
remain part-time; effective dates; and salaries.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2961, Limiting idling of school bus
engines for more than five minutes except for certain reasons.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 12. SPECIAL STOPS REQUIRED.
§17C-12-7. Overtaking and passing school bus; penalties; signs and
warning lights upon buses; removal of warning lights,
lettering, etc., upon sale of buses; highways with separate roadways; limitation on idling.
(a) The driver of a vehicle, upon meeting or overtaking from
either direction any school bus which has stopped for the purpose
of receiving or discharging any school children, shall stop the
vehicle before reaching such the school bus when there is in
operation on said the school bus flashing warning signal lights, as
referred to in section eight of this article, and said the driver
shall not proceed until such the school bus resumes motion, or is
signaled by the school bus driver to proceed or the visual signals
are no longer actuated. This section applies wherever the school
bus is receiving or discharging children including, but not limited
to, any street, highway, parking lot, private road or driveway:
Provided, That the driver of a vehicle upon a controlled access
highway need not stop upon meeting or passing a school bus which is
on a different roadway or adjacent to such the highway and where
pedestrians are not permitted to cross the roadway. Any such
driver acting in violation of this subsection is guilty of a
misdemeanor and, upon conviction, thereof, shall be fined not less
than fifty nor more than two hundred dollars, or imprisoned in the
county jail not more than six months, or both fined and imprisoned.
If the identity of the driver cannot be ascertained, then any such
owner or lessee of the vehicle in violation of this subsection is
guilty of a misdemeanor and, upon conviction, thereof, shall be fined not less than twenty-five nor more than one hundred dollars.
Provided, however, That such The conviction shall not subject such
the owner or lessee to further administrative or other penalties
for said the offense, notwithstanding other provisions of this code
to the contrary.
(b) Every bus used for the transportation of school children
shall bear upon the front and rear thereof of the bus a plainly
visible sign containing the words "school bus" in letters not less
than eight inches in height. When a contract school bus is being
operated upon a highway for purposes other than the actual
transportation of children either to or from school, all markings
thereon on the contract school bus indicating "school bus" shall be
covered or concealed. Any school bus sold or transferred to
another owner by a county board of education, agency or individual
shall have all flashing warning lights disconnected and all
lettering removed or permanently obscured, except when sold or
transferred for the transportation of school children.
(c) The operator of any school bus may not operate the engine
of any school bus for more than five consecutive minutes when the
school bus is not in motion except when:
_____(1) The school bus is forced to remain motionless because of
traffic conditions or mechanical difficulties over which the
operator has no control;
_____(2) It is necessary to operate heating, cooling or auxiliary
equipment installed on the school bus when the equipment is
necessary to accomplish the intended use of the school bus,
including, but not limited to, the operation of safety equipment;
_____(3) The outdoor temperature is below forty degrees Fahrenheit;
_____(4) It is necessary to maintain a safe temperature for
students with special needs;
_____(5) The school bus is being repaired; or
_____(6) The operator is in the process of receiving or discharging
passengers on a public highway or public road.
On motion of Senator Snyder, the following amendment to the
Education committee amendment to the bill (Eng. H. B. No. 2961) was
reported by the Clerk and adopted:
On page three, section seven, line two, after the word
"children" by striking out the remainder of the bill and inserting
in lieu thereof the following:
(c) The state board of education shall write a policy
governing the idling of school buses.
The question now being on the adoption of the Education
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. H. B. No. 2961), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2961) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie,
Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe,
Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: Harrison--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 2961) passed.
On motion of Senator Snyder, the following amendment to the
title of the bill, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2961--A Bill to amend and reenact section
seven, article twelve, chapter seventeen-c of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to school buses generally; and requiring the state board
of education develop a policy concerning idling of school buses.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2975, Providing a window for persons who
were members of PERS and who left state employment withdrawing
their PERS moneys to buy back their time with interest.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Pensions, was reported by the Clerk and adopted:
On page four, section eighteen, line fifty-seven, by striking
out the word "ten" and inserting in lieu thereof the word "four".
The following amendments to the bill, from the Committee on
Finance, were next reported by the Clerk, considered simultaneously, and adopted:
On page two, section eighteen, line eighteen, by striking out
all of subsection (b) and relettering the remaining subsections;
On page three, section eighteen, lines thirty through thirty-
two, by striking out the words "on or before the first day of July,
one thousand nine hundred ninety-seven, and continuing thereafter";
And,
On page four, section eighteen, line fifty-nine, by striking
out the word "such" and inserting in lieu thereof the word "the".
The bill (Eng. H. B. No. 2975), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2975) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2975) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 2975) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3009, Excluding certain records from the
freedom of information act that are collected in the interest of
homeland security by governmental bodies.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. PUBLIC RECORDS.
§29B-1-4. Exemptions.
(a) The following categories of information are specifically
exempt from disclosure under the provisions of this article:
(1) Trade secrets, as used in this section, which may include,
but are not limited to, any formula, plan pattern, process, tool,
mechanism, compound, procedure, production data or compilation of
information which is not patented which is known only to certain
individuals within a commercial concern who are using it to
fabricate, produce or compound an article or trade or a service or
to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business
advantage over competitors;
(2) Information of a personal nature such as that kept in a
personal, medical or similar file, if the public disclosure thereof
would constitute an unreasonable invasion of privacy, unless the
public interest by clear and convincing evidence requires
disclosure in the particular instance: Provided, That nothing in
this article shall be construed as precluding an individual from
inspecting or copying his or her own personal, medical or similar
file;
(3) Test questions, scoring keys and other examination data
used to administer a licensing examination, examination for
employment or academic examination;
(4) Records of law-enforcement agencies that deal with the
detection and investigation of crime and the internal records and
notations of such law-enforcement agencies which are maintained for
internal use in matters relating to law enforcement;
(5) Information specifically exempted from disclosure by
statute;
(6) Records, archives, documents or manuscripts describing the
location of undeveloped historic, prehistoric, archaeological,
paleontological and battlefield sites or constituting gifts to any
public body upon which the donor has attached restrictions on usage or the handling of which could irreparably damage such record,
archive, document or manuscript;
(7) Information contained in or related to examination,
operating or condition reports prepared by, or on behalf of, or for
the use of any agency responsible for the regulation or supervision
of financial institutions, except those reports which are by law
required to be published in newspapers; and
(8) Internal memoranda or letters received or prepared by any
public body;
(9) Records assembled, prepared or maintained to prevent,
mitigate or respond to terrorist acts or the threat of terrorist
acts, the public disclosure of which threaten the public safety or
the public health;
_____(10) Those portions of records containing specific or unique
vulnerability assessments or specific or unique response plans,
data, databases and inventories goods or materials collected or
assembled to respond to terrorist acts; and communication codes or
deployment plans of law enforcement or emergency response
personnel;
_____(11) Specific intelligence information and specific
investigative records dealing with terrorist acts or the threat of
a terrorist act shared by and between federal and international
law-enforcement agencies, state and local law-enforcement and other agencies within the department of military affairs and public
safety;
_____(12) National security records classified under federal
executive order and not subject to public disclosure under federal
law that are shared by federal agencies and other records related
to national security briefings to assist state and local government
with domestic preparedness for acts of terrorism;
_____(13) Computing, telecommunications and network security
records, passwords, security codes or programs used to respond to
or plan against acts of terrorism which may be the subject of a
terrorist act;
_____(14) Security or disaster recovery plans, risk assessments,
tests or the results of those tests;
_____(15) Architectural or infrastructure designs, maps or other
records that show the location or layout of the facilities where
computing, telecommunications or network infrastructure used to
plan against or respond to terrorism are located or planned to be
located; and
_____(16) Codes for facility security systems; or codes for secure
applications for such facilities referred to in subdivision (15) of
this subsection.
_____(b) As used in subdivisions (9) through (16), inclusive,
subsection (a) of this section, the term "terrorist act" means an act that is likely to result in serious bodily injury or damage to
property or the environment and is intended to:
_____(1) Intimidate or coerce the civilian population;
_____(2) Influence the policy of a branch or level of government by
intimidation or coercion;
_____(3) Affect the conduct of a branch or level of government by
intimidation or coercion; or
_____(4) Retaliate against a branch or level of government for a
policy or conduct of the government.
_____(c) Nothing in the provisions of subdivision (9) through (16),
inclusive, subsection (a) of this section should be construed to
make subject to the provisions of this chapter any evidence of an
immediate threat to public health or safety unrelated to a
terrorist act or the threat thereof which comes to the attention of
a public entity in the course of conducting a vulnerability
assessment response or similar activity.
The bill (Eng. H. B. No. 3009), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3009) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3009) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 3009--A Bill to amend and reenact section
four, article one, chapter twenty-nine-b of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to excluding certain records from disclosure under the
freedom of information act collected in response to and in
preparation for terrorist acts or threats of terrorist acts;
definitions; and exceptions.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3009) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3011, Relating to authority of the state
fire commission to promulgate legislative and emergency rules.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-9. Powers, duties and authority of state fire commission and
state fire marshal.
(a) The state fire commission may employ personnel, fix their
compensation and, within funds available to do so, incur expenses
as necessary in the performance of the duties of its office.
(b) The state fire commission is responsible for fire programs
within this state, including the state fire marshal's office,
training, uniform standards and certification, finance and planning
and fire prevention.
(c) All state and area training and education in fire service
shall be coordinated by the state fire commission. The state fire
marshal shall ensure that these programs are operated throughout
the state at a level consistent with needs identified by the
commissioner.
(d) The state fire commission shall develop minimum training
levels for firefighters, minimum levels of equipment needed to protect life and property within fire service areas, minimum
performance standards the departments must meet in response times,
communications, minimum levels of water flow and pressure and other
performance measures as considered necessary to meet the overall
goals of improved fire prevention and control. The state fire
commission may make recommendations to the state insurance
commissioner regarding town classifications for fire insurance
rates.
(e) The formation of any new fire department, including
volunteer fire departments, requires the concurrence of the state
fire commission. The state fire commission shall develop a method
of certification which can be applied to all fire departments and
volunteer fire departments.
(f) The state fire commission shall develop a plan for fire
prevention and control which shall include, but not be limited to,
the following areas: Manpower needs; location of training centers;
location of fire prevention and control units; communications;
fire-fighting facilities; water sources; vehicular needs; public
education and information; public participation; standardization in
record keeping; evaluation of personnel; reporting of fire hazards;
programs on mutual aid; location of public safety agencies; outline
of fire prevention programs; and accessibility of fire prevention
information.
(g) The state fire commission shall establish fire protection
areas and at such times as funds are available shall establish
field offices for inspection, planning and certification.
(h) The state fire marshal may accept, on behalf of the state
fire commission, gifts, grants, court ordered civil forfeiture
proceedings and bequests of funds or property from individuals,
foundations, corporations, the federal government, governmental
agencies and other organizations or institutions. The state fire
marshal, acting on behalf of the state fire commission, may enter
into, sign and execute any agreements and do and perform any acts
that may be necessary, useful, desirable or convenient to
effectuate the purposes of this article. Moneys from gifts,
grants, civil forfeiture proceedings and bequests received by the
state fire marshal shall be deposited into the special account set
forth in subsection (c), section twelve-b of this article, and the
state fire marshal, with the approval of the state fire commission,
has the authority to make expenditures of, or use of any tangible
property, in order to effectuate the purposes of this article.
(h) The state fire commission shall establish standards and
procedures by policy to implement the provisions of this section
including, but not limited to, the following:
_____(1) Fire prevention and control;
_____(2) Uniform standards of performance, equipment and training;
_____(3) Certification;
_____(4) Training and education in fire service; and
_____(5) The organization, operation and responsibilities of fire
departments throughout the state.
On motion of Senator Kessler, the following amendments to the
Government Organization committee amendment to the bill (Eng. H. B.
No. 3011) were reported by the Clerk, considered simultaneously,
and adopted:
On page three, section nine, line nineteen, by striking out
the words "including, but not limited to," and inserting in lieu
thereof the words "with regard to";
And,
On page three, section nine, line twenty-four, by striking out
the word "organization" and inserting in lieu thereof the word
"creation".
The question now being on the adoption of the Government
Organization committee amendment to the bill, as amended, the same
was put and prevailed.
The bill (Eng. H. B. No. 3011), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3011) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3011) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 3011--A Bill to amend and reenact section
nine, article three, chapter twenty-nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to authorizing the state fire commission to establish
standards and procedures to implement the provisions of the
section.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3011) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3027, Authorizing the tax commissioner to
waive tax, interest and penalties in specified circumstances which
are otherwise imposed on uncompensated members of the governing
board or board of directors of certain tax exempt organizations.
On second reading, coming up out of regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk, considered simultaneously, and
adopted:
On page three, section five-v, line twenty-two, by striking
out the word "or";
On page three, section five-v, line twenty-four, by striking
out the word "or";
And,
On page four, section five-v, line forty-four, after the word
"owed" by striking out the word "or".
The bill (Eng. H. B. No. 3027), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3027) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3027) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3050, Authorizing the county commission of
Jefferson County to convey parcel of county-owned land to the Jefferson County fairgrounds.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
JEFFERSON COUNTY.
§1. County commission authorized to convey land to the Jefferson
County Fair Association.
(a) The Legislature finds that:
(1) An adequate site is necessary for the citizens of
Jefferson County to conduct a county fair to enable youth and
adults to exhibit livestock, horticultural products, agricultural
products and home economic skills;
(2) Transfers of property, real or personal, made by county
commissions to any person, organization or corporation for the
furtherance of county fair activities promotes the cultural and
educational welfare of the public and, therefore, is a public
purpose; and
(3) Transfers and conveyances of real property by county
commissions are authorized without legislative approval, by article
three, chapter seven of the code of West Virginia, as amended.
(b) Therefore, the Legislature declares that the county
commission of Jefferson County is hereby authorized and empowered
to transfer and convey unto the Jefferson County Fair Association
the tract or parcel of land described in subsection (c), after the
county commission of Jefferson County has approved such transfer
and conveyance by a majority vote of the commission.
(c) The tract or parcel of land situate in Middleway District,
Jefferson County, West Virginia, to the north of West Virginia
County Route 15 (Leetown Road), approximately 0.5 mile east of its
intersection with WV Co. Rte. 6, on the waters of Hopewell Run,
more particularly described as follows:
Beginning at (200) a found No. 5 Capped Rebar (Shepp), corner
in the line of the Jefferson County Volunteer Fireman Association
(D.B. 346, P. 603) and to the Jefferson County Fair Association
(D.B. 754, P. 48), thence leaving the Jefferson County Volunteer
Fireman Association and with the Jefferson County Fair Association
in part and finally with a 13.457 acre Lease Parcel of the
Overseers of the Poor of Jefferson County (now the Jefferson County
Commission, Lease recorded in D.B. 931, P. 581) N 650 00'00" W,
1367.26', passing (211) a Set No. 5 Capped Rebar at 931.09', corner
to the above mentioned Lease Parcel, to (347) a Set No. 5 Capped
Rebar, corner to the above mentioned Lease Parcel; thence again
with the Lease Parcel S 260 58'25" W, 182.62', to (216) a Set No. 5 Capped Rebar, corner to the Lease Parcel and to the Jefferson
County Solid Waste Authority (D.B. 778, P. 630), said corner being
located N 260 58'25" E, 1183.82', from (472) a Set No. 5 Capped
Rebar; thence leaving the Lease Parcel and with the Jefferson
County Solid Waste Authority N 220 17'06" W, 166.82', to (38) a
Found No. 5 Capped Rebar (Shepp) corner to the Jefferson County
Solid Waste Authority (D.B. 778, P. 630) and to other lands of the
Jefferson County Solid Waste Authority (D.B. 665., P. 201); thence
with said other lands of the Jefferson County Solid Waste Authority
(D.B. 665, P.201) N 320 53'05" E, 1147.92', to (34) a Found No. 5
Capped Rebar (Shepp), corner to the Jefferson County Solid Waste
Authority (D.B. 665, P. 201) and to Tabb (D.B. 770, P. 581); thence
with Tabb S 550 03'35" E, 1440.31', to (345) a Set No. 5 Capped
Rebar, corner to Tabb and the aforementioned Jefferson County
Volunteer Fireman Association, thence with the Jefferson County
Volunteer Fireman Association S 300 34'53" W, 822.99', to (200) the
Point of Beginning containing 32.145 acres, more or less, as
surveyed by Appalachian Surveys of West Virginia, L.L.C., in May,
2001, and as shown on the Plat of Survey.
Being a part of the property conveyed to the Overseers of the
Poor of Jefferson County (now the Jefferson County Commission), by
deed of record in the office of the clerk of the county commission
of Jefferson County in Deed Book 38 at page 24.
(d) Any proper conveyance made by the county commission of
Jefferson County transferring ownership of the tract or parcel of
land, described in subsection (c), to the Jefferson County Fair
Association shall contain a provision that ownership of the tract
or parcel of land, described in subsection (c), shall revert to the
county commission of Jefferson County should the land cease to be
used for the purpose of conducting a county fair.
The bill (Eng. H. B. No. 3050), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: Hunter--1.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3050) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: Hunter--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3050) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 3050--A Bill authorizing the county
commission of Jefferson County to convey a parcel of county-owned
land to the Jefferson County Fair Association after authorization
by a majority vote of the county commission of Jefferson County;
and requiring reversionary rights provision.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3084, Restructuring the support enforcement commission in the areas of membership, duties and
powers.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
On page four, section one hundred two, line four, after the
word "governor" by inserting the following proviso: Provided, That
no more than five members of the commission may belong to the same
political party.
The bill (Eng. H. B. No. 3084), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3084) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3084) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3089, Modifying various requirements of
financial institutions notifying the real estate commission in
certain circumstances.
On second reading, coming up out of regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Banking and Insurance, were reported by the Clerk, considered
simultaneously, and adopted:
On page five, section eighteen, line sixty-nine, after the
word "funds" by striking out the comma;
On page six, section eighteen, lines seventy-one and seventy-
two, after "(f)" by striking out the comma and the words "section
eighteen of this article" and inserting in lieu thereof the words
"of this section";
And,
On pages eight and nine, section twenty-two, line thirty-six,
after the word "broker." by striking out the remainder of the bill.
On motion of Senator Bowman, the following amendment to the
bill (Eng. H. B. No. 3089) was next reported by the Clerk and
adopted:
On page nine, after section twenty-two, by adding thereto a
new section, designated section five, to read as follows:
§30-40-5. Scope of practice; exceptions.
(a) The practice of real estate brokerage includes acting in
the capacity of a broker, associate broker or salesperson as
defined in section four of this article.
(b) The practice of real estate brokerage does not include the
activities normally performed by an appraiser, mortgage company,
lawyer, engineer, contractor, surveyor, home inspector or other
professional who may perform an ancillary service in conjunction
with a real estate transaction.
(c) The provisions of this article do not apply to:
(1) Any person acting on his or her own behalf as owner or
lessor of real estate.
(2) The regular employees of an owner of real estate, who
perform any acts regulated by this article, where the acts are
incidental to the management of the real estate: Provided, That
the employee does not receive additional compensation for the act
and does not perform the act as a vocation.
(3) Attorneys-at-law: Provided, That attorneys-at-law shall
be required to submit to the written examination required under
section twelve of this article in order to qualify for a broker's
license: Provided, however, That an attorney-at-law who is
licensed as a real estate broker prior to the first day of July,
one thousand nine hundred eighty, is exempt from the written
examination required under section twelve of this article.
(4) Any person holding, in good faith, a valid power of
attorney from the owner or lessor of the real estate.
(5) Any person acting as a receiver, trustee, administrator,
executor, guardian, conservator or under the order of any court or
under the authority of a deed of trust or will.
(6) A public officer while performing his or her official
duties.
(7) Any person acquiring or disposing of any interest in timber or minerals, or acquiring or disposing of properties for
easements and rights-of-ways for pipelines, electric power lines
and stations, public utilities, railroads or roads.
(8) Any person employed exclusively to act as the management
or rental agent for the real estate of one person, partnership or
corporation.
(9) Any person properly licensed pursuant to the provisions of
article two-c, chapter nineteen of this code when conducting an
auction, any portion of which contains any leasehold or estate in
real estate, only when the person so licensed is retained to
conduct an auction by:
(A) A receiver or trustee in bankruptcy;
(B) A fiduciary acting under the authority of a deed of trust
or will; or
(C) A fiduciary of a decedent's estate.
(10) Any person employed by a broker in a noncommissioned
clerical capacity who may in the normal course of employment, be
required to:
(A) Disseminate brokerage preprinted and predetermined real
estate sales and rental information;
(B) Accept and process rental reservations or bookings for a
period not to exceed thirty consecutive days in a manner and
procedure predetermined by the broker;
(C) Collect predetermined rental fees for the rentals which
are to be promptly tendered to the broker; or
(D) Any combination thereof.
On motion of Senator Minard, the Senate reconsidered the vote
by which immediately hereinbefore it adopted Senator Bowman's
amendment to the bill.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Bowman's
amendment to the bill.
Senator Minard arose to a point of order that Senator Bowman's
amendment to the bill (Eng. H. B. No. 3089) was not germane to the
bill.
Which point of order, the President ruled well taken.
The bill (Eng. H. B. No. 3089), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3089) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3089) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 3089--A Bill to amend and reenact sections
eighteen and twenty-two, article forty, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended,
all relating to modifying the requirement that financial
institutions which maintain a trust fund deposit account for real
estate brokers notify the real estate commission if any checks
drawn against the account are returned for any cause; providing
that a financial institution is required to notify the real estate
commission if any checks drawn against the trust fund account are
returned for insufficient funds; removing criminal and civil
penalties applicable to a financial institution if a trust fund
account for a real estate broker fails to notify the real estate
commission if any check drawn against the account is returned for
insufficient funds.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3203, Relating to amusement ride safety.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That sections two, twelve-a, fourteen and seventeen, article
ten, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and
that said article be further amended by adding thereto a new
section, designated section nineteen, all to read as follows:
ARTICLE 10. AMUSEMENT RIDES AND AMUSEMENT ATTRACTIONS SAFETY ACT.
§21-10-2. Definitions.
As used in this article:
(a) "Amusement ride" means a mechanical device which carries
or conveys passengers along, around or over a fixed or restricted
route or course for the purpose of giving its passengers amusement,
pleasure, thrills or excitement. The term includes carnival rides
and fair rides of a temporary or portable nature which are
assembled and reassembled or rides which are relocated from place
to place. "Amusement ride" may not be construed to mean any
mechanical device which is coin operated and does not include the
operation of a ski lift, the operation of tramways at state parks,
the operation of vehicles of husbandry incidental to any
agricultural operations or the operation of amusement devices of a
permanent nature which are subject to building regulations issued
by cities or counties and existing applicable safety orders.
(b) "Amusement attraction" means any building or structure
around, over or through which people may move or walk without the
aid of any moving device integral to the building or structure that
provides amusement, pleasure, thrills or excitement, including those of a temporary or portable nature which are assembled and
reassembled or which are relocated from place to place. The term
does not include any enterprise principally devoted to the
exhibition of products of agriculture, industry, education,
science, religion or the arts and shall not be construed to include
any concession stand or booth for the selling of food or drink or
souvenirs.
(c) "Kiddie ride" means an amusement ride or amusement
attraction that is expressly designed for or offered to: (1)
Children age twelve or less; (2) persons who are forty-two inches
in height or less; or (3) persons who are ninety pounds in weight
or less.
_____(c) (d) "Intoxicated" means influenced or affected by the
ingestion of alcohol, a controlled substance, any intoxicant or any
combination of alcohol, controlled substances and intoxicants.
(d) (e) "Mobile amusement ride or mobile amusement attraction"
means an amusement ride or amusement attraction which is erected in
a single physical location for a period of less than twelve
consecutive months.
(e) (f) "Operator" means the person having direct control of
the starting, stopping and speed of an amusement ride or
attraction.
(f) (g) "Owner" means any person, corporation, partnership or association who owns an amusement ride or attraction or, in the
event that the amusement ride or attraction is leased, the lessee.
(g) (h) "Stationary amusement ride or stationary amusement
attraction" means an amusement ride or amusement attraction that is
erected in a single physical location for a period of more than
twelve consecutive months.
§21-10-12a. Minimum age for operating amusement ride.
No individual under the age of eighteen sixteen may be the
operator of an a kiddie ride or, if under the age of eighteen, be
an operator of any other amusement ride or attraction: Provided,
That the individual is not otherwise prohibited from being an
operator pursuant to other state or federal law.
§21-10-14. Criminal penalty for violation.
Any operator or owner who knowingly permits the operation of
an amusement ride or amusement attraction in violation of the
provisions of sections six, seven, eight, nine, eleven, twelve or
twelve-a of this article is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than two hundred fifty
dollars nor more than one thousand dollars, confined in the county
or regional jail not more than twelve months, or both fined and
confined. Each day that a violation continues shall be considered
a separate violation.
§21-10-17. Civil penalties for violations.
(a) If an individual is convicted of, or enters a guilty plea
or a plea of nolo contendere to, a violation of subsection (a),
section fifteen of this article, and the individual was not the
owner of the ride being operated or assembled, the commissioner may
impose a civil penalty not to exceed five thousand dollars on the
owner of the ride being operated or assembled: Provided, That the
owner knew or should have known that the individual was acting in
violation of subsection (a), section fifteen of this article.
(b) All civil penalties collected by the commissioner shall be
deposited into the amusement rides and amusement attractions safety
fund created in section four of this article.
§21-10-19. Patron responsibility.
The owner or operator of an amusement ride or attraction may
refuse any member of the public admission to a ride if his or her
bearing or conduct could endanger himself or herself or others.
These reasons include, but are not limited to: (1) Intoxication;
(2) refusal to obey posted rules; (3) unacceptable or unsafe
behavior as determined by the operator or the ride; and (4)
violation of any age, height or weight restrictions as posted.
On motion of Senator Rowe, the following amendments to the
Judiciary committee amendment to the bill (Eng. H. B. No. 3203)
were reported by the Clerk and considered simultaneously:
On page three, section twelve-a, line twelve, by striking out the word "sixteen" and inserting in lieu thereof the word
"eighteen";
On page three, section twelve-a, lines thirteen and fourteen,
by striking out the words "a kiddie ride or if under the age of
eighteen be an operator of any other" and inserting in lieu thereof
the word "an";
And,
On page three, section twelve-a, line fourteen, after the word
"ride" by inserting a comma and the words "kiddie ride".
Following discussion,
The question being on the adoption of Senator Rowe's
amendments to the Judiciary committee amendment to the bill, the
same was put and did not prevail.
The question now being on the adoption of the Judiciary
committee amendment to the bill, the same was put and prevailed.
The bill (Eng. H. B. No. 3203), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--33.
The nays were: Rowe--1.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3203) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Jenkins, Kessler, Love, McCabe, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Sharpe, Smith, Snyder,
Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: Hunter, McKenzie and Rowe--3.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3203) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 3203--A Bill to amend and
reenact sections two, twelve-a, fourteen and seventeen, article ten, chapter twenty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to further amend said
article by adding thereto a new section, designated section
nineteen, all relating to amusement ride safety; defining terms;
allowing certain children to operate kiddie rides; limiting civil
penalties; allowing owners and operators to refuse admission to
certain patrons; and providing criminal penalties.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent,
the Senate proceeded to the consideration of
Eng. Com. Sub. for House Bill No. 2818, Authorizing the county
commissions of growth counties to include the transfer of
development rights as part of a zoning ordinance.
On second reading, coming up out of regular order, was read a
second time.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the bill was withdrawn.
On motion of Senator Snyder, the following amendment to the
bill was reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That article one, chapter seven of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended by
adding thereto two new sections, designated sections three-nn and
three-oo, all to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3nn. Transfer of development rights in growth counties.
(a) In addition to all other powers and duties now conferred
by law upon county commissions, if a county has been designated as
a growth county, as that term is defined in section three, article
twenty, chapter seven of this code, those county commissions, upon
approval by a majority of the legal votes cast at an election as
provided in section three-oo of this article, are hereby authorized
to, as part of a county-wide zoning ordinance, which has been in
effect for a minimum of five years, establish a program for the
transfer of development rights, in order to:
(1) Encourage the preservation of natural resources;
(2) Protect the scenic, recreational and agricultural
qualities of open lands; and
(3) Facilitate orderly growth and development in the county.
(b) The program for the transfer of development rights may
provide for:
(1) The voluntary transfer of the development rights permitted
on any parcel of land to another parcel of land;
(2) Restricting or prohibiting further development of the
parcel from which development rights; and
(3) Increasing the density or intensity of development of the
parcel to which such rights are transferred.
(c) The program for the transfer of development rights shall:
(1) Designate a universal program for which development rights
may be transferred from any parcel of land to any other parcel of
land;
(2) Provide that any rights transferred under this section be
for ten years; and
(3) Any rights purchased, but not used for development, revert
to the original owner after ten years.
(d) The county commission may not set a price for any
development rights that are proposed to be transferred or received.
(e) "Transferable development rights" means an interest in
real property that constitutes the right to develop and use
property under the zoning ordinance which is made severable from
the parcel to which the interest is appurtenant and transferable to
another parcel of land for development and use in accordance with
the zoning ordinance. Transferable development rights may be
transferred by deed from the owner of the parcel from which the
development rights are derived and upon the transfer shall vest in
the grantee and be freely alienable. The zoning ordinance may provide for the method of transfer of these rights and may provide
for the granting of easements and reasonable regulations to effect
and control transfers and assure compliance with the provisions of
the ordinance.
§7-1-3oo. Election on ordinance for program for transfer of
development rights; form of ballots or ballot labels;
procedure.
(a) A county commission which has been designated as a growth
county may submit a proposed ordinance to establish a program for
the transfer of development rights pursuant to section three-ll of
this article to the qualified voters residing within the county for
approval or rejection at any regular primary or general election.
Notice of the election shall be provided and the ballots shall be
printed as set forth in subsection (b) of this section. The
ordinance may be adopted if it is approved by a majority of the
legal votes cast thereon in that county. If the ordinance is
rejected, no election on the issue shall be held thereafter for a
period of one hundred-four weeks.
(b) On the election ballots shall be printed the following:
Shall the County Commission of (name of county) be authorized
to adopt an ordinance to establish a program for the transfer of
development rights in accordance with Section three-ll, Article
one, Chapter seven of the Code of West Virginia?
/ /Yes
/ /No
(c) If a majority of the legal votes cast upon the question be
for the ordinance, the provisions of the ordinance become effective
upon the date the results of the election are declared. If a
majority of the legal votes cast upon the question be against the
ordinance, the ordinance shall not take effect.
(d) Subject to the provisions of subsection (c) of this
section, an election permitted by this section may be conducted at
any regular primary or general election as the county commission in
its order submitting the same to a vote may designate.
(e) Notice of an election pursuant to this section shall be
given by publication of the order calling for a vote on the
question as a Class II-0 legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code and
the publication area for the publication shall be the county in
which the election is to be conducted.
(f) Any election permitted by this section shall held at the
voting precincts established for holding primary or general
elections. All of the provisions of the general election laws of
this state applicable to primary or general elections not
inconsistent with the provisions of this section shall apply to voting and elections authorized by this section.
On motion of Senator Bailey, the following amendments to
Senator Snyder's amendment to the bill (Eng. Com. Sub. for H. B.
No. 2818) were reported by the Clerk and considered simultaneously:
On page one, after the article heading, by adding inserting a
new section, designated section three-mm, to read as follows:
§7-1-3mm. County commissioners required to review and approve
rules restricting smoking of tobacco products.
No rule, regulation or ordinance heretofore or hereafter
adopted by a local board of health that restricts the smoking of
tobacco products in public or private places in this state shall be
enforceable unless it is first reviewed and approved by vote of the
county commission of every county within the jurisdiction of the
local board of health that adopts such rule, regulation or
ordinance.
Senator Rowe arose to a point of order that Senator Bailey's
amendments to Senator Snyder's amendment to the bill were not
germane to the bill.
Which point of order, the President ruled well taken.
The question now being on the adoption of Senator Snyder's
amendment to the bill, the same was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 2818), as amended, was
then ordered to third reading.
Senator Chafin moved that the constitutional rule requiring a
bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Bowman,
Caldwell, Chafin, Dempsey, Edgell, Fanning, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale,
Prezioso, Ross, Rowe, Sharpe, Snyder, Unger, White and Tomblin (Mr.
President)--24.
The nays were: Boley, Deem, Facemyer, Guills, Harrison,
McKenzie, Minear, Smith, Sprouse and Weeks--10.
Absent: None.
So, less than four fifths of the members present and voting
having voted in the affirmative, the President declared the motion
to suspend the constitutional rule rejected.
Without objection, the Senate returned to the third order of
business.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor,
regarding annual reports, which communication was received:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
March 7, 2003
Senate Executive Message No. 6
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear Mr. President:
Pursuant to the provisions of §5-1-20 of the Code of West
Virginia, I hereby certify that the following 2001-2002 annual
reports have been received in the Office of the Governor:
1. Accountancy, West Virginia Board of;
2. Aeronautics Commission, West Virginia;
3. Affordable Housing Trust Fund, The West Virginia;
4. Alcohol Beverage Control Administration, West Virginia;
5. Architects, West Virginia State Board of;
6. Banking, West Virginia Division of;
7. Barbers and Cosmetologists, Board of, West Virginia
Department of Health and Human Resources;
8. Behavioral Health, Office of the Ombudsman for;
9. Cancer Registry, West Virginia;
10. Charleston Housing;
11. Charleston Renaissance Corporation;
12. Chemical Studies, National Institute for;
13. Children and Families, Governor's Cabinet on;
14. Chiropractic, West Virginia Board of;
15. Coal Heritage Highway Authority;
16. Coal Mine Health and Safety, West Virginia Board of, and
Coal Mine Safety and Technical Review Committee;
17. College Prepaid Tuition Trust Fund, West Virginia;
18. Commodities and Services from the Handicapped, Committee
for the Purchase of;
19. Community and Economic Development, West Virginia Council
for;
20. Consumer Advocate Division, West Virginia Public Service
Commission;
21. Consumer Protection and Antitrust Divisions, Activities
of, West Virginia Attorney General's Report on;
22. Corrections, West Virginia Division of;
23. Counseling, West Virginia Board of Examiners in;
24. Counties, West Virginia Association of;
25. Court of Claims, West Virginia;
26. Crime Victims Compensation Fund, West Virginia Court of
Claims;
27. Deaf and Hard-of-Hearing, West Virginia Commission for
the;
28. Dental Examiners, West Virginia Board of;
29. Dieticians, West Virginia Board of Licensed;
30. Eastern West Virginia Community Foundation;
31. Education and State Employees Grievance Board, West
Virginia;
32. Employment Programs, West Virginia Bureau of;
33. Enviromental Protection, West Virginia Department of;
34. Equal Employment Opportunity Office, West Virginia;
35. Family Support Program, West Virginia Department of Health
and Human Resources;
36. Foresters, West Virginia Board of Registration of;
37. Forestry, West Virginia Division of;
38. Funeral Service Examiners, West Virginia Board of;
39. Grievance Board, West Virginia Education and State
Employees;
40. Health Care Authority, West Virginia;
41. Holocaust Education, West Virginia Commission on;
42. Housing Development Fund, West Virginia;
43. Human Rights Commission, West Virginia;
44. Insurance Commissioner, Office of, State of West Virginia;
45. Investment Management Board, West Virginia;
46. Juvenile Services, West Virginia Division of;
47. Labor, West Virginia Division of;
48. Land Surveyors, West Virginia State Board of Examiners of;
49. Library Commission, West Virginia;
50. Licensed Pracitical Nurses, West Virginia State Board of;
51. Logging Sediment Control Act, West Virginia Division of
Forestry;
52. Long-Term Care Nursing Program, Office of Health Facility
Licensure and Certification, West Virginia Department of Health and
Human Resources;
53. Lottery Commission, West Virginia;
54. Marshall University, Student Union Account;
55. Medicine, West Virginia Board of (Volumes I and II);
56. Message Therapy Licensure Board, West Virginia;
57. Metropolitan Planning Commission, Brooke-Hancock-
Jefferson;
58. Motor Vehicles, West Virginia Division of;
59. National and Community Service, West Virginia Commission
for;
60. National Guard, West Virginia;
61. Natural Resources, West Virginia Division of;
62. Neighborhood Investment Program, West Virginia Development
Office;
63. Nursing Home Administrators Licensing Board, West
Virginia;
64. Nursing Shortage Study Commission, West Virginia;
65. Occupational Therapy, West Virginia Board of;
66. Oil and Gas Inspector's Examining Board, West Virginia
Department of Environmental Protection;
67. Optometry, West Virginia Board of;
68. Osteopathy, West Virginia Board of;
69. Parole Board, West Virginia;
70. Personnel, West Virginia Division of;
71. Physical Therapy, West Virginia Board of;
72. Planning and Development Council, Region IV;
73. Planning and Development Council, Region VII;
74. Poison Center, West Virginia;
75. Professional Engineers of West Virginia, State Board of
Registration for;
76. Psychologists, West Virginia Board of Examiners of;
77. Public Defender Services, West Virginia;
78. Public Service Commission, West Virginia;
79. Radiologic Technology, West Virginia Board of Examiners;
80. Real Estate Appraiser Licensing and Certification Board,
West Virginia;
81. Real Estate Commission, West Virginia;
82. Registered Professional Nurses, West Virginia Board of
Examiners for;
83. Risk and Insurance Management, West Virginia Board of, and
Comprehensive Annual Financial Report;
84. Sanitarians, West Virginia Board of Registration for;
85. Senior Services, West Virginia Bureau of;
86. Social Work Examiners, West Virginia Board of;
87. Speech-Language Pathology and Audiology, West Virginia
Board of Examiners for;
88. State Police, West Virginia;
89. State Rehabilitation Council, West Virginia;
90. Steel Advisory Commission, West Virginia;
91. Technology, Governor's Office of;
92. Time Standards Compliance, West Virginia Workers'
Compensation Office of Judges;
93. Tourism Commission, West Virginia Division of;
94. Transportation Study, Brooke-Hancock-Jefferson;
95. Traumatic Brain and Spinal Cord Injury Rehabilitation
Fund, West Virginia Board of;
96. Veterans' Affairs, West Virginia Division of;
97. Veterinary Medicine, West Virginia Board of;
98. Water Development Authority, West Virginia;
99. West Virginia University, School of Physical Education;
100. West Virginia University, Student Union Account;
101. Wheeling Housing Authority;
102. Women's Commission, West Virginia;
103. Workforce Investment Office, Governor's;
Please advise my office if you should need copies of any of
the above-listed reports.
Very truly yours,
Bob Wise,
Governor.
Senator Tomblin (Mr. President) then laid before the Senate
the following communication from His Excellency, the Governor,
submitting the annual probation and parole report, which was
received:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
March 7, 2003
Senate Executive Message No. 7
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
As empowered by Section 11, Article VII of the Constitution of
the State of West Virginia and Section 16, Article 1, Chapter 5 of
the Code of West Virginia, I extended relief to the persons named
on the attached report. I submit this report in accordance with the above-cited provisions, for the period March 1, 2002, through
March 1, 2003.
Very truly yours,
Bob Wise,
Governor.
PARDONS AND MEDICAL RESPITES GRANTED
BY GOVERNOR WISE
FOR THE PERIOD
MARCH 1, 2002 - MARCH 1, 2003
Leo Lester Belcher, Jr.
Decided: March 13, 2002
In 1968, Mr. Belcher entered a plea of guilty to one felony
count of breaking and entering. On January 9, 1968, the Fayette
County Circuit Court sentenced him to one-to-ten years'
imprisonment, which sentence was suspended for three years'
probation. Mr. Belcher successfully completed his probationary
period. Since that time, Mr. Belcher has maintained himself as a
responsible, law-abiding citizen leading a productive and
contributing lifestyle.
For these reasons, Governor Wise granted a full, unconditional
and complete pardon to Leo Lester Belcher, Jr., for the offense of
breaking and entering.
George Michael Hall
Decided: March 13, 2002
In 1965, Mr. Hall entered a plea of guilty to one felony count
of breaking and entering. On October 20, 1965, the Kanawha County
Circuit Court sentenced Mr. Hall to a three-year term of probation.
On October 20, 1966, after successful completion of one year, the
probationary period was discharged. Since that time, Mr. Hall has
maintained himself as a responsible, law-abiding citizen leading a
productive and contributing lifestyle.
For these reasons, Governor Wise granted a full, unconditional
and complete pardon to George Michael Hall for the offense of
breaking and entering.
James Harry McClure
Decided: March 13, 2002
In 1958, Mr. McClure entered a plea of guilty to one felony
count of breaking and entering. On October 4, 1958, the Logan
County Circuit Court sentenced Mr. McClure to a three-year term of
probation. Mr. McClure successfully completed the probationary
period. Since that time, Mr. McClure has maintained himself as a
responsible, law-abiding citizen leading a productive and
contributing lifestyle.
For these reasons, Governor Wise granted a full, unconditional
and complete pardon to James Harry McClure for the offense of
breaking and entering.
Roy Edward Roton, Sr.
Decided: March 13, 2002
In 1984, Mr. Roton entered a plea of guilty to one felony
count of grand larceny. On October 18, 1984, the Roane County
Circuit Court sentenced Mr. Roton to one-to-ten years'
imprisonment, which sentence was suspended for a three-year term of
probation. Mr. Roton successfully completed the probationary
period. Since that time, Mr. Roton has maintained himself as a
responsible, law-abiding citizen leading a productive and
contributing lifestyle.
For these reasons, Governor Wise grated a full, unconditional
and complete pardon to Roy Edward Roton, Sr., for the offense of
grand larceny.
Adrienne Melba
Granted: April 1, 2002
Extended: July 30, 2002
Extended: January 30, 2003
Ms. Melba was diagnosed with end-stage liver disease while
serving a five-year sentence for aggravated robbery and a 30-year
sentence for wanton endangerment. Health care providers and the
Division of Corrections agreed that Ms. Melba's disease is life-
threatening and that she is a candidate for a liver transplant.
The Division of Corrections does not have the resources to provide the necessary medical procedure/treatment and personal financial
arrangements were available for these costs.
For these reasons, on April 1, 2002, Governor Wise granted Ms.
Melba a reprieve in the form of the suspension of her sentence of
imprisonment for a period of one hundred twenty days; on July 30,
2002, Governor Wise again extended the reprieve for a period of one
hundred eighty days; and on January 14, 2003, Governor Wise again
extended the reprieve for a period of one hundred eighty days.
Danny Bradford Marion
Decided: April 10, 2002
In 1964, Mr Marion entered a plea of guilty to one felony
count of accessory to breaking and entering. On April 9, 1964, the
Kanawha County Circuit Court suspended his sentence to a three-year
probationary term. After successful completion of one year of the
probationary term, the probationary period was discharged. Since
that time, Mr. Marion has maintained himself as a responsible, law-
abiding citizen leading a productive and contributing lifestyle.
For these reasons, Governor Wise granted a full, unconditional
and complete pardon to Danny Bradford Marion for the offense of
accessory to breaking and entering.
John Alvin Parker
Decided: September 3, 2002
In 1978, Mr. Parker entered a plea of guilty to one count of
entering without breaking. On September 28, 1978, the Fayette
County Circuit Court sentenced Mr. Parker to a three-year
probationary term. Mr. Parker successfully completed his
probationary period. Since that time, Mr. Parker has maintained
himself as a responsible, law-abiding citizen leading a productive
and contributing lifestyle.
For these reasons, Governor Wise grated a full, unconditional
and complete pardon to John Alvin Parker for the offense of
entering without breaking.
Charles E. Pettry, Jr.
Decided: October 25, 2002
In 1993, Mr. Pettry entered pleas of guilty to two counts of
forgery. On December 23, 1993, the Kanawha County Circuit Court
sentenced Mr. Pettry to a two-year probationary term. On December
23, 1955, Mr. Pettry successfully completed the probationary
period. Since that time, Mr Pettry has maintained himself as a
responsible, law-abiding citizen leading a productive and
contributing lifestyle.
For these reasons, Governor Wise granted a full, unconditional
and complete pardon to Charles E. Pettry, Jr., for the offenses of
forgery.
Jeffrey Alan Eavenson
Decided: December 9, 2002
In 1988, Mr. Eavenson entered a plea of guilty to one count of
entering without breaking. On April 11, 1988, the Monongalia
County Circuit Court sentenced Mr. Eavenson to one-to-ten years'
imprisonment, which was suspended to one year of probation. Mr.
Eavenson successfully completed the probationary period. Since
that time, Mr. Eavenson has maintained himself as a responsible,
law-abiding citizen leading a productive and contributing
lifestyle.
For these reasons, Governor Wise granted a full, unconditional
and complete pardon to Jeffrey Alan Eavenson for the offense of
entering without breaking.
Larry Mack Davenport
Decided: January 13, 2003
In 1985, Mr. Davenport entered a plea of guilty to one count
of welfare fraud. On December 9, 1985, the Kanawha County
Circuit Court sentenced Mr. Davenport to a five-year term of
probation. Mr. Davenport successfully completed the probationary
period and has made full restitution. Since that time, Mr.
Davenport has maintained himself as a responsible, law-abiding
citizen leading a productive and contributing lifestyle.
For these reasons, Governor Wise granted a full,
unconditional and complete pardon to Larry Mack Davenport for the
offense of welfare fraud.
Ronald H. Rebrook
Decided: January 13, 2003
In 1959, Mr. Rebrook entered a plea of guilty to one count of
breaking and entering. On June 6, 1959, the Harrison County
Circuit Court sentenced Mr. Rebrook to a two-year term of
probation. Mr. Rebrook successfully completed the probationary
period. Since that time, Mr. Rebrook has maintained himself as a
responsible, law-abiding citizen leading a productive and
contributing lifestyle.
For these reasons, Governor Wise granted a full, unconditional
and complete pardon to Ronald H. Rebrook for the offense of
breaking and entering.
Thomas M. Estep
Decided: January 31, 2003
In 1983, Mr. Estep entered a plea of guilty to one count of
unarmed robbery. On March 4, 1983, the Wetzel County Circuit Court
sentenced Mr. Estep to a five-year term of probation. Mr. Estep
successfully completed the probationary period. Since that time,
Mr. Estep has maintained himself as a responsible, law-abiding
citizen leading a productive and contributing lifestyle.
For these reasons, Governor Wise granted a full, unconditional
and complete pardon to Thomas M. Estep for the offense of unarmed
robbery.
Terry Lilly
Granted: February 14, 2003
Mr. Lilly was diagnosed with acute myelogenous leukemia while
serving a six-year sentence for first-degree arson, a five-year
sentence for wanton endangerment and a one-year sentence for
destruction of property. Health care providers and the Division of
Corrections agreed that Mr. Lilly's disease is life-threatening and
that he was in a debilitated state due to the progression of the
disease. Private financial arrangements were made to cover the
costs of necessary medications and specialized medical treatment
for Mr. Lilly.
For these reasons, on February 14, 2003, Governor Wise granted
Mr. Lilly a reprieve in the form of the suspension of his sentence
for a period of thirty days. On February 28, 2003, while on
reprieve, Mr. Lilly died.
Edward Burgess
Decided: February 20, 2003
In 1976, Mr. Burgess entered a plea of guilty to one count of
grand larceny. On July 14, 1976, the Raleigh County Circuit Court
sentenced Mr. Burgess to one-to-ten years' imprisonment, which
sentence was suspended to a two-year term of probation. Mr.
Burgess successfully completed the probationary period. Since that
time, Mr. Burgess has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
For these reasons, Governor Wise granted a full, unconditional
and complete pardon to Edward Burgess for the offense of grand
larceny.
Jason Newt Yauger
Decided: February 20, 2003
In 1999, Mr. Yauger entered a plea of guilty to one count of
underage consumption. On February 8, 1999, the Marion County
Circuit Court sentenced Mr. Yauger to a one-year term of
unsupervised probation. Mr. Yauger has maintained himself as a
responsible, law-abiding citizen leading a productive and
contributing lifestyle.
For these reasons, Governor Wise granted a full, unconditional
and complete pardon to Jason Newt Yauger for the offense of
underage consumption.
__________
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor,
consisting of executive nominations for appointees:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
March 7, 2003
Senate Executive Message No. 8
TO: The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I am respectfully withdrawing the following appointment from
Senate Executive Message No. 5 dated February 26, 2003:
14. For member, Emergency Medical Services Advisory Council,
Bill Favors, Huntington, Cabell County, for the term ending June
30, 2003.
I am respectfully submitting the following nomination for your
advice and consent:
1. For Member, Emergency Medical Services Advisory Council,
Paul Seamann, Beckley, Raleigh County, for the term ending June 30,
2003.
Enclosed, please find a copy of Mr. Favors' resignation
letter. Notice of this appointment was provided to the appropriate
legislative staff at the time the appointment was made. Thank you
for correcting your records.
Very truly yours,
Bob Wise,
Governor.
Which communication was received and referred to the Committee
on Confirmations and incorporated with the executive nominations received earlier this session; all to be considered as a special
order of business for Saturday, March 8, 2003, at 11 a.m.
The Clerk then presented communications from His Excellency,
the Governor, advising that on March 7, 2003, he had approved Enr.
Senate Bill No. 471 and Enr. Committee Substitute for House Bill
No. 2359.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate recessed until 6:15
p.m. today.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Ross, and by unanimous consent, returned to
the second order of business and the introduction of guests.
The Senate again proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 75, Budget bill.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Eng. House Bill No. 2285, Requiring hunting and fishing
licensees to carry proof of identity and other applicable
documents.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2480, Increasing the amount of penalties the commissioner of banking may obtain and allowing
the commissioner to expend funds to promote consumer awareness of
issues related to residential mortgage lending.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2486, Continuing the public employees
insurance agency.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2554, Continuing the marketing and
development division of the department of agriculture.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2555, Continuing the West Virginia's
membership in the southern regional education compact.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2670, Continuing the office of judges
until July 1, 2009.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Bowman, the following amendment to the
bill was reported by the Clerk and adopted:
On page two, section seventeen, line four, by striking out the
word "nine" and inserting in lieu thereof the word "four,".
The bill (Eng. H. B. No. 2670), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2670) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2670) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2684, Authorizing the commissioner of
department of highways to set certain speed limits.
On second reading, coming up in regular order, was reported by
the Clerk.
On motion of Senator Chafin, the bill was recommitted to the
Committee on Transportation.
Eng. Com. Sub. for House Bill No. 2705, Relating to the
supervision of adult offenders and authorizing a compact for the
supervision of adult offenders.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2750, Continuing the office of health
facility licensure and certification.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2751, Continuing the department of health and human resources.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2752, Continuing the bureau for senior
services.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2760, Authorizing motor
carrier inspectors designated by the PSC to enforce all traffic
laws and rules of the road with respect to commercial motor
vehicles.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2779, Continuing the personal assistance
services program.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2802, Providing for a legal description in
deeds creating an easement right-of-way.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2814, Increasing the
misdemeanor penalties for failure to yield the right-of-way.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2829, Continuing the division of culture
and history.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2830, Continuing the division of natural
resources.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2831, Continuing the records management
and preservation board.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2835, Creating a special
revenue fund for receipt of gifts, donations, etc., to support the
operation of veterans facilities created by statute.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2840, Increasing the number of members on
the Greater Huntington Park and making other changes in the act.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2864, Continuing the office of explosives
and blasting.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2879, Continuing the West Virginia
commission on holocaust education.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2881, Striking the provision
requiring that post mining water discharges have to be better to or
equal to pre-mining water discharge.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2882, Limiting requirements for stays for
appeals under the surface coal mining and reclamation act for
unjust hardship.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2888, Continuing the board of osteopathy.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2889, Continuing the board of examiners of
psychologists.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2916, Continuing the state geological and
economic survey.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3056, Providing for the
regulation of intrastate driving hours of for-hire carriers.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3062, Authorizing stockholders of closely
held corporations to file suit for partition of real estate owned
by the corporation when the real estate is the only substantial
asset of the corporation.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3070, Providing that a mass
convention of a political party, to elect delegates to the state
convention, be held in the county instead of the various
magisterial districts.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3092, Clarifying the prohibited discrimination and changing the employee's remedy for a
violation of prohibited acts.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Fanning, the following amendment to the
bill was reported by the Clerk and adopted:
On page two,
by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That sections two, three, four, five and six, article five-e,
chapter twenty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 5E. EQUAL PAY FOR EQUAL WORK OF STATE EMPLOYEES.
§21-5E-2. Definitions.
For the purposes of this article:
(2) (1) "Employee" means any person hired for permanent
employment, either full or part-time, or hired for temporary
employment for more than six consecutive months, by any department,
agency, commission or board of the state created by an act of the
Legislature, except any person employed by the university of West
Virginia board of trustees, the board of directors of the state
college system or by any state institution of higher education, or
a member of the state police, an employee of any constitutional officer who is not classified under the provisions of article six,
chapter twenty-nine of this code and any employee of the
Legislature. The definition of "employee" does not include any
patient or inmate employed in a state institution;
(1) (2) "Employer" means the state of West Virginia that state
department, board, commission or agency utilizing the services of
an employee.
_____(3) "Job class" means one or more positions sufficiently
similar in duties, training, experience and responsibilities that
the same title, the same qualifications and the same schedule of
compensation and benefits may be equitably applied to each position
in the class under the same or substantially similar employment
conditions.
(4) "Rate" with reference to wages means the basis of monthly
or hourly compensation for services by paid to an employee for an
by the employer and includes compensation based on the time spent
in the performance of those services, or on the number of
operations accomplished, or on the quantity produced or handled;
(5)"Unpaid wages" means the difference between the wages
actually paid to an employee and the wages required to be paid to
an employee pursuant to section three of this article;
(7) (6) "Wage gap" means the difference between the median
annual earnings of men and women;
(3) (7) "Wages" means all compensation for performance of
service by an employee for an employer, whether paid by the
employer or another person, including the cash value of all
compensation paid in any medium other than cash; and
_____(6) (8) "Work of comparable character" means work that may be
dissimilar, but whose the requirements of which are comparable or
equivalent when viewed as a measured by the composite of levels of
the skill, effort, responsibility and working conditions normally
required in the performance of the work.
§21-5E-3. Discrimination between sexes in payment of wages for
work of comparable character prohibited.
(a) No employer shall:
(1) In any manner discriminate between the sexes in the
payment of wages for the performance of work of comparable
character, the performance of which requires comparable skills; or
(2) Pay wages to any employee at a rate less than the rate
other employees of the opposite sex are paid for the performance of
work of comparable character, the performance of which requires
comparable skills.
(b) Nothing in subsection (a) of this section prohibits the
payment of different wages to employees where the payment is made
pursuant to:
(1) A bona fide seniority system;
(2) A merit system; or
(3) A system that measures earnings by quantity or quality of
production.
(c) No employee shall be reduced in wages in order to
eliminate an existing, past or future wage discrimination or to
effectuate wage equalization.
(d) No employer shall in any manner discriminate in the
payment of wages to any employee because the employee has filed a
complaint in a proceeding under this article, or has testified, or
is about to testify, or because the employer believes that the
employee may testify, in any investigation or proceeding pursuant
to this article. For purposes of this section, the payment of wages
is nondiscriminatory if an equitable compensation relationship
exists between female dominated and male dominated job classes.
(e) Except as otherwise provided in subsection (d), section
six of this article, the provisions of this section shall not
become effective until the Legislature approves for promulgation
the rules proposed by the equal pay commission under the provisions
of subsection (c) of said section.
§21-5E-4. No right of action.
No legal or equitable cause of action, administrative, civil
or criminal, arises under this article and there is no right of
recovery against the state or the state's liability insurance policies for any alleged violation of this article. The enactment
of this article does not waive sovereign immunity set forth in
article VI, section thirty-five of the constitution
of West
Virginia.
§21-5E-5. Establishment of the equal pay commission; appointment
of members; and expiration date.
(a) The equal pay commission is hereby established. The
commission shall be composed of seven members, as follows:
(1) Two members of the House of Delegates, appointed by the
speaker;
(2) Two members of the Senate, appointed by the president; and
(3) Three state employee representatives, including one labor
union member representing state employees, as agreed to by the
speaker and president; the director of the women's commission, or
his or her designee; and the director of the office of equal
employment opportunity, or his or her designee.
(b) The commission shall seek input from and invite the
commissioner of labor or his or her designee and the director of
the personnel division of the department of administration or his
or her designee to attend meetings of the commission.
(c) One of the members of the Senate and one of the members of
the House of Delegates, as designated by the president and the
speaker respectively, shall serve as cochair of the commission.
(d) The members of the House of Delegates, the members of the
Senate and the state employee representative members initially
appointed shall serve until the thirty-first day of December, one
thousand nine hundred ninety-eight. Those members shall thereafter
be appointed to serve two-year terms beginning the first day of
January, one thousand nine hundred ninety-nine.
(e) Any member whose term has expired shall serve until his or
her successor has been duly appointed. Any person appointed to
fill a vacancy shall serve only for the unexpired term. Any member
shall be eligible for reappointment.
(f) Any vacancies occurring in the membership of the
commission shall be filled in the same manner as the original
appointment for the position being vacated. The vacancy shall not
affect the power of the remaining members to execute the duties of
the commission.
(g) The commission expires on the first day of July, two
thousand three thirteen.
§21-5E-6. Commission's duties; promulgation of rules.
(a) The equal pay commission shall study both the methodology
and funding for the implementation of a gender discrimination
prohibition and shall prepare reports for submission to the
Legislature which include:
(1) An analysis of state job descriptions which measures the inherent skill, effort, responsibility and working conditions of
various jobs and classifications; and
(2) A review of similar efforts to eliminate gender-based wage
differentials implemented by other governmental entities in this
and other states.
(b) The commission shall submit an initial report with
recommendations for implementation of a gender discrimination
prohibition to the joint committee on government and finance not
later than the first day of July, two thousand, and shall submit
status reports annually thereafter.
(c) Based upon the findings and recommendations in its report,
the commission may propose legislative rules for promulgation in
accordance with article three, chapter twenty-nine-a of this code
to implement the provisions of this article.
(d) The Legislature finds that it has not fully assessed the
potential cost to the state if the provisions of sections three and
four of this article are implemented and that those provisions
should not be implemented until a reasonable estimate of the amount
of public funds that may be required for appropriation and
expenditure as a result of the implementation can be calculated.
Accordingly, notwithstanding any other provisions of this article
to the contrary, the provisions of sections three and four of this
article shall not become effective until enactment of general law specifically providing an effective date of implementation of those
sections. During the interim period between the two thousand two
regular session of the Legislature and the two thousand three
regular session of the Legislature, the equal pay commission shall,
in the manner prescribed by the joint committee on government and
finance, meet and consult with the joint standing committee on the
judiciary, the joint committee on finance and others as may be
prescribed for the purposes of conducting a joint assessment of
budgetary or other financial impact on the state if the provisions
of sections three and four of this article are implemented. Prior
to the two thousand three regular session of the Legislature, those
directed to conduct the joint assessment shall report their
findings to the joint committee on government and finance and, if
warranted, report any recommendations for the passage of
legislation that would effectively lessen or eliminate the cost of
implementation of sections three and four of this article in a
manner that is consistent with achieving the purposes for which
this article was initially enacted.
(c) The equal pay commission shall prepare an equitable
compensation implementation report in accordance with option "B" of
the final report on pay equity and West Virginia state employment
and submit it to the joint committee on government and finance no
later than the first day of September, two thousand three. The implementation plan shall include the following information:
_____(1) A list of all job classes which require pay equity salary
adjustments;
_____(2) The number of employees in each job class;
_____(3) The number of female employees in each job class;
(4) The proposed salary increase by job class;
_____(5) The state cost of the salary increase by job class;
_____(6) The source of matching salary funds and the amount of
those funds required for the salary increase by job class; and
_____(7) The recommended time period for implementation and the
estimated cost per year including the annual state cost and total
cost.
_____(d) Prior to the two thousand four session of the Legislature
and each legislative session thereafter through the two thousand
and ten session of the Legislature, the equal pay commission shall
inform the joint committee on government and finance in writing
whether or not an equitable compensation plan has been achieved
and, if not, the equal pay commission shall also report:
_____(1) Any amendment to the implementation plan previously
established under subsection (c) of this section;
_____(2) A recommendation of the amount to be appropriated in the
upcoming fiscal year for a pay equity salary adjustment set forth
by job class and the reasons therefore;
_____(3) Progress made to date in implementing an equitable
compensation plan;
_____(4) Progress made within each job class to lessen the cost of
pay equity salary adjustments through the implementation of non-
monetary strategies; and
_____(5) Any recommendations for the passage of legislation.
The bill (Eng. Com. Sub. for H. B. No. 3092), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3092) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3092) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3093, Requiring county commissions to
follow geographic physical features recognized by the United States
Census Bureau when determining precinct boundaries.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3155, Maintaining the
security and confidentiality of business processes.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3201, Allowing the family court to
exercise jurisdiction concurrently with the circuit court over
petitions for a change of name.
On second reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Minard, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar.
The Senate proceeded to the tenth order of business.
Eng. Com. Sub. for House Bill No. 2895, Requiring eight hours
annually of dementia specific training for staff in nursing homes
and personal care homes.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Eng. Com. Sub. for House Bill No. 3075, Providing for
nonrelative visitation for health care patients.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Caldwell, from the Committee on Interstate
Cooperation, submitted the following report, which was received:
Your Committee on Interstate Cooperation has had under
consideration
Eng. Com. Sub. for House Bill No. 2704, Relating to the
supervision and return of juvenile offenders, runaways and other juveniles.
And reports the same back without recommendation as to
passage; but under the original double committee reference first be
referred to the Committee on the Judiciary.
Respectfully submitted,
Anita Skeens Caldwell,
Chair.
At the request of Senator Caldwell, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2704) contained in
the preceding report from the Committee on Interstate Cooperation
was taken up for immediate consideration, read a first time,
ordered to second reading and, under the original double committee
reference, was then referred to the Committee on the Judiciary.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2224, Relating to higher education
reorganization.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 4, 2003;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Chafin, unanimous consent being
granted, the bill (Eng. H. B. No. 2224) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That section two, article eight, chapter eighteen-b of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section one, article five, chapter five
of said code be amended and reenacted; that section two, article
one, chapter eighteen-b of said code be amended and reenacted; that
said article be further amended by adding thereto two new sections,
designated sections eight and ten; that section three, article one-
a of said chapter be amended and reenacted; that section six,
article one-b of said chapter be amended and reenacted; that said
article be further amended by adding thereto a new section,
designated section ten; that sections three, four and eight,
article three-c of said chapter be amended and reenacted; that article six of said chapter be amended by adding thereto a new
section, designated section four-b; that sections four and six,
article seven of said chapter be amended and reenacted; that
section three, article eight of said chapter be amended and
reenacted; that sections five and ten, article nine of said chapter
be amended and reenacted; that sections one and fourteen, article
ten of said chapter be amended and reenacted; and that article
fourteen of said chapter be amended by adding thereto a new
section, designated section eleven, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY
OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-1. Definitions.
For the purposes of this article:
(1) (a) "Eligible employee" means either of the following:
(1) Any regular full-time employee of the state or any
spending unit thereof of the state who is eligible for membership
in any state retirement system of the state of West Virginia or
other retirement plan authorized by the state: Provided, That the
mandatory salary increase required by this article shall not apply
to any faculty employee at public state institutions of higher
learning education, or any employee of the state whose compensation is fixed by statute or by statutory schedule other than employees
described in this section. (except that the Clerks, deputy clerks
and magistrate assistants of magistrate courts shall be are
eligible for the incremental salary increases provided in this
article and with such the increases to be allowable in addition to
the maximum salaries and compensation for such the employee offices
under the magistrate court system statutes of article one, chapter
fifty of the code.), nor shall This article may not be construed to
mandate an increase in the salary of any elected or appointed
officer of the state; or
_____(2) Any classified employee as defined in section two, article
nine, chapter eighteen-b of this code who is an employee of a state
institution of higher education or of the higher education policy
commission;
_____(2) (b) "Years of service" means full years of totaled service
as an employee of the state of West Virginia; and
_____(3) (c) "Spending unit" means any state office, department,
agency, board, commission, institution, bureau or other designated
body authorized to hire employees.
CHAPTER 18B. HIGHER EDUCATION.
§18B-1-2. Definitions.
The following words when used in this chapter and chapter
eighteen-c of this code have the meaning hereinafter ascribed to them unless the context clearly indicates a different meaning:
(a) For the transition year beginning on the first day of
July, two thousand, and ending on the thirtieth day of June, two
thousand one, only, "governing board" or "board" means the higher
education interim governing board created pursuant to article one-c
of this chapter; and, beginning on the first day of July, two
thousand one, "governing board" or "board" means the institutional
board of governors of West Virginia university, Marshall
university, the West Virginia school of osteopathic medicine,
Bluefield state college, Concord college, eastern West Virginia
community and technical college, Fairmont state college, Glenville
state college, Shepherd college, southern West Virginia community
and technical college, West Liberty state college, West Virginia
northern community and technical college and West Virginia state
college, whichever is applicable within the context of the
institution or institutions referred to in this chapter or in other
provisions of law;
(a) Effective the first day of July, two thousand five,
"regional campus" means West Virginia university at Parkersburg,
and West Virginia university institute of technology.
(b) Beginning on the first day of July, two thousand one,
"Governing boards" or "boards" means the institutional boards of
governors created pursuant to subsection (b), section one, article two-a of this chapter;
(c) "Freestanding community and technical colleges" means
southern West Virginia community and technical college, West
Virginia northern community and technical college, eastern West
Virginia community and technical college, which shall not be
operated as branches or off-campus locations of any other state
institution of higher education;
(d) "Community college" or "community colleges" means
community and technical college or colleges as those terms are
defined in this section;
(e) "Community and technical college", in the singular or
plural, means the freestanding community and technical colleges and
other state institutions of higher education which have defined
community and technical college responsibility districts and
programs in accordance with the provisions of sections four and
six, article three-c of this chapter;
(f) "Community and technical college education" means the
programs, faculty, administration and funding associated with the
mission of community and technical colleges as provided in article
three-c of this chapter;
(g) "Essential conditions" means those conditions which shall
be met by community and technical colleges as provided in section
three, article three-c of this chapter;
(h) "Higher education institution" means any institution as
defined by Sections 401(f), (g) and (h) of the federal Higher
Education Facilities Act of 1963, as amended;
(i) "Higher education policy commission", or "policy
commission" or commission means the commission created pursuant to
section one, article one-b of this chapter;
(j) "Chancellor" means the chief executive officer of the
higher education policy commission employed pursuant to section
five, article one-b of this chapter;
(k) "Institutional operating budget" or "operating budget" for
any fiscal year means an institution's total unrestricted education
and general funding from all sources in a prior fiscal year,
including, but not limited to, tuition and fees and legislative
appropriation, and any adjustments to that funding as approved by
the commission based on comparisons with peer institutions or to
reflect consistent components of peer operating budgets;
(l) "Post-secondary vocational education programs" means any
college-level course or program beyond the high school level
provided through an institution of higher education under the
jurisdiction of a governing board which results in or may result in
the awarding of a two-year associate degree;
(m) "Rule" or "rules" means a regulation, standard, policy or
interpretation of general application and future effect;
(n) For the purposes of this chapter and chapter eighteen-c of
this code, "senior administrator" means the vice chancellor for
administration employed by the chancellor in accordance with
section two, article four of this chapter. The vice chancellor for
administration shall assume all the powers and duties that are
assigned by law to the senior administrator;
(o) "State college" means Bluefield state college, Concord
college, Fairmont state college, Glenville state college, Shepherd
college, West Liberty state college or West Virginia state college;
(p) "State institution of higher education" means any
university, college or community and technical college under the
direct or indirect jurisdiction of a governing board as that term
is defined in this section;
(q) "Regional campus" means West Virginia university at
Parkersburg, Potomac state college of West Virginia university, and
West Virginia university institute of technology; Each regional
campus shall adopt separate strategic plans required by section
one-c of this article;
(r) The advisory board previously appointed for the West
Virginia graduate college shall be known as the "board of visitors"
and shall provide guidance to the Marshall university graduate
college;
(s) "Institutional compact" means a compact between a state institution of higher education and the commission, as described in
section two, article one-a of this chapter;
(t) "Peer institutions", "peer group" or "peers" means public
institutions of higher education used for comparison purposes and
selected by the commission pursuant to section three, article one-a
of this chapter;
(u) "Administratively linked community and technical college"
means a community and technical college created pursuant to section
eight, article three-c of this chapter;
(v) "Sponsoring institution" means the state institution of
higher education that maintains an administrative link to a
community and technical college pursuant to section eight, article
three-c of this chapter;
(w) "Collaboration" means entering into an agreement with one
or more providers of education services in order to enhance the
scope, quality, or efficiency of education services;
(x) "Broker" or the act of "brokering" means serving as an
agent on behalf of students, employers, communities or
responsibility areas to obtain education services not offered by a
sponsoring institution. These services include courses, degree
programs or other services contracted through an agreement with a
provider of education services either in-state or out-of-state; and
(y) "Joint commission for vocational-technical-occupational education" or "joint commission" means the commission established
pursuant to article three-a of this chapter.
§18B-1-8. Student rights when institutions merge or become
administratively linked.
(a) Commencing with the effective date of this section, when
a conflict exists between academic program requirements at an
institution to be consolidated, merged or administratively linked
to another state institution of higher education, the requirements
of the institution at which the student initially enrolled prevail.
A student may not be required to earn additional credits toward the
degree pursued, or to take additional courses, that were not
included in the program of study at the time the student declared
that major at the enrolling institution.
_____(b) A student enrolled in an institution to be consolidated,
merged or administratively linked to another state institution of
higher education shall continue to receive any state-funded student
financial aid for which he or she would otherwise be eligible.
§18B-1-10. Potomac branch of West Virginia university.
(a) Notwithstanding any other provision of this code to the
contrary, by the first day of July, two thousand five, Potomac
state college shall merge and consolidate with West Virginia
university and become a fully integrated division of the
university. All administrative and academic units shall be consolidated with primary responsibility for direction and support
assigned to West Virginia university. The advisory board
previously appointed for Potomac state college shall be known as
the board of visitors and shall provide guidance to the division in
carrying out its mission.
_____(b) Operational costs for the Potomac campus may not exceed by
more than ten percent the average cost per full-time equivalent
student for freestanding community and technical colleges or the
southern regional education board average expenditures for two-year
institutions. West Virginia university shall reduce these costs to
the mandated level within four years.
_____(c) Auxiliary enterprises shall be incorporated into the West
Virginia university auxiliary enterprise system. The West Virginia
university board of governors shall determine if operations at the
Potomac campus can be operated on a self-sufficient basis when
establishing rates for auxiliary services and products.
_____(d) Potomac state college has a strong reputation in
agriculture and forestry instruction, pre-professional programs in
business, computer science and education and basic liberal arts
instruction. These programs shall be further cultivated and
emphasized as the sustaining mission of the Potomac campus over the
next decade, except that the higher education policy commission may
change the mission of the Potomac campus at any time the commission determines appropriate. In order to focus its resources on these
programs, the campus shall contract through eastern West Virginia
community and technical college to provide work force development
training, literacy education and technical education programs which
are most efficiently offered within a flexible community and
technical college curriculum. This collaborative relationship
shall serve to strengthen both institutions and generate a model
relationship between traditional and community and technical
college education for institutions throughout the state.
_____(e) Beginning the first day of November, two thousand three,
and annually thereafter, Potomac state college and eastern West
Virginia community and technical college shall report to the higher
education policy commission on plans, accomplishments and
recommendations in implementing the cooperative relationship
authorized in subsection (d) of this section. The commission shall
report to the legislative oversight commission on education
accountability on the cooperative activities, results and
recommendations for changes by the fifteenth day of December, two
thousand three, and annually thereafter.
ARTICLE 1A. COMPACT WITH HIGHER EDUCATION FOR THE FUTURE OF WEST
VIRGINIA.
§18B-1A-3. Peer institutions.
(a) The commission shall select not fewer than ten peer institutions for each state institution of higher education in West
Virginia, including, but not limited to, independently accredited
community and technical colleges.
(b) The peer institutions shall be selected from among
institutions throughout the United States and not solely from the
states that are members of the southern regional education board.
(c) The peer institutions, as selected by the commission,
shall be used as benchmarks for comparison purposes only and are
not intended to reflect funding goals for West Virginia
institutions of higher education. Such a use is inappropriate
since institutions selected as peers for a state institution may be
located in an area of high per capita income or have their funding
subject to other factors that make its use unrealistic for setting
funding goals in West Virginia. The peer institutions shall be
used for comparison in the following areas:
(1) To determine adjustments to base operating budgets as
described in section five of this article;
(2) To determine comparable levels of tuition;
(3) To determine comparable faculty and staff teaching
requirements and other workloads; and
(4) For such other purposes as the law may require or the
commission may find useful or necessary.
(d) The commission shall contract with a national, independent education consulting firm to assist in the unbiased selection of
peer institutions for each West Virginia institution. The
commission shall select peer institutions for each institution
through an open, deliberative, objective process and in
consultation with the institutional boards of governors, intended
to achieve broad understanding of the basis for this selection in
the higher education community and the Legislature. Final peer
selection is subject to the review approval of the legislative
oversight commission on education accountability. In selecting
peer institutions, the commission shall use criteria such as, but
not limited to:
(1) Institutional mission;
(2) Institutional size related to full-time equivalent
students;
(3) The proportions of full-time and part-time students;
(4) The level of academic programs, including, but not limited
to, number of degrees granted at the associate, baccalaureate,
masters, doctoral and first-professional level;
(5) The characteristics of academic programs such as health
sciences, professional, technical or liberal arts and sciences; and
(6) The level of research funding from federal competitive
funding sources.
(e) Subject to the review approval of the legislative oversight commission on education accountability, the commission
shall review and make necessary adjustments to peer institutions at
least every six years or as necessary based on changes in
institutional missions as approved in institutional compacts or in
changes at peer institutions.
(f) Nothing herein shall may be construed to prevent the
commission from using the same peers or peer groups for more than
one institution of higher education.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-1B-6. Appointment of institutional presidents, provosts;
evaluation.
(a) Appointment of institutional presidents. -- Effective on
the first day of July, two thousand, appointment Appointment of
presidents of the public institutions of higher education shall be
made as follows:
(1) Subject to the approval of the commission, the appropriate
governing board of the institution shall appoint a president for
Bluefield state college, Concord college, eastern West Virginia
community and technical college, Fairmont state college, Glenville
state college, Marshall university, Shepherd college, southern West
Virginia community and technical college, West Liberty state
college, West Virginia northern community and technical college,
West Virginia school of osteopathic medicine, West Virginia state college and West Virginia university;
(2) Subject to the approval of the appropriate governing board
and to the provisions of article three-c of this chapter, the
president of the appropriate institution shall appoint the
president of the regional campuses of West Virginia university and
of the community and technical colleges which remain linked
administratively to a sponsoring institution. The presidents of
such regional campuses and community and technical colleges shall
serve at the will and pleasure of the institutional president. The
president of the sponsoring institution shall appoint a president
for the administratively linked community and technical college at
the appropriate time as outlined in the institutional compact and
approved by the commission.
(3) Subject to the approval of the commission and to the
provisions of articles article three-c and three-f of this chapter,
the president of the appropriate institution shall appoint the
provost in those cases where the community and technical college
remains as a component of another institution. The provost shall
serve at the will and pleasure of the president of the employing
institution.
(b) Incumbent heads of institutions. -- Any president of a
public institution of higher education in office on the first day
of July, two thousand, shall continue in office subject to state law: Provided, That the provost of an administratively linked
community and technical college in office on the thirtieth day of
June, two thousand one, may become the president of that community
and technical college on the first day of July, two thousand one,
with the approval of the governing board of the institution and
subject to the consent of the commission. The presidents shall
continue in office subject to state law and subject to the will and
pleasure of the appropriate governing board or employing
institution.
_____(b) Other appointments. -- Appointments of administrative
heads of state institutions of higher education shall be made in
accordance with the provisions of subsection (a) of this section
except in the following instances:
_____(1) Effective the first day of July, two thousand three, the
institutional president shall appoint a provost to be the
administrative head of New River community and technical college;
and
_____(2) Effective the first day of July, two thousand five, the
institutional president shall appoint a provost to be the
administrative head of the Potomac campus of West Virginia
university;
(c) Evaluation of institutional presidents administrative
heads. -- The governing boards shall conduct written performance evaluations of each institution's president: Provided, That except
the presidents of regional campuses shall be evaluated by the
president of West Virginia university. and The presidents provosts
of administratively linked community and technical colleges and
other consolidated, merged or administratively linked units shall
be evaluated by the president of the employing institution.
Evaluations shall be done in every fourth year of employment as
president administrative head, recognizing unique characteristics
of the institution and utilizing institutional personnel,
institutional boards of advisors as appropriate, staff of the
appropriate governing board and persons knowledgeable in higher
education matters who are not otherwise employed by a governing
board. A part of the evaluation shall be a determination of the
success of the institution in meeting the requirements of its
institutional compact.
§18B-1B-10. Goals of efficiency and effectiveness; findings;
reports to commission and legislative oversight commission on
education accountability.
(a) The Legislature finds that it is in the best interests of
the citizens of West Virginia for state institutions of higher
education to work diligently toward achieving the goals and
objectives set forth in section one-a, article one of this chapter
and in the institutional compacts. One way these goals may be achieved is through collaborative agreements between or among two
or more institutions to enhance the scope, quality or efficiency of
education services.
_____(b) To further these goals of cooperation and coordination, to
avoid unnecessary duplication of program development and delivery,
and to ensure that programs and services address the public policy
agenda established by the Legislature and the commission, compact
elements and goals for post-secondary education, by the first day
of September, two thousand three, Concord college and Bluefield
state college jointly shall complete a comprehensive study of the
degree to which these institutions are making progress toward
meeting the goals for post-secondary education, their institutional
compacts and the public policy agenda and shall report their
finding to the commission. The report shall address specific
examples of collaboration, cooperation or brokering in academic
programs, administrative services or any joint efforts which aim to
avoid unnecessary duplication and to ensure delivery of high
quality education services.
_____(c) The commission shall analyze the report prepared by
Concord college and Bluefield state college, together with any
other relevant data, and report to the legislative oversight
commission on education accountability by the first day of
November, two thousand three. The report shall contain findings and recommendations to address at least the following areas
relevant to the two institutions:
_____(1) The fiscal status;
_____(2) The progress in meeting the goals for post-secondary
education, the institutional compact and the public policy agenda;
_____(3) Possible academic and fiscal advantages that might be
derived from an administrative link between the two institutions;
and
_____(4) Any changes to the programs or services of either
institution required by the commission based on their findings or
those of the institutions.
_____(d) If the commission determines that either institution has
made insufficient progress toward the goals established in this
chapter, in the institutional compacts, in the public policy agenda
established by the commission or has not complied with the changes
required by the commission pursuant to subsection (c) of this
section, the commission immediately shall take any action necessary
to further the goals and requirements of this section.
_____(e) The commission shall continue to monitor and review each
institution's compliance with this section.
ARTICLE 3C. COMMUNITY AND TECHNICAL COLLEGE SYSTEM.
§18B-3C-3. Essential conditions for community and technical
college programs and services.
The Legislature hereby establishes the following essential
conditions for community and technical college programs and
services:
(a) Independent accreditation by the commission on
institutions of higher education of the north central association
of colleges and schools (NCA) reflecting external validation that
academic programs, services, faculty, governance, financing and
other policies are aligned with the community and technical college
mission of the institution;
(b) A full range of community and technical college services
offered as specified in section six of this article;
(c) Programmatic approval consistent with the provisions of
section nine of this article;
(d) A fee structure competitive with its peer institutions;
(e) Basic services, some of which may be obtained under
contract with existing institutions in the region. These basic
services shall include, but are not limited to, the following:
(1) Student services, including, but not limited to, advising,
academic counseling, financial aid and provision of the first line
of academic mentoring and mediation;
(2) Instructional support services;
(3) Access to information and library services;
(4) Physical space in which courses can be offered;
(5) Access to necessary technology for students, faculty and
mentors;
(6) Monitoring and assessment; and
(7) Administrative services, including, but not limited to,
registration, fee collection and bookstore and other services for
the distribution of learning materials;
(f) A president provost who is the chief academic and
administrative officer of the community and technical college
appointed and serving pursuant to the terms of section six, article
one-b of this chapter. The provost shall report directly to the
president of the institution and shall have appropriate direct
contact with the institutional board of governors. It is the
responsibility of the board of governors to provide sufficient time
on its agenda for each provost of a component community and
technical college to discuss issues relevant to the mission of the
component.
(g) An institutional board of governors or an institutional
board of advisors appointed and serving as required by law;
(h) A full-time core faculty, complemented by persons engaged
through contract or other arrangements, including college and
university faculty, to teach community college courses and
qualified business, industry and labor persons engaged as adjunct
faculty in technical areas;
(i) A faculty personnel policy, formally established to be
separate and distinct from that of other institutions, which
includes, but is not limited to, appointment, promotion, workload
and, if appropriate, tenure pursuant to section nine of this
article. These policies shall be appropriate for the community and
technical college mission and may not be linked to the policies of
any other institution;
(j) Community and technical colleges designed and operating as
open-provider centers with the authority and flexibility to draw on
the resources of the best and most appropriate provider to ensure
that community and technical college services are available and
delivered in the region in a highly responsive manner. A community
and technical college may contract with other institutions and
providers as necessary to obtain the academic programs and
resources to complement those available through a sponsoring
college, where applicable, in order to meet the region's needs.
(k) Separately identified state funding allocations for each
of the community and technical colleges. The president provost of
the community and technical college has full budgetary authority
for the entity, subject to accountability to its governing board,
including authority to retain all tuition and fees generated by the
community and technical college for use to carry out its mission.
§18B-3C-4. Responsibility districts.
(a) Each community and technical college is hereby assigned a
responsibility district within which it is responsible for
providing the full array of community and technical college
programs and services as defined in section six of this article.
The programs and services shall address the public policy agenda,
compact elements and goals for post-secondary education established
in section one-a, article one of this chapter as they relate to
community and technical colleges, and other goals which may be
established by the commission. The responsibility districts shall
be comprised of contiguous areas of the state which have similar
economic, industrial, educational, community and employment
characteristics to facilitate specialization in mission and
programming. For the purposes of initial implementation and
organization, the districts shall be comprised as follows and
assigned to the designated community and technical colleges:
(1) West Virginia northern community and technical college -
Ohio, Brooke, Hancock, Marshall, Tyler and Wetzel counties;
(2) West Virginia university at Parkersburg - Wood, Jackson,
Pleasants, Ritchie, Roane, Tyler and Wirt counties;
(3) Southern West Virginia community and technical college -
Logan, Boone, Lincoln, McDowell, Mingo, Raleigh and Wyoming
counties;
(4) Bluefield state community and technical college - Mercer, Greenbrier, McDowell, Monroe, Pocahontas, Raleigh and Summers
counties;
(5) Glenville state community and technical college - Gilmer,
Barbour, Braxton, Calhoun, Clay, Lewis, Nicholas, Roane, Upshur and
Webster counties;
(6) Fairmont state community and technical college - Marion,
Doddridge, Harrison, Monongalia, Preston, Randolph, Taylor and
Barbour counties;
(7) Shepherd community and technical college - Jefferson,
Berkeley, Grant and Morgan counties;
(8) Eastern West Virginia community and technical college -
Mineral, Grant, Hampshire, Hardy, Tucker and Pendleton counties;
(9) West Virginia state community and technical college -
Kanawha, Putnam and Clay counties;
(10) West Virginia university institute of technology
community and technical college - Fayette, Clay, Kanawha, Raleigh
and Nicholas counties; and
(11) Marshall university community and technical college -
Cabell, Kanawha, Mason, Putnam and Wayne counties; and
__(12) Effective the first day of July, two thousand three, the
following changes are made to the responsibility districts:
__(A) The responsibility districts of the components known as
Glenville state community and technical college and Bluefield state community and technical college are abolished and the counties
formerly within those responsibility districts are reassigned as
provided in this subsection;
__(B) New River community and technical college of Bluefield
state college: Clay, Fayette, Greenbrier, Mercer, McDowell,
Monroe, Nicholas, Pocahontas, Raleigh, Summers and Webster
counties; and
__(C) Fairmont state community and technical college: Barbour,
Braxton, Calhoun, Doddridge, Gilmer, Harrison, Lewis, Marion,
Monongalia, Preston, Randolph, Taylor and Upshur counties;
(b) It is the intent of the Legislature that, where counties
are listed in more than one district, the county shall be the joint
responsibility of each community and technical college assigned
that county or shall be divided as determined by the commission.
The boundaries of the districts may be modified, from time to time,
by the commission to serve better the needs within the districts.
Such modifications are not required to follow county boundaries.
(c) Prior to the first day of July, two thousand three,
Glenville state college, Fairmont state college and Bluefield state
college shall agree as to the transfer of ownership of or title to
any property, materials, equipment or supplies of the former
Glenville state community and technical college; the transfer of
any valid agreement, obligation or claim entered into or incurred by the Glenville state community and technical college; and the
transfer, if any, of faculty and staff employed by Glenville state
college for the benefit of its community and technical college.
Any disagreement regarding these transfers shall be submitted to
the higher education policy commission for resolution.
§18B-3C-8. Process for achieving independently-accredited community
and technical colleges.
(a) Over a six-year period beginning the first day of July,
two thousand one, West Virginia shall move from having "component"
community and technical colleges to having a statewide network of
independently-accredited community and technical colleges serving
every region of the state. This section does not apply to the
freestanding community and technical colleges, West Virginia
university at Parkersburg and Potomac state college of West
Virginia university: Provided, That Potomac state college of West
Virginia university shall serve as a comprehensive two-year
institution for the delivery of transfer education, may offer
career programs in the area of agriculture, and may offer
nontraditional outreach and work force development programs as a
collaborative effort in a region with the local community and
technical college whose mission and charge encompasses outreach and
work force development programs.
(b) To be eligible for funds appropriated to develop independently accredited community and technical colleges, a state
institution of higher education shall demonstrate the following:
(1) That it has as a part of its institutional compact
approved by the council and the commission a step-by-step plan with
measurable benchmarks for developing an independently accredited
community and technical college that meets the essential conditions
set forth in section three of this article;, except as limited in
subdivisions (1), (2) and (4), subsection (c) of this section;
(2) That it is able to offer evidence annually to the
satisfaction of the council and the commission that it is making
progress toward accomplishing the benchmarks established in its
institutional compact for developing an independently accredited
community and technical college; and
(3) That it has submitted an expenditure schedule approved by
the council and the commission which sets forth a proposed plan of
expenditures for funds allocated to it from the fund.
(c) The following are recommended strategies for moving from
the current arrangement of "component" community and technical
colleges to the legislatively mandated statewide network of
independently accredited community and technical colleges serving
every region of the state. The Legislature recognizes that there
may be other means to achieve this ultimate objective; however, it
is the intent of the Legislature that the move from the current arrangement of "component" community and technical colleges to the
legislatively-mandated statewide network of independently-
accredited community and technical colleges serving every region of
the state shall be accomplished. The following recommendations are
designed to reflect significant variations among regions and the
potential impacts on the sponsoring institutions.
(1) Bluefield state community and technical college. --
Bluefield state community and technical college, including the
Lewisburg center, should retain its relationship as a component of
Bluefield state college. The president and the board of governors
of Bluefield state college are accountable to the commission for
ensuring that the full range of community and technical college
services is available throughout the region and that the community
and technical college adheres, as nearly as possible, to the
essential conditions pursuant to section three of this article with
the possible exception of independent accreditation.
(2) Center for higher education and work force development at
Beckley. -- The president of Bluefield state college and the
institutional board of advisors are responsible, according to a
plan approved by the commission, for the step-by-step
implementation of a new independently accredited community and
technical college administratively linked to Bluefield state
college, known as the center for higher education and work force development, which adheres to the essential conditions pursuant to
section three of this article. As an independently accredited
community and technical college, the center also shall serve as
higher education center for its region by brokering with other
colleges, universities and other providers, in-state and
out-of-state, both public and private, to ensure the coordinated
access of students, employers, and other clients to needed programs
and services. The new community and technical college shall serve
Raleigh, Summers and Fayette counties and be headquartered in
Beckley. The commission shall appoint an institutional board of
advisors for the center at Beckley which is separate from the
institutional board of advisors of Bluefield state college but may
have some overlap in membership to facilitate coordination. In
addition, the president of the center shall appoint a district
consortium committee to advise the president on a comprehensive
assessment of the needs in the region, on coordinating efforts with
regional labor market information systems, and on other areas as
provided for in section seven of this article relating to the
duties of district consortia committees. The center shall
facilitate the planning and development of a unified effort
involving multiple providers and facilities, including, but not
limited to, Concord college, the college of West Virginia, Marshall
university, West Virginia university, West Virginia university institute of technology and other entities to meet the documented
work force development needs in the region: Provided, That nothing
in this subdivision prohibits or limits any existing, or the
continuation of any existing, affiliation between the college of
West Virginia, West Virginia university institute of technology and
West Virginia university. The center for higher education and work
force development at Beckley also shall provide the facilities and
support services for other public and private institutions
delivering courses, programs and services in Beckley. The
objective would be to assure students and employers in the area
that there would be coordination and efficient use of resources
among the separate programs and facilities, existing and planned,
in the Beckley area. If, at a future time, the commission believes
it appropriate, it may recommend to the Legislature that the
Beckley institution be created as a freestanding institution.
New River community and technical college of Bluefield state
college. --
__(A) Bluefield state shall retain its existing mission but
place greater emphasis and priority on its community and technical
college role and serving the citizens of its expanded service
district. Subject to the provisions of section twelve of this
article, the community and technical college will remain
administratively linked to Bluefield state college. Nothing herein may be construed to require Bluefield state college to discontinue
any associate degree program in areas of particular institutional
strength which are closely articulated to their baccalaureate
programs and missions or which are of a high-cost nature and can
best be provided in direct coordination with a baccalaureate
institution.
__(B) Effective the first day of July, two thousand three, the
component formerly known as Bluefield state community and technical
college shall become a multicampus entity known as New River
community and technical college, administratively linked to
Bluefield state college. The multicampus community and technical
college shall serve Raleigh, Summers, Fayette, Greenbrier, Clay,
Mercer, McDowell, Monroe, Nicholas, Pocahontas and Webster counties
and be headquartered in Beckley. The West Virginia council for
community and technical college education shall appoint an
institutional board of advisors, pursuant to section one, article
six or this chapter, for New River community and technical college
which is separate from the institutional board of governors of
Bluefield state college.
__(C) Bluefield state college shall take immediate steps to seek
independent accreditation of New River community and technical
college including all sites within its revised service district.
The president and the board of governors are responsible for obtaining independent accreditation of the community and technical
college by the thirty-first day of December, two thousand four. If
the multicampus entity known as New River community and technical
college has not obtained independent accreditation by this date,
the commission shall choose one of the following options:
__(i) Create New River as a freestanding community and technical
college; or
__(ii) Assign the responsibility for obtaining independent
accreditation to another state institution of higher education.
__(D) The president and the board of governors of Bluefield
state college also are accountable to the commission for ensuring
that the full range of community and technical college services is
available throughout the region and that New River community and
technical college adheres to the essential conditions pursuant to
section three of this article.
__(E) As an independently accredited community and technical
college, New River also shall serve as a higher education center
for its region by brokering with other colleges, universities and
other providers, in-state and out-of-state, both public and
private, to ensure the coordinated access of students, employers
and other clients to needed programs and services.
__(F) New River community and technical college shall facilitate
the planning and development of a unified effort involving multiple providers and facilities, including, but not limited to, Concord
college, the college of West Virginia, Marshall university, West
Virginia university, West Virginia university institute of
technology and other entities to meet the documented work force
development needs in the region. Nothing in this subdivision
prohibits or limits any existing, or the continuation of any
existing, affiliation between the college of West Virginia, West
Virginia university institute of technology and West Virginia
university. New River community and technical college also shall
provide the facilities and support services for other public and
private institutions delivering courses, programs and services in
Beckley. The objective is to assure students and employers in the
area that there is coordination and efficient use of resources
among the separate programs and facilities, existing and planned,
in the Beckley area.
__(3) Glenville state community and technical college. --
Glenville state community and technical college, including the
centers in Nicholas, Lewis and Roane counties, should retain its
relationship as a component of Glenville state college. The
president of Glenville state college and the governing board are
accountable to the commission for ensuring that the full range of
community and technical college services is available throughout
the region and that the community and technical college adheres as nearly as possible to the essential conditions pursuant to section
three of this article, with the possible exception of independent
accreditation.
(4) (2) Fairmont state community and technical college. --
Fairmont state community and technical college shall be an
independently accredited community and technical college serving
Marion, Doddridge, Barbour, Harrison, Monongalia, Preston, Randolph
and Taylor, Braxton, Calhoun, Gilmer, Lewis and Upshur counties.
The community and technical college is developed on the base of the
existing component community and technical college of Fairmont
state college. Subject to the provisions of this section, the
president and the governing board of Fairmont state college are
responsible, according to a plan approved by the commission, for
step-by-step implementation of the independently accredited
community and technical college which adheres to the essential
conditions pursuant to section three of this article. Subject to
the provisions of section twelve of this article, the community and
technical college will remain administratively linked to Fairmont
state college. Nothing herein shall may be construed to require
Fairmont state college to discontinue any associate degree program
in areas of particular institutional strength which are closely
articulated to their baccalaureate programs and missions or which
are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
(5) (3) Marshall university community and technical college.
-- Senate Bill No. 653 created an implementation board charged with
the responsibility to develop a plan, to be recommended to the
commission, for the most effective and efficient method to deliver
comprehensive community and technical college education to the
citizens and employers of the responsibility areas of Marshall
university, West Virginia state college and West Virginia
university institute of technology. Pursuant to the recommendation
of the implementation board and of the commission, Marshall
university community and technical college shall become an
independently accredited community and technical college. It
should shall serve Cabell, Kanawha, Mason, Putnam and Wayne
counties. The new community and technical college is developed on
the base of the existing component community and technical college
of Marshall university. Subject to the provisions of this section,
the president and the governing board of Marshall university are
responsible, according to a plan approved by the commission, for
step-by-step implementation of the new independently accredited
community and technical college which adheres to the essential
conditions pursuant to section three of this article. Subject to
the provisions of section twelve of this article, the community and
technical college will remain administratively linked to Marshall university. Nothing herein shall may be construed to require
Marshall university to discontinue any associate degree program in
areas of particular institutional strength which are closely
articulated to their baccalaureate programs and missions or which
are of a high-cost nature and can best be provided in direct
coordination with a baccalaureate institution.
(6) (4) Shepherd community and technical college. -- Shepherd
community and technical college shall become an independently
accredited community and technical college. It should shall serve
Jefferson, Berkeley and Morgan counties. The new community and
technical college is developed on the base of the existing
component community and technical college of Shepherd college.
Subject to the provisions of this section, the president and the
governing board of Shepherd college are responsible, according to
a plan approved by the commission, for step-by-step implementation
of the new independently accredited community and technical college
which adheres to the essential conditions pursuant to section three
of this article. Subject to the provisions of section twelve of
this article, the community and technical college will remain
administratively linked to Shepherd college. Nothing herein shall
may be construed to require Shepherd college to discontinue any
associate degree program in areas of particular institutional
strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can
best be provided in direct coordination with a baccalaureate
institution.
(7) (5) West Virginia state community and technical college.
-- Senate Bill No. 653 created an implementation board charged with
the responsibility to develop a plan, to be recommended to the
commission, for the most effective and efficient method to deliver
comprehensive community and technical college education to the
citizens and employers of the responsibility areas of Marshall
university, West Virginia state college and West Virginia
university institute of technology. Pursuant to the recommendation
of the implementation board and of the commission, West Virginia
state community and technical college shall become an independently
accredited community and technical college. It should shall serve
Kanawha, Putnam and Clay counties. The new community and technical
college is developed on the base of the existing component
community and technical college of West Virginia state college.
Subject to the provisions of this section, the president and the
governing board of West Virginia state college are responsible,
according to a plan approved by the commission, for step-by-step
implementation of the new independently accredited community and
technical college which adheres to the essential conditions
pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and
technical college will remain administratively linked to West
Virginia state college. Nothing herein shall may be construed to
require West Virginia state college to discontinue any associate
degree program in areas of particular institutional strength which
are closely articulated to their baccalaureate programs and
missions or which are of a high-cost nature and can best be
provided in direct coordination with a baccalaureate institution.
(8) (6) West Virginia university institute of technology. --
Senate Bill No. 653 created an implementation board charged with
the responsibility to develop a plan, to be recommended to the
commission, for the most effective and efficient method to deliver
comprehensive community and technical college education to the
citizens and employers of the responsibility areas of Marshall
university, West Virginia state college and West Virginia
university institute of technology. Pursuant to the recommendation
of the implementation board and of the commission, West Virginia
university institute of technology community and technical college
shall become an independently accredited community and technical
college. It should shall serve Fayette, Clay, Kanawha, Raleigh and
Nicholas counties. The new community and technical college is
developed on the base of the existing component community and
technical college of West Virginia university institute of technology. Subject to the provisions of this section, the
president and the governing board of West Virginia university
institute of technology are responsible, according to a plan
approved by the commission, for step-by-step implementation of the
new independently accredited community and technical college which
adheres to the essential conditions pursuant to section three of
this article. Subject to the provisions of section twelve of this
article, the community and technical college will remain
administratively linked to West Virginia university institute of
technology. Nothing herein shall may be construed to require West
Virginia university institute of technology to discontinue any
associate degree program in areas of particular institutional
strength which are closely articulated to their baccalaureate
programs and missions or which are of a high-cost nature and can
best be provided in direct coordination with a baccalaureate
institution.
ARTICLE 6. ADVISORY COUNCILS.
§18B-6-4b. Institutional classified employee council.
(a) For the purposes of this section the following words have
the specified meanings unless the context clearly indicates a
different meaning:
__(1) "Council" or "staff council" means the advisory group of
classified employees formed on each campus of state institutions of higher education pursuant to subsections (b) and (c) of this
section; and
__(2) "State institutions of higher education" means all
institutions as defined in section two, article one of this chapter
and, additionally, Potomac state college of West Virginia
university, West Virginia university at Parkersburg, West Virginia
university institute of technology, Robert C. Byrd health sciences
Charleston division of West Virginia university, the Marshall
university graduate college, New River community and technical
college, the higher education policy commission and the West
Virginia network for educational telecomputing.
__(b) Effective the first day of April, two thousand three,
there is established at each state institution of higher education
an institutional classified employees advisory council to be known
as the staff council. Current members of staff councils and their
officers who have been duly elected shall continue to serve with
all the rights, privileges and responsibilities prescribed by this
section until the time that members elected as set forth in
subsection (c) of this section assume office.
__(1) During the month of April of each odd-numbered year,
beginning in the year two thousand three, each president or other
administrative head of a state institution of higher education, at
the direction of the council, and in accordance with procedures established by the council, shall convene a meeting or otherwise
institute a balloting process to elect members of the staff council
as follows:
__(A) Two classified employees from the
administrative/managerial sector;
__(B) Two classified employees from the professional/nonteaching
sector;
__(C) Two classified employees from the paraprofessional sector;
__(D) Two classified employees from the secretarial/clerical
sector;
__(E) Two classified employees from the physical
plant/maintenance sector; and
__(F) The member who is elected to serve on the advisory council
of classified employees pursuant to section four-a of this article.
This person shall serve as an ex officio, voting member of the
staff council and shall report to the council on meetings of the
advisory council and the board of governors.
__(2) Classified employees at Marshall university and West
Virginia university may elect five classified employees from each
of the five sectors to serve on the staff council.
__(3) Members shall serve a term of two years which term shall
begin on the first day of July of each odd-numbered year. Members
of the council are eligible to succeed themselves.
__(4) Classified employees shall select one of their members to
serve as chair. All classified employees at the institution are
eligible to vote for the chair by any method approved by a majority
of their members. The chair is eligible to succeed himself or
herself.
__(5) The staff council shall meet at least monthly or at the
call of the chair. With appropriate notification to the
institutional president, the chair may convene staff council
meetings for the purpose of sharing information and discussing
issues affecting the classified employees or the efficient and
effective operations of the institution.
__(6) The president of the institution shall meet at least
quarterly with the staff council to discuss matters affecting
classified employees.
__(7) The governing board shall meet at least annually with the
staff council to discuss matters affecting classified employees and
the effective and efficient management of the institution.
ARTICLE 7. PERSONNEL GENERALLY.
§18B-7-4. Notice to probationary faculty members of retention or
nonretention; hearing.
(a) The president or other administrative head of each state
institution of higher education shall give written notice to
probationary faculty members concerning their retention or nonretention for the ensuing academic year: (1) Not later than the
first day of March for those probationary faculty members who are
in their first academic year of service; (2) not later than the
fifteenth day of December for those probationary faculty members
who are in their second academic year of service; and (3) at least
one year before the expiration of an appointment for those
probationary faculty members who have been employed two or more
years with the institution. Such notice to those probationary
faculty members not being retained shall be by certified mail,
return receipt requested.
__(b) For any probationary faculty member employed after the
effective date of this section, the president or other
administrative head of each institution shall give written notice
concerning retention or nonretention for the ensuing academic year
not later than the first day of March.
__(b) (c) Upon request of If a request is made by the
probationary faculty member not retained, the president or other
administrative head of the institution shall within ten days, and
by certified mail, inform the probationary faculty member by
certified mail within ten days of the reasons for nonretention. Any
probationary faculty member who desires to appeal the decision
shall utilize use the grievance procedure established in article
six-a, chapter twenty-nine of this code. If it is concluded that the reasons for nonretention are arbitrary or capricious or without
a factual basis, the faculty member shall be retained for the
ensuing academic year.
(c) (d) The term "probationary faculty member" shall be
defined according to rules promulgated by the governing boards.
The rights herein provided to probationary faculty members by this
section are in addition to, and not in lieu of, other rights
afforded them by other rules and other provisions of law.
§18B-7-6. Adjunct faculty; part-time and temporary classified
employees.
(a) Before the first day of January, one thousand nine hundred
ninety-four Each governing board, with the advice and assistance of
the faculty senates senate, shall establish a policy pursuant to
the provisions of article three-a, chapter twenty-nine-a of this
code regarding the role of adjunct faculty at state institutions of
higher education and define an appropriate balance between
full-time and adjunct faculty members.
(b) Before the first day of January, one thousand nine hundred
ninety-four Each governing board, with the advice and assistance of
the staff councils council and other groups representing classified
employees, shall establish a policy pursuant to the provisions of
article three-a, chapter twenty-nine-a of this code regarding the
role of part-time classified employees. at state institutions of higher education. Such policy shall discourage the hiring of
part-time employees solely to avoid the payment of benefits or in
lieu of full-time employees and shall provide all qualified
classified employees with nine-month or ten-month contracts with
the opportunity to accept part-time or full-time summer employment
before new persons are hired for the part-time or full-time
employment.
(c) Each governing board shall establish the policies required by
this section by the first day of July, two thousand three. The
commission shall report to the legislative oversight commission on
education accountability by the first day of December, two thousand
three, regarding the development and implementation of these
policies, including the number of adjunct faculty and part-time
employees at each institution and the level of compliance with the
policies. In making determinations regarding the development,
implementation and compliance with the policies required by this
section, the commission shall take into account the special
flexibility needs of community and technical colleges and shall
allow greater discretion for these institutions to make decisions
regarding employing adjunct faculty.
ARTICLE 8. HIGHER EDUCATION FULL-TIME FACULTY SALARIES.
§18B-8-3. Faculty salary policies; reductions in salary
prohibited; salary increase upon promotion in rank.
(a) On or before the first day of July of each year, each
faculty member then employed shall be given notice by the
appropriate governing board of the placement on the minimum salary
schedule which is appropriate to such faculty member's years of
experience and to which such individual has been assigned,
notwithstanding the actual salary paid under the provisions of this
article.
(b) Each full-time faculty member employed as of the effective
date of this section shall receive for full-time employment at the
same academic rank during the academic year one thousand nine
hundred ninety-three--ninety-four, and thereafter, a salary which
is no less than the salary being paid such faculty member for the
academic year one thousand nine hundred ninety-two--ninety-three.
No full-time faculty member shall receive a salary which is less
than the salary for zero years of experience for the appropriate
academic rank as set forth in section two of this article.
(c) Effective the first day of July, one thousand nine hundred
ninety-three, Subject to appropriation by the Legislature therefor,
each full-time faculty member shall receive an annual salary
increase of two thousand dollars. The Legislature may by general
appropriation, or the secretary of the department of education and
the arts may allocate through authority set forth under the
provisions of chapter five-f of this code, funds to be distributed for the purpose of accommodating market and equity conditions
within the system. Any remaining funds shall be applied in
accordance with the provisions of subsection (d) of this section.
(d) Funds remaining after meeting the salary of each full-time
faculty member in accordance with subsections (b) and (c) of this
section shall be used to pay that amount that is the difference
between such salary and the appropriate salary for each full-time
faculty member's appropriate placement on the schedule. Provided,
That such The amount may be reduced proportionately based upon the
amount of funds available for such purpose.
(a) Each governing board shall establish and maintain a
faculty salary policy that is competitive and which furthers the
goals of attracting, retaining and rewarding high quality faculty.
____________________________________________________(e) (b) The salary of any full-time faculty member shall may
not be reduced by the provisions of this article.
(f) (c) Upon promotion in rank, placement on the minimum
salary schedule each faculty member shall be such as to provide a
receive a salary increase of at least up to ten percent, as
determined by the salary policy adopted by the governing board. and
shall be at least the amount prescribed for the appropriate
academic rank to which promoted at zero years of experience.
ARTICLE 9. CLASSIFIED EMPLOYEE SALARY SCHEDULE AND CLASSIFICATION
SYSTEM.
§18B-9-5. Classified employee salary.
(a) Commencing with the fiscal year beginning on the first day
of July, one thousand nine hundred ninety-eight, and each fiscal
year thereafter, each classified employee with three or more years
of experience shall receive an annual salary increase equal to
fifty dollars times the employee's years of experience. Provided,
That the annual salary increase may not exceed the amount granted
for the maximum of twenty years of experience These incremental
increases are in lieu of any salary increase received pursuant to
section two, article five, chapter five of this code; are in
addition to any across-the-board, cost-of-living or percentage
salary increases which may be granted in any fiscal year by the
Legislature; and shall be paid in like manner as the annual payment
to eligible state employees of the incremental salary increases
based on years of service under the provisions of section two,
article five, chapter five of this code.
(b) (a) Any classified employee may receive merit increases
and salary adjustments in accordance with policies established by
the board of governors: Provided, That merit raises may be granted
only pursuant to a rule adopted by the board of governors, and
approved by the chancellor, which provides a fair and equitable
basis for granting merit raises pursuant to regular evaluations
based upon reasonable performance standards.
(c) (b) The current annual salary of any classified employee
may not be reduced by the provisions of this article nor by any
other action inconsistent with the provisions of this article, and
nothing in this article may be construed to prohibit promotion of
any classified employee to a job title carrying a higher pay grade
if the promotion is in accordance with the provisions of this
article and the personnel classification system established by the
appropriate governing board.
§18B-9-10. Higher education employees' catastrophic leave bank
and leave transfer.
(a) For the purposes of this section, "employee" means:
____________________________________________(1) A classified or nonclassified employee who is employed by the
a higher education governing board or by the central office policy
commission; or
____________________________________________(2) A faculty member, as defined in section one, article eight of
this chapter, who is eligible to accrue sick leave.
____________________________________________(a) (b) An employee may donate sick and annual leave to a leave
bank established and operated in accordance with the provisions of
subsection (c) (d) of this section or directly to another employee
in accordance with the provisions of subsection (d) (e) of this
section. No employee shall may be compelled to donate sick or
annual leave. Any leave donated by an employee pursuant to this
section shall be used only for the purpose of catastrophic illness or injury as defined in subsection (b) (c) of this section and
shall reduce, to the extent of such donation, the number of days of
annual or sick leave to which the employee is entitled.
(b) (c) For the purpose of this section, a catastrophic illness or
injury means an illness or injury which is one that is expected to
incapacitate the employee and which creates create a financial
hardship because the employee has exhausted all sick and annual
leave and other paid time off. Catastrophic illness or injury
shall also include includes an incapacitated immediate family
member as defined by the appropriate a governing board or the
policy commission, as appropriate, if this results in the employee
being required to take time off from work for an extended period of
time to care for the family member and if the employee has
exhausted all sick and annual leave and other paid time off.
(c) (d) A leave bank or banks may be established at each state
institution of higher education and the central office policy
commission to which employees may donate either sick or annual
leave. The bank or banks may be established jointly by the central
office policy commission and both the governing boards or may be
established for the central office policy commission and each of
the governing boards, or may be established for the central office
and each institution of higher education under either governing
board. Sick or annual leave may be deposited in the leave bank, and such deposit shall be reflected as a day-for-day deduction from
the sick or annual leave balance of the depositing employee.
Such deposited Donated leave may be withdrawn by any employee
experiencing a catastrophic illness or injury as those terms are
defined in subsection (b) (c) of this section when the following
conditions are met:
____________________________________________(1) upon appropriate verification The president of the institution
or the chancellor of the policy commission, as appropriate,
verifies that the employee is unable to work due to the
catastrophic illness or injury as determined by the president of
the institution or senior administrator; and
____________________________________________(2) approval of the withdrawal by The president of the institution
or senior administrator the chancellor, as appropriate, approves
the withdrawal and provides written notice to the personnel office.
The withdrawal shall be reflected as a day-for-day addition to the
leave balance of the withdrawing employee.
(d) (e) Sick or annual leave may be donated to any employee
experiencing a catastrophic illness or injury as those terms are
defined in subsection (b) (c) of this section. Such leave shall be
donated at the request of the employee upon after appropriate
verification that the employee is unable to work due to the
catastrophic illness or injury as determined by the president of
the institution or senior administrator the chancellor. Upon approval of the When transfer of sick or annual leave is approved
by the president of the institution or senior administrator the
chancellor, any employee may, upon written notice to the personnel
office, donate sick or annual leave in one-day increments by
providing written notice to the personnel office. Donations shall
be reflected as a day-for-day deduction from the sick or annual
leave balance of the donating employee. An employee receiving the
transfer of donated sick or annual leave shall have any time which
is donated credited to such employee's his or her account in
one-day increments and reflected as a day-for-day addition to the
leave balance of the receiving employee.
(e) (f) Use of donated credits may not exceed a maximum of twelve
continuous calendar months for any one catastrophic illness or
injury. The total amount of sick or annual leave withdrawn or
received may not exceed an amount sufficient to ensure the
continuance of regular compensation and shall may not be used to
extend insurance coverage pursuant to section thirteen, article
sixteen, chapter five of this code. An employee withdrawing or
receiving donations of sick or annual leave pursuant to this
section shall use any leave personally accrued on a monthly basis
prior to receiving additional donated sick or annual leave.
(f) (g) Transfer of Donated sick or annual leave deposited in an
institutional leave bank or transferred under subsection (c) (d) of this section may be inter-institutional in accordance with the
policies of the appropriate governing board. Each institution and
the central office shall be policy commission is responsible for
the administration of the sick or annual leave deposits,
withdrawals and transfers of its employees. Rules implementing the
provisions of this section may be adopted jointly or separately by
the governing boards and the policy commission in accordance with
article three-a, chapter twenty-nine-a of this code.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-1. Enrollment, tuition and other fees at education
institutions; refund of fees.
(a) Each governing board shall fix tuition and other fees for
each school term for the different classes or categories of
students enrolling at each state institution of higher education
under its jurisdiction and may include among such fees any one or
more of the following:
(1) Health service fees;
(2) Infirmary fees;
(3) Student activities, recreational, athletic and
extracurricular fees, which fees may be used to finance a students'
attorney to perform legal services for students in civil matters at
such institutions. Provided, That Such legal services shall be limited only to are limited to only those types of cases, programs
or services approved by the administrative head of such the
institution where such the legal services are to be performed; and
(4) Graduate center fees and branch college fees, or either,
if the establishment and operations of graduate centers or branch
colleges are otherwise authorized by law.
(b) All fees collected at any graduate center or at any branch
college shall be paid into special funds and shall be used solely
for the maintenance and operation of the graduate center or branch
college at which they were collected: Provided, That The
commission shall set tuition and fee goals for residents at each
institution after examining tuition and fees at the institutions'
peers.: Provided, however, That, effective the first day of July,
two thousand one, Tuition and fees for nonresident, undergraduate
students shall, at a minimum, cover actual instructional costs as
determined in accordance with commission policy.: Provided
further, That Students enrolled in undergraduate courses offered at
off-campus locations shall pay an off-campus instruction fee and
shall not may not be required to pay the athletic fee and the
student activity fee.
(c) The off-campus instruction fee shall be used solely for
the support of off-campus courses offered by the institution.
Off-campus locations for each institution shall be defined by the appropriate governing board. The schedule of all fees, and any
changes therein, shall be entered in the minutes of the meeting of
the appropriate governing board, and the board shall file with the
legislative auditor a certified copy of such schedule and changes.
(d) In addition to the fees mentioned in the preceding
paragraph, each governing board may impose and collect a student
union building fee. All such building fees collected at an
institution shall be paid into a special student union building
fund for such institution, which is hereby created in the state
treasury., and Pursuant to the provisions of section ten of this
article, the fees shall be used only for the following purposes:
(1) The construction, operation and maintenance of a student
union building or a combination student union and dining hall
building; or for
(2) The payment of the principal of and interest on any bond
issued to finance part or all of the construction of a student
union building or a combination student union and dining hall
building; or
(3) The renovation of an existing structure for use as a
student union building or a combination student union and dining
hall building, all as more fully provided in section ten of this
article.
Any moneys in such funds not needed immediately for such purposes may be invested in any such bonds or other securities as
are now or hereafter authorized as proper investments for state
funds.
(e) The boards shall establish the rates to be charged
full-time students enrolled during a regular academic term.
(1) For fee purposes, a full-time undergraduate student is one
enrolled for twelve or more credit hours in a regular term, and a
full-time graduate student is one enrolled for nine or more credit
hours in a regular term.
(2) Undergraduate students taking fewer than twelve credit
hours in a regular term shall have their fees reduced pro rata
based upon one twelfth of the full-time rate per credit hour, and
graduate students taking fewer than nine credit hours in a regular
term shall have their fees reduced pro rata based upon one ninth of
the full-time rate per credit hour.
(3) Fees for students enrolled in summer terms or other
nontraditional time periods shall be prorated based upon the number
of credit hours for which the student enrolls in accordance with
the above provisions.
(f) All fees are due and payable by the student upon
enrollment and registration for classes except as provided for in
this subsection:
(1) The governing boards shall permit fee payments to be made in up to three installments over the course of the academic term.
Provided, That all fees must All fees shall be paid prior to the
awarding of course credit at the end of the academic term.
(2) The governing boards also shall authorize the acceptance
of credit cards or other payment methods which may be generally
available to students for the payment of fees. Provided, That The
governing boards may charge the students for the reasonable and
customary charges incurred in accepting credit cards and other
methods of payment.
(3) If a governing board determines that the finances of any
student were a student's finances are affected adversely by a legal
work stoppage, that commenced on or after the first day of January,
one thousand nine hundred ninety-three it may allow the student an
additional six months to pay the fees for any academic term.
Provided, That The governing board shall determine on a
case-by-case basis if the finances of a student were are affected
adversely.
(g) On or before the first day of July, two thousand one, the
chancellor for higher education shall review policy series
twenty-two of the governing boards, related to assessment, payment
and refund of fees and determine whether a new rule should be
adopted regarding the refund of any fees upon the voluntary or
involuntary withdrawal from classes of any student. The rules The rule related to assessment, payment and refund of fees, including
refund of fees upon voluntary or involuntary withdrawal from
classes, shall comply with all applicable state and federal laws
and shall be uniformly applied throughout the system.
(h) In addition to the other fees mentioned in the preceding
subsections provided in this section, each governing board may
impose, collect and distribute a fee to be used to finance a
nonprofit, student-controlled public interest research group
Provided, That if the students at such the institution demonstrate
support for the increased fee in a manner and method established by
that institution's elected student government. Provided, however,
That such fees shall The fee may not be used to finance litigation
against the institution.
(i) Any proposed fee increase which would become effective
during the transition year beginning on the first day of July, two
thousand, and ending on the thirtieth day of June, two thousand
one, and which has been approved by the governing board, shall then
be submitted by the governing board to the secretary for education
and the arts for approval. Such approval shall be granted only
upon the certification that such institution requesting a fee
increase is in compliance with the strategic plans required to be
submitted, pursuant to section one-b, article one of this chapter.
Notice, in the form of a report, shall be provided by the chancellor to the legislative oversight commission on education
accountability describing such fee increases and showing how such
increases compare with the average tuition and fees charged at
comparable peer institutions in member states of the southern
regional education board.
(j) Effective the first day of July, two thousand one, tuition
and fees rates shall be determined in accordance with subsections
(k), (l) and (m) of this section.
(k) Effective the first day of July, two thousand one,
Institutions shall retain tuition and fee revenues not pledged for
bonded indebtedness or other purposes in accordance with a revised
tuition policy adopted by the respective governing boards and
approved by the commission. The revised tuition policy shall:
(1) Provide a basis for establishing nonresident tuition and
fees;
(2) Allow institutions to charge different tuition and fees
for different programs; and.
__(3) Provide that a board of governors may propose to the
commission a mandatory auxiliary fee under the following
conditions:
__(A) The fee shall be approved by the commission and either the
students at the institution or the Legislature before becoming
effective.
__(B) Increases may not exceed previous state subsidies by more
than ten percent.
__(C) The fee may be used only to replace existing state funds
subsidizing auxiliary services such as athletics or bookstores.
__(D) If the fee is approved, the amount of the state subsidy
shall be reduced annually by the amount of money generated for the
institution by the fees and that amount shall be returned to
general revenue. All state subsidies for the auxiliary services
shall cease five years from the date the mandatory auxiliary fee
was implemented.
__(E) The commission shall certify to the Legislature by the
first day of October in the fiscal year following implementation of
the fee and, annually thereafter, the amount of fees collected for
each of the five years.
__(3) (4) Establish methodology, where applicable, to ensure
that, within the appropriate time period under the compact,
community and technical college tuition rates for community and
technical college students in all independently accredited
community and technical colleges will be commensurate with the
tuition and fees charged by their peer institutions.
(l) No penalty shall (j) A penalty may not be imposed by the
commission upon any institution based upon the number of
nonresidents who attend the institution unless the commission determines that admission of nonresidents to any institution or
program of study within the institution is impeding unreasonably
the ability of the resident students to attend the institution or
participate in the programs of the institution. The institutions
shall report annually to the commission on the numbers of
out-of-state residents nonresidents and such other enrollment
information as the commission may request.
(m) (k) Tuition and fee increases of the governing boards are
subject to rules adopted by the commission pursuant to subsection
(a), section four, article one-b of this chapter.
(1) A governing board may propose tuition and fee increases of
up to nine and one-half percent for undergraduate resident students
for any fiscal year except that proposed tuition and fees increases
for community and technical colleges may be up to four and three
quarters percent. Any proposed increase shall be approved by the
commission. The commission shall examine individually each request
from a governing board for an increase. Approval for any increase
shall be based on a determination by the commission that the
institution has met the following conditions:
__(A) Has maximized resources available through nonresident
tuition and fee charges to the satisfaction of the commission;
__(B) Is consistently achieving the benchmarks established in
the compact of the institution pursuant to the provisions of article one-a of this chapter;
__(C) Is continuously pursuing the statewide goals for post-
secondary education and the statewide compact established in
articles one and one-a of this chapter;
__(D) Is implementing the efficiency measures required by
section nine, article five of this chapter;
__(E) Has demonstrated to the satisfaction of the commission
that an increase will be used to maintain high-quality programs at
the institution;
__(F) Has demonstrated to the satisfaction of the commission
that the institution is making adequate progress toward achieving
the goals for education established by the southern regional
education board; and
__(G) To the extent authorized, will increase by up to five
percent the available tuition and fee waivers provided by the
institution. The increased waivers may not be used for athletics.
__(2) In making a determination on tuition and fee proposals,
the commission also may take into consideration whether the per
capita income in an institution's service region exceeds the state
per capita income. For the purposes of this subdivision only:
__(A) Service region is the county in which the main campus of
the institution is located and the contiguous West Virginia
counties; and
__(B) Per capita income for the service region shall be computed
using the most current annual, county-level per capita income data
published by the United States department of commerce, bureau of
economic analysis, weighted by the compatible year population
estimates published by the United States census bureau.
__(3) This section may not be construed to require equal
increases among institutions or to require any level of increase at
an institution.
__(4) The commission shall report to the legislative oversight
commission on education accountability regarding the basis for each
approval or denial as determined using the criteria established in
subdivision (1) of this subsection.
§18B-10-14. Bookstores.
The appropriate governing board of each state institution of
higher education shall have the authority to establish and operate
a bookstore at the institution. The bookstore shall be operated
for the use of the institution itself, including each of its
schools and departments, in making purchases of books, stationery
and other school and office supplies generally carried in college
stores, and for the benefit of students and faculty members in
purchasing such products for their own use, but no sales shall be
made to the general public. The prices to be charged the
institution, the students and the faculty for such products shall be fixed by the governing board, shall not be less than the prices
fixed by any fair trade agreements, and shall in all cases include
in addition to the purchase price paid by the bookstore a
sufficient handling charge to cover all expenses incurred for
personal and other services, supplies and equipment, storage, and
other operating expenses, to the end that the prices charged shall
be commensurate with the total cost to the state of operating the
bookstore.
Each governing board shall also ensure that bookstores
operated at institutions under its jurisdiction meet the additional
objective of minimizing the costs to students of purchasing
textbooks by adopting policies which may require the repurchase and
resale of textbooks on an institutional or a statewide basis and
provide for the use of certain basic textbooks for a reasonable
number of years.
All moneys derived from the operation of the store shall be
paid into a special revenue fund as provided in section two,
article two, chapter twelve of this code. Each governing board
shall, subject to the approval of the governor, fix, and, from time
to time, change the amount of the revolving fund necessary for the
proper and efficient operation of each bookstore.
Moneys derived from the operation of the bookstore shall be
used first to replenish the stock of goods and to pay the costs of operating and maintaining the store. From any balance in the
Marshall university bookstore fund not needed for operation and
maintenance and replenishing the stock of goods, the governing
board of that institution shall have authority to expend a sum not
to exceed two hundred thousand dollars for the construction of
quarters to house the bookstore in the university center at
Marshall university. Until such quarters for housing the bookstore
are completed, the governing board of Marshall university and the
governor shall take this authorization into account in fixing the
amount of the revolving fund for the Marshall university bookstore.
Notwithstanding any other provision of this section, any
institution that has contracted with a private entity for bookstore
operation shall deposit into an appropriate account all revenue
generated by the operation and enuring to the benefit of the
institution. The institution shall use the funds for nonathletic
scholarships.
ARTICLE 14. MISCELLANEOUS.
§18B-14-11. Health insurance coverage option study.
________(a) Together, the commission and the public employees
insurance agency shall submit to the legislative oversight
commission on education accountability by the first day of
December, two thousand three, draft legislation regarding benefits
offered by the agency.
____________________________________________________(b) The draft legislation shall provide:
____________________________________________________(1) Incentives for employees insured by the agency to decline
benefits from the agency. Incentives may include:
____________________________________________________(A) Optional purchase of supplemental benefits;
____________________________________________________(B) Payment of a percentage of the savings realized by the
employer due to cancellation of insurance coverage for the
employee; and
____________________________________________________(C) Any other incentive determined appropriate by the agency
and commission;
____________________________________________________(2) A requirement that a public employee may decline benefits
from the agency only if that employee verifies that he or she has
health insurance coverage by an alternate provider;
____________________________________________________(3) A procedure for verifying the alternate coverage required
by subdivision (2) of this subsection at least annually; and
____________________________________________________(4) A procedure whereby an employee who has declined coverage
pursuant to this section will be reinstated automatically in the
agency's program immediately following loss of the alternate
coverage.
On motion of Senator Plymale, the following amendment to the
Finance committee amendment to the bill, reported by the Clerk and
adopted:
On page thirty-seven, section eight, after line fifteen, by
inserting the following:
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-3. Authority to contract for programs, services and
facilities.
The governing boards and the commission are authorized and
empowered to enter into contracts and expend funds for programs,
services and facilities provided by public and private education
institutions, associations, boards, agencies, consortia,
corporations, partnerships, individuals and local, state and
federal governmental bodies within and outside of West Virginia in
order that maximum higher education opportunities of high quality
may be provided to the citizens of the state in the most economical
manner.: Provided, That In no event may a contract for such
services and facilities be entered into unless the commission or
the governing boards have determined that such services and
facilities are necessary and that such services and facilities
would be at a savings to the state.
Notwithstanding the provisions of this section, nothing herein
contained shall supersede the responsibility and respective duties
of the secretary of administration and the director of the
purchasing division of such department for the execution and
approval of the contracts entered into under this article and such
contracts shall be in complete conformity with the provisions of
articles three and five, chapter five-a of this code.
§18B-5-4. Purchase or acquisition of materials, supplies,
equipment, services and printing.
(a) The commission and each governing board, through the vice
chancellor for administration, shall purchase or acquire all
materials, supplies, equipment, services and printing required for
that governing board or the commission, as appropriate, and the
state institutions of higher education under their jurisdiction.
The commission shall adopt rules governing and controlling
acquisitions and purchases in accordance with the provisions of
this section. Such The rules shall assure that the commission and
the governing boards:
(1) Do not preclude any person from participating and making
sales thereof to the governing board or to the commission except as
otherwise provided in section five of this article.: Provided,
That the providing Provision of consultant services such as
strategic planning services will not preclude or inhibit the
governing boards or the commission from considering any qualified
bid or response for delivery of a product or a commodity because of
the rendering of those consultant services;
(2) Shall Establish and prescribe specifications, in all
proper cases, for materials, supplies, equipment, services and
printing to be purchased; and
(3) Shall Adopt and prescribe such purchase order, requisition or other forms as may be required;
(4) Shall Negotiate for and make purchases and acquisitions in
such quantities, at such times and under contract, in the open
market or through other accepted methods of governmental purchasing
as may be practicable in accordance with general law;
(5) Shall Advertise for bids on all purchases exceeding
twenty-five thousand dollars, to purchase by means of sealed bids
and competitive bidding or to effect advantageous purchases through
other accepted governmental methods and practices;: Provided, That
for printing services, bids shall be advertised by written
notification of such bids to any print shop, affiliated with an
institution of higher education and operated by classified
employees, on all purchases exceeding five thousand dollars;
(6) Shall Post notices of all acquisitions and purchases for
which competitive bids are being solicited in the purchasing office
of the specified institution involved in the purchase, at least two
weeks prior to making such purchases and ensure that the notice is
available to the public during business hours;
(7) Shall Provide for purchasing in the open market;
(8) Shall Make provision for vendor notification of bid
solicitation and emergency purchasing; and
(9) Shall Provide that competitive bids are not required for
purchases of five thousand dollars or less.
(b) The commission or each governing board, through the vice
chancellor for administration, may issue a check in advance to a
company supplying postage meters for postage used by that board,
the commission and by the state institutions of higher education
under their jurisdiction.
(c) When a purchase is to be made by bid, any or all bids may
be rejected. However, all purchases based on advertised bid
requests shall be awarded to the lowest responsible bidder taking
into consideration the qualities of the articles to be supplied,
their conformity with specifications, their suitability to the
requirements of the governing boards, the commission and delivery
terms.: Provided, That The preference for resident vendors as
provided in section thirty-seven, article three, chapter five-a of
this code shall apply to the competitive bids made pursuant to this
section.
(d) The governing boards and the commission shall maintain a
purchase file, which shall be a public record and open for public
inspection. After the award of the order or contract, the
governing boards and the commission shall indicate upon the
successful bid that it was the successful bid and shall further
indicate why bids are rejected and, if the mathematical low vendor
is not awarded the order or contract, the reason therefor. No
records in the purchase file shall may be destroyed without the written consent of the legislative auditor. Those files in which
the original documentation has been held for at least one year and
in which the original documents have been reproduced and archived
on microfilm or other equivalent method of duplication may be
destroyed without the written consent of the legislative auditor.
All files, no matter the storage method, shall be open for
inspection by the legislative auditor upon request.
(e) The commission also shall adopt rules to prescribe
qualifications to be met by any person who is to be employed as a
buyer pursuant to this section. These rules shall require that no
person may be employed as a buyer unless that person, at the time
of employment, either is:
(1) A graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any
unit of government or for any business, commercial or industrial
enterprise.
(f) Any person making purchases and acquisitions pursuant to
this section shall execute a bond in the penalty of fifty thousand
dollars, payable to the state of West Virginia, with a corporate
bonding or surety company authorized to do business in this state
as surety thereon, in form prescribed by the attorney general and
conditioned upon the faithful performance of all duties in
accordance with sections four through eight of this article and the rules of the interim governing board and the commission. In lieu
of separate bonds for such buyers, a blanket surety bond may be
obtained. Any such bond or bonds shall be filed with the secretary
of state. The cost of any such bond or bonds shall be paid from
funds appropriated to the applicable governing board or commission.
(g) All purchases and acquisitions shall be made in
consideration and within limits of available appropriations and
funds and in accordance with applicable provisions of article two,
chapter five-a of this code, relating to expenditure schedules and
quarterly allotments of funds.
(h) The governing boards and the commission may make
requisitions upon the auditor for a sum to be known as an advance
allowance account, in no case to exceed five percent of the total
of the appropriations for the governing board or the commission,
and the auditor shall draw a warrant upon the treasurer for such
accounts.; and all such All advance allowance accounts shall be
accounted for by the applicable governing board or commission once
every thirty days or more often if required by the state auditor.
(i) Contracts entered into pursuant to this section shall be
signed by the applicable governing board or the commission in the
name of the state and shall be approved as to form by the attorney
general.: Provided, That A contract in which requires approval as
to form by the attorney general the total does not exceed five thousand dollars and for which the attorney general has not
responded within fifteen days of presentation of the contract, the
contract shall be deemed considered approved.: Provided, however,
That A contract or a change order for that contract and
notwithstanding any other provision of this code to the contrary,
associated documents such as performance and labor/material
payments, bonds and certificates of insurance which in total does
not exceed fifty thousand dollars and which uses use terms and
conditions or standardized forms previously approved by the
attorney general and does do not make substantive changes in the
terms and conditions of the contract does do not require approval
by the attorney general.: Provided further, That The attorney
general shall make a list of those changes which he or she deems to
be substantive and the list, and any changes thereto, shall be
published in the state register. A contract that exceeds fifteen
thousand dollars shall be filed with the state auditor.: And
provided further, That upon request If requested to do so, the
governing boards or the commission shall make all contracts
available for inspection by the state auditor. The governing board
or the commission, as appropriate, shall prescribe the amount of
deposit or bond to be submitted with a bid or contract, if any, and
the amount of deposit or bond to be given for the faithful
performance of a contract.
(j) If the governing board or the commission purchases or
contracts for materials, supplies, equipment, services and printing
contrary to the provisions of sections four through seven of this
article or the rules pursuant thereto, such purchase or contract
shall be void and of no effect.
(k) Any governing board or the commission, as appropriate, may
request the director of purchases to make available, from time to
time, the facilities and services of that department to the
governing boards or the commission in the purchase and acquisition
of materials, supplies, equipment, services and printing and the
director of purchases shall cooperate with that governing board or
the commission, as appropriate, in all such purchases and
acquisitions upon such request.
(l) Each governing board or the commission, as appropriate,
shall permit private institutions of higher education to join as
purchasers on purchase contracts for materials, supplies, services
and equipment entered into by that governing board or the
commission. Any private school desiring to join as purchasers on
such purchase contracts shall file with that governing board or the
commission an affidavit signed by the president of the institution
of higher education or a designee requesting that it be authorized
to join as purchaser on purchase contracts of that governing board
or the commission, as appropriate., and agreeing that it will be The private school shall agree that it is bound by such terms and
conditions as that governing board or the commission may prescribe
and that it will be responsible for payment directly to the vendor
under each purchase contract.
(m) Notwithstanding any other provision of this code to the
contrary, the governing boards and the commission, as appropriate,
may make purchases from cooperative buying groups, consortia, the
federal government or from federal government contracts if the
materials, supplies, services, equipment or printing to be
purchased is available from cooperative buying groups, consortia,
the federal government or from a federal contract and purchasing
from the cooperative buying groups, consortia, federal government
or from a federal government contract would be the most financially
advantageous manner of making the purchase.
(n) An independent performance audit of all purchasing
functions and duties which are performed at any institution of
higher education shall be performed each fiscal year. The joint
committee on government and finance shall conduct the performance
audit and the governing boards and the commission, as appropriate,
shall be responsible for paying the cost of the audit from funds
appropriated to the governing boards or the commission.
(o) The governing boards shall require each institution under
their respective jurisdictions to notify and inform every vendor doing business with that institution of the provisions of section
fifty-four, article three, chapter five-a of this code, also known
as the "prompt pay act of 1990".
(p) Consultant services, such as strategic planning services,
may not preclude or inhibit the governing boards or the commission
from considering any qualified bid or response for delivery of a
product or a commodity because of the rendering of those consultant
services.
(q) After the commission has granted approval for
lease-purchase arrangements by the governing boards, a governing
board may enter into lease-purchase arrangements for capital
improvements, including equipment. Any lease-purchase arrangement
so entered shall constitute a special obligation of the state of
West Virginia. The obligation under a lease-purchase arrangement
so entered may be from any funds legally available to the
institution and must be cancelable at the option of the governing
board or institution at the end of any fiscal year. The
obligation, any assignment or securitization thereof, shall never
constitute an indebtedness of the state of West Virginia or any
department, agency or political subdivision thereof, within the
meaning of any constitutional provision or statutory limitation,
and shall may not be a charge against the general credit or taxing
powers of the state or any political subdivision thereof; and such facts shall be plainly stated in any lease-purchase agreement.
Further, the lease-purchase agreement shall prohibit assignment or
securitization without consent of the lessee and the approval of
the attorney general of West Virginia. Proposals for any
arrangement must be requested in accordance with the requirements
of this section and any rules or guidelines of the commission. In
addition, any lease-purchase agreement which exceeds one hundred
thousand dollars total must shall be approved by the attorney
general of West Virginia. The interest component of any lease-
purchase obligation shall be exempt from all taxation of the state
of West Virginia, except inheritance, estate and transfer taxes.
It is the intent of the Legislature that if the requirements set
forth in the internal revenue code of one thousand nine hundred
eighty-six, as amended, and any regulations promulgated pursuant
thereto are met, the interest component of any lease-purchase
obligation also shall be exempt from the gross income of the
recipient for purposes of federal income taxation and may be
designated by the governing board or the president of the
institution as a bank-qualified obligation.
(r) Notwithstanding any other provision of this code to the
contrary, the commission and the governing boards have the
authority, in the name of the state, to lease, or offer to lease,
as lessee, any grounds, buildings, office or other space in accordance with this paragraph and as provided below:
__(1)
The commission and the governing boards have sole authority
to select and to acquire by contract or lease all grounds,
buildings, office space or other space, the rental of which is
necessarily required by the commission or governing boards for the
institutions under their jurisdiction. The chief executive officer
of the commission or an institution shall certify the following:
__(A) That the grounds, buildings, office space or other space
requested is necessarily required for the proper function of the
commission or institution;
__(B) That the commission or institution will be responsible for
all rent and other necessary payments in connection with the
contract or lease; and
__(C) That satisfactory grounds, buildings, office space or
other space is not available on grounds and in buildings now owned
or leased by the commission or the institution.
__Before executing any rental contract or lease, the commission
or a governing board shall determine the fair rental value for the
rental of the requested grounds, buildings, office space or other
space, in the condition in which they exist, and shall contract for
or lease the premises at a price not to exceed the fair rental
value.
__(2) The commission and the governing boards are authorized to enter into long-term agreements for buildings, land and space for
periods longer than one fiscal year, but not to exceed forty years.
Any purchases of real estate, any lease-purchase agreement and any
construction of new buildings or other acquisition of buildings,
office space or grounds resulting therefrom, pursuant to the
provisions of this subsection shall be presented by the policy
commission to the joint committee on government and finance for
prior review. Any such lease shall contain, in substance, all the
following provisions:
__(A) That the commission or the governing board, as lessee,
have the right to cancel the lease without further obligation on
the part of the lessee upon giving thirty days' written notice to
the lessor at least thirty days prior to the last day of the
succeeding month;
__(B) That the lease shall be considered canceled without
further obligation on the part of the lessee if the Legislature or
the federal government fails to appropriate sufficient funds
therefor or otherwise acts to impair the lease or cause it to be
canceled; and
__(C) That the lease shall be considered renewed for each
ensuing fiscal year during the term of the lease unless it is
canceled by the commission or the governing board before the end of
the then-current fiscal year.
__(3) The commission or an institution which is granted any
grounds, buildings, office space or other space leased in
accordance with this section may not order or make permanent
changes of any type thereto, unless the commission or the governing
board, as appropriate, has first determined that the change is
necessary for the proper, efficient and economically sound
operation of the institution. For purposes of this section, a
"permanent change" means any addition, alteration, improvement,
remodeling, repair or other change involving the expenditure of
state funds for the installation of any tangible thing which cannot
be economically removed from the grounds, buildings, office space
or other space when vacated by the institution.
__(4) Leases and other instruments for grounds, buildings,
office or other space, once approved by the commission or governing
board, may be signed by the chief executive officer of the
commission or the institution. Any lease or instrument exceeding
one hundred thousand dollars annually shall be approved as to form
by the attorney general. A lease or other instrument for grounds,
buildings, office or other space that contains a term, including
any options, of more than six months for its fulfillment shall be
filed with the state auditor.
__(5) The commission may promulgate rules it considers necessary
to carry out the provisions of this section.
§18B-5-5. Prequalification disclosure by vendors; register of
vendors; exceptions; suspension of vendors.
(a) Every person, firm or corporation selling or offering to
sell to the commission or the governing boards, upon competitive
bids or otherwise, any materials, equipment, services or supplies
in excess of fifteen twenty-five thousand dollars:
(1) Shall comply with all of the provisions of section twelve,
article three, chapter five-a of this code; and
(2) Shall file with the director of the purchasing division of
the state of West Virginia the affidavit required herein:; and
Provided, That every such person, firm or corporation who is
(3) If presently in compliance with said section may not be
required to requalify thereunder to be able to transact business
with the commission or the governing boards.
(b) Any person, firm or corporation failing or refusing to
comply with said statute as herein required shall be ineligible to
sell or offer to sell commodities materials, supplies, equipment,
services or printing to the commission or the governing boards as
hereinafter set forth.: Provided, That Any person suspended under
the provisions of section thirty-nine thirty-two, article three,
chapter five-a of this code shall is not be eligible to sell or
offer to sell commodities materials, supplies, equipment, services
or printing to the commission or the governing boards.: Provided, however, That The commission or the governing boards shall have the
power and authority to may suspend, for a period not to exceed one
year, the right and privilege of a person to bid on purchases of
the commission or the governing boards when there is reason to
believe that such person has violated any of the provisions in
sections four through seven of this article or the rules of the
governing boards pursuant thereto. Every Any person whose right to
bid has been so suspended shall be notified thereof by a letter
posted by registered mail containing the reason for such the
suspension and shall have has the right to have the appropriate
action of the commission or the governing board's board, as
applicable, action reviewed in accordance with section forty
thirty-three, article three, chapter five-a of this code.:
Provided further, That A vendor who has been debarred pursuant to
the provisions of sections thirty-three-a through thirty-three-f,
article three, chapter five-a of this code, may not bid on or be
awarded a contract under this section.
§18B-5-6. Other code provisions relating to purchasing not
controlling; exceptions; criminal provisions and penalties;
financial interest of governing boards, etc.; receiving
anything of value from interested party and penalties
therefor; application of bribery statute.
The provisions of article three, chapter five-a of this code shall do not control or govern the purchase, acquisition or other
disposition of any equipment, materials, supplies, services or
printing by the commission or the governing boards, except as
provided in sections four through seven of this article.:
Provided, That Sections twenty-nine, thirty and thirty-one, article
three, chapter five-a of this code shall apply to all purchasing
activities of the commission and the governing boards.
Neither the commission, the governing boards, nor any employee
of the commission or governing boards, shall may be financially
interested, or have any beneficial personal interest, directly or
indirectly, in the purchase of any equipment, materials, supplies,
services or printing, nor in any firm, partnership, corporation or
association furnishing them, except as may be authorized by the
provisions of chapter six-b of this code. Neither the commission,
the governing boards nor any employee of said the commission or
governing boards shall may accept or receive directly or indirectly
from any person, firm or corporation, known by the commission,
governing boards or such employee to be interested in any bid,
contract or purchase, by rebate, gift or otherwise, any money or
other thing of value whatsoever or any promise, obligation or
contract for future reward or compensation, except as may be
authorized by the provisions of chapter six-b of this code.
A person who violates any of the provisions of this section shall be is guilty of a misdemeanor, and, upon conviction thereof,
shall be imprisoned in jail not less than three months nor more
than one year, or fined not less than fifty nor more than one
thousand dollars, or both imprisoned and fined, in the discretion
of the court.: Provided, That Any person who violates any of such
provisions of this section by receiving money or other thing of
value under circumstances constituting the crime of bribery under
the provisions of section three, article five-a, chapter sixty-one
of this code, shall, upon conviction of bribery, be punished as
provided in section nine of said article.
§18B-5-7. Disposition of obsolete and unusable equipment, surplus
supplies and other unneeded materials.
(a) The commission and the governing boards shall dispose of
obsolete and unusable equipment, surplus supplies and other
unneeded materials, either by transfer to other governmental
agencies or institutions, by exchange or trade, or by sale as junk
or otherwise. The commission and each governing boards board shall
adopt rules governing and controlling the disposition of all such
equipment, supplies and materials. At least ten days prior to the
disposition, the commission or the governing boards, as applicable,
shall advertise, by newspaper publication as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, in the county in which the equipment, supplies and materials are located the availability or
sales of such disposable equipment, supplies and materials. and The
commission or governing boards, as applicable, may sell the
disposable equipment, supplies and materials, in whole or in part,
at public auction or by sealed bid, or may transfer, exchange or
trade the same to other governmental agencies or institutions (if
by transfer, exchange or trade, then without advertising), in whole
or in part, as sound business practices may warrant under existing
circumstances and conditions.
(b) The commission or governing board, as appropriate, shall
report semiannually
to the legislative auditor, all sales of
commodities made during the preceding six months. The report shall
include a description of the commodities sold, the name of the
buyer to whom each commodity was sold
, and the price paid by the
buyer.
_____(c) The proceeds of sales or transfers shall be deposited in
the state treasury to the credit on a pro rata basis of the fund or
funds from which the purchase of the particular commodities or
expendable commodities was made. The commission or governing
board, as appropriate, may charge and assess fees reasonably
related to the costs of care and handling with respect to the
transfer, warehousing, sale and distribution of state property that
is disposed of or sold pursuant to the provisions of this section.
§18B-5-9. Higher education fiscal responsibility.
(a) The commission shall ensure the fiscal integrity of any
electronic process conducted at its offices or at any institution
using best business and management practices.
(b) The commission shall implement a process whereby, to the
maximum extent practicable, employees of the commission and any
state institution of higher education receive their wages via
electronic transfer or direct deposit.
(c) Notwithstanding the provisions of section ten-a, article
three, chapter twelve of this code, the amount of any purchase made
with a purchasing card used by the commission or an institution may
not exceed five thousand dollars. Subject to approval of the
purchasing division of the department of administration, any
routine, regularly-scheduled payment, including, but not limited
to, utility payments and real property rental fees may exceed this
amount limit. The commission or an institution may use a
purchasing card for travel expenses directly related to the job
duties of the traveling employee. Traveling expenses may include
registration fees and airline and other transportation
reservations, if approved by the administrative head of the
institution, but may not include fuel. The commission and each
institution shall maintain one purchase card for use only in and
for situations declared an emergency by the president of the institution and approved by the chancellor. Such emergencies may
include, but are not limited to, partial or total destruction of a
campus facility; loss of a critical component of utility
infrastructure; heating, ventilation, or air conditioning failure
in an essential academic building; loss of campus road, parking lot
or campus entrance; or a local, regional, or national emergency
situation that has a direct impact on the campus.
(d) Notwithstanding the provisions of section ten-f, article
three, chapter twelve of this code, by the thirtieth day of June,
two thousand four, the auditor shall accept any receiving report
submitted in a format utilizing electronic media.
(e) The Legislature finds that an emergency exists, and,
therefore, by the first day of July, two thousand three, the
commission shall file an emergency legislative rule in accordance
with the provisions of article three-a, chapter twenty-nine-a of
this code. The rule shall provide for institutions individually or
cooperatively to maximize their use of any of the following
purchasing practices that are determined to provide a financial
advantage:
(1) Bulk purchasing;
(2) Reverse bidding;
(3) Electronic marketplaces; and
(4) Electronic remitting.
(f) Each institution shall establish a consortium with at
least one other institution in the most cost-efficient manner
feasible, to consolidate the following operations and student
services:
(1) Payroll operations;
(2) Human resources operations;
(3) Warehousing operations;
(4) Financial transactions;
(5) Student financial aid application, processing and
disbursement;
(6) Standard and bulk purchasing; and
(7) Any other operation or service appropriate for
consolidation as determined by the commission.
(g) An institution may charge a fee to each institution for
which it provides a service or performs an operation. The fee rate
shall be in the best interest of both the institution being served
and the providing institution, as approved by the commission.
(h) Any community and technical college, college and
university may provide the services authorized by this section for
the benefit of any governmental body or public or private
institution.
(i) Commencing with the two thousand four fall academic term,
each institution shall reduce its number of low-enrollment sections
of introductory courses. To the maximum extent practicable, institutions shall use distance learning to consolidate the course
sections. The commission shall report the progress of the
reduction to the legislative oversight commission on education
accountability by the first day of December, two thousand four.
(j) An institution shall use its natural resources and
alternative fuel resources to the maximum extent feasible. The
institution may supply the resources for its own use and for use by
any other institution. The institution may supply the resources to
the general public at fair market value. An institution shall
maximize all federal or grant funds available for research
regarding alternative energy sources, and may develop research
parks to further the purpose of this section and to expand the
economic development opportunities in the state.
(k) Any cost-savings realized or fee procured or retained by
an institution pursuant to implementation of the provisions of this
section shall be retained by the institution.
(l) In assuring the fiscal integrity of processes implemented
under this section, at a minimum, the commission has the following
responsibilities:
(1) To conduct a performance audit of the policies, procedures
and results of the procurement of goods and services by the state
institutions of higher education;
(2) To make progress reports on the implementation of this
section to the legislative oversight commission on education
accountability throughout the two thousand three interim meetings period;
(3) To make a comprehensive report to the legislative
oversight commission on education accountability by the first day
of December, two thousand three, on the results of the performance
audit, together with any recommendations for additional actions
that might be taken to improve the efficiency, effectiveness and
economy of the administrative operations of the state institutions
of higher education and the commission.
(m) The commission shall report annually to the legislative
oversight commission on education accountability regarding any
savings achieved by implementing the provisions of this section.
On motion of Senator Plymale, the following amendment to the
Finance committee amendment to the bill was next reported by the
Clerk and adopted:
On pages two and three, by striking out the enacting section
and inserting in lieu thereof a new enacting section, to read as
follows:
That section two, article eight, chapter eighteen-b of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section one, article five, chapter five
of said code be amended and reenacted; that section two, article
one, chapter eighteen-b of said code be amended and reenacted; that
said article be further amended by adding thereto two new sections,
designated sections eight and ten; that section three, article one-
a of said chapter be amended and reenacted; that section six, article one-b of said chapter be amended and reenacted; that said
article be further amended by adding thereto a new section,
designated section ten; that sections three, four and eight,
article three-c of said chapter be amended and reenacted; that
sections three, four, five, six and seven, article five of said
chapter be amended and reenacted; the said article be further
amended by adding thereto a new section, designated section nine;
that article six of said chapter be amended by adding thereto a new
section, designated section four-b; that sections four and six,
article seven of said chapter be amended and reenacted; that
section three, article eight of said chapter be amended and
reenacted; that sections five and ten, article nine of said chapter
be amended and reenacted; that sections one and fourteen, article
ten of said chapter be amended and reenacted; and that article
fourteen of said chapter be amended by adding thereto a new
section, designated section eleven, all to read as follows:.
The question now being on the adoption of the Finance
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. H. B. No. 2224), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2224) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Chafin, Deem, Dempsey, Edgell, Facemyer, Harrison, Helmick,
Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear,
Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder,
Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: Caldwell, Fanning and Guills--3.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2224) passed.
At the request of Senator Helmick, as chair of the Committee
on Finance, the unreported Finance committee amendment to the title
of the bill was withdrawn.
On motion of Senator Plymale, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On pages
one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 2224--A Bill to repeal section two,
article eight, chapter eighteen-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and reenact
section one, article five, chapter five of said code; to amend and
reenact section two, article one, chapter eighteen-b of said code;
to further amend said article by adding thereto two new sections,
designated sections eight and ten; to amend and reenact section
three, article one-a of said chapter; to amend and reenact section
six, article one-b of said chapter; to further amend said article
by adding thereto a new section, designated section ten; to amend
and reenact sections three, four and eight, article three-c of said
chapter; to amend and reenact sections three, four, five, six, and
seven, article five of said chapter; to further amend said article
by adding thereto a new section, designated section nine; to amend
article six of said chapter by adding thereto a new section,
designated section four-b; to amend and reenact sections four and
six, article seven of said chapter; to amend and reenact section
three, article eight of said chapter; to amend and reenact sections
five and ten, article nine of said chapter; to amend and reenact
sections one and fourteen, article ten of said chapter; and to
amend article fourteen of said chapter by adding thereto a new
section, designated section eleven, all relating to public higher
education; administrative and programmatic efficiencies;
removing
the twenty-year cap on the annual experience increment
for classified employees; definitions; clarifying student rights in
cases of institutional mergers or administrative linkages;
providing that Potomac state college become a fully integrated
division of West Virginia university by the first day of July, two
thousand five; abolishing advisory board and providing for board of
visitors; setting limits on operational costs; incorporating
auxiliary enterprises into West Virginia university and authorizing
board of governors to set rates for auxiliary services and
products; providing for areas of academic emphasis at the Potomac
campus; authorizing the policy commission to change the mission of
the Potomac campus; providing for contracting with eastern West
Virginia community and technical college for certain programs and
services; requiring Potomac state college and eastern West Virginia
community and technical college to report to the policy commission
on plans, accomplishments and recommendations in implementing the
cooperative relationship and requiring the policy commission to
report to the legislative oversight commission education
accountability on the cooperative activities and results; requiring
the policy commission to obtain approval from the legislative
oversight commission on education accountability before changing
institutional peers; providing for appointment of provosts;
providing procedure for evaluating administrative heads of
institutions; directing Concord college and Bluefield state college
to make a joint study on progress toward meeting goals; requiring
report to policy commission by the first day of September, two
thousand three; directing policy commission to report to the legislative oversight commission on education accountability on
results of study and recommendations by the first day of November,
two thousand three; requiring policy commission to act to implement
necessary changes and to monitor institutional progress toward
meeting goals; changing name of administrative head of component
community and technical colleges from "president" to "provost",
clarifying reporting relationships of provosts; abolishing
responsibility districts for Bluefield state community and
technical college and Glenville state community and technical
college; requiring Glenville state college, Bluefield state college
and Fairmont state college to agree by date certain on transfer of
certain property, obligations and staff; adding counties to the
responsibility district of Fairmont state college and requiring the
policy commission to resolve any disagreement; removing a county
from the responsibility district of Shepherd community and
technical college; creating a responsibility district for New River
community and technical college; deleting references to Bluefield
community and technical college and the center for higher education
and work force development at Beckley; creating New River community
and technical college of Bluefield state college from existing
components and entities; providing that Bluefield state college may
retain certain associate degree programs; providing findings and
intent; providing for governance and program offerings; authorizing
certain expenditures; authorizing contractual arrangements;
deleting language relating to responsibilities and duties of
certain executive agencies and officials; authorizing the policy commission and governing boards to purchase services; deleting bid
preference for institutional print shops; allowing the attorney
general fifteen days to respond on contracts requiring his or her
approval before contracts will be considered approved; removing the
fifty thousand dollar threshold for sending contracts to the
attorney general in cases where the contracts use preapproved terms
and conditions; authorizing policy commission and governing boards
to make purchases from cooperative buying groups and consortia;
requiring lease-purchase agreements which exceed one hundred
thousand dollars total be approved by the attorney general;
authorizing the policy commission and the governing boards to lease
any grounds, buildings, office or other space under certain
conditions and requiring prior review by the joint committee on
government and finance; providing for lease cancellation and
renewal under certain conditions; providing for authorized
signatures on approved leases; authorizing the policy commission to
promulgate rules on leasing; changing purchase threshold from
fifteen to twenty-five thousand dollars for requiring vendor
registration; making vendors who refuse to comply ineligible to
sell to policy commission and governing boards; clarifying
provisions relating to purchasing equipment, materials, supplies,
services or printing; authorizing the policy commission to dispose
of obsolete or unusable equipment, surplus supplies; requiring
report on commodities sold and requiring proceeds to be returned to
account from which purchase was made; directing the policy
commission to ensure fiscal integrity of certain institutional procedures; providing for electronic transfers; authorizing
purchases on purchase card to five thousand dollars and above under
certain circumstances; authorizing use of purchase card for certain
travel expenses if approved by the administrative head of the
institution; authorizing certain emergency expenditures;
authorizing and requiring an emergency rule to maximize
institutional efficiency; requiring each institution to establish
a consortium with at least one other institution to consolidate
certain financial operations; allowing an institution to charge a
fee for services as approved by the policy commission; authorizing
community and technical colleges, colleges and universities to
provide certain services to any governmental body or public or
private institution; requiring institutions to reduce number of
low-enrollment sections of introductory courses by date certain and
requiring the policy commission to report progress by a date
certain; directing institutions to use natural resources and
alternative fuel resources and authorizing institutions to supply
resources to other institutions; directing that any cost savings
realized are to be retained by the institution; outlining
responsibility of policy commission in assuring institutional
fiscal integrity; establishing staff council at each public higher
education campus; providing for election of members and chair;
providing for meetings; requiring institutions to give notice to
probationary faculty of retention or nonretention by date certain;
requiring governing boards to establish required policies by date
certain; directing policy commission to report to legislative oversight commission on education accountability on policies
including number of adjunct faculty and part-time employees at each
institution; directing policy commission to consider need for
flexibility at community and technical colleges when reviewing
institutional policies; deleting obsolete language referencing
faculty salary schedule; providing increase in salary up to ten
percent for faculty when promoted in rank as determined by the
governing board; directing each governing board to establish and
maintain a competitive faculty salary schedule; removing obsolete
references to annual experience increment; permitting certain
faculty members to participate in catastrophic leave banks;
authorizing governing boards to propose mandatory auxiliary fee
increases; requiring approval by policy commission and either the
students of the proposing institution or the Legislature; purposes
for which fee may be used; providing for reducing state subsidies
to zero over five years and returning money to general revenue;
requiring policy commission to certify amount generated by the fee
for each institution annually; limiting undergraduate tuition and
fee increases for residents to no more than four and three-quarters
percent for community and technical colleges and no more than nine
and one-half percent for all other institutions in any fiscal year;
requiring that tuition and fee increases be approved by the policy
commission based upon certain conditions; requiring the policy
commission to report to the legislative oversight commission on
education accountability on the basis used to determine approval or
disapproval of an institutional request for tuition and fee increases; authorizing policy commission to consider per capita
income in an institution's service area when making determinations
on granting tuition and fee increases; providing for calculating
per capita income; requiring certain institutions to deposit
bookstore revenue, enuring to the benefit of the institution, into
an appropriate account to use for nonathletic scholarships; and
requiring the policy commission and the public employees insurance
agency to submit to the legislative oversight commission on
education accountability by date certain draft legislation
providing employee incentives, additional options to purchase
supplemental benefits, option to decline insurance, procedure for
verifying alternate coverage and procedure to restore coverage
under certain circumstances.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Chafin, Deem, Dempsey, Edgell, Facemyer, Harrison, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse,
Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: Caldwell, Fanning and Guills--3.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2224) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Unger, the name of Senator Unger was
removed as a sponsor of Senate Bill No. 501 (Exempting insurers,
their agents and employees from statute except where contract
exists) and Engrossed Committee Substitute for Senate Bill No. 594
(Increasing membership on public employees insurance agency finance
board).
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Saturday, March 8, 2003, at 11 a.m.
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