__________*__________
Thursday, March 6, 2003
The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Wednesday, March 5, 2003, being the first order
of business, when the further reading thereof was dispensed with and the same approved.
Delegate Frich announced that she was absent on Wednesday, March 5, 2003 when the votes
were taken on Roll Nos. 351 through 360, and that had she been present, she would have voted
"Yea" thereon; and on Roll No. 361, she would have voted "Nay" thereon..
Delegate Ferrell announced that he was also absent on yesterday, when the votes were taken
on Roll Nos. 357 - 361, and that had he been present, he would have voted "Yea" thereon.
Delegate Webster announced that she was absent on Friday, February 28, 2003, when the
votes were taken on Roll Nos. 215, 242 through 268 and 269 through 298, and that had she been
present, she would have voted "Yea" thereon.
Committee Reports
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which
was received:
Your Committee on Rules has had under consideration:
H. C. R. 38, Requesting the Joint Committee on Government and Finance to study the
impact of the state medicaid agency,
H. C. R. 76, Requesting the Joint Committee on Government and Finance to conduct a study
on Medicaid Aged and Disabled Waivers,
And,
H. C. R. 78, Renaming the street now named "Howard Street", located on Route 52 in
Stafford district in Mingo County, the "Raymond John Toler Drive",
And reports the same back with the recommendation that they each be adopted.
Chairman Yeager, from the Committee on Agriculture and Natural Resources, submitted the
following report, which was received:
Your Committee on Agriculture and Natural Resources has had under consideration:
S. B. 553, Prohibiting killing bears weighing less than a certain amount,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but with the recommendation that second reference to the Committee on Finance be
dispensed with.
In the absence of objection, reference of the bill (S. B. 553) to the Committee on Finance was
abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 553)
was taken up for immediate consideration, read a first time and then ordered to second reading.
Chairman H. White, from the Committee on Banking and Insurance, submitted the following
report, which was received:
Your Committee on Banking and Insurance has had under consideration:
S. B. 357, Relating to standard nonforfeiture law for individual deferred annuities,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended, but with the recommendation that second reference
to the Committee on the Judiciary be dispensed with.
In the absence of objection, reference of the bill (S. B. 357) to the Committee on the
Judiciary was abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 357)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S.B. 649, Relating to use of waste tire remediation funds,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (S. B. 649) will be placed on the Consent Calendar.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S.B. 658, Making supplementary appropriation to department of health and human resources,
division of human services, James "Tiger" Morton Catastrophic Illness Fund,
S.B. 659, Making supplementary appropriation to state board of examiners for licensed
practical nurses,
And,
S.B. 660, Supplementing, amending, reducing and increasing items from state road fund to
department of transportation, division of highways,
And reports the same back with the recommendation that they each do pass.
Chairman Yeager, from the Committee on Agriculture and Natural Resources, submitted the
following report, which was received:
Your Committee on Agriculture and Natural Resources has had under consideration:
S. B. 555, Providing person not guilty of trespassing or hunting without permission in certain cases,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass, but that it first be referred to the Committee on the Judiciary.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 555)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the former direction of the Speaker, referred to the Committee on the Judiciary.
Chairman Yeager, from the Committee on Agriculture and Natural Resources, submitted the
following report, which was received:
Your Committee on Agriculture and Natural Resources has had under consideration:
S. B. 634, Defining crow as a game-bird,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass, and with the recommendation that second reference to the Committee on the
Judiciary be dispensed with.
In the absence of objection, reference of the bill (S. B. 634) to the Committee on the
Judiciary was abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 634)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 151, Relating to reorganizing executive branch of government,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but that it first be referred to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 151) was taken up for immediate consideration, read a first time, ordered to second reading and then, in accordance with the former direction of the Speaker, referred to the Committee on
Finance.
Messages from the Executive
The Speaker laid before the House of Delegates a Proclamation from His Excellency, the
Governor, which was read by the Clerk as follows:
state of west Virginia
EXECUTIVE DEPARTMENT
charleston
A P R O C L A M A T I O N
By the Governor
Whereas, The Constitution of West Virginia delineates the respective powers, duties and
responsibilities of the three separate branches of government; and
Whereas, Article VI, Section 22 of the Constitution of West Virginia provides that this
regular session of the Legislature not exceed sixty calendar days computed from and including the
second Wednesday of January; and
Whereas, Pursuant to Article VI, Section 22 of the Constitution of West Virginia, the 2003
regular session of the Legislature concludes on March 8, 2003; and
Whereas, Article VI, Section 51 of the Constitution of West Virginia sets forth the legal
authority of the Governor and the Legislature relating to the preparation and enactment of Budget
and Supplementary Appropriation Bills; and
Whereas, Subsection D of said section requires the Governor to issue a proclamation to
extend the regular session of the Legislature if the Budget Bill shall not have been fully acted upon
by the Legislature three days before the expiration of its regular session; and
Whereas, The Legislature has not fully acted upon the Budget Bill three days before the
expiration of this current regular session of the state Legislature.
NOW, THEREFORE, I, BOB WISE, GOVERNOR of the Sate of West Virginia, do hereby issue the following proclamation, in accordance with Article VI, Section 51, Subsection D(8) of the
Constitution of West Virginia, extending this regular session of the state Legislature for
consideration of the Budget Bill for a period not to exceed eight days beyond the conclusion of this
regular session, including any extension thereof, under the provisions of Section 22 of Article VI
of the Constitution of West Virginia; but no matters other than the Budget Bill, supplementary
appropriations bills, and a provision for the cost of said extended session shall be considered during
this extension of the session.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of West
Virginia to be affixed.
DONE at the Capitol in the City of Charleston,
State of West Virginia, on this the Fifth day of
(SEAL)March, in the year of our Lord, Two Thousand
Three, and in the One Hundred Fortieth year
of the State.
BOB WISE,
Governor.
By the Governor
JOE MANCHIN III,
Secretary of State
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 2001, Restricting public access to military discharge forms recorded
in the county clerks office.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything following the enacting section and inserting in lieu
thereof the following:
"ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ll
. Clerk of the county commission duties relating to record keeping of military
discharge forms.
(a) The county commission shall order that the clerk of the county commission wherein a
person discharged from the armed forces of the United States resides record, upon presentation, free
of charge, the original or a properly authenticated copy of either the discharge certificate or the
report of separation from active duty (Department of Defense Document DD-214), or both, and
maintain the discharge certificate or report, or both, in the clerk's office in a secure manner,
rendering the records unavailable to the public.
(b) Notwithstanding the provisions of article one, chapter twenty-nine-b of this code,
discharge certificates and reports of separation from active duty recorded pursuant to this section
may be copied or inspected only by the following:
(1) The person of the record;
(2) The duly qualified conservator or guardian of the person of the record;
(3) The duly qualified executor or administrator of the estate of the person of the record, if
deceased, or, in the event no executor or administrator has qualified, the next of kin of the deceased
person;
(4) An attorney, attorney-in-fact, or other agent or representative of any of the persons
described in subdivision (1), (2) or (3), subsection (b) of this section, acting pursuant to a written
power of attorney or other written authorization; or
(5) A duly authorized representative of an agency or instrumentality of federal, state, or local
government seeking the record in the ordinary course of performing its official duties.
(c) Under the circumstances where time is of the essence, including, but not limited to, requests for copies of records attendant to the making of funeral arrangements or arrangements for
medical care, the clerk, in ascertaining whether a person seeking access to discharge certificates or
reports of separation from active duty is qualified to do so pursuant to subsection (b) of this section,
may rely upon the sworn statement of the requestor made in person before the clerk or his deputy.
(d) Notwithstanding the provisions of subsection (b) of this section, the clerk may permit
access to discharge certificates or reports of separation from active duty of deceased persons for
bona fide genealogical or other research purposes."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 362), and there were--yeas
96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman, Tucker and Yost.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2001) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of
Conference on and the passage, as amended by said report, to take effect from passage, of
Com. Sub. for H. B. 2122, Relating to medical professional liability generally.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 2511, Authorizing the issuance of a special motor vehicle license plate
for "Nemesis Shrine" members.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
On motion of the same Gentleman, further consideration of the message was postponed, to
be taken up on the first reading calendar.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 2512, Relating to competitive bidding and notice requirements for the
development of natural resources in which the public land corporation has an interest.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything following the enacting clause and inserting in lieu
thereof the following:
"That sections three, five and six, article one-a, chapter twenty of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 1A. REAL ESTATE MANAGEMENT AND PROCEDURES.
§20-1A-3. Public land corporation, powers and duties.
(a) The corporation is hereby authorized and empowered to:
(1) Acquire from any persons or the state auditor or any local, state or federal agency, by
purchase, lease or other agreement, any lands necessary and required for public use;
(2) Acquire by purchase, condemnation, lease or agreement, receive by gifts and devises, or
exchange, rights-of-way, easements, waters and minerals suitable for public use;
(3) Sell or exchange public lands where it is determined that the sale or exchange of such
tract meets any or all of the following disposal criteria:
(A) Such The tract was acquired for a specific purpose and the tract is no longer required for
that or any other state purpose; or
(B) Disposal of such the tract serves important public objectives including, but not limited
to, expansion of communities and economic development which cannot be achieved on lands other than public lands and which clearly outweigh other public objectives and values including, but not
limited to, recreation and scenic values which would be served by maintaining such the tract in state
ownership; or
(C) Such The tract, because of its location or other characteristics, is difficult and
uneconomic to manage as part of the public lands and is not suitable for management by another
state department or agency.
There is hereby created in the state treasury a special public land corporation fund into which
shall be paid all proceeds from public land sales and exchanges. The corporation may acquire public
lands from use of the payments made to the fund, along with any interest accruing to said the fund.
The corporation shall report annually, just prior to the beginning of the regular session of the
Legislature, to the finance committees of the Legislature on the financial condition of the special
fund.
(4) Sell, purchase or exchange lands or stumpage for the purpose of consolidating lands
under state or federal government administration subject to the disposal criteria specified in
subdivision (3) of this section;
(5) Negotiate and effect loans or grants from the government of the United States or any
agency thereof for acquisition and development of such lands as may be authorized by law to be
acquired for public use;
(6) Expend the income from the use and development of public lands for the following
purposes:
(A) Liquidate obligations incurred in the acquisition, development and administration of such
lands, until all such obligations have been fully discharged;
(B) Purchase, develop, restore and preserve for public use, sites, structures, objects and
documents of prehistoric, historical, archaeological, recreational, architectural and cultural
significance to the state of West Virginia; and
(C) Obtain grants or matching moneys available from the government of the United States or any of its instrumentalities for prehistoric, historic, archaeological, recreational, architectural and
cultural purposes.
(7) The corporation shall have the authority to Designate lands, to which it has title, for
development and administration for the public use including recreation, wildlife stock grazing,
agricultural rehabilitation and homesteading or other conservation activities;
(8) The corporation shall have authority to Enter into leases as a lessor for the development
and extraction of minerals, including coal, oil, gas, sand and or gravel, except as otherwise
circumscribed herein: Provided, That leases for the development and extraction of minerals shall
be made in accordance with the provisions of sections five and six of this article. The corporation
shall reserve title and ownership to the mineral rights in all cases;
(9) It shall Convey, assign, or allot lands to the title or custody of proper departments or
other agencies of state government for administration and control within the functions of such
departments or other agencies as provided by law;
(10) The corporation shall Make proper lands available for the purpose of cooperating with
the government of the United States in the relief of unemployment and hardship or for any other
public purpose.
(b) The corporation shall report annually to the Legislature on its public land holdings and
all its leases, its financial condition and its operations and shall make such recommendations to the
Legislature as deemed proper concerning the acquisition, leasing, development, disposition and use
of public lands.
(c) All state agencies, institutions, divisions and departments shall make an inventory of the
public lands of the state as may be by law specifically allocated to and used by each and provide to
the corporation a list of such public lands and minerals, including their current use, intended use or
best use to which such land lands and minerals may be put: Provided, That the state department
division of highways need not provide such the inventory of public lands allocated to and used by
it. The inventory shall identify those parcels of land which have no present or foreseeable useful purpose to the state of West Virginia. The inventory shall be submitted annually to the corporation
by the first day of August. one thousand nine hundred eighty-nine The corporation shall compile
such the inventory of all public lands and minerals and report annually to the Legislature by no later
than the first day of January, one thousand nine hundred ninety, on its public land holdings lands
and minerals and the land holdings lands and minerals of the other agencies, institutions, divisions
or departments of this state which are required to report their holdings to the corporation as set forth
hereinabove in this subsection, and its financial condition and its operations.
During the continuance of the Blennerhassett historical park commission, the public land
corporation and its members shall consult with and keep the said Blennerhassett historical park
commission fully informed as to any official action to be taken or proposed to be taken pursuant to
this act regarding or affecting Blennerhassett Island and its prehistoric, historic, archaeological,
architectural, cultural and recreational significance or development or any of the powers and duties
of the Blennerhassett historical park commission.
§20-1A-5. Public land corporation to hold public hearing before sale, lease, exchange or
transfer of land or minerals.
(a) Prior to any final decision of any state agency to sell, lease as a lessor, exchange or
transfer land or minerals title to which is vested in the public land corporation pursuant to section
one of this article, the public land corporation shall:
(1) Prepare and reduce to writing the reasons and supporting data regarding such the sale,
lease, or exchange or transfer of land or minerals. The written reasons required under this section
shall be available for public inspection at the office of the county clerk at the county courthouse of
each county in which the affected land is lands or minerals are located during the two successive
weeks before the date of the public hearing required by this section;
(2) Provide for a public hearing to be held at a reasonable time and place within each county
in which the affected land is lands or minerals are located to allow interested members of the public
to attend the hearing without undue hardship. Members of the public may be present, submit statements and testimony and question the corporation's representative appointed pursuant to this
section;
(3) Not less than thirty days prior to such the public hearing, provide notice to all members
of the Legislature, to the head of the governing body of any political subdivision having zoning or
other land use regulatory responsibility in the geographic area within which the public lands or
minerals are located and to the head of any political subdivision having administrative or public
services responsibility in the geographic area within which the lands or minerals are located;
(4) Cause to be published a notice of the required public hearing. The notice shall be
published as a Class II legal advertisement in compliance with the provisions of article three, chapter
fifty-nine of this code and the publication area shall be each county in which the affected land is
lands or minerals are located. The public hearing shall be held no earlier than the fourteenth
successive day and no later than the twenty-first successive day following the first publication of
the notice. The notice shall contain the time and place of the public hearing along with a brief
description of the affected land lands or minerals;
(5) Cause a copy of the required notice to be posted in a conspicuous place at the affected
land for members of the public to observe. Such The notice shall remain posted for two successive
weeks prior to the date of the public hearing;
(6) Appoint a representative of the corporation who shall conduct the required public
hearing. The corporation's representative shall have full knowledge of all the facts and
circumstances surrounding the proposed sale, lease, exchange or transfer. The representative of the
corporation conducting the public hearing shall make the results of the hearing available to the
corporation for its consideration prior to the board making final decisions regarding the affected
lands or minerals. The representative of the corporation shall make a report of the public hearing
available for inspection by the public or, upon written request of any interested person, provide a
written copy thereof and to all individuals previously receiving written notice of the hearing within
thirty days following the public hearing; and
(7) If the evidence at the public hearing establishes by a preponderance that the appraisal
provided for in subsection (c), section four of this article does not reflect the true, fair market value,
the public land corporation shall cause another appraisal to be made. If the evidence at the public
hearing establishes by a preponderance that the sale or exchange of land sale, lease, exchange or
transfer of lands or minerals does not meet the criteria set forth in subdivision three, section three
of this article, the public land corporation shall may not proceed with the sale or exchange of said
land sale, lease, exchange or transfer of lands or minerals without judicial approval.
The representative of the corporation conducting the public hearing shall make the results
of the hearing available to the corporation for its consideration prior to the board making decisions
regarding the affected lands.
(b) No sale, exchange or transfer of land subject to the provisions of this section may be
made The corporation may not sell, lease as lessor, exchange or transfer lands or minerals before
the thirtieth successive day following the public hearing required by this section, but in no event
shall may the sale, lease, exchange or transfer of such lands or minerals be made prior to fifteen days
after the report of the public hearings are made available to the public in general.
(c) If the corporation authorizes the staff to proceed with consideration of the lease or sale
under the terms of this article, all requirements of this section shall be completed within one year
of date of the authorization by the corporation.
§20-1A-6. Competitive bidding and notice requirements before the development of minerals.
(a) The corporation may enter into a lease or contract for the development of minerals, gas
or oil including coal, oil, gas, sand or gravel, on or under lands in which the corporation holds any
right, title or interest: Provided, That no lease or contract may be entered into for the extraction and
removal of minerals by surface mining or auger mining of coal.
(b) With the exception of deep mining operations which are already in progress and
permitted as of the effective date of this article fifth day of July, one thousand nine hundred eighty-
nine, the extraction of coal by deep mining methods under state forests or wildlife refuges may be permitted only if such the lease or contract provides that no entries, portals, air shafts or other
incursions upon and into said the land incident to said the mining operations may be placed or
constructed upon said the lands or within three thousand feet of the its boundary. thereof
(c) Any lease or contract entered into shall reserve to the state all rights to subjacent surface
support with which the state is seized or possessed of at the time of such lease or contract.
(d) Notwithstanding any other provisions of the code to the contrary, nothing herein shall
may be construed to permit extraction of minerals oil or gas by any method from, on or under any
state park or state recreation area, nor the extraction of minerals by strip or auger mining upon any
state forest or wildlife refuge.
(e) The corporation may enter into a lease or contract for the development of minerals oil
or gas where such the lease or contract is not prohibited by any other provisions of this code, only
after receiving sealed bids therefor, after notice by publication as a Class II legal advertisement in
compliance with the provisions of article three, chapter fifty-nine of this code. The area for such
publication shall be each county in which such lands the minerals are located.
(f) The minerals oil or gas so advertised may be leased or contracted for development at not
less than the fair market value, as determined by an appraisal made by an independent person or firm
chosen by the corporation, to the highest responsible bidder, who shall give bond for the proper
performance of the contract or lease as the corporation shall designate designates: but Provided,
That the corporation shall have the right to may reject any and all bids and to readvertise for bids.
(g) If the foregoing provisions of this section have been complied with, and no bid equal to
or in excess of the fair market value of such natural resources is received, the corporation may, at
any time during a period of six months after the opening of the bids, lease or contract for the
development of such natural resources in such manner as it is deemed appropriate the minerals, but
the lease or contract price shall may not be less than the fair market value. of such natural resources
advertised
(h) Any lease or contract for the development of minerals entered into after the effective date of this section shall be made in accordance with the provisions of this section and section five of this
article.
(i) The corporation will consult with the office of the attorney general to assist the
corporation in carrying out the provisions of this section.
(j) The corporation shall consult with an independent mineral consultant and any other
competent third parties with experience and expertise in the leasing of minerals, to assist the
corporation in carrying out the provisions of this section, including determining fair market value
and negotiating terms and conditions of mineral leases.
(k) Once the lessee commences the production of minerals and royalties become due and are
paid to the public land corporation, the public land corporation shall hire an independent auditing
firm to periodically review the lessee's books and accounts for compliance of payment of
appropriate royalties due the public land corporation for its minerals as produced under the lease
agreement."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2512 - "A Bill to amend and reenact sections three, five and six, article
one-a, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to establishing a special public land corporation; requirements for leasing
minerals; consultation the office of the attorney general; contracting for consulting services; and
accounting for revenues."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
with amendment, as follows:
On page two, by striking out everything following the enacting clause and inserting in lieu
thereof the following:
"That sections three, five and six, article one-a, chapter twenty of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 1A. REAL ESTATE MANAGEMENT AND PROCEDURES.
§20-1A-3. Public land corporation, powers and duties.
(a) The corporation is hereby authorized and empowered to:
(1) Acquire from any persons or the state auditor or any local, state or federal agency, by
purchase, lease or other agreement, any lands necessary and required for public use;
(2) Acquire by purchase, condemnation, lease or agreement, receive by gifts and devises, or
exchange, rights-of-way, easements, waters and minerals suitable for public use;
(3) Sell or exchange public lands where it is determined that the sale or exchange of such
tract meets any or all of the following disposal criteria:
(A) Such The tract was acquired for a specific purpose and the tract is no longer required for
that or any other state purpose; or
(B) Disposal of such the tract serves important public objectives including, but not limited
to, expansion of communities and economic development which cannot be achieved on lands other
than public lands and which clearly outweigh other public objectives and values including, but not
limited to, recreation and scenic values which would be served by maintaining such the tract in state
ownership; or
(C) Such The tract, because of its location or other characteristics, is difficult and
uneconomic to manage as part of the public lands and is not suitable for management by another
state department or agency.
There is hereby created in the state treasury a special public land corporation fund into which
shall be paid all proceeds from public land sales and exchanges. The corporation may acquire public
lands from use of the payments made to the fund, along with any interest accruing to said the fund.
The corporation shall report annually, just prior to the beginning of the regular session of the
Legislature, to the finance committees of the Legislature on the financial condition of the special
fund.
(4) Sell, purchase or exchange lands or stumpage for the purpose of consolidating lands under state or federal government administration subject to the disposal criteria specified in
subdivision (3) of this section;
(5) Negotiate and effect loans or grants from the government of the United States or any
agency thereof for acquisition and development of such lands as may be authorized by law to be
acquired for public use;
(6) Expend the income from the use and development of public lands for the following
purposes:
(A) Liquidate obligations incurred in the acquisition, development and administration of such
lands, until all such obligations have been fully discharged;
(B) Purchase, develop, restore and preserve for public use, sites, structures, objects and
documents of prehistoric, historical, archaeological, recreational, architectural and cultural
significance to the state of West Virginia; and
(C) Obtain grants or matching moneys available from the government of the United States
or any of its instrumentalities for prehistoric, historic, archaeological, recreational, architectural and
cultural purposes.
(7) The corporation shall have the authority to Designate lands, to which it has title, for
development and administration for the public use including recreation, wildlife stock grazing,
agricultural rehabilitation and homesteading or other conservation activities;
(8) The corporation shall have authority to Enter into leases as a lessor for the development
and extraction of minerals, including coal, oil, gas, sand and or gravel, except as otherwise
circumscribed herein: Provided, That leases for the development and extraction of minerals shall
be made in accordance with the provisions of sections five and six of this article. The corporation
shall reserve title and ownership to the mineral rights in all cases;
(9) It shall Convey, assign, or allot lands to the title or custody of proper departments or
other agencies of state government for administration and control within the functions of such
departments or other agencies as provided by law;
(10) The corporation shall Make proper lands available for the purpose of cooperating with
the government of the United States in the relief of unemployment and hardship or for any other
public purpose.
(b) There is hereby created in the state treasury a special public land corporation fund into
which shall be paid all proceeds from public land sales and exchanges and rents, royalties and other
payments from mineral leases. The corporation may acquire public lands from use of the payments
made to the fund, along with any interest accruing to the fund. The corporation shall report
annually, just prior to the beginning of the regular session of the Legislature, to the finance
committees of the Legislature on the financial condition of the special fund. The corporation shall
report annually to the Legislature on its public land holdings and all its leases, its financial condition
and its operations and shall make such recommendations to the Legislature as deemed proper
concerning the acquisition, leasing, development, disposition and use of public lands.
(c) All state agencies, institutions, divisions and departments shall make an inventory of the
public lands of the state as may be by law specifically allocated to and used by each and provide to
the corporation a list of such public lands and minerals, including their current use, intended use or
best use to which such land lands and minerals may be put: Provided, That the state department
division of highways need not provide such the inventory of public lands allocated to and used by
it. The inventory shall identify those parcels of land which have no present or foreseeable useful
purpose to the state of West Virginia. The inventory shall be submitted annually to the corporation
by the first day of August. one thousand nine hundred eighty-nine The corporation shall compile
such the inventory of all public lands and minerals and report annually to the Legislature by no later
than the first day of January, one thousand nine hundred ninety, on its public land holdings lands
and minerals and the land holdings lands and minerals of the other agencies, institutions, divisions
or departments of this state which are required to report their holdings to the corporation as set forth
hereinabove in this subsection, and its financial condition and its operations.
During the continuance of the Blennerhassett historical park commission, the public land corporation and its members shall consult with and keep the said Blennerhassett historical park
commission fully informed as to any official action to be taken or proposed to be taken pursuant to
this act regarding or affecting Blennerhassett Island and its prehistoric, historic, archaeological,
architectural, cultural and recreational significance or development or any of the powers and duties
of the Blennerhassett historical park commission.
§20-1A-5. Public land corporation to hold public hearing before sale, lease, exchange or
transfer of land or minerals.
(a) Prior to any final decision of any state agency to sell, lease as a lessor, exchange or
transfer land or minerals title to which is vested in the public land corporation pursuant to section
one of this article, the public land corporation shall:
(1) Prepare and reduce to writing the reasons and supporting data regarding such the sale,
lease, or exchange or transfer of land or minerals. The written reasons required under this section
shall be available for public inspection at the office of the county clerk at the county courthouse of
each county in which the affected land is lands or minerals are located during the two successive
weeks before the date of the public hearing required by this section;
(2) Provide for a public hearing to be held at a reasonable time and place within each county
in which the affected land is lands or minerals are located to allow interested members of the public
to attend the hearing without undue hardship. Members of the public may be present, submit
statements and testimony and question the corporation's representative appointed pursuant to this
section;
(3) Not less than thirty days prior to such the public hearing, provide notice to all members
of the Legislature, to the head of the governing body of any political subdivision having zoning or
other land use regulatory responsibility in the geographic area within which the public lands or
minerals are located and to the head of any political subdivision having administrative or public
services responsibility in the geographic area within which the lands or minerals are located;
(4) Cause to be published a notice of the required public hearing. The notice shall be published as a Class II legal advertisement in compliance with the provisions of article three, chapter
fifty-nine of this code and the publication area shall be each county in which the affected land is
lands or minerals are located. The public hearing shall be held no earlier than the fourteenth
successive day and no later than the twenty-first successive day following the first publication of
the notice. The notice shall contain the time and place of the public hearing along with a brief
description of the affected land lands or minerals;
(5) Cause a copy of the required notice to be posted in a conspicuous place at the affected
land for members of the public to observe. Such The notice shall remain posted for two successive
weeks prior to the date of the public hearing;
(6) Appoint a representative of the corporation who shall conduct the required public
hearing. The corporation's representative shall have full knowledge of all the facts and
circumstances surrounding the proposed sale, lease, exchange or transfer. The representative of the
corporation conducting the public hearing shall make the results of the hearing available to the
corporation for its consideration prior to the board making final decisions regarding the affected
lands or minerals. The representative of the corporation shall make a report of the public hearing
available for inspection by the public or, upon written request of any interested person, provide a
written copy thereof and to all individuals previously receiving written notice of the hearing within
thirty days following the public hearing; and
(7) If the evidence at the public hearing establishes by a preponderance that the appraisal
provided for in subsection (c), section four of this article does not reflect the true, fair market value,
the public land corporation shall cause another appraisal to be made.
(8) If the evidence at the public hearing establishes by a preponderance that the sale or
exchange of land does not meet the criteria set forth in subdivision three, subsection (a), section
three of this article, the public land corporation shall may not proceed with the sale or exchange of
said land without judicial approval.
The representative of the corporation conducting the public hearing shall make the results of the hearing available to the corporation for its consideration prior to the board making decisions
regarding the affected lands.
(b) No sale, exchange or transfer of land subject to the provisions of this section may be
made The corporation may not sell, lease as lessor, exchange or transfer lands or minerals before
the thirtieth successive day following the public hearing required by this section, but in no event
shall may the sale, lease, exchange or transfer of such lands or minerals be made prior to fifteen days
after the report of the public hearings are made available to the public in general.
(c) If the corporation authorizes the staff to proceed with consideration of the lease or sale
under the terms of this article, all requirements of this section shall be completed within one year
of date of the authorization by the corporation.
§20-1A-6. Competitive bidding and notice requirements before the development or extraction
of minerals on certain lands; related standards.
(a) The corporation may enter into a lease or contract for the development of minerals, gas
or oil including, but not limited to, coal, gas, oil, sand or gravel on or under lands in which the
corporation holds any right, title or interest: Provided, That no lease or contract may be entered into
for the extraction and removal of minerals by surface mining or auger mining of coal.
(b) With the exception of deep mining operations which are already in progress and
permitted as of the effective date of this article fifth day of July, one thousand nine hundred eighty-
nine, the extraction of coal by deep mining methods under state forests or wildlife refuges may be
permitted only if such the lease or contract provides that no entries, portals, air shafts or other
incursions upon and into said the land incident to said the mining operations may be placed or
constructed upon said the lands or within three thousand feet of the its boundary. thereof
(c) Any lease or contract entered into by the corporation for the development of minerals
shall reserve to the state all rights to subjacent surface support with which the state is seized or
possessed of at the time of such lease or contract.
(d) Notwithstanding any other provisions of the code to the contrary, nothing herein shall may be construed to permit extraction of minerals oil or gas by any method from, on or under any
state park or state recreation area, nor the extraction of minerals by strip or auger mining upon any
state forest or wildlife refuge.
(e) The corporation may enter into a lease or contract for the development of minerals oil
or gas where such the lease or contract is not prohibited by any other provisions of this code, only
after receiving sealed bids therefor, after notice by publication as a Class II legal advertisement in
compliance with the provisions of article three, chapter fifty-nine of this code. The area for such
publication shall be each county in which such lands the minerals are located.
(f) The minerals oil or gas so advertised may be leased or contracted for development at not
less than the fair market value, as determined by an appraisal made by an independent person or firm
chosen by the corporation, to the highest responsible bidder, who shall give bond for the proper
performance of the contract or lease as the corporation shall designate designates: but Provided,
That the corporation shall have the right to may reject any and all bids and to readvertise for bids.
(g) If the foregoing provisions of this section have been complied with, and no bid equal to
or in excess of the fair market value of such natural resources is received, the corporation may, at
any time during a period of six months after the opening of the bids, lease or contract for the
development of such natural resources in such manner as it is deemed appropriate the minerals, but
the lease or contract price shall may not be less than the fair market value. of such natural resources
advertised
(h) Any lease or contract for the development of minerals entered into after the effective date
of this section shall be made in accordance with the provisions of this section and section five of this
article.
(i) The corporation will consult with the office of the attorney general to assist the
corporation in carrying out the provisions of this section.
(j) The corporation shall consult with an independent mineral consultant and any other
competent third parties with experience and expertise in the leasing of minerals, to assist the corporation in carrying out the provisions of this section, including determining fair market value
and negotiating terms and conditions of mineral leases.
(k) Once the lessee commences the production of minerals and royalties become due and are
paid to the public land corporation, the public land corporation shall hire an independent auditing
firm to periodically review the lessee's books and accounts for compliance of payment of
appropriate royalties due the public land corporation for its minerals as produced under the lease
agreement."
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 363), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Cann and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2512) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2599, Authorizing the department of education and the arts to
promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2603, Authorizing the department of environmental protection to
promulgate legislative rules.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, section one, line seven, after the word "authorized" by striking out the period
and inserting the following: with the following amendment:
On page thirty-four, subsection 54.6, in the first sentence after the words "starting in" by
inserting the word "2005 or" and after the word "2006," by inserting the words "if the Secretary
determines the Administrator is utilizing this later date for purposes of implementation under 40
CFR Part 96 or 40 CFR Part 52 in any state with a compliance date of May 31, 2004,";
And,
On page six, section one, line thirty-six, after the word "authorized" by striking out the
period and inserting the following: with the following amendment:
On page thirty-two, subsection 54.6, in the first sentence after the words "starting in" by
inserting the word "2005 or" and after the word "2006," by inserting the words "if the Secretary
determines the Administrator has approved or promulgated this later date for purposes of
implementation under 40 CFR Part 96 or 40 CFR Part 52 in any state with a compliance date of May
31, 2004,".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 364), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2603) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 365), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Sobonya.
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2603) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2625, Authorizing the department of health and human resources to
promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2648, Authorizing the department of transportation to promulgate
legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 2715, Modernizing the regulation of surplus lines insurers by
enactment of the NAIC nonadmitted insurance model act.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page sixty-three, section twenty-nine, line seven, by striking out the word "eight".
On motion of Delegate Michael, the House of Delegates concurred in the Senate amendment with amendment on page sixty-three, section twenty-nine, line six, following the word "section" by
deleting the word "five" and inserting in lieu thereof the word "eight".
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 366), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Schoen.
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2715) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
H. B. 2794, Increasing the service fee for worthless checks.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything following the enacting clause and inserting in lieu
thereof the following:
"That sections thirty-nine-e and thirty-nine-g, article three, chapter sixty-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 3. CRIMES AGAINST PROPERTY.
§61-3-39e. Notice of dishonor by payee; service charge.
The payee or holder of a check, draft or order which has been dishonored because of insufficient funds or credit may send notice thereof to the drawer of the check, draft or order. The
payee or holder of any dishonored check may impose a fee of up to fifteen twenty-five dollars a
worthless check. This fee may not be imposed or collected after a complaint for warrant has been
delivered to magistrate court. No payee or holder of a check, draft or order which has been
dishonored because of insufficient funds or credit shall incur any civil or criminal liability for the
sending of a notice substantially in the form provided herein, other provisions of law
notwithstanding. The form of the notice shall be substantially as follows:
'You are hereby notified that a check, number ................, issued by you on (date of check),
drawn upon (name of bank), and payable to ..........................., has been dishonored. Pursuant to
West Virginia law, you have ten days from the date of this notice to tender payment of the full
amount of the check plus a fee of $..................... (not to exceed fifteen twenty-five dollars a
worthless check) to the undersigned at ........................... You are further notified that in the event
the above amount is timely paid in full you will not be subject to legal proceedings, civil or criminal.
Dated ....................., 19 20.....
...............................
(Signed).'
The provisions of this section do not authorize the making of any other written or oral threats
of prosecution to enforce or enhance the collection or honoring of the dishonored check, draft or
order.
The holder or payee of any check, draft or order shall relinquish the check, draft or order to
the maker upon tender of the full amount due at any time before a complaint for warrant has been
presented to magistrate court. In the event complaint for warrant has been presented to magistrate
court, payment may be made only through the court and any holder or payee unlawfully accepting
payment after that time shall be liable for all costs which may be imposed by the magistrate court
in the matter, including all costs which may have accrued by the time the magistrate court is notified
of the payment.
§61-3-39g. Complaint; notice of complaint; issuance of warrant; payment procedures; costs.
After receipt of a complaint for warrant for a violation of section thirty-nine or thirty-nine-a
of this article the magistrate court shall proceed with the issuance of the warrant as is provided by
law: Provided, That no warrant may issue for an offense under section thirty-nine or thirty-nine-a
of this article which, upon conviction, would be punishable as a misdemeanor, unless the payee or
holder of the check, draft or order which has been dishonored has sent notice thereof to the drawer
of the check, draft or order in accordance with the provisions of section thirty-nine-e of this article,
or unless notice has been sent by the magistrate as hereinafter provided. Proof that the notice was
sent by the payee or holder may be evidenced by presentation of a return receipt indicating that the
notice was mailed to the drawer by certified mail, or, in the event the mailed notice was not received
or was refused by the drawer, by presentation of the mailed notice itself. The magistrate court shall
receive and hold the check, draft or order.
Upon receipt of a complaint for a misdemeanor warrant unaccompanied by proof that notice
was sent by the payee or holder, the magistrate court shall immediately prepare and mail to the
drawer of the check, draft or order a notice in form substantially as follows. The magistrate court
shall impose any service charge reflected in the complaint as having been imposed on the payee or
holder by the payee's or holder's bank or financial institution in connection with the check, draft or
order and additional court costs in the amount of ten twenty-five dollars. This notice shall be mailed
to the drawer by United States mail, first class and postpaid, at the address provided at the time of
presenting the check, draft or order. Service of this notice is complete upon mailing. The notice
shall be in form substantially as follows:
'You are hereby notified that a complaint for a warrant for your arrest has been filed with
this office to the following effect and purpose by .............. who upon oath complains that on the .......
day of ..............., 19 20...., you did unlawfully issue and deliver unto him a certain check, draft or
order in the amount of .............. drawn on ....................................... (name of bank or financial
institution) ................. where you did not have funds on deposit in or credit with the bank or financial institution with which to pay the check, draft or order upon presentation and pray that a
warrant issue and that you be apprehended wherever you may be found by an officer authorized to
make an arrest and dealt with in accordance with the laws of the state of West Virginia.
'A warrant for arrest will be issued on or after the ......... day of ......................., 19 20......
'You can nullify the effect of this complaint and avoid arrest by paying to the magistrate
court clerk at ...................... the amount due on the check, draft or order; service charges imposed
on the payee or holder by the payee's or holder's bank or financial institution in connection with the
check, draft or order in the amount of ..........; and the costs of this proceeding in the amount of ten
twenty-five dollars on or before the .......... day of ...................., 19 20......, at which time you will
be given a receipt with which you can obtain the check, draft or order from the magistrate court.
The complainant is forbidden by law to accept payment after the complaint is filed.
Magistrate Court of .................. County
.............................................
Date: ..............................'
This notice shall give the drawer of any such check, draft or order ten days within which to
make payment to magistrate court. In the event the drawer pays the total amount set forth in the
notice to the magistrate court within the ten-day period, no warrant may issue. The payment may
be made to the magistrate court in person or by mail by cash, certified check, bank draft or money
order and, in the event the payment is made by mail, the magistrate court clerk shall immediately
mail to the maker of the check, draft or order the receipt required by this section. In the event the
total amount is not so paid the court shall proceed with the issuance of the warrant as is provided
by law.
Upon receipt of payment of the total amount the magistrate court clerk shall issue to the
drawer a receipt sufficiently describing the check, draft or order with which receipt the drawer is
entitled to receive the dishonored check, draft or order from the magistrate court holding it. The
magistrate court clerk shall forward the amount of the check, draft or order, together with any service charge reflected on the complaint as having been imposed on the payee or holder by the
payee's or holder's bank or financial institution in connection with the check, draft or order, to the
payee or holder thereof, along with a description of the check, draft or order sufficient to enable the
person filing the complaint to identify it and the transaction involved. Costs collected shall be dealt
with as is provided by law for other criminal proceedings.
The drawer of a check, draft or order against whom a warrant has been issued may at any
time prior to trial pay to the court the amount of the check, draft or order; any service charge
reflected in the complaint as having been imposed on the payee or holder by the payee's or holder's
bank or financial institution in connection with the check, draft or order; and the court costs which
would be assessed if the person were found guilty of the offense charged. These costs shall be
imposed in accordance with the provisions of section two, article three, chapter fifty of this code."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2794 - "A Bill to amend and reenact sections thirty-nine-e and thirty-
nine-g, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, all relating to worthless checks; and increasing the allowable service charge
for a dishonored check."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 367), and there were--yeas
91, nays 7, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Ellem, Frich, Hall, Louisos, Schoen, Walters and H. White.
Absent And Not Voting: Cann and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2794) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates as follows:
H. B. 2866, Relating to construction financing for surface transportation improvements
through federal grant anticipation notes.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
Delegate Staton moved that the House of Delegates refuse to concur in the Senate
amendments and request the Senate to recede therefrom.
On this motion, Delegate Browning demanded the yeas and nays, which demand was
sustained.
The yeas and nays having been ordered, they were taken (Roll No. 368), and there
were--yeas 51, nays 48, absent and not voting 1, with the nays and absent and not voting being as
follows:
Nays: Armstead, Border, Brown, Browning, Butcher, Calvert, Canterbury, Caputo, Caruth,
Crosier, DeLong, Ellem, Evans, Faircloth, Ferrell, Fleischauer, Fragale, Frederick, Frich, Hall,
Hatfield, Hrutkay, Iaquinta, Kuhn, Long, Louisos, Manchin, Manuel, Martin, Morgan, Overington,
Perdue, Poling, Renner, Romine, Schoen, Sumner, Susman, Talbott, R. Thompson, R. M.
Thompson., Walters, Warner, Webb, Webster, G. White, Wright and Yeager.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the motion
to refuse to concur in the Senate amendments and to request the Senate to recede therefrom
prevailed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 2868, Allowing alcohol beverage control commissioner to enter into
contracts for sale and promotion of certain proprietary scanner technology.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section twenty-two, line three, following the word "for" by inserting the word
"the";
On page two, section twenty-two, line four, following the word "beverages" by striking out
the comma and inserting in lieu thereof the word "and";
On page two, section twenty-two, line seven, by striking out the word "utilized";
And,
On page three, section twenty-two, line twenty-four, by striking out the word "utilizes" and
inserting in lieu thereof the word "uses".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2868 - "A Bill to amend article two, chapter sixty of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section,
designated section twenty-two, relating generally to powers of alcohol beverage control
commissioner; authorizing scanner technology for verification of purchasers ages; providing
limitations on uses of collected information; allowing commissioner to enter into contracts for sale
and promotion of certain proprietary scanner technology; defining the term 'scanner technology';
creating a new special revenue account; and providing for expenditure of funds."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 369), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Schoen and Walters.
Absent And Not Voting: Cann and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2868) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 3117, Requiring contractors bidding on public works construction
projects to submit valid bid bonds in their proposals and to direct how public bids are received.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything following the enacting section and inserting in lieu
thereof the following:
"ARTICLE 22. GOVERNMENT CONSTRUCTION CONTRACTS.
§5-22-1. Bidding required; government construction contracts to go to qualified responsible
bidder; debarment; exceptions.
(a) As used in this section, 'the state and its subdivisions' means the state of West Virginia,
every political subdivision thereof, every administrative entity that includes such a subdivision, all
municipalities and all county boards of education.
(b) The state and its subdivisions shall, except as provided in this section, solicit competitive
bids for every construction project exceeding twenty-five thousand dollars in total cost: Provided,
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. All bids submitted pursuant to this chapter shall include a valid bid bond or other
surety as approved by the state of West Virginia or its subdivisions.
(c) Following the solicitation of such bids, the construction contract shall be awarded to the
lowest qualified responsible bidder, who shall furnish a sufficient performance and payment bond:
Provided, That the state and its subdivisions may reject all bids and solicit new bids on said project.
(d) All bids shall be opened in accordance with the provisions of section two of this article,
except design-build projects which are governed by article twenty-two-a, chapter five of this code
are exempt from these provisions.
(d) (e) Nothing in this section shall apply to:
(1) Work performed on construction or repair projects by regular full-time employees of the
state or its subdivisions;
(2) Prevent students enrolled in vocational educational schools from being utilized in
construction or repair projects when such use is a part of the student's training program;
(3) Emergency repairs to building components and systems. For the purpose of this
subdivision, emergency repairs means repairs that if not made immediately will seriously impair the
use of such building components and systems, or cause danger to those persons using such building
components and systems; and
(4) Any situation where the state or a subdivision thereof shall come to an agreement with
volunteers, or a volunteer group, whereby the governmental body will provide construction or repair
materials, architectural, engineering, technical or any other professional services and the volunteers
will provide the necessary labor without charge to, or liability upon, the governmental body.
§5-22-2. Designation of time and place for opening of bids; right to reject or withdraw bid;
bid resubmission
.
(a) The public entity accepting public contract bids shall, in its resolution providing for the
contract or purchase and for the advertisement for bids, designate the time and place that the bids
will be received and shall at that time and place publicly open the bids and read them aloud. No public entity may accept or take any bid, including receiving any hand delivered bid, after the time
advertised to take bids. No bid may be opened on days which are recognized as holidays by the
United States postal service. No public entity may accept or consider any bids that do not contain
a valid bid bond or other surety approved by the state of West Virginia or its subdivisions.
(b) The provisions and requirements of this section, section one, of article twenty-two of this
chapter, the requirements stated in the advertisement for bids and the requirements on the bid form
may not be waived by any public entity. The public entity may only reject an erroneous bid after
the opening if all of the following conditions exist: (1) An error was made; (2) the error materially
affected the bid; (3) rejection of the bid would not cause a hardship on the public entity involved,
other than losing an opportunity to receive construction projects at a reduced cost; and (4)
enforcement of the bid in error would be unconscionable. If a public entity rejects a bid, it shall
maintain a file of documented evidence demonstrating that all the conditions set forth in this
subdivision existed. If the public entity determines the bid to be erroneous, the public entity shall
return the bid security to the contractor.
(c) A contractor who withdraws a bid under the provisions of this section may not resubmit
a bid on the same project. If the bid withdrawn is the lowest bid, the next lowest bid may be
accepted."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 370), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Cann and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3117) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
H. B. 3199, Relating to reduced telephone service rates for qualified low-income residential
consumers
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page eight, section four, line thirty-nine, following the word "of" by inserting the words
"health and";
And,
On page nine, section four, lines fifty-seven through sixty-one, by striking out the following:
"Final approved legislative rules shall be submitted by the department of human services to the
legislative rule-making review committee on or before the first day of August, one thousand nine
hundred eighty-seven".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 371), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Calvert and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3199) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Resolutions Introduced
Delegates Anderson, Armstead, Ashley, Azinger, Beach, Beane, Blair, Boggs, Border,
Brown, Browning, Butcher, Calvert, Campbell, Cann, Canterbury, Caputo, Carmichael, Caruth, Craig, Crosier, DeLong, Doyle, Duke, Ennis, Evans, Faircloth, Ferrell, Fleischauer, Foster, Fragale,
Frederick, Frich, Hall, Hamilton, Hartman, Hatfield, Houston, Howard, Hrutkay, Iaquinta, Kominar,
Kuhn, Leggett, Long, Louisos, Mahan, Manchin, Manuel, Martin, Mezzatesta, Michael, Morgan,
Overington, Palumbo, Paxton, Perdue, Perry, Pino, Poling, Proudfoot, Renner, Romine, Schadler,
Schoen, Shaver, Shelton, Smirl, Sobonya, Spencer, Stalnaker, Staton, Stemple, Susman, Tabb,
Talbott, R. Thompson, Trump, Wakim, Walters, Warner, Webb, Webster, G. White, H. White,
Williams, Wright, Yeager and Yost offered the following resolution, which was read by its title and
referred to the Committee on Rules:
H. C. R. 86 - "Requesting that the Children's Memorial Flag be flown on the fourth Friday
in April in remembrance of young lives lost."
Whereas, Tragic acts of violence against children are occurring with increasing frequency
throughout the United States and the State of West Virginia. These acts of senselessness are
destroying innocent lives and devastating families and communities; and
Whereas, Too many of West Virginian's children have been lost in violent, preventable
deaths through guns, fire, automobile accidents, physical violence and suicide; and
Whereas, In celebration of life, diversity and hope for the future, the citizens of West
Virginia should condemn acts of violence committed against our children and our communities; and
Whereas, A Children's Memorial Flag has been obtained by the State of West Virginia and
should be flown on the fourth Friday of April, in remembrance of young lives lost in senseless
criminal acts of violence; therefore, be it
Resolved by the house of Delegates:
That the House of Delegates hereby requests the governor to proclaim the fourth Friday of
April 2003, as "Children's Memorial Flag Day" in the State of West Virginia; and, be it
Further Resolved, that the Children's Memorial Flag be flown on the fourth Friday of April,
in remembrance of those young lives that have been lost in senseless acts of violence; and, be it
Further Resolved, that the Clerk is hereby directed to forward a copy of this resolution to the Governor of the State of West Virginia.
Delegates Kominar and H. White offered the following resolution, which was read by its title
and referred to the Committee on Rules:
H. C. R. 87 - "Requesting the Division of Highways to name the proposed replacement
bridge on 12 Pole Road at Breeden, Mingo County, West Virginia, the 'Woodrow Baisden Bridge'."
Whereas, Woodrow Baisden was born at Neely Branch, Marrowbone, West Virginia, on
January 5, 1923; and
Whereas, He commenced his work career as a logger and later went to work in the coal
mines, where he worked for approximately ten years. Then, due to lack of work, he secured a job
in the steel industry in Columbus, Ohio, where he worked for eleven years, returning every weekend
to West Virginia to be with his family and friends and when work became available, he returned to
West Virginia where he worked for 17 years at a gas pumping station and drove a school bus for 11
years; and
Whereas, Woodrow Baisden has devoted himself throughout his life to freely giving of his
time and energy in helping the people of the community in which he lives; and
Whereas, Woodrow Baisden is loved and esteemed by many people; and
Whereas, The families and residents of this area desire that the bridge be officially
recognized as the "Woodrow Baisden Bridge" in honor of his contributions to his community;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the West Virginia Division of Highways to name the
proposed bridge on 12 Pole Road at Breeden, Mingo County, the "Woodrow Baisden Bridge"; and,
be it
Further Resolved, That the Division of Highways cause an appropriate sign to be placed at
either end of the bridge which designates the bridge as the "Woodrow Baisden Bridge"; and, be it
Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this concurrent resolution to the Secretary of Transportation, the Commissioner of the Division of
Highways and the West Virginia State Historic Preservation Office.
Mr. Speaker, Mr. Kiss, and Delegates Campbell, Mezzatesta, Michael, Varner, Beane,
Staton, Amores and Canterbury offered the following resolution, which was read by its title and
referred to the Committee on Rules:
H. C. R. 88 - "Requesting the Joint Committee on Government and Finance to conduct a
study to examine how the Legislature might operate more efficiently and effectively in representing
the citizens by examining other state models and making recommendations as to ways to use
computer and communication technology and other means to accomplish this."
W
HEREAS
, The legislative process is constantly evolving, and, hopefully improving; and
W
HEREAS
, As Legislators, we need to manage this and direct change to the extent possible
for the good of the citizens of this great state; and
W
HEREAS
, Utilizing technological advances and common sense is one way we can
accomplish this; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study ways and
methods to make the Legislature more effective, including, but not limited to earlier deadlines for
bill introduction and bill passage, split sessions, the scheduling of the regular session at a time other
than winter, when travel may be difficult, biennial budgets, video conferencing using existing state
technologies to save on travel costs, rules regarding legislative receptions, the observation of state
holidays during legislative sessions and to consider a constitutional change to allow the Legislature
to convene in a place other than Charleston in the event of an emergency; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Delegate Carmichael offered the following resolution, which was read by its title and
referred to the Committee on Rules:
H. C. R. 89 - "Requesting the Commissioner of the Division of Highways to name the
recently constructed bridge over Little Sandy Creek on Frame Road near Elkview, Kanawha County,
the 'Dewey Russell Crowder Bridge'."
Whereas, Dewey Russell Crowder was killed in action on November 22, 1944, near the
Elbe River in Germany while serving with General George S. Patton's 3rd Army in World War II;
and
Whereas, Dewey Russell Crowder was only 19 years old when he paid the ultimate price
in defense of his country; and
Whereas, Dewey Russell Crowder was raised on Douglas Branch off of Frame Road near
Elkview and lived there at the time he entered the Army; and
Whereas, Dewey Russell Crowder and others like him who made the supreme sacrifice to
preserve our country's freedoms are worthy of our deepest gratitude and remembrance; and
Whereas, It is only fitting that the new bridge on Frame Road so near Dewey Russell
Crowder's home be named in his honor; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the West Virginia Division of Highways to name the
recently constructed bridge over Little Sandy Creek on Frame Road near Elkview, Kanawha County,
the "Dewey Russell Crowder Bridge"; and, be it
Further Resolved, That the Division of Highways cause an appropriate sign to be placed at
both ends of this bridge which designates the bridge as the "Dewey Russell Crowder Bridge"; and,
be it
Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this resolution to the Commissioner of the Division of Highways and to the surviving family of Dewey
Russell Crowder.
Delegates Kominar and H. White offered the following resolution, which was read by its title
and referred to the Committee on Rules:
H. C. R. 90 - "Naming the portion of U.S. 52 from Taylorville Bridge to the intersection of
State Route 44 in Mingo County the 'R. A. West Memorial Highway'."
Whereas, R. A. West was born on March 12, 1947, in the town of Varney in Mingo County,
West Virginia; and
Whereas, R. A. West married Marsha Lowe of Williamson, West Virginia and took a
position as Fireman with the Norfolk and Western Railroad and soon thereafter became the youngest
person to be promoted to the position of Engineer; and
Whereas, At the age of twenty-two, and in spite of the fact that his first born son was
paralyzed, due to injury at birth, and was confined to a wheelchair, R. A. West, driven by his
religious convictions, heeded the call to the evangelical ministry and resigned his job with the
railroad, forfeiting his job-related medical benefits while large medical bills associated with the
condition of his son continued to mount, thereby evidencing his unshakable religious faith; and
Whereas, Once he began proselytizing and due to his unquestioning faith and religious
fervor, R. A. West was never content with evangelizing solely on Sundays, but, instead, evangelized
an average of three hundred times each year continuing this amazingly torrid pace for the first
fifteen years of his ministry; and
Whereas, As a result of the zeal and dedication of its progenitor, the R. A. West Ministry
expanded into radio and television throughout the United States and into eighty foreign countries,
spreading a constructive and positive message to millions of human beings throughout the planet;
and
Whereas, In spite of his national and world acclaim, R. A. West never abandoned nor
distanced himself from his humble origins, nor from his beloved Varney, West Virginia, nor from his family, friends and parishioners; and
Whereas, R. A. West, as a direct result of his good and fruitful works, became one of the
most respected unofficial ambassadors of this State, a fact which was commemorated by former
Governor Jay Rockefeller, among other prominent notables; and
Whereas, R. A. West was suddenly and unexpectedly taken to his reward on July 6, 2002,
when his earthly existence was terminated as the result of a motorcycle accident; this event resulted
in the largest funeral ever conducted in southern West Virginia, drawing approximately two
thousand persons from all over the United States who gathered to pay their last respects; and
Whereas, The residents of Varney in Mingo County, as well as people from all over the
United States and in the foreign countries where Reverend West's message of peace, love and faith
was broadcast, shall never forget his towering spirit and his dedicated fervor in sharing his religious
faith; therefore, be it
Resolved by the Legislature of West Virginia:
That the Reverend R. A. West is hereby honored and memorialized by naming the portion
of U.S. 52 from the Taylorville Bridge to the intersection of State Route 44 in Mingo County the "R.
A. West Memorial Highway"; and, be it
Further Resolved, That the Legislature hereby requests the West Virginia Division of
Highways to name the portion of U.S. 52 from the Taylorville Bridge to the intersection of State
Route 44 in Mingo County the "R. A. West Memorial Highway" by placing signs at each end of that
portion of highway bearing that inscription; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to forward a
copy of this Resolution to the Commissioner of the Division of Highways, the County Commission
of Mingo County, and to the surviving family members of the Reverend R. A. West, in care of
Charles Stanford West, Attorney at Law (the brother of R. A. West), at 67 West Fourth Avenue,
Williamson, West Virginia, 25661.
Delegates Varner, Perdue and Campbell offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 91 - "Requesting the Joint Committee on Government and Finance to make a study
of the feasibility of allowing municipalities that elected to use the alternative funding method for
their pension and relief funds to return to the standard funding method."
Whereas, There is interest among municipalities which chose an alternative funding method
for their pension and relief funds provided by this Legislature in 1992 to return to the prior
"standard" funding method; and
Whereas, The potential financial ramifications of allowing those municipalities to return
to the prior "standard" funding method bear further study to determine the feasibility of this course
of action; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
feasibility of allowing municipalities that elected to use the alternative funding method for their
pension and relief funds to return to the standard funding method; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Petitions
Delegate Talbott presented a petition signed by one hundred residents of Rt. 9 in Webster
County, opposing efforts to increase coal truck weight limits; which was referred to the Committee
on the Judiciary.
Delegate Walters presented a petition, signed by forty-seven thousand thirteen residents of
the State, in opposition to S. B. 105, increasing tax on cigarettes; which was filed to the Committee on Finance.
Consent Calendar
Third Reading
The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for S. B. 287, Authorizing various agencies within department of tax and revenue
to promulgate legislative rules,
And,
Com. Sub. for S. B. 316, Authorizing various agencies within bureau of commerce to
promulgate legislative rules.
On the passage of the bills, the yeas and nays were taken (Roll No. 372-374), and there
were--yeas 95, nays 3, absent and not voting 2, with the nays and absent and not voting being as
follows:
Nays: Frich, Sobonya and Walters.
Absent And Not Voting: Coleman and Webb.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bills (Com. Sub. for S. B. 287 and Com. Sub. for S. B. 316) passed.
Delegate Staton moved that Com. Sub. for S. B. 287 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 375), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Sobonya.
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 287) takes effect from its passage.
Delegate Staton moved that Com. Sub. for S. B. 316 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 376), and there were--yeas 95, nays
3, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos, Sobonya and Walters.
Absent And Not Voting: Cann and Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 316) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates on the Consent Calendar bills and request concurrence therein.
Second Reading
The following bills on second reading, coming up in regular order, were each read a second
time and ordered to third reading:
Com. Sub. for S. B. 39, Making false alarm a felony in certain cases,
And,
S. B. 107, Creating sales tax holiday for back-to-school purchases.
Com. Sub. for S. B. 180, Providing for school construction on cash basis; on second reading,
coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Education, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"That sections three, six, fifteen, sixteen and nineteen, article nine-d, chapter eighteen of the
code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and
reenacted; and that section six, article ten-h of said chapter be amended and reenacted, all to read
as follows:
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-3. Powers of authority.
The school building authority has the power:
(1) To sue and be sued, plead and be impleaded;
(2) To have a seal and alter the same at pleasure;
(3) To contract to acquire and to acquire, in the name of the authority by purchase,
lease-purchase not to exceed a term of twenty-five years, or otherwise, real property or rights or
easements necessary or convenient for its corporate purposes and to exercise the power of eminent
domain to accomplish those purposes;
(4) To acquire, hold and dispose of real and personal property for its corporate purposes;
(5) To make bylaws for the management and rule of its affairs;
(6) To appoint, contract with and employ attorneys, bond counsel, accountants, construction
and financial experts, underwriters, financial advisers, trustees, managers, officers and such other
employees and agents as may be necessary in the judgment of the authority and to fix their
compensation: Provided, That contracts entered into by the school building authority in connection
with the issuance of bonds under this article to provide professional and technical services,
including, without limitation, accounting, actuarial, underwriting, consulting, trustee, bond counsel,
legal services and contracts relating to the purchase or sale of bonds are subject to the provisions of
article three, chapter five-a of this code: Provided, however, That notwithstanding any other
provisions of this code, any authority of the attorney general of this state relating to the review of
contracts and other documents to effectuate the issuance of bonds under this article shall be
exclusively limited to the form of the contract and document: Provided further, That the attorney
general of this state shall complete all reviews of contracts and documents relating to the issuance
of bonds under this article within ten calendar days of receipt of the contract and document for
review;
(7) To make contracts and to execute all instruments necessary or convenient to effectuate
the intent of and to exercise the powers granted to it by this article;
(8) To renegotiate all contracts entered into by it whenever, due to a change in situation, it
appears to the authority that its interests will be best served;
(9) To acquire by purchase, eminent domain or otherwise all real property or interests in the
property necessary or convenient to accomplish the purposes of this article;
(10) To require proper maintenance and insurance of any project authorized under this
section, including flood insurance for any facility within the one hundred year flood plain at which
authority funds are expended;
(11) To charge rent for the use of all or any part of a project or buildings at any time
financed, constructed, acquired or improved, in whole or in part, with the revenues of the authority;
(12) To assist any county board of education that chooses to acquire land, buildings and
capital improvements to existing school buildings and property for use as public school facilities,
by lease from a private or public lessor for a term not to exceed twenty-five years with an option to
purchase pursuant to an investment contract with the lessor on such terms and conditions as may be
determined to be in the best interests of the authority, the state board of education and the county
board of education, consistent with the purposes of this article, by transferring funds to the state
board of education as provided in subsection (d), section fifteen of this article for the use of the
county board of education;
(13) To accept and expend any gift, grant, contribution, bequest or endowment of money and
equipment to, or for the benefit of, the authority or any project under this article, from the state of
West Virginia or any other source for any or all of the purposes specified in this article or for any
one or more of such purposes as may be specified in connection with the gift, grant, contribution,
bequest or endowment;
(14) To enter on any lands and premises for the purpose of making surveys, soundings and
examinations;
(15) To contract for architectural, engineering or other professional services considered
necessary or economical by the authority to provide consultative or other services to the authority
or to any regional educational service agency or county board requesting professional services
offered by the authority, to evaluate any facilities plan or any project encompassed in the plan, to
inspect existing facilities or any project that has received or may receive funding from the authority,
or to perform any other service considered by the authority to be necessary or economical. Assistance to the region or district may include the development of pre-approved systems, plans,
designs, models or documents; advice or oversight on any plan or project; or any other service that
may be efficiently provided to regional educational service agencies or county boards by the
authority;
(16) To provide funds on an emergency basis to repair or replace property damaged by fire,
flood, wind, storm, earthquake or other natural occurrence, the funds to be made available in
accordance with guidelines of the school building authority;
(17) To transfer moneys to custodial accounts maintained by the school building authority
with a state financial institution from the school construction fund and the school improvement fund
created in the state treasury pursuant to the provisions of section six of this article, as necessary to
the performance of any contracts executed by the school building authority in accordance with the
provisions of this article;
(18) To enter into agreements with county boards and persons, firms or corporations to
facilitate the development of county board projects and county board facilities plans. The county
board participating in an agreement shall pay at least twenty-five percent of the cost of the
agreement. Nothing in this section shall be construed to supersede, limit or impair the authority of
county boards to develop and prepare their projects or plans; and
(19) To encourage any project or part thereof to provide opportunities for students to
participate in supervised, unpaid work-based learning experiences related to the student's program
of study approved by the county board. The work-based learning experience must be conducted in
accordance with a formal training plan approved by the instructor, the employer, and the student and
which sets forth at a minimum the specific skills to be learned, the required documentation of work-
based learning experiences, the conditions of the placement, including duration and safety
provisions, and provisions for supervision and liability insurance coverage as applicable. Projects
involving the new construction and renovation of vocational-technical and adult education facilities
should provide opportunities for students to participate in supervised work-based learning experiences, to the extent practical, which meet the requirements of this subdivision. Nothing in this
subdivision may be construed to affect registered youth apprenticeship programs or the provisions
governing those programs; and
(19) (20) To do all things necessary or convenient to carry out the powers given in this
article.
§18-9D-6. School building capital improvements fund in state treasury; school construction
fund in state treasury; school building debt service fund in state treasury; school
improvement fund in state treasury; collections to be paid into special funds; authority
to pledge such collections as security for refunding revenue bonds; authority to finance
projects on a cash basis.
(a) There is continued in the state treasury a school building capital improvements fund to
be expended by the authority as provided in this article. The school building capital improvements
fund shall be an interest-bearing account with interest credited to and deposited in the school
building capital improvements fund and expended in accordance with the provisions of this article.
The school building authority has authority to may pledge all or such any part of the
revenues paid into the school building capital improvements fund as may be that are needed to meet
the requirements of any revenue bond issue or issues authorized by this article prior to the twentieth
day of July, one thousand nine hundred ninety-three, or revenue bonds issued to refund revenue
bonds issued prior to that date, including the payment of principal of, interest and redemption
premium, if any, on the revenue bonds and the establishing and maintaining of a reserve fund or
funds for the payment of the principal of, interest and redemption premium, if any, on the revenue
bond issue or issues when other moneys pledged may be insufficient for the payment of the
principal, interest and redemption premium, including such any additional protective pledge of
revenues as that the authority in its discretion has provided by resolution authorizing the issuance
of the bonds or in any trust agreement made in connection with the bond issue. The Additionally,
the authority may further provide in the resolution and in the trust agreement for such priorities on the revenues paid into the school building capital improvements fund as may be that are necessary
for the protection of the prior rights of the holders of bonds issued at different times under the
provisions of this article.
Any balance remaining in the school building capital improvements fund after the authority
has issued bonds authorized by this article, and after the requirements of all funds including reserve
funds established in connection with the bonds issued prior to the twentieth day of July, one
thousand nine hundred ninety-three, pursuant to this article have been satisfied, may be used for the
redemption of any of the outstanding bonds issued under this article which by their terms are then
redeemable, or for the purchase of the bonds at the market price, but not exceeding the price, if any,
at which the bonds are in the same year redeemable and all bonds redeemed or purchased shall
immediately be canceled and shall not again be issued.
The school building authority, in its discretion, may use the moneys in the school building
capital improvements fund to finance the cost of projects on a cash basis. Any pledge of moneys
in the fund for revenue bonds issued prior to the twentieth day of July, one thousand nine hundred
ninety-three, is a prior and superior charge on the fund over the use of any of the moneys in the fund
to pay for the cost of any project on a cash basis: Provided, That any expenditures from the fund,
other than for the retirement of revenue bonds, may only be made by the authority in accordance
with the provisions of this article.
(b) There is hereby continued in the state treasury a special revenue fund named the school
building debt service fund into which shall be deposited on and after the first day of April, one
thousand nine hundred ninety-four, the amounts specified in section eighteen, article twenty-two,
chapter twenty-nine of this code. All amounts deposited in the fund shall be pledged to the
repayment of the principal, interest and redemption premium, if any, on any revenue bonds or
refunding revenue bonds authorized by this article: Provided, That deposited moneys may not be
pledged to the repayment of any revenue bonds issued prior to the first day of January, one thousand
nine hundred ninety-four, or with respect to revenue bonds issued for the purpose of refunding revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four. The
Additionally, the authority may further provide in the resolution and in the trust agreement for
priorities on the revenues paid into the school building debt service fund as may be that are
necessary for the protection of the prior rights of the holders of bonds issued at different times under
the provisions of this article. On or prior to the first day of May of each year, commencing the first
day of May, one thousand nine hundred ninety-four, the authority shall certify to the state lottery
director the principal and interest and coverage ratio requirements for the following fiscal year on
any revenue bonds issued on or after the first day of January, one thousand nine hundred ninety-four,
and for which moneys deposited in the school building debt service fund have been pledged, or will
be pledged, for repayment pursuant to this section.
After the authority has issued bonds authorized by this article and after the requirements of
all funds have been satisfied, including coverage and reserve funds established in connection with
the bonds issued pursuant to this article, any balance remaining in the school building debt service
fund may be used for the redemption of any of the outstanding bonds issued under this article which,
by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price,
but not to exceed the price, if any, at which the bonds are redeemable and all bonds redeemed or
purchased shall be immediately canceled and shall not again be issued: Provided, That after the
authority has issued bonds authorized by this article and after the requirements of debt service and
all associated funds have been satisfied for the fiscal year, including coverage and reserve funds
established in connection with the bonds issued pursuant to this article, any remaining balance in
the school building debt service fund may be transferred to the school construction fund created in
subsection (c) of this section and used by the school building authority in its discretion to finance
the cost of school construction or improvement projects on a cash basis.
(c) There is hereby continued in the state treasury a special revenue fund named the school
construction fund into which shall be deposited on and after the first day of July, one thousand nine
hundred ninety-four, the amounts specified in section thirty, article fifteen, chapter eleven of this code, together with any moneys appropriated thereto to the fund by the Legislature. Expenditures
from the school construction fund shall be for the purposes set forth in this article, including
lease-purchase payments under agreements made pursuant to subsection (e), section fifteen of this
article and section nine, article five of this chapter and are authorized from collections in accordance
with the provisions of article three, chapter twelve of this code and from other revenues annually
appropriated by the Legislature from lottery revenues as authorized by section eighteen, article
twenty-two, chapter twenty-nine of this code pursuant to the provisions set forth in article two,
chapter five-a of this code. Amounts collected which are found, from time to time, to exceed the
funds needed for purposes set forth in this article may be transferred to other accounts or funds and
redesignated for other purposes by appropriation of the Legislature. The school construction fund
shall be an interest-bearing account, with the interest credited to and deposited in the school
construction fund and expended in accordance with the provisions of this article. Deposits to and
expenditures from the school construction fund are subject to the provisions of subsection (i),
section fifteen of this article.
(d) There is hereby continued in the state treasury a special revenue fund named the school
major improvement fund into which shall be deposited on and after the first day of July, one
thousand nine hundred ninety-four, the amounts specified in section thirty, article fifteen, chapter
eleven of this code, together with any moneys appropriated to the fund by the Legislature.
Expenditures from the school major improvement fund shall be for the purposes set forth in this
article and are authorized from collections in accordance with the provisions of article three, chapter
twelve of this code and from other revenues annually appropriated by the Legislature from lottery
revenues as authorized by section eighteen, article twenty-two, chapter twenty-nine of this code
pursuant to the provisions set forth in article two, chapter five-a of this code. Amounts collected
which are found, from time to time, to exceed the funds needed for purposes set forth in this article
may be transferred to other accounts or funds and redesignated for other purposes by appropriation
of the Legislature. The school major improvement fund shall be an interest-bearing account, with interest being credited to and deposited in the school major improvement fund and expended in
accordance with the provisions of this article.
(e) The Legislature hereby finds and declares that the supreme court of appeals of West
Virginia has held that the issuance of additional revenue bonds authorized under the school building
authority act, as enacted in this article prior to the twentieth day of July, one thousand nine hundred
ninety-three, constituted an indebtedness of the state in violation of section four, article X of the
constitution of West Virginia, but that revenue bonds issued under this article prior to the twentieth
day of July, one thousand nine hundred ninety-three, are not invalid. The Legislature further finds
and declares that the financial capacity of a county to construct, lease and improve school facilities
depends upon the county's bonding capacity (local property wealth), voter willingness to pass bond
issues and the county's ability to reallocate other available county funds instead of criteria related
to educational needs or upon the ability of the school building authority created in this article to
issue bonds that comply with the holding of the West Virginia supreme court of appeals or otherwise
assist counties with the financing of facilities construction and improvement. The Legislature
hereby further finds and declares that this section, as well as section eighteen, article twenty-two,
chapter twenty-nine of this code, have been reenacted during the first extraordinary session of the
West Virginia Legislature in the year one thousand nine hundred ninety-four in an attempt to comply
with the holding of the supreme court of appeals of West Virginia.
The Legislature hereby further finds and declares that it intends, through the reenactment of
this section and section eighteen, article twenty-two, chapter twenty-nine of this code, to dedicate
a source of state revenues to special revenue funds for the purposes of paying the debt service on
bonds and refunding bonds issued subsequent to the first day of January, one thousand nine hundred
ninety-four, the proceeds of which will be utilized used for the construction and improvement of
school building facilities. The Legislature hereby further finds and declares that it intends, through
the reenactment of this section and section thirty, article fifteen, chapter eleven of this code and
section eighteen, article twenty-two, chapter twenty-nine of this code, to appropriate revenues to two special revenue funds for the purposes of construction and improvement of school building facilities.
Furthermore, the Legislature intends to encourage county boards of education to maintain existing
levels of county funding for construction, improvement and maintenance of school building facilities
and to generate additional county funds for such those purposes through bonds and special levies
whenever possible. The Legislature further encourages the school building authority, the state board
of education and county boards of education to propose uniform project specifications for
comparable projects whenever possible to meet county needs at the lowest possible cost.
The Legislature hereby further finds and declares that it intends, through the reenactment of
this section and section eighteen, article twenty-two, chapter twenty-nine of this code, to comply
with the provisions of sections four and six, article X of the constitution of West Virginia; and
section one, article XII of said constitution.
§18-9D-15. Legislative intent; distribution of money.
(a) It is the intent of the Legislature to empower the school building authority to facilitate
and provide state funds and to administer all federal funds provided for the construction and major
improvement of school facilities so as to meet the educational needs of the people of this state in an
efficient and economical manner. The authority shall make funding determinations in accordance
with the provisions of this article and shall assess existing school facilities and each facility's school
major improvement plan in relation to the needs of the individual student, the general school
population, the communities served by the facilities and facility needs statewide.
(b) An amount that is no more than three percent of the sum of moneys that are determined
by the authority to be available for distribution during the then current fiscal year from: (1) Moneys
paid into the school building capital improvements fund pursuant to section ten, article nine-a of this
chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund
are pledged as security; (3) moneys paid into the school construction fund pursuant to section six
of this article; and (4) any other moneys received by the authority, except moneys paid into the
school major improvement fund pursuant to section six of this article, may be allocated and may be expended by the authority for projects that service the educational community statewide or, upon
application by the state board, for educational programs that are under the jurisdiction of the state
board. In addition, upon application by the state board or the administrative council of an area
vocational educational center established pursuant to article two-b of this chapter, the authority may
allocate and expend under this section subsection moneys for school major improvement projects
proposed by the state board or an administrative council for school facilities under the direct
supervision of the state board or an administrative council, respectively: Provided, That the
authority may not expend any moneys for a school major improvement project proposed by the state
board or the administrative council of an area vocational educational center unless the state board
or an administrative council has submitted a ten-year school major improvement plan, to be updated
annually, pursuant to section sixteen of this article: Provided, however, That the authority shall,
before allocating any moneys to the state board or the administrative council of an area vocational
educational center for a school improvement project, consider all other funding sources available
for the project.
(c) An amount that is no more than two percent of the moneys that are determined by the
authority to be available for distribution during the current fiscal year from: (1) Moneys paid into
the school building capital improvements fund pursuant to section ten, article nine-a of this chapter;
(2) the issuance of revenue bonds for which moneys in the school building debt service fund are
pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this
article; and (4) any other moneys received by the authority, except moneys deposited into the school
major improvement fund, shall be set aside by the authority as an emergency fund to be distributed
in accordance with the guidelines adopted by the authority.
(d) An amount that is no more than twenty-five percent of the moneys that are determined
by the authority to be available for distribution during the current fiscal year from: (1) Moneys paid
into the school building capital improvements fund pursuant to section ten, article nine-a of this
chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six
of this article; and (4) any other moneys received by the authority, except moneys deposited into the
school major improvement fund, shall be reserved by the authority for multi-use vocational-
technical education facilities that may include post-secondary programs as a first priority use. The
authority may allocate and expend under this subsection moneys for any purposes authorized in this
article on multi-use vocational-technical education facilities and for equipment and equipment
updates at the facilities. If the projects approved under this subsection do not require the full amount
of moneys reserved, moneys above the amount required may be allocated and expended in
accordance with other provisions of this article. A county board, the state board, an administrative
council or the joint administrative board of a vocational-technical education facility which includes
post-secondary programs may propose projects for facilities or equipment, or both, which are under
the direct supervision of the respective body: Provided, That the authority shall, before allocating
any moneys for a project under this subsection, consider all other funding sources available for the
project.
(d) (e) The remaining moneys determined by the authority to be available for distribution
during the then current fiscal year from: (1) Moneys paid into the school building capital
improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue
bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys
paid into the school construction fund pursuant to section six of this article; and (4) any other
moneys received by the authority, except moneys deposited into the school major improvement
fund, shall be allocated and expended on the basis of need and efficient use of resources, the basis
to be determined by the authority in accordance with the provisions of section sixteen of this article.
(e) (f) If a county board of education proposes to finance a project that is approved pursuant
to section sixteen of this article through a lease with an option to purchase leased premises upon the
expiration of the total lease period pursuant to an investment contract, the authority may allocate no
moneys to the county board in connection with the project: Provided, That the authority may transfer moneys to the state board of education which, with the authority, shall lend the amount
transferred to the county board to be used only for a one-time payment due at the beginning of the
lease term, made for the purpose of reducing annual lease payments under the investment contract,
subject to the following conditions:
(1) The loan shall be secured in the manner required by the authority, in consultation with
the state board, and shall be repaid in a period and bear interest at a rate as determined by the state
board and the authority and shall have such terms and conditions as are required by the authority,
all of which shall be set forth in a loan agreement among the authority, the state board and the
county board;
(2) The loan agreement shall provide for the state board and the authority to defer the
payment of principal and interest upon any loan made to the county board during the term of the
investment contract, and annual renewals of the investment contract, among the state board, the
authority, the county board and a lessor: Provided, That in the event a county board which has
received a loan from the authority for a one-time payment at the beginning of the lease term does
not renew the subject lease annually until performance of the investment contract in its entirety is
completed, the county board is in default and the principal of the loan, together with all unpaid
interest accrued to the date of the default, shall, at the option of the authority, in consultation with
the state board, become due and payable immediately or subject to renegotiation among the state
board, the authority and the county board: Provided, however, That if a county board renews the
lease annually through the performance of the investment contract in its entirety, the county board
shall exercise its option to purchase the leased premises: Provided further, That the failure of the
county board to make a scheduled payment pursuant to the investment contract constitutes an event
of default under the loan agreement: And provided further, That upon a default by a county board,
the principal of the loan, together with all unpaid interest accrued to the date of the default, shall,
at the option of the authority, in consultation with the state board, become due and payable
immediately or subject to renegotiation among the state board, the authority and the county board: And provided further, That if the loan becomes due and payable immediately, the authority, in
consultation with the state board, shall use all means available under the loan agreement and law to
collect the outstanding principal balance of the loan, together with all unpaid interest accrued to the
date of payment of the outstanding principal balance; and
(3) The loan agreement shall provide for the state board and the authority to forgive all
principal and interest of the loan upon the county board purchasing the leased premises pursuant to
the investment contract and performance of the investment contract in its entirety.
(f) (g) To encourage county boards to proceed promptly with facilities planning and to
prepare for the expenditure of any state moneys derived from the sources described in this
subsection, any county board failing to expend money within three years of the allocation to the
county board shall forfeit the allocation and thereafter is ineligible for further allocations pursuant
to this subsection until the county board is ready to expend funds in accordance with an approved
facilities plan: Provided, That the authority may authorize an extension beyond the three-year
forfeiture period not to exceed an additional two years. Any amount forfeited shall be added to the
total funds available in the school construction fund of the authority for future allocation and
distribution.
(g) (h) The remaining moneys that are determined by the authority to be available for
distribution during the then current fiscal year from moneys paid into the school major improvement
fund pursuant to section six of this article shall be allocated and distributed on the basis of need and
efficient use of resources, the basis to be determined by the authority in accordance with the
provisions of section sixteen of this article: Provided, That the moneys may not be distributed to
any county board that does not have an approved school major improvement plan or to any county
board that is not prepared to commence expenditures of the funds during the fiscal year in which the
moneys are distributed: Provided, however, That any moneys allocated to a county board and not
distributed to that county board shall be deposited in an account to the credit of that county board,
the principal amount to remain to the credit of and available to the county board for a period of two years. Any moneys which are unexpended after a two-year period shall be redistributed on the basis
of need from the school major improvement fund in that fiscal year.
(h) (i) No local matching funds may be required under the provisions of this section.
However, the responsibilities of the county boards of education to maintain school facilities are not
negated by the provisions of this article. To be eligible to receive an allocation of school major
improvement funds from the authority, a county board must have expended in the previous fiscal
year an amount of county moneys equal to or exceeding the lowest average amount of money
included in the county board's maintenance budget over any three of the previous five years and
must have budgeted an amount equal to or greater than the average in the current fiscal year:
Provided, That the state board of education shall promulgate rules relating to county boards'
maintenance budgets, including items which shall be included in the budgets.
(i) (j) Any county board may use moneys provided by the authority under this article in
conjunction with local funds derived from bonding, special levy or other sources. Distribution to
a county board, or to the state board or the administrative council of an area vocational educational
center pursuant to subsection (b) of this section, may be in a lump sum or in accordance with a
schedule of payments adopted by the authority pursuant to guidelines adopted by the authority.
(j) (k) Funds in the school construction fund shall first be transferred and expended as
follows:
Any funds deposited in the school construction fund shall be expended first in accordance
with an appropriation by the Legislature. To the extent that funds are available in the school
construction fund in excess of that amount appropriated in any fiscal year, the excess funds may be
expended in accordance with the provisions of this article. Any projects which the authority
identified and announced for funding on or before the first day of August, one thousand nine
hundred ninety-five, or identified and announced for funding on or before the thirty-first day of
December, one thousand nine hundred ninety-five, shall be funded by the authority in an amount
which is not less than the amount specified when the project was identified and announced.
(k) (l) It is the intent of the Legislature to encourage county boards to explore and consider
arrangements with other counties that may facilitate the highest and best use of all available funds,
which may result in improved transportation arrangements for students, or which otherwise may
create efficiencies for county boards and the students. In order to address the intent of the
Legislature contained in this subsection, the authority shall grant preference to those projects which
involve multicounty arrangements as the authority shall determine reasonable and proper.
(l) (m) County boards shall submit all designs for construction of new school buildings to
the school building authority for review and approval prior to preparation of final bid documents:
Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a
through thirty-three-f, inclusive, article three, chapter five-a of this code, may not bid on or be
awarded a contract under this section.
(m) (n) The authority may elect to disburse funds for approved construction projects over
a period of more than one year subject to the following:
(1) The authority may not approve the funding of a school construction project for more than
three years; and
(2) The authority may not approve the use of more than fifty percent of the revenue available
for distribution in any giver fiscal year for projects that are to be funded over more than one year;
and
(3) In order to encourage local participation in funding school construction projects, the
authority may set aside limited funding, not to exceed five hundred thousand dollars, in reserve for
one additional year to provide a county the opportunity to complete financial planning for a project
prior to the allocation of construction funds. Any such funding shall be on a reserve basis and
converted to a part of the construction grant only after all project budget funds have been secured
and all county commitments have been fulfilled. Failure of the county to solidify the project budget
and meet its obligations to the state within eighteen months of the reserve designation date will
result in expiration of the reserve and the funds shall be reallocated by the authority in the succeeding funding cycle.
§18-9D-16. Facilities and major improvement plans generally; need-based eligibility.
(a) To facilitate the goals as stated in section fifteen of this article and to assure the prudent
and resourceful expenditure of state funds for construction projects as described in subsection (d)
of said section, each county board of education shall submit a county-wide comprehensive
educational facilities plan that addresses the facilities and major improvement needs of the county
and includes up-to-date projections of student enrollments pursuant to such guidelines as shall be
adopted by the authority in accordance with this section and in accordance with each county's
facilities plan approved by the state board of education. Any project receiving funding shall must
be in furtherance of such the approved county-wide facilities plan.
(1) To assure efficiency and productivity in the project approval process, the county-wide
facilities plan shall may be submitted only after a preliminary plan, a plan outline or a proposal for
a plan has been submitted to the authority. Selected members of the authority, which selection shall
include citizen members, shall then meet promptly with those persons designated by the county
board to attend the facilities plan consultation. The purpose of the consultation is to assure
understanding of the general goals of the school building authority and the specific goals
encompassed in the following criteria and to discuss ways the plan may be structured to meet those
goals.
(2) The guidelines for the development of a facilities plan shall must state the manner,
timeline and process for submission of any plan to the authority; such project specifications as may
be deemed considered appropriate by the authority; and those matters which are deemed considered
by the authority to be important reflections of how the project will further the overall goals of the
authority.
(b) To facilitate the goals as stated in section fifteen of this article and to assure the prudent
and resourceful expenditure of state funds derived from the school major improvement fund, each
county board of education shall submit to the authority a ten-year county-wide school major improvement plan that addresses the major improvement needs of each school within the county.
Funds may not be distributed to any county board that does not have a comprehensive educational
facility plan approved by the state board and the school building authority or to any county board
that is not prepared to commence expenditure of the funds during the fiscal year in which the
moneys are distributed. If the state board of education or the administrative council of an area
vocational educational center chooses to seek funding for a major improvement project from the
authority pursuant to subsection (f) of said section, the state board or such the administrative council
shall submit a ten-year school major improvement plan that addresses the major improvement needs
of the school or area vocational educational center for which funding is sought. Each ten-year
school major improvement plan shall must be prepared pursuant to such guidelines as shall be
adopted by the authority in accordance with this section and shall must be updated annually to
reflect projects completed, current enrollment projections and new or continuing needs. Any school
major improvement project funded by the authority shall must be in furtherance of such the
approved school major improvement plan.
The guidelines for the development and annual updates of a ten-year school major
improvement plan shall must state the manner, timeline and process for submission of any plan,
including a repair and replacement schedule for school facilities, to the authority; such the
maintenance specifications as may be deemed considered appropriate by the authority; and those
matters which are deemed considered by the authority to be important reflections of how the major
improvement project or projects will further the overall goals of the authority.
(c) The guidelines regarding submission of the facilities plans and school major improvement
plans shall must include requirements for public hearings, comments or other means of providing
broad-based input within a reasonable time period as the authority may deem consider appropriate.
The submission of each plan shall must be accompanied by a synopsis of all comments received
and a formal comment by the county board, the state board or the administrative council of an area
vocational educational center submitting such the plan.
The guidelines regarding project specifications may include such matters as energy
efficiency, preferred siting, construction materials, maintenance plan or any other matter related to
how the project is to proceed. If a county board of education proposes to finance a construction
project through a lease with an option to purchase pursuant to an investment contract as described
in subsection (e), section fifteen of this article, the specifications for such the project shall must
include the term of the lease, the amount of each lease payment, including the payment due upon
exercise of the option to purchase, and the terms and conditions of the proposed investment contract.
(d) The guidelines pertaining to quality educational facilities shall must require that a
facilities plan address how the current facilities do not meet and how the proposed plan and any
project thereunder does meet the following goals:
(1) Student health and safety;
(2) Economies of scale, including compatibility with similar schools that have achieved the
most economical organization, facility utilization and pupil-teacher ratios;
(3) Reasonable travel time and practical means of addressing other demographic
considerations;
(4) Multicounty and regional planning to achieve the most effective and efficient
instructional delivery system;
(5) Curriculum improvement and diversification, including computerization and technology
and advanced senior courses in science, mathematics, language arts and social studies;
(6) Innovations in education;
(7) Adequate space for projected student enrollments; and
(8) To the extent constitutionally permissible, each facilities plan shall must address the
history of efforts taken by the county board to propose or adopt local school bond issues or special
levies.
If the project is to benefit more than one county in the region, the facilities plan shall must
state the manner in which the cost and funding of the project shall will be apportioned among the counties.
(e) The guidelines pertaining to quality educational facilities shall must require that a school
major improvement plan address how the proposed plan and any project thereunder meet the
following goals:
(1) Student health and safety, including, but not limited to, critical health and safety needs;
and
(2) Economies of scale, including regularly scheduled preventive maintenance: Provided,
That each county board's school maintenance plan shall must address regularly scheduled
maintenance for all facilities within the county.
(f) Each county board's facilities plan and school major improvement plan shall must
prioritize all the construction projects or major improvement projects, respectively, within the
county. A school major improvement plan submitted by the state board or the administrative council
of an area vocational educational center shall must prioritize all the school improvement projects
contained in such the plan. Such The priority list shall be is one of the criteria to be considered by
the authority in determining how available funds shall must be expended. In prioritizing the
projects, the county board, the state board or the administrative council submitting a plan shall make
determinations in accordance with the objective criteria formulated by the school building authority.
(g) Each facilities plan and school major improvement plan shall must include the objective
means to be utilized used in evaluating implementation of the overall plan and each project included
therein. Such The evaluation shall must measure each project's furtherance of each applicable goal
stated in this section and any guidelines adopted hereunder, as well as the overall success of any
project as it relates to the facilities plan or school major improvement plan and the overall goals of
the authority.
(h) The state department of education shall conduct on-site inspections, at least annually, of
all facilities which have been funded wholly or in part by moneys from the authority or state board
to ensure compliance with the county board's facilities plan and school major improvement plan as related to such the facilities; to preserve the physical integrity of the facilities to the extent possible;
and to otherwise extend the useful life of the facilities: Provided, That the state board shall submit
reports regarding its on-site inspections of facilities to the authority within thirty days of completion
of such the on-site inspections: Provided, however, That the state board shall promulgate rules
regarding such the on-site inspections and matters relating thereto, in consultation with the authority,
as soon as practical and shall submit such proposed rules for legislative review no later than the first
day of December, one thousand nine hundred ninety-four.
(i) The authority may adopt guidelines for requiring that a county board modify, update,
supplement or otherwise submit changes or additions to an approved facilities plan or for requiring
that a county board, the state board or the administrative council of an area vocational educational
center modify, update, supplement or otherwise submit changes or additions to an approved county
board facilities plan or school major improvement plan. The authority shall provide reasonable
notification and sufficient time for such the change or addition as delineated in guidelines developed
by the authority.
(j) Based on its on-site inspection or notification by the authority to the state board that the
changes or additions to a county's board facilities plan or school major improvement plan required
by the authority have not been implemented within the time period prescribed by the authority, the
state board shall restrict the use of the necessary funds or otherwise allocate funds from moneys
appropriated by the Legislature for those purposes set forth in section nine, article nine-a of this
chapter.
§18-9D-19. Comprehensive high schools.
(a) The Legislature finds the following:
(1) The decline in student enrollment over the last twenty years has necessitated
consolidation of schools in many counties;
(2) It is projected that the decline in student enrollment during the period two thousand two
through two thousand twelve may be as great as eighteen percent and will continue the necessity to consolidate schools;
(3) The new consolidated school buildings now being built across the state provide an
opportunity for communities to have comprehensive high schools that include space for
vocational-technical courses, community college courses and other workforce related courses for
the students and the public at large;
(4) Requiring students to be bused to remote vocational centers has sometimes deterred
student participation in vocational courses and has sometimes been considered a stigma upon those
students attending vocational courses;
(5) Offering vocational, community college and workforce programs in close proximity to
each other compliment the high school and the programs; and
(6) The change in the season for girls' basketball to coincide with boys' basketball has
placed significant pressures on the availability of gymnasium space and often has caused practices
to be scheduled late in the evenings and on weekends, interfering with time needed for studying and
rest.
(b) When planning the construction of a high school which has been approved by the
authority and which meets the required authority efficiencies, the authority shall provide funding
for comprehensive vocational facilities to be located, when feasible, on the same site as the high
school and may, in cooperation with the higher education policy commission, established in section
one, article one-b, chapter eighteen-b of this code, provide funding for facilities for community and
technical college education. When building in conjunction with the higher education policy
commission, an educational specification shall must be developed for the proposed new facility by
the appropriate institutional governing board as defined in section two, article one, of said chapter.
The county board is the fiscal agent for construction. All planning, design, bidding and construction
shall must be completed with authority guidelines and under the supervision of the authority.
(c) When planning the construction of a high school which has been approved by the
authority and meets the required authority efficiencies, the authority shall provide funding sufficient for the construction of at least one auxiliary gymnasium. The authority may establish standards for
the auxiliary gymnasium.
(d) Upon application of a county board to construct comprehensive vocational facilities at
an existing high school, the authority will provide technical assistance to the county in developing
a plan for construction of the comprehensive vocational facility. The facility may, in cooperation
with the higher education policy commission in accordance with the provisions of subsection (b)
of this section, include facilities for community and technical college education. Upon development
of the plan, the authority shall consider funding based on the following criteria:
(1) The distance of any existing vocational facilities from the high schools it serves;
(2) The time required to travel to and from the vocational facility to the high schools it
serves;
(3) The ability of the county board to provide local funds for the construction of new
comprehensive vocational facilities;
(4) The size of the existing high schools and the demand for vocational technical courses;
(5) The age and physical condition of the existing vocational facilities; and
(6) Such other criteria as the authority shall consider appropriate.
(e) When planning the construction of a high school in a county which is served by a
multicounty vocational technical facility, the county may not be required to include the construction
of a comprehensive vocational facility in the plan. If the county board elects to construct a
comprehensive vocational facility pursuant to this section, the board shall include the multicounty
center director and board in planning programs to be offered at the vocational facility which
complement the programs offered at the multicounty center and may as part of the plan include
facilities for community and technical college education at the multicounty center. The programs
offered at the vocational facility may not replace the programs offered at the multicounty vocational
technical center without the consent of the center board.
(f) Notwithstanding other provisions of this section to the contrary, the board of a county in which there is an existing county comprehensive vocational center may not be required to plan
construction of a comprehensive vocational facility when planning the construction of a new high
school. If the county elects to do so, the plan must consider programs which complement the
programs of the county center and may include facilities for community and technical college
education in accordance with this section.
ARTICLE 10H. ALBERT YANNI PROGRAMS OF EXCELLENCE IN VOCATIONAL-
TECHNICAL EDUCATION.
§18-10H-6. Effective schools program in vocational-technical education.
The state board of education shall establish and operate an effective schools program for
vocational-technical education, including introductory vocational-technical courses in middle
school grades as appropriate. The purpose of the program is to provide vocational-technical
education personnel with resources and staff development for school program improvement based
on application of the effective schools research, including components such as instructional
leadership, school climate, high student expectations, emphasis on academic and occupational
achievement, and community and parental involvement. The program shall be coordinated by the
bureau of vocational, technical and adult education with the advisement from a committee composed
of two vocational administrators, two vocational teachers, one vocational guidance counselor, one
educator of vocational teachers, one county school superintendent, one comprehensive high school
principal, one academic teacher, two business/industry representatives, one labor representative, and
one vocational education program completer."
The bill was then ordered to third reading.
S. B. 189, Relating to approval of out-of-state bank applications to establish bank branches;
on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 190, Requiring more examinations for certain banks to track current practice with
federal regulators; on second reading, coming up in regular order, was read a second time and
ordered to third reading.
Com. Sub. for S. B. 191, Relating to state-chartered credit union converting to federal or
another state charter; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page three, section three, line thirty-five, following the word
"after", by striking out the words "the vote approving the conversion is taken" and the comma, and
inserting in lieu thereof the words "the commissioner of banking has approved the conversion in
writing" and a comma.
The bill was then ordered to third reading.
S. B. 192, Relating to notice from certain bank holding companies; on second reading,
coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page four, section seven, line seventy-five, by striking out
subsection (f) in its entirety, and inserting in lieu thereof a new subsection (f), as follows:
"(f) Any parent bank holding company or bank holding company having, or through a
subsidiary having, a place of business in this state, shall provide the commissioner with notice of
any filing it makes with the board of governors of the federal reserve to declare its intent to become
a financial holding company. The notice required herein may be met by filing copies of the federal
filings or forms containing the information filed with the board of governors of the federal reserve,
and shall be filed with the commissioner no later than two weeks after the date the declaration of
intent is filed with the federal reserve."
The bill was then ordered to third reading.
S. B. 198, Creating presumption that assessed value of property is correct; exception; on
second reading, coming up in regular order, was read a second time, advanced to third reading and
the rule was suspended to permit the offering and consideration of further amendments to the bill
on that reading.
Com. Sub. for S. B. 204, Relating to involuntary commitment generally; on second reading, coming up in regular order, was read a second time, advanced to third reading with an amendment
pending and the rule was suspended to permit the offering and consideration of further amendments
to the bill on that reading.
The following bills on second reading, coming up in regular order, were each read a second
time and ordered to third reading:
S. B. 336, Relating to uniform application forms for credentialing, re-credentialing and
updating information for health care practitioners; on second reading, coming up in regular order,
was read a second time and ordered to third reading.
S. B. 337, Simplifying process for adoption of children from foreign countries; on second
reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 338, Establishing medicaid buy-in program for certain individuals with
disabilities; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Health and Human Resources, was
reported by the Clerk and adopted, amending the bill on page two, line ten, by striking out
everything following the enacting clause and inserting in lieu thereof the following:
"That chapter nine of the code of West Virginia, one thousand, nine hundred thirty-one, as
amended, be amended by adding thereto a new article, designated article four-d, to read as follows:
ARTICLE 4D. MEDICAID BUY-IN PROGRAM.
§9-4D-1. Legislative findings.
(a) The Legislature finds that there are many individuals in this state who have disabilities
that qualify them for state or federal assistance, and who are nonetheless willing and able to enter
the workforce, but do not do so out of fear of losing essential medical care. As a result, the state
realizes increased costs in fully supporting these disabled individuals, who, in turn, suffer under an
additional disability of being deprived of the additional income, dignity and self-sufficiency derived
by being engaged in competitive employment.
(b) The Legislature finds that establishing a medicaid buy-in program for certain individuals with disabilities will assist them in becoming independent of public assistance by enabling them
to enter the workforce without fear of losing essential medical care.
§9-4D-2. Definitions.
As used in this article:
(1) 'Approved accounts' means any retirement account that the secretary has determined is
not to be included as an asset in determining the eligibility of an individual for participation in the
buy-in program. Approved accounts may include, but not be limited to, private retirement accounts
such as individual retirement accounts; other individual accounts; and employer-sponsored
retirement plans such as 401(k) plans, Keogh plans and employer pension plans.
(2) 'Basic Coverage group' means an optional coverage group as defined by the Ticket to
Work and Work Incentives Improvement Act of 1999.
(3) 'Copayment' is a fixed fee to be paid by the patient at the time of each office visit,
outpatient service or filling of prescriptions.
(4) 'Cost-sharing' means the eligible participant will participate in the cost of the program
by paying the enrollment fee, monthly premiums and copayments if established by the department.
(5) 'Countable income' means income that does not exceed two hundred fifty percent of the
federal poverty level: Provided, That for purposes of this article, countable income does not include:
(A) The income of the individual's spouse, parent or guardian with whom he or she resides;
and
(B) Income disregarded under the state medicaid plan's financial methodology, including
income disregarded under the federal supplemental security income program (42 U. S. C. 1382) as
impairment-related work expenses.
(6) 'Countable resources' includes earned and unearned income: Provided, That countable
resources but does not include:
(A) Liquid assets of up to five thousand dollars for an individual;
(B) Liquid assets of up to ten thousand dollars for a family;
(C) Retirement accounts; and
(D) Independence accounts.
(7) 'Department' means the department of health and human resources.
(8) 'Disability' means a medically determinable physical or mental condition that:
(A) Can be expected to result in death or has lasted, or can be expected to last for a
continuous period of not less than twelve months, and
(B) Renders a person unable to engage in substantial gainful activity, and
(C) Is a disability defined by social security administration criteria and has been determined
by either the social security administration or the West Virginia department of health and human
resources.
(9) 'Eligible buy-in participant' means an individual who:
(A) Is a resident of the state of West Virginia;
(B) Has a disability as defined herein;
(C) Is at least sixteen years of age and less than sixty-five years of age;
(D) Is engaged in competitive employment, including self employment or non-traditional
work that results in remuneration at or above minimum wage in an integrated setting;
(E) Has countable resources that do not exceed the resource limits as defined in this article;
and
(F) Has countable income that does not exceed the income limits as defined in this article.
(10) 'Enrollment fee' means a one-time fee to participate in the medicaid buy-in program.
(11) "Federal benefit rate" is the amount of monthly federal or state benefits paid to persons
with limited income and resources who are age sixty-five or older, blind or disabled.
(12) 'Federal poverty level' means the level of personal or family income below which one
is classified as poor according to federal governmental standards, commonly referred to as the
federal poverty guidelines, which are issued and printed each year in the federal register.
(13) 'Income' means money earned from employment wages or self-employment earnings and unearned money received from any other source.
(14) 'Independence accounts' are department-approved accounts established with the
department solely by funds paid from the earned income of an eligible buy-in participant to cover
expenses necessary to enhance or maintain his or her independence or increase employment
opportunities. Approved expenditures from the funds may include: Educational expenses; work-
related expenses; home purchase or modification; transportation; medical expenses; assistive
technology and related services; or for short-term living expenses in times of qualified emergencies
as determined by the department.
(15) 'Liquid assets' are cash or assets payable in cash on demand, including financial
instruments that can be converted to cash within twenty working days. For purposes of this article,
national, state and local holidays are not working days.
(16) 'Premium' is a monthly fee paid by an eligible buy-in participant to continue
participation in the program.
(17) 'Resources' are possessions that the eligible buy-in participant owns that could be
changed to cash and used for food, clothing or shelter and that qualify as resources under the
applicable social security administration guidelines.
(18) 'Retirement accounts' are moneys invested in approved retirement funds and accounts
that are disregarded as an asset by the department in determining the eligibility of an individual for
participation in the buy-in program.
§9-4D-3. Medicaid buy-in program; funding.
(a) The medicaid buy-in program for working individuals with disabilities is hereby
established to provide medicaid benefits to individuals who are disabled and employed, as
authorized under Section 201 of the federal Ticket to Work and Work Incentives Improvement Act
of 1999 (P.L. 106-170, 42 U. S. C. 1396, et seq.). The medicaid buy-in program shall become
effective as of the first day of July, two thousand three.
(b) Funding for the buy-in program shall be from funds appropriated by the legislature, premiums paid, enrollment fees and any federal matching funding available to the program.
§9-4D-4. Eligibility guidelines.
(a) To be eligible to participate in the buy-in program beginning the first day of July, two
thousand three, an individual shall:
(1) Be a resident of the state of West Virginia;
(2) Have a disability that is defined and determined by the social security administration or
the department;
(3) Be at least sixteen years of age but not more than sixty-four years of age;
(4) Be engaged in competitive employment, including self-employment, or non-traditional
work that results in remuneration at or above minimum wage in an integrated setting.
(5) Have countable resources that do not exceed the resource limit for the supplemental
security income program.
(6) Have countable income that does not exceed two hundred fifty percent of the federal
poverty level.
(7) Have total countable unearned income, using the social security income program
methodology, that does not exceed the federal benefit rate plus the general income exclusion; and
(8) Except as provided in section five of this article, not have countable resources that exceed
the resource limits for the federal supplemental security income program.
(b) The secretary shall establish a method of providing notice of the availability of
participation in the medicaid buy-in program. The secretary shall develop all forms and notices
necessary to implement the provisions of this article, including forms for application to the program,
determination of eligibility and continued participation and notices that advise all eligible buy-in
participants of the rights, benefits, obligations and participation requirements of the program,
including, but not limited to, notice of fees, premiums, premium adjustments, periodic review,
length of time for which benefits may be paid and disqualifying factors.
§9-4D-5. Exceptions to qualifying factors.
(a) An individual who is enrolled in the buy-in program and who no longer meets the
eligibility requirements of the basic coverage group due to an improvement in the individual's
medical condition may continue to be eligible for medicaid coverage under the buy-in program if
the individual meets the following requirements:
(1) The individual continues to have a severe medically determinable impairment as
determined by the department and as defined and recognized by federal law;
(2) The individual is employed and earning a monthly wage that is not less than the federal
minimum hourly wage times forty;
(3) The individual does not have income or countable resources in excess of the limits
established for the basic coverage group;
(4) The individual is at least sixteen years of age and less than sixty-five years of age;
(5) The individual pays any premiums or other cost sharing required under this chapter; and
(6) The individual meets all other eligibility requirements under this section;
(b) An individual who is enrolled in the buy-in program and who is unable to maintain
employment for involuntary reasons, including temporary leave due to a health problem or
involuntary termination, may continue to be eligible for Medicaid coverage under the buy-in
program if the individual meets the following requirements:
(1) Within thirty days after the date on which the individual becomes unemployed, the
individual, or an authorized representative of the individual, submits a written request to the office
that the individual's medicaid coverage be continued;
(2) The individual maintains a connection to the workforce during the individual's continued
eligibility period by participating in at least one of the following activities:
(A) Enrollment in a state or federal vocational rehabilitation program;
(B) Enrollment or registration with the office of workforce development;
(C) Participation in a transition from school-to-work program;
(D) Participation with an approved provider of employment services;
(E) Provision of documentation from the individual's employer that the individual is on
temporary involuntary leave;
(F) The individual does not have income or countable resources in excess of the limits
established under this section;
(G) The individual is at least sixteen years of age and less than sixty-five years of age;
(H) The individual pays any premiums or other cost sharing required under this section; and
(I) The individual meets all other eligibility requirements under this section.
(c) The department shall continue medicaid coverage under the buy-in program for an
individual described in subsection (b) of this section for up to six months from the date of the
individual's involuntary loss of employment.
(d) If an individual is ineligible for continued coverage under the buy-in program because
he or she fails to meet the requirements of subsection (b) of this section or has already fulfilled
twelve months of continuing eligibility, the individual shall be required to meet the eligibility
requirements of another available medicaid program in order to continue to be eligible for medicaid
benefits.
§9-4D-6. Fees, premiums and periodic reviews.
(a) The department shall charge a fifty-dollar enrollment fee to all participants in the
medicaid buy-in program. Upon payment of the enrollment fee, the first month's premium payment
is waived. Medicaid coverage begins on the first day of the month following payment of the
enrollment fee.
(b)The department shall develop a sliding scale of premiums for individuals participating
in the buy-in program. The sliding scale shall:
(1) Be based on the annual gross income of the individual; and
(2) Provide for a minimum premium of fifteen dollars and a maximum monthly premium
not to exceed three and one half percent of the individual's gross monthly income.
(c) Subject to the minimum and maximum amounts described in this section, the department may annually adjust the scale of premiums charged for participation in the medicaid buy-in program.
(d) The department shall biannually review the amount of the premium that an individual
is required to pay under this section.
(e) The department may increase the premium required only after conducting a review.
(f) The department shall decrease the premium that an eligible buy-in participant is required
to pay if:
(1) The individual notifies the office of a change in income or family size; and
(2) The sliding scale adopted by the department applied to the individual's changed
circumstances prescribes a premium for the individual that is lower than the premium the individual
is paying.
(g) The department shall establish administrative procedures regarding premiums for the
buy-in program, including:
(1) The effect of nonpayment of a premium; and
(2) The collection of premiums.
(h) The department shall establish criteria to base the biannual redetermination of disability
required for an individual participating in the buy-in program on the individual's medical evidence,
including evidence of physical or mental impairment.
(i) In conducting the biannual redetermination described in this section, the department may
not determine that an individual participating in the buy-in program is no longer disabled solely on
the individual's:
(1) Participation in employment;
(2) Earned income; or
(3) Income from self-employment.
§9-4D-7. Benefits of the medicaid buy-in program
(a) Except as otherwise provided in this article, an eligible buy-in participant shall receive
the same benefits that he or she would otherwise receive as a recipient of medicaid benefits, including home health care services.
(b) Except as otherwise provided in this article, an eligible buy-in participant is subject to
the same obligations and requirements, including cost sharing, that he or she would otherwise be
subject to as recipient of medicaid benefits.
§9-4D-8. Analytical criteria and reporting requirements.
(a) The secretary shall establish criteria to determine the effectiveness of the medicaid buy-in
program and continued medicaid coverage through Section 1619 of the federal Social Security Act
(42 U. S. C. 1382h). The criteria shall include an analysis of the following:
(1) The number of individuals with disabilities who are:
(A) Enrolled in the buy-in program; or
(B) Receiving medicaid through Section 1619 of the federal Social Security Act (42 U. S.
C. 1382h);
(2) The amount of state revenues resulting from premiums paid by participants in the buy-in
program; and
(3) The amount of state costs incurred as a result of implementing the buy-in program,
including administrative costs and costs of providing services.
(b) In addition to the criteria required under subsection (b) of this section, the secretary may
establish criteria to determine the following:
(1) Comparative costs of medicaid funded services for participants in the buy-in program and
work incentives created through Section 1619 of the federal Social Security Act (42 U. S. C. 1382h)
before and after employment;
(2) The number of supplemental security income and social security disability insurance
recipients in West Virginia who are no longer dependent on, or who have reduced dependence on,
public assistance or health care entitlement services, other then medicaid or the children's health
insurance program, due to participation in the buy-in program or work incentives created through
Section 1619 of the federal Social Security Act (42 U. S. C. 1382h);
(3) The number of individuals with severe disabilities who are no longer dependent on, or
who have reduced dependence on, public benefits or services, other than medicaid or the children's
health insurance program, due to income or support services received through participation in the
buy-in program or work incentives created through Section 1619 of the federal Social Security Act
(42 U. S. C. 1382h); and
(4) The change in the number of buy-in program participants or participants in work
incentives created through Section 1619 of the federal Social Security Act (42 U. S. C. 1382h) who
have health care needs and related services covered through employer based benefit programs.
(c) In evaluating the effectiveness of the state's work incentives initiatives for individuals
with disabilities, the secretary:
(1) Shall collaborate with other state agencies on data collection; and
(2) May consult with an independent contractor to collect data on the criteria required by this
section.
(d) The department secretary shall provide an annual report of its evaluation of the medicaid
buy-in program performed pursuant to the requirements of this section to the Legislature no later
than the last day of December of each year, beginning in two thousand four.
§9-4D-9. Advisory council; rules.
(a) The secretary of the department of health and human resources shall establish a medicaid
buy-in program advisory council, consisting of representatives from the state medicaid agency, the
state rehabilitation agency, the state office of family support, the West Virginia statewide
independent living council, the West Virginia state rehabilitation council, the West Virginia
developmental disabilities council, the West Virginia mental health planning council and the center
for excellence in disabilities at West Virginia university.
(b) The secretary shall submit proposed rules for review and input to the advisory council
prior to release for public comment and shall consider any recommendations of the advisory council
before adopting final rules.
(c) The secretary shall propose emergency rules in accordance with the provisions of section
fifteen, article three, chapter twenty-nine-a of this code to implement the provisions of this article.
Thereafter, the secretary shall propose additional rules for legislative approval in accordance with
the provisions of said article three, chapter twenty-nine-a of this code as may be needed to
administer and maintain the medicaid buy-in program."
The bill was then ordered to third reading.
S. B. 342, Limiting time driver's license may be issued to certain non-citizens; on second
reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 354, Relating to operating or attempting to operate clandestine drug
laboratory; penalty; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, section four hundred eleven, line four, by striking out
the words "one year nor more than five", and inserting in lieu thereof the words "two years nor more
than ten".
The bill was then ordered to third reading.
* * * * * * * * * * * * * *
Delegate Brown arose, was recognized for the purpose of making a motion and then moved
that the Senate be requested to return H. B. 2866, Relating to construction financing for surface
transportation improvements through federal grant anticipation notes.
Whereupon,
On motion of Delegate Staton, further consideration of the request by Delegate Browning
for the return of the bill was postponed, to be taken up as the last item of business on the first
reading calendar of today.
* * * * * * * * * * * * * *
S. B. 375, Allowing transfer of contractor's license to new business entity in certain cases;
on second reading, coming up in regular order, was read a second.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page one by striking out everything following the
enacting clause and inserting in lieu thereof the following:
"That section seven, article eleven, chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 11. WEST VIRGINIA CONTRACTOR LICENSING ACT.
§21-11-7. Application for and issuance of license.
(a) A person desiring to be licensed as a contractor under this article shall submit to the board
a written application requesting licensure, providing the applicant's social security number and such
other information as the board may require, on forms supplied by the board. The applicant shall pay
a license fee not to exceed one hundred fifty dollars: Provided, That electrical contractors already
licensed under section four, article three-b, chapter twenty-nine of this code shall pay no more than
twenty dollars.
(b) A person holding a business registration certificate to conduct business in this state as
a contractor on the thirtieth day of September, one thousand nine hundred ninety-one, may register
with the board, certify by affidavit the requirements of subsection (c), section fifteen of this article
and pay such license fee not to exceed one hundred fifty dollars and shall be issued a contractor's
license without further examination: Provided, That no license may be issued without examination
pursuant to this subsection after the first day of April, two thousand two: Provided, however, That
any person issued a contractor's license by the board pursuant to this subsection may apply to the
board for transfer of the license to a new business entity in which the license holder is the principal
owner, partner, corporate officer or a full-time employee, without requiring examination of the
license holder: Provided further, That a license holder may hold a license on behalf of only one
business entity during a given time period."
The bill was then ordered to third reading.
The following bills on second reading, coming up in regular order, were each read a second time and ordered to third reading:
Com. Sub. for S. B. 387, Increasing time to perfect liens for certain debts,
S. B. 428, Directing auditor issue warrants for payment of certain claims against state,
And,
Com. Sub. for S. B. 455, Authorizing retirement credit for public employment in another
state.
Com. Sub. for S. B. 496, Creating Motor Fuels Excise Tax Act; on second reading, coming
up in regular order, was read a second time, advanced to third reading with the amendment pending
and the rule was suspended to permit the offering and consideration of further amendments to the
bill on that reading.
Com. Sub. for S. B. 507, Modifying and updating auctioneer licensing requirements; fees;
on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page two, by amending the enacting section to read
as follows:
"That sections two, three, five, five-a, six, six-a, six-b, six-c, seven, eight, eight-a and nine,
article two-c, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; that said article be further amended by adding thereto three
new sections, designated section five-b, six-d and nine-a; and that section five, article forty, chapter
thirty of said code, be amended and reenacted, all to read as follows" followed by a colon.
And,
On page twenty-seven, section nine-a, subsection c, line 34, following the words "complaint
against a licensee" and the period, by inserting the following:
"§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."
The bill was then ordered to third reading.
Com. Sub. for S. B. 510, Permitting holocaust commission to accept gifts, donations and
appropriations from Legislature; reimbursement; on second reading, coming up in regular order, was
read a second time and ordered to third reading.
Com. Sub. for S. B. 522, Authorizing county boards of education to lease school property
no longer needed; on second reading, coming up in regular order, was read a second.
An amendment, recommended by the Committee on Education, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by inserting a new bill
to read as follows:
"That sections one-a and seven, article five, chapter eighteen of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-1a. Eligibility of members; training requirements.
(a) No person shall be eligible for membership on any county board who is not a citizen,
resident in such county, or who accepts a position as teacher or service personnel in the school
district in which he or she is a resident or who is an elected or an appointed member of any political
party executive committee, or who becomes a candidate for any other office than to succeed oneself.
(b) No member or member-elect of any board shall be eligible for nomination, election or
appointment to any public office, other than to succeed oneself, or for election or appointment as
a member of any political party executive committee, unless and until after that membership on the
board, or his status as member-elect to the board, has been terminated at or before the time of his
filing for such nomination for, or appointment to, such public office or committee. : Provided, That
'office' or 'committee' as used in this subsection and subsection (a) of this section, does not include
service on any board, elected or appointed, profit or nonprofit, for which the person does not receive
compensation and whose primary scope is not related to the public schools.
(c) A member or member-elect of a county board, or a person desiring to become a member
of a county board, may make a written request to the West Virginia ethics commission for an
advisory opinion on whether another elected or appointed position held or sought by the person is
an office or public office which would bar serving on the board pursuant to subsections (a) and (b)
of this section. Within thirty days of receipt of the request, the ethics commission shall issue a
written advisory opinion in response to the request and shall also publish such opinion in a manner
which to the fullest extent possible does not reveal the identity of the person making the request.
Any county board member who relied in good faith upon an advisory opinion issued by the West
Virginia ethics commission that holding a particular office or public office is not a bar from
membership on a county board of education and against whom proceedings are subsequently
brought for removal from the county board on the basis of holding such office or offices shall be
entitled to reimbursement by the county board for reasonable attorney's fees and court costs incurred
by the member in defending against such proceedings, regardless of the outcome of the proceedings.
Further, no vote cast by the member at a meeting of the board shall be invalidated due to a subsequent finding that holding the particular office or public is a bar to membership on the county
board. Good faith reliance on a written advisory opinion of the West Virginia ethics commission
that a particular office or public office is not a bar to membership on a county board of education
is an absolute defense to any civil suit or criminal prosecution arising from any proper action taken
within the scope of membership on the board, becoming a member elect of the board or seeking
election to the board.
(d) Any person who is elected or appointed to a county board on or after the fifth day of
May, one thousand nine hundred ninety-two, shall possess at least a high school diploma or a
general educational development (GED) diploma: Provided, That this provision shall not apply to
members or members-elect who have taken office prior to the fifth day of May, one thousand nine
hundred ninety-two, and who serve continuously therefrom.
(e) No person elected to a county board after the first day of July, one thousand nine hundred
ninety, shall assume the duties of board member unless he or she has first attended and completed
a course of orientation relating to boardsmanship and governance effectiveness which shall be given
between the date of election and the beginning of the member's term of office: Provided, That a
portion or portions of subsequent training such as that offered in orientation may be provided to
members after they have commenced their term of office: Provided, however, That attendance at
the session of orientation given between the date of election and the beginning of the member's term
of office shall permit such member or members to assume the duties of board member, as specified
in this section. Members appointed to the board shall attend and complete the next such course
offered following their appointment: Provided further, That the provisions of this section relating
to orientation shall not apply to members who have taken office prior to the first day of July, one
thousand nine hundred eighty-eight, and who serve continuously therefrom.
(f) Commencing on the effective date of this section, members shall annually receive seven
clock hours of training in areas relating to boardsmanship, governance effectiveness, and school
performance issues including, but not limited to, pertinent state and federal statutes such as the 'Process for Improving Education' set forth in section five, article two-e of this chapter and the 'No
Child Left Behind Act' and their respective administrative rules. Such orientation and training shall
be approved by the state board and conducted by the West Virginia school board association or other
organization or organizations approved by the state board: Provided, That the state board may
exclude time spent in training on school performance issues from the requisite seven hours herein
required: Provided, however, That if the state board elects to exclude time spent in training on
school performance issues from the requisite seven hours, such training shall be limited by the state
board to a feasible and practicable amount of time. Failure to attend and complete such an approved
course of orientation and training relating to boardsmanship and governance effectiveness without
good cause as determined by legislative rules of the state board shall constitute neglect of duty.
(g) In the final year of any four-year term of office, a member shall satisfy the annual
training requirement before the first day of January. The state board shall petition the circuit court
of Kanawha County to remove any county board member who has failed to or who refuses to attend
and complete the approved course of orientation and training. If the county board member fails to
show good cause for not attending the approved course of orientation and training, the court shall
remove the member from office.
§18-5-7. Sale of school property at public auction; rights of grantor of lands in rural
communities; oil and gas leases; disposition of proceeds; lease of school property.
(a) If Except as set forth in subsection (b) of this section, if at any time the a county board
shall ascertain determines that any building or any land is no longer shall be needed for school
purposes, the county board may sell, dismantle, remove or relocate any such buildings the building
and sell the land on which they are it is located, at public auction, after proper notice and on such
terms as it orders, to the highest responsible bidder.
(b) But Notwithstanding the provisions of subsection (a) of this section, in rural
communities, the grantor of the lands or his or her heirs or assigns shall have has the right to
purchase at the sale, the land, exclusive of the buildings thereon on the land and the mineral rights, at the same price for which it was originally sold: Provided, That the sale to the board was not a
voluntary arms length transaction for valuable consideration approximating the fair market value
of the property at the time of such the sale to the board: Provided, however, That the provisions of
this section shall may not operate to invalidate any provision of the deed to the contrary.
(c) The county board, by the same method prescribed set forth in subsection (a) of this
section for the sale of school buildings and lands, may, also in lieu of offering the property for sale,
enter into a lease for oil or gas or other minerals any lands or school sites owned in fee by it. The
proceeds of such the sales and rentals shall be placed to the credit of such the fund or funds of the
district as the county board may direct.
(d) And provided further, That The county board may make any sale of property subject to
the provisions provision that all liability for hazards associated with the premises are to be assumed
by the purchaser. and In any sale by the county board of improved property in which the actual
consideration is less than ten thousand dollars or in any sale of unimproved property in which the
actual consideration is less than one thousand dollars, the county board shall make any sale of
property subject to the provisions provision that all liability for hazards associated with the premises
are to be assumed by the purchaser. The county board shall inform any prospective purchaser of
known or suspected hazards associated with the property.
(e) Except as provided by the provisions of subsection (b) of this section, where a county
board determines that any school property is no longer needed for school purposes, the county board
may, upon determining that it will serve the best interests of the school system and the community,
offer the property for lease. The procedure set forth in subsection (a) of this section relating to sale
of school buildings and lands shall apply to leasing the school property. Any lease authorized by
the provisions of this subsection shall be in writing. The writing shall include a recitation of all
known or reasonably suspected hazards associated with the property, an assumption by the lessee
of all liability related to all hazards, whether disclosed or not, and provisions wherein the lessee
assumes all liability for any actions arising from the property during the term of the lease.
(f) Provided further, That Notwithstanding any provision of this section to the contrary, the
provisions of this section concerning sale or lease at public auction shall may not apply to a county
board boards of education selling, leasing or otherwise disposing of its property for a public use to
the state of West Virginia, or its political subdivisions, including county commissions, or divisions
thereof for an adequate consideration without considering alone the present commercial or market
value of the property."
The bill was then ordered to third reading.
S. B. 551, Increasing employee contribution to deputy sheriff retirement fund; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Pensions and Retirement, was reported
by the Clerk and adopted, amending the bill by striking out everything following the enacting clause
and inserting in lieu thereof the following:
"That sections two, five, twelve, thirteen, twenty, twenty-one and twenty-three, article
fourteen-d, chapter seven 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 twenty-four-a, all to read as follows:
ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-2. Definitions.
As used in this article, unless a federal law or regulation or the context clearly requires a
different meaning:
(a) 'Accrued benefit' means on behalf of any member two and one-quarter percent of the
member's final average salary multiplied by the member's years of credited service. A member's
accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is
subject to the provisions of section nine-a of this article.
(b) 'Accumulated contributions' means the sum of all amounts deducted from the
compensation of a member, or paid on his or her behalf pursuant to article ten-c, chapter five of this code, either pursuant to section seven of this article or section twenty-nine, article ten, chapter five
of this code as a result of covered employment together with regular interest on the deducted
amounts.
(c) 'Active military duty' means full-time active duty with any branch of the armed forces
of the United States, including service with the national guard or reserve military forces when the
member has been called to active full-time duty and has received no compensation during the period
of that duty from any board or employer other than the armed forces.
(d) 'Actuarial equivalent' means a benefit of equal value computed upon the basis of the
mortality table and interest rates as set and adopted by the retirement board in accordance with the
provisions of this article.
(e) 'Annual compensation' means the wages paid to the member during covered employment
within the meaning of Section 3401(a) of the Internal Revenue Code, but determined without regard
to any rules that limit the remuneration included in wages based upon the nature or location of
employment or services performed during the plan year plus amounts excluded under Section
414(h)(2) of the Internal Revenue Code and less reimbursements or other expense allowances, cash
or noncash fringe benefits or both, deferred compensation and welfare benefits. Annual
compensation for determining benefits during any determination period may not exceed one hundred
fifty thousand dollars as adjusted for cost of living in accordance with Section 401(a)(17)(B) of the
Internal Revenue Code.
(f) 'Annual leave service' means accrued annual leave.
(g) 'Annuity starting date' means the first day of the first period for which an amount is
received as an annuity by reason of retirement. For purposes of this subsection, if retirement income
payments commence after the normal retirement age, 'retirement' means the later of the last day the
member worked in covered employment and the normal retirement age.
(h) 'Base salary' means a member's cash compensation exclusive of overtime from covered
employment during the last twelve months of employment. Until a member has worked twelve months, annualized base salary is used as base salary.
(i) 'Board' means the consolidated public retirement board created pursuant to article ten-d,
chapter five of this code.
(j) 'County commission' has the meaning ascribed to it in section one, article one, chapter
seven of this code.
(k) 'Covered employment' means either: (1) Employment as a deputy sheriff and the active
performance of the duties required of a deputy sheriff; or (2) the period of time which active duties
are not performed but disability benefits are received under section fourteen or fifteen of this article;
or (3) concurrent employment by a deputy sheriff in a job or jobs in addition to his or her
employment as a deputy sheriff where such secondary employment requires the deputy sheriff to
be a member of another retirement system which is administered by the consolidated public
retirement board pursuant to article ten-d of chapter five of this code: Provided, That the deputy
sheriff contribute to the fund created in section six of this article the amount specified as the deputy
sheriff's contribution in section seven of this article.
(l) 'Credited service' means the sum of a member's years of service, active military duty,
disability service and annual leave service.
(m) 'Deputy sheriff' means an individual employed as a county law-enforcement deputy
sheriff in this state and as defined by section two, article fourteen, chapter seven of this code.
(n) 'Dependent child' means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living with the member while the
member was an adopting parent during any period of probation; or
(D) A stepchild of the member residing in the member's household at the time of the
member's death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited college or university;
(B) Who was claimed as a dependent by the member for federal income tax purposes at the
time of member's death; and
(C) Whose relationship with the member is described in subparagraph (A), (B) or (C),
paragraph (1) of this subdivision.
(o) 'Dependent parent' means the father or mother of the member who was claimed as a
dependent by the member for federal income tax purposes at the time of the member's death.
(p) 'Disability service' means service received by a member, expressed in whole years,
fractions thereof or both, equal to one half of the whole years, fractions thereof, or both, during
which time a member receives disability benefits under section fourteen or fifteen of this article.
(q) 'Early retirement age' means age forty or over and completion of twenty years of service.
(r) 'Effective date' means the first day of July, one thousand nine hundred ninety-eight.
(s) 'Final average salary' means the average of the highest annual compensation received
for covered employment by the member during any five consecutive plan years within the member's
last ten years of service. If the member did not have annual compensation for the five full plan years
preceding the member's attainment of normal retirement age and during that period the member
received disability benefits under section fourteen or fifteen of this article then 'final average salary'
means the average of the monthly salary determined paid to the member during that period as
determined under section seventeen of this article multiplied by twelve.
(t) 'Fund' means the West Virginia deputy sheriff retirement fund created pursuant to section
six of this article.
(u) 'Hour of service' means:
(1) Each hour for which a member is paid or entitled to payment for covered employment
during which time active duties are performed. These hours shall be credited to the member for the
plan year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to payment for covered employment
during a plan year but where no duties are performed due to vacation, holiday, illness, incapacity
including disability, layoff, jury duty, military duty, leave of absence, or any combination thereof,
and without regard to whether the employment relationship has terminated. Hours under this
paragraph shall be calculated and credited pursuant to West Virginia division of labor rules. A
member will not be credited with any hours of service for any period of time he or she is receiving
benefits under section fourteen or fifteen of this article; and
(3) Each hour for which back pay is either awarded or agreed to be paid by the employing
county commission, irrespective of mitigation of damages. The same hours of service shall not be
credited both under paragraph (1) or (2) of this subdivision and under this paragraph. Hours under
this paragraph shall be credited to the member for the plan year or years to which the award or
agreement pertains, rather than the plan year in which the award, agreement or payment is made.
(v) 'Member' means a person first hired as a deputy sheriff after the effective date of this
article, as defined in subsection (r) of this section, or a deputy sheriff first hired prior to the effective
date and who elects to become a member pursuant to section five or section seventeen of this article.
A member shall remain a member until the benefits to which he or she is entitled under this article
are paid or forfeited.
(w) 'Monthly salary' means the portion of a member's annual compensation which is paid
to him or her per month.
(x) 'Normal form' means a monthly annuity which is one twelfth of the amount of the
member's accrued benefit which is payable for the member's life. If the member dies before the
sum of the payments he or she receives equals his or her accumulated contributions on the annuity
starting date, the named beneficiary shall receive in one lump sum the difference between the
accumulated contributions at the annuity starting date and the total of the retirement income
payments made to the member.
(y) 'Normal retirement age' means the first to occur of the following:
(1) Attainment of age fifty years and the completion of twenty or more years of service;
(2) While still in covered employment, attainment of at least age fifty years and when the
sum of current age plus years of service equals or exceeds seventy years;
(3) While still in covered employment, attainment of at least age sixty years and completion
of five years of service; or
(4) Attainment of age sixty-two years and completion of five or more years of service.
(z) 'Partially disabled' means a member's inability to engage in the duties of deputy sheriff
by reason of any medically determinable physical or mental impairment that can be expected to
result in death or that has lasted or can be expected to last for a continuous period of not less than
twelve months. A member may be determined partially disabled for the purposes of this article and
maintain the ability to engage in other gainful employment which exists within the state but which
ability would not enable him or her to earn an amount at least equal to two thirds of the average
annual compensation earned by all active members of this plan during the plan year ending as of the
most recent thirtieth day of June, as of which plan data has been assembled and used for the actuarial
valuation of the plan.
(aa) 'Public employees retirement system' means the West Virginia public employee's
retirement system created by article ten, chapter five of this code.
(bb) 'Plan' means the West Virginia deputy sheriff death, disability and retirement plan
established by this article.
(consent Calendar) 'Plan year' means the twelve-month period commencing on the first day
of July of any designated year and ending the following thirtieth day of June.
(dd) 'Regular interest' means the rate or rates of interest per annum, compounded annually,
as the board adopts in accordance with the provisions of this article.
(ee) 'Retirement income payments' means the annual retirement income payments payable
under the plan.
(ff) 'Spouse' means the person to whom the member is legally married on the annuity starting date.
(gg) 'Surviving spouse' means the person to whom the member was legally married at the
time of the member's death and who survived the member.
(hh) 'Totally disabled' means a member's inability to engage in substantial gainful activity
by reason of any medically determined physical or mental impairment that can be expected to result
in death or that has lasted or can be expected to last for a continuous period of not less than twelve
months.
For purposes of this subdivision:
(1) A member is totally disabled only if his or her physical or mental impairment or
impairments is are so severe that he or she is not only unable to perform his or her previous work
as a deputy sheriff but also cannot, considering his or her age, education and work experience,
engage in any other kind of substantial gainful employment which exists in the state regardless of
whether: (A) The work exists in the immediate area in which the member lives; (B) a specific job
vacancy exists; or (C) the member would be hired if he or she applied for work.
(2) 'Physical or mental impairment' is an impairment that results from an anatomical,
physiological or psychological abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
A member's receipt of social security disability benefits creates a rebuttable presumption that
the member is totally disabled for purposes of this plan. Substantial gainful employment rebuts the
presumption of total disability.
(ii) 'Year of service.' A member shall, except in his or her first and last years of covered
employment, be credited with year of service credit based upon the hours of service performed as
covered employment and credited to the member during the plan year based upon the following
schedule:
Hours of Service Year of Service Credited
Less than 500 ........................ 0
500 to 999 ........................... 1/3
1,000 to 1,499 ....................... 2/3
1,500 or more ........................ 1
During a member's first and last years of covered employment, the member shall be credited
with one twelfth of a year of service for each month during the plan year in which the member is
credited with an hour of service. A member is not entitled to credit for years of service for any time
period during which he or she received disability payments under section fourteen or fifteen of this
article. Except as specifically excluded, years of service include covered employment prior to the
effective date.
Years of service which are credited to a member prior to his or her receipt of accumulated
contributions upon termination of employment pursuant to section thirteen of this article or section
thirty, article ten, chapter five of this code, shall be disregarded for all purposes under this plan
unless the member repays the accumulated contributions with interest pursuant to section twelve of
this article or had prior to the effective date made the repayment pursuant to section eighteen, article
ten, chapter five of this code.
(jj) 'Required beginning date' means the first day of April of the calendar year following the
later of: (i) The calendar year in which the member attains age seventy and one-half; or (ii) the
calendar year in which he or she retires or otherwise separates from covered employment.
§7-14D-5. Members.
(a) Any deputy sheriff first employed by a county in covered employment after the effective
date of this article shall be a member of this retirement system and plan and does not qualify for
membership in any other retirement system administered by the board, so long as he or she remains
employed in covered employment. (b) Any deputy sheriff employed in covered employment on
the effective date of this article shall within six months of that effective date notify in writing both
the county commission in the county in which he or she is employed and the board of his or her
desire to become a member of the plan: Provided, That this time period is extended to the thirtieth day of January, one thousand nine hundred ninety-nine, in accordance with the decision of the
supreme court of appeals in West Virginia Deputy Sheriffs' Association, et al v. James L. Sims, et
al, No. 25212: Provided, however, That any deputy sheriff employed in covered employment on
the effective date of this article has an additional time period consisting of the ten-day period
following the day after which the amended provisions of this section become law to notify in writing
both the county commission in the county in which he or she is employed and the board of his or
her desire to become a member of the plan. Any deputy sheriff who elects to become a member of
the plan ceases to be a member or have any credit for covered employment in any other retirement
system administered by the board and shall continue to be ineligible for membership in any other
retirement system administered by the board so long as the deputy sheriff remains employed in
covered employment in this plan: Provided further, That any deputy sheriff who elects during the
time period from the first day of July, one thousand nine hundred ninety-eight, to the thirtieth day
of January, one thousand nine hundred ninety-nine, or who so elects during the ten-day time period
occurring immediately following the day after the day the amendments made during the one
thousand nine hundred ninety-nine legislative session become law, to transfer from the public
employees retirement system to the plan created in this article shall contribute to the plan created
in this article at the rate set forth in section seven of this article retroactive to the first day of July,
one thousand nine hundred ninety-eight. Any deputy sheriff who does not affirmatively elect to
become a member of the plan continues to be eligible for any other retirement system as is from
time to time offered to other county employees but is ineligible for this plan regardless of any
subsequent termination of employment and rehire.
(c) Any deputy sheriff who was employed as a deputy sheriff prior to the effective date, but
was not employed as a deputy sheriff on the effective date of this article, shall become a member
upon rehire as a deputy sheriff. For purposes of this section, the member's years of service and
credited service prior to the effective date shall not be counted for any purposes under this plan
unless: (1) The deputy sheriff has not received the return of his or her accumulated contributions in the public employees retirement fund system pursuant to section thirty, article ten, chapter five
of this code; or (2) the accumulated contributions returned to the member from the public employees
retirement system have been repaid pursuant to section twelve thirteen of this article. If the
conditions of subdivision (1) or (2) of this subsection are met, all years of the deputy sheriff's
covered employment shall be counted as years of service for the purposes of this article. Each
transferring deputy sheriff shall be given credited service for the purposes of this article for all
covered employment transferred from the public employees retirement system regardless of whether
such credited service (as that term is defined in section two, article ten, chapter five of this code)
was earned as a deputy sheriff. All service in the public employees retirement system accrued by
a transferring deputy sheriff shall be transferred into the plan created by this article and the
transferring deputy sheriff shall be given the same credit for the purposes of this article for all such
covered service which is transferred from the public employees retirement system as that
transferring deputy sheriff would have received from the public employees retirement system if such
transfer had not occurred. In connection with each deputy sheriff receiving credit for prior
employment provided in this subsection, a transfer from public employees retirement system to this
plan shall be made pursuant to the procedures described in section eight of this article.
(d) Once made, the election made under this section is irrevocable. All deputy sheriffs first
employed after the effective date and deputy sheriffs electing to become members as described in
this section shall be members as a condition of employment and shall make the contributions
required by section seven of this article.
(e) Notwithstanding any other provisions of this article, any individual who is a leased
employee shall not be eligible to participate in the plan. For purposes of this plan, a 'leased
employee' means any individual who performs services as an independent contractor or pursuant
to an agreement with an employee leasing organization or similar organization. If a question arises
regarding the status of an individual as a leased employee, the board has final power to decide the
question.
§7-14D-12. Annuity options.
Prior to the effective date of retirement, but not thereafter, a member may elect to receive
retirement income payments in the normal form, or the actuarial equivalent of the normal form from
the following options:
(a) Option A -- Joint and Survivor Annuity. -- A life annuity payable during the joint lifetime
of the member and his or her beneficiary who is a natural person with an insurable interest in the
member's life. Upon the death of either the member of or his or her beneficiary, the benefit shall
continue as a life annuity to the survivor in an amount equal to fifty percent, sixty-six and two-thirds
percent, seventy-five percent or one hundred percent of the amount paid while both were living as
selected by the member. If the retiring member is married, the spouse shall sign a waiver of benefit
rights if the beneficiary is to be other than the spouse.
(b) Option B -- Contingent Joint and Survivor Annuity. -- A life annuity payable during the
joint lifetime of the member and his or her beneficiary who must be a natural person with an
insurable interest in the member's life. Upon the death of the member, the benefit shall continue
as a life annuity to the beneficiary in an amount equal to fifty percent, sixty-six and two-thirds
percent, seventy-five percent or one hundred percent of the amount paid while both were living as
selected by the member. If the beneficiary dies first, the monthly amount of benefits may not be
reduced, but shall be paid at the amount that was in effect before the death of the beneficiary. If the
retiring member is married, the spouse shall sign a waiver of benefit rights if the beneficiary is to
be other than the spouse.
(c) Option C -- Ten Years Certain and Life Annuity. -- A life annuity payable during the
member's lifetime but in any event for a minimum of ten years. If the member dies before the
expiration of ten years, the remaining payments shall be made to a designated beneficiary, if any,
or otherwise to the member's estate.
(d) Option D -- Level Income Annuity. -- A life annuity payable monthly in an increased
amount 'A' from the time of retirement until the member is social security retirement age, and then a lesser amount 'B' payable for the member's lifetime thereafter, with these amounts computed
actuarially to satisfy the following two conditions:
(1) Actuarial equivalence. -- The actuarial present value at the date of retirement of the
member's annuity if taken in the normal form must equal the actuarial present value of the term life
annuity in amount 'A' plus the actual present value of the deferred life annuity in amount 'B'; and
(2) Level income. -- The amount 'A' equals the amount 'B' plus the amount of the member's
estimated monthly social security primary insurance amount that would commence at the date
amount 'B' becomes payable. For this calculation, the primary insurance amount is estimated when
the member applies for retirement, using social security law then in effect, using assumptions
established by the board.
In the case of a member who has elected the options set forth in subdivisions (a) and (b) of
this section, respectively, and whose beneficiary dies prior to the member's death, the member may
name an alternative beneficiary. If an alternative beneficiary is named within eighteen months
following the death of the prior beneficiary, the benefit shall be adjusted to be the actuarial
equivalent of the benefit the member is receiving just after the death of the member's named
beneficiary. If the election is not made until eighteen months after the death of the prior beneficiary,
the amount shall be reduced so that it is only ninety percent of the actuarial equivalent of the benefit
the member is receiving just after the death of the member's named beneficiary.
§7-14D-13. Refunds to certain members upon discharge or resignation; deferred retirement;
forfeitures.
(a) Any member who terminates covered employment and is not eligible to receive disability
benefits under this article is, by written request filed with the board, entitled to receive from the fund
the member's accumulated contributions. Except as provided in subsection (b) of this section, upon
withdrawal the member shall forfeit his or her accrued benefit and cease to be a member.
(b) Any member who withdraws accumulated contributions from either this plan or the
public employees retirement system and thereafter becomes reemployed in covered employment shall not receive any credited service for the prior employment unless following his or her return
to covered employment, the member redeposits in the fund the amount of the accumulated
contributions based upon salary earned as a deputy sheriff, together with interest on the accumulate
contributions at the rate determined by the board from the date of withdrawal to the date of
redeposit. Upon repayment he or she shall receive the same credit on account of his or her former
service as if no refund had been made. The repayment shall be made in a lump sum within sixty
months of the deputy sheriff's reemployment or if later, within sixty months of the effective date
of this article.
(c) Every member who completes sixty months of covered employment is eligible, upon
cessation of covered employment, to either withdraw his or her accumulated contributions in
accordance with subsection (a) of this section, or to choose not to withdraw his or her accumulated
contribution and to receive retirement income payments upon attaining early or normal retirement
age.
(d) Notwithstanding any other provision of this article, forfeitures under the plan shall not
be applied to increase the benefits any member would otherwise receive under the plan.
§7-14D-20. Additional death benefits and scholarships -- Dependent children.
(a) In addition to the spouse death benefits in sections eighteen and nineteen of this article,
the surviving spouse is entitled to receive and there shall be paid to the spouse one hundred dollars
monthly for each dependent child.
(b) If the surviving spouse dies or if there is no surviving spouse, the fund shall pay monthly
to each dependent child a sum equal to one fourth of the surviving spouse's entitlement under either
section nineteen or twenty of this article. If there is neither a surviving spouse nor a dependent
child, the fund shall pay in equal monthly installments 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 only 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: Provided, however, That if there is no surviving
spouse, dependent child or dependent parent of the deceased member the accumulated contributions
shall be paid to a named beneficiary or beneficiaries: Provided further, That if there is no surviving
spouse, dependent child or dependent parent of the deceased member, or any named beneficiary or
beneficiaries, then the accumulated contributions shall be paid to the estate of the deceased member.
(c) Any person qualifying as a dependent child under this, in addition to any other benefits
due under this or other sections of this article, is entitled to receive a scholarship to be applied to the
career development education of that person. This sum, up to but not exceeding six thousand dollars
per year, 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 rules
as the board may provide, and maintains scholastic eligibility as defined by the institution or the
board. The board may propose legislative rules for promulgation in accordance with article three,
chapter twenty-nine-a of this code which define age requirements, physical and mental requirements,
scholastic eligibility, disbursement methods, institutional qualifications and other requirements as
necessary and not inconsistent with this section.
§7-14D-21. Burial benefit.
Any member who dies as a result of any service related illness or injury after the effective
date is entitled to a lump sum burial benefit of five thousand dollars. If the member is married, the
burial benefit shall be paid to the member's spouse. If the member is not married, the burial benefit
shall be paid to the member's estate for the purposes of paying burial expenses, settling the
member's final affairs, or both. Any unspent balance shall be distributed as a part of the member's
estate. If the member is not entitled to a death benefit under sections eighteen and nineteen of this
article, then if greater than five thousand dollars, the amount payable to the member's estate shall
be his or her accumulated contributions.
§7-14D-23. Loans to members.
(a) A member who is not yet receiving disability or retirement income benefits from the plan
may borrow from the plan no more than one time in any year an amount up to one half of his or her
accumulated contributions, but not less than five hundred dollars nor more than eight thousand
dollars: Provided, That the maximum amount of any loan when added to the outstanding balance
of all other loans shall may not exceed the lesser of the following: (1) Fifty Eight thousand dollars
reduced by the excess (if any) of the highest outstanding balance of loans to the member during the
one-year period ending on the day before the date on which the loan is made, over the outstanding
balance of loans to the member on the day on which the loan is made; or (2) fifty percent of his or
her accumulated contributions. No member is eligible to have more than one outstanding loan at
any time. No loan may be made from the plan if the board determines that the loans constitute more
than fifteen percent of the amortized cost value of the assets of the plan as of the last day of the
preceding plan year. The board may discontinue the loans any time it determines that cash flow
problems might develop as a result of the loans. Each loan shall be repaid through monthly
installments over periods of six through sixty months and carry interest on the unpaid balance and
an annual effective interest rate that is two hundred basis points higher than the most recent rate of
interest used by the board for determining actuarial contributions levels: Provided, however, That
interest charged shall be commercially reasonable in accordance with the provisions of section
72(p)(2) of the Internal Revenue Code and federal regulations issued thereunder. Monthly loan
payments shall be calculated to be as nearly equal as possible with all but the final payment being
an equal amount. An eligible member may make additional loan payments or pay off the entire loan
balance at any time without incurring any interest penalty. At the member's option, the monthly
loan payment may include a level premium sufficient to provide declining term insurance with the
plan as beneficiary to repay the loan in full upon the member's death. If a member declines the
insurance and dies before the loan is repaid, the unpaid balance of the loan shall be deducted from
the lump sum insurance benefits payable under section twenty-one of this article.
(b) A member with an unpaid loan balance who wishes to retire may have the loan repaid
in full by accepting retirement income payments reduced by deducting from the actuarial reserve
for the accrued benefit the amount of the unpaid balance and then converting the remaining of the
reserve to a monthly pension payable in the form of the annuity desired by the member.
(c) The entire unpaid balance of any loan, and interest due thereon, shall at the option of the
retirement board become due and payable without further notice or demand upon the occurrence
with respect to the borrowing member of any of the following events of default: (1) Any payment
of principal and accrued interest on a loan remains unpaid after the same become due and payable
under the terms of the loan or after such grace period as may be established in the discretion of the
retirement board; (2) the borrowing member attempts to make an assignment for the benefit of
creditors of his or her benefit under the retirement system; or (3) any other event of default set forth
in rules promulgated by the board pursuant to the authority granted in section one, article ten-d,
chapter five of this code: Provided, That any offset of such unpaid loan balance shall be made only
at such time as the member is entitled to receive a distribution under the plan.
(d) Loans shall be evidenced by such form of obligations and shall be made upon such
additional terms as to default, prepayment, security, and otherwise as the retirement board may
determine.
(e) Notwithstanding anything herein to the contrary, the loan program authorized by this
section shall comply with the provisions of section 72(p)(2) and section 401 of the Internal Revenue
Code and the federal regulations issued thereunder. The retirement board is authorized to: (a)
Apply and construe the provisions of this section and administer the plan loan program in such a
manner as to comply with the provisions of sections 72(p)(2) and section 401 of the Internal
Revenue Code; (b) adopt plan loan policies or procedures consistent with these federal law
provisions; and (c) take such actions as it deems considers necessary or appropriate to administer
the plan loan program created hereunder in accordance with these federal law provisions. The
retirement board is further authorized in connection with the plan loan program to take any actions that may at any time be required by the Internal Revenue Service regarding compliance with the
requirements of section 72(p)(2) or section 401 of the Internal Revenue Code, notwithstanding any
provision in this article to the contrary.
§7-14D-24a. Return to covered employment by retired member.
The annuity of any member who retires under the provisions of this article and who resumes
service in covered employment shall be suspended while such member continues in covered
employment. The monthly annuity payment for the month in which such service resumes shall be
prorated to the date of commencement of service, and such member shall again become a
contributing member during such resumption of service. At the conclusion of such resumed service
in covered employment the member shall have his or her annuity recalculated to take into account
the entirety of service in covered employment."
The bill was then ordered to third reading.
S. B. 608, Allowing continuance of summary certificate of need reviews for proposed
behavioral health services; on second reading, coming up in regular order, was read a second time
and ordered to third reading.
S. B. 646, Authorizing centers for economic development and technology advancement; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Education, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by striking out the
remainder of the bill, and inserting in lieu thereof the following:
"That chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended by adding thereto a new article, designated article twelve-a; that article
one, chapter eighteen-c of said code be amended by adding thereto a new section, designated section
five; that section two, article five of said chapter eighteen-c be amended and reenacted; that section
three, article seven of said chapter be amended and reenacted; and that article seven of said chapter
be amended by adding thereto a new section, designated section three-a, all to read as follows:
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 12A. CENTERS FOR ECONOMIC DEVELOPMENT AND TECHNOLOGY
ADVANCEMENT.
§18B-12A-1. Legislative findings and purpose.
(a) The Legislature finds that economic development in West Virginia depends in part on
the effective and efficient management of research grants and opportunities at doctoral institutions
of higher education, on collaborations developed between doctoral institutions and businesses and
industry and on the advancement and commercialization of new and evolving technologies. It is in
the best interests of citizens of the state to develop programs which promote these goals and
contribute to the general economic welfare of citizens. In order to enhance the competitive position
of doctoral institutions in the current environment for research and economic development,
expenditures for equipment and material for research projects must be handled efficiently and
effectively and the acquisition and use of grant funds should be simplified and expedited through
the use of centers for economic development and technology advancement.
(b) The purpose of this article is to provide a mechanism for doctoral institutions to enter into
agreements with centers for economic development and technology advancement to provide
research assistance; to provide maximum flexibility as to the form of organization of centers so as
to encourage and facilitate private sector participation in and support of research and economic
development grants and opportunities in collaboration with doctoral institutions; to expedite the
acquisition, administration and management of research and development grants and opportunities;
to provide technical assistance in the commercialization of research opportunities; and to authorize
doctoral institutions to contract with centers organized for the purpose of providing these services.
§18B-12A-2. Definitions.
The following words used in this article have the meaning ascribed to them in this section
unless the context clearly indicates a different meaning:
(a) 'Agreement' means any agreement or contractual relationship being entered into between a doctoral institution and a center pursuant to the provisions of this article.
(b) 'Center' means a center for economic development and technology advancement created
pursuant to section three of this article.
(c) 'Governing body' means the governing body of a center created pursuant to the
provisions of this article.
(d) 'President' means the chief executive officer of a center employed pursuant to section
five of this article.
(e) 'Doctoral institution' means a state institution of higher education as defined in
subsection (d), section one, article eight of this chapter.
§18B-12A-3. Establishment of centers for economic development and technology
advancement; doctoral institutions authorized to enter into agreements.
There is authorized the establishment of independent entities to be known as centers for
economic development and technology advancement. Each center shall be formed with respect to
a specific doctoral institution and each center shall meet the following conditions:
(1) Representatives from private sector business and industry constitute a majority of the
voting members of the governing body of each center;
(2) The president of the appropriate doctoral institution or a senior member of the doctoral
institution's administrative staff is a member of the appropriate governing body.
(3) Each center shall be organized as one of the following:
(A) A nonprofit, nonstock corporation under the general corporation laws of the state
exclusively for charitable, educational or scientific purposes within the meaning of section 501(c)
of the Internal Revenue code of 1986, as amended; or
(B) A corporation, partnership, limited partnership, limited liability company or other form
of entity authorized to be formed under this code.
§18B-12A-4. Powers and duties of governing bodies and centers.
The primary responsibility of each center is to foster and support economic development and the advancement and commercialization of new and emerging technologies through collaboration
agreements between business-industry and the respective doctoral institution. To that end, the
governing body of each center has the following powers and duties:
(a) To adopt and amend, from time to time, a statement of purpose and scope of operations.
When the governing body amends the purpose or scope of a center, the governing body shall advise
the appropriate doctoral institution of the changes;
(b) To employ a president subject to the provisions of section five of this article;
(c) To approve employment of other staff recommended by the president as being necessary
and appropriate to carry out the purpose and scope of the center;
(d) To serve as fiscal agent and provide additional services including, but not limited to,
evaluation of technology, verification and assessment of market applications, grant administration
and human resource management for any entity associated with the doctoral institution if the entity
is engaged in business-industry collaborations, technology advancement and commercialization
activities and research into new areas of economic development.
(e) To meet as a governing body: Provided, That centers created under this article are exempt
from the provisions of section three, article nine-a, chapter six of this code and from the provisions
of article one, chapter twenty-nine-b of this code;
(f) To receive, purchase, hold, lease, use, sell and dispose of real and personal property of
all classes, including all kinds of intellectual property, subject to the provisions of section ten of this
article;
(g) To receive and accept from any public or private agency, corporation, association,
person, partnership, company, or any other organization or entity of any nature whatsoever, grants
to be expended in accomplishing the objectives of this article and to receive and accept from the
state, from any municipality, county or other political subdivision of the state and from any other
source, aid or contributions of either money, property or other things of value to be held, used and
applied only for the purposes for which the grants and contributions may be made;
(h) To accept and expend any gift, grant, contribution, bequest, endowment or other money
for the purposes of this article and to make a maximum effort to encourage external support for the
center's programs. Any transfer of endowment or other assets by the doctoral institution to a center
or by the center to the doctoral institution for management or investment shall be formalized in a
memorandum of agreement to assure, at a minimum, that any restrictions governing the future
disposition of funds are preserved;
(i) To make, amend and repeal bylaws and rules consistent with the provisions of this article
to carry into effect the purpose and scope of the center and, subject to such directions and limitations
as may be contained in its governing documents, to delegate the exercise of any of its powers to the
president except for the power to approve budgets; to make, amend or repeal its governing
documents; or to alter the purpose or scope of the center;
(j) In addition to the powers and duties provided for in this section and any other powers and
duties that may be assigned to it by law or agreement, each center has such other powers and duties
as may be necessary or expedient to accomplish the objectives of this article or as provided by law.
§18B-12A-5. Appointment of president; qualifications.
(a) The governing body of each center shall employ a president who shall be the chief
executive officer of the center and who shall serve at the will and pleasure of the governing body;
(b) The center shall be under the control and supervision of the president who, with the
approval of the governing body, may employ staff as is necessary to carry out the center's purpose
and scope;
(c) The governing body shall set the qualifications for the position of president and shall
conduct a thorough search for qualified candidates. A qualified candidate is one who meets at least
the following criteria:
(1) Possesses a broad understanding of the relationship between public and private sector
research, the advancement and commercialization of new and emerging technologies and economic
development and has significant experience and an established professional reputation in these fields;
(2) Holds, at a minimum, a bachelor's degree in a field related to the duties and
responsibilities of the position of president;
(3) Demonstrates specifically that he or she has developed effective and successful grant
management skills, as well as skill in fostering collaborations between business-industry and
doctoral institutions;
(4) Demonstrates strong communication skills and the ability to work with all types of
businesses and industry, government agencies and higher education institutions; and
(5) Possesses other skills, qualifications or attributes as the governing body may consider
appropriate or desirable.
§18B-12A-6. Agreements; required provisions.
0(a) Notwithstanding section ten, article three, chapter twelve of this code or any other
provision of law to the contrary, each doctoral institution is hereby authorized to enter into
agreements with one or more centers: Provided, That each center is formed with respect to that
specific doctoral institution and meets the conditions set forth either in paragraph (A) or paragraph
(B), subdivision (2), section three of this article.
(b) Any agreement with a center shall benefit the doctoral institution or one or more of its
schools, departments or institutes whose purpose is to further economic development, training,
education and technology research and development in its region.
(c) On the effective date of the agreement, the center is charged with the responsibility of
serving as fiscal agent for specified sponsored projects conducted by the faculty, staff and students
of the doctoral institution pursuant to terms of the agreement and grants shall be accepted by the
center on behalf of the doctoral institution and assigned to the center for fiscal management.
(d) If an agreement is terminated, the funds, contributions or grants paid or held by the center
and not encumbered or committed prior to termination shall be distributed as provided for in the
agreement.
(e) If part of the agreement, a center may utilize both center employees and personnel of the
doctoral institution. The center may pay the costs incurred by the doctoral institution, including
personnel funded on grants and contracts, fringe benefits of personnel funded on grants and
contracts, administrative support costs and other costs which may require reimbursement. The
center may include as costs any applicable overhead and fringe benefit assessments necessary to
recover the costs expended by the doctoral institution, pursuant to the terms of the agreement, and
the doctoral institution may be reimbursed for expenses incurred by it pursuant to the agreement.
§18B-12A-7. Audit.
The operations of the center are subject to an audit by an independent auditor.
§18B-12A-8. Conflicts of interest.
Notwithstanding any other provision of this code to the contrary, officers and employees of
a governing board and the affected doctoral institution may hold appointments to offices of the
center and be members of its governing body or officers or employees of other entities contracting
with either the center or a governing board of a doctoral institution. The governing body shall make
an annual report of these appointments to the doctoral institution.
§18B-12A-9. No waiver of sovereign immunity.
Nothing contained in this article may be construed to waive or abrogate in any way the
sovereign immunity of the state or to deprive the governing board of a doctoral institution, a doctoral
institution or any officer or employee of a doctoral institution of sovereign immunity.
§18B-12A-10. Not obligation of the state.
Obligations of a governing body or its center do not constitute debts or obligations of a
doctoral institution, the governing board of a doctoral institution or the state.
§18B-12A-11. Report to joint commission on economic development.
Each doctoral institution shall report annually to the joint commission on economic
development established pursuant to section two, article three, chapter five-b of this code on
economic development and technology advancement and commercialization activities of any center or centers associated with the doctoral institution. This report shall be made to the joint commission
no later than the thirty-first day of December of each year.
ARTICLE 1. FINANCIAL ASSISTANCE GENERALLY.
§18C-1-5. Funding priority.
The Legislature finds that student financial aid is of great importance to the welfare of the
citizens of the state, is a valuable economic development resource to the state and has priority over
funding necessities in circumstances requiring budget reductions to any institution or commission
of higher education. When budget reductions to higher education funds are required, each entity
shall strive to maintain the current levels of student financial aid, and may not reduce the student
financial aid funding level appropriated by the Legislature prior to reducing all other appropriations
to higher education funds except those higher education funds which appropriate debt service. If
reduced, a financial aid appropriation shall be reduced in a proportion lesser than that of other
spending accounts.
CHAPTER 18C. STUDENT LOANS; SCHOLARSHIPS AND STATE AID.
ARTICLE 5. HIGHER EDUCATION GRANT PROGRAM.
§18C-5-2. Definitions.
(a) 'Approved institution of higher education' means: A state institution of higher education
as defined in section two, article one, chapter eighteen-b of this code; and Alderson-Broaddus
college, Appalachian Bible college, Bethany college, the college of West Virginia, Davis and Elkins
college, Ohio Valley college, Salem-Teikyo college, the university of Charleston, West Virginia
Wesleyan college and Wheeling Jesuit college, all in West Virginia; and any other regionally or
nationally accredited institution of higher education in this state, public or private, approved by the
senior administrator.
(b) 'Grant' or 'grant program' means a grant or the grant program authorized and established
by the provisions of this article.
(c) 'Senior administrator' means the senior administrator defined vice chancellor for administration, as provided in section two, article one, chapter eighteen-b of this code.
ARTICLE 7. WEST VIRGINIA PROVIDING REAL OPPORTUNITIES FOR
MAXIMIZING IN-STATE STUDENT EXCELLENCE SCHOLARSHIP PROGRAM.
§18C-7-3. Definitions.
(a) 'Eligible institution' means:
(1) A state institution of higher education as is defined in section two, article one, chapter
eighteen-b of this code;
(2) Alderson-Broaddus College, Appalachian Bible College, Bethany College, the College
of West Virginia, Davis and Elkins College, Ohio Valley College, Salem International University,
the University of Charleston, West Virginia Wesleyan College and Wheeling Jesuit University, all
in West Virginia. Provided, That If any institution listed in this subdivision is not regionally
accredited, it shall may not be included as an eligible institution; or
(3) Any other regionally or nationally accredited institution in this state, public or private,
approved by the board; or
(4) Any allied health or hospital-based training program in the state that leads to state
licensure.
(b) 'Board' means the West Virginia PROMISE scholarship board of control of the West
Virginia PROMISE scholarship program as provided for in section four of this article.
(c) 'Tuition' means the quarter, semester or term charges imposed by a state institution of
higher education and all mandatory fees required as a condition of enrollment by all students.
§18C-7-3a. Award eligibility for students in certain programs.
(a) Any eligible applicant who declined a PROMISE scholarship award in the two thousand
two - two thousand three academic year shall receive an award in the two thousand three - two
thousand four academic year if that student:
(1) Attended an allied health or hospital-based training program in the state that leads to state
licensure;
(2) Has not completed the training program; and
(3) Meets the continuing eligibility requirements of the scholarship program.
(b) The continuing eligibility requirements of the scholarship program apply to subsequent
awards of any student receiving an award pursuant to this section."
The bill was then ordered to third reading.
S. B. 652, Renaming Marion health care hospital John Manchin, Sr., health care center; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Health and Human Resources, was
reported by the Clerk and adopted, amending the bill on page two, line three by striking out
everything following the enacting section and inserting in lieu thereof the following:
ARTICLE 8. EMERGENCY HOSPITALS.
"§26-8-1. Continuation; management; superintendent; qualifications of superintendent;
division of fiscal, administrative and clinical duties; certain persons exempted from
qualification requirements.
(a) The hospitals heretofore established and known, respectively, as Welch Emergency
Hospital and Fairmont Emergency Hospital shall be continued and shall be managed, directed and
controlled as prescribed in article eleven of this chapter: Provided, That the hospital heretofore
known established as Fairmont Emergency Hospital and later renamed the Marion health care
hospital shall henceforth be known as the Marion Health Care Hospital John Manchin, Sr. health
care center, and any reference in this code to the Fairmont Emergency Hospital shall mean the
Marion Health Care Hospital or the Marion health care hospital shall mean the John Manchin, Sr.
health care center.
(b) The chief executive officer of each of said hospitals shall be the superintendent, who shall
be a college graduate and have a minimum of two years' experience in either hospital
administration, health services administration or business administration with broad knowledge of
accounting, purchasing and personnel practices as related to the rendition of health and health-related services.
(b) (c) For purposes of this section, A superintendent is 'superintendent' means the person
having the fiscal responsibility of the hospital and the authority to manage and administer the
financial, business and personnel affairs of the hospital. (c) A clinical director is 'Clinical director'
means the person having the responsibility for decisions involving clinical and medical treatment
of patients, and who shall be a duly qualified physician licensed to practice medicine in the state of
West Virginia.
(d) The provisions of this section relating to the qualification of persons eligible to serve as
superintendent shall not apply to any person serving in the capacity of business manager on the
effective date hereof and who has served in such capacity for at least six consecutive months next
preceding such effective date.
ARTICLE 11. STATE EXTENDED CARE AND EMERGENCY FACILITIES.
§26-11-1. Management by director of health.
The director of health or his or her successor shall manage, direct, control and govern the
Andrew S. Rowan Memorial Home, Denmar Hospital, heretofore established and known as Denmar
State Hospital, Hopemont Hospital, heretofore known as Hopemont State Hospital, Pinecrest
Hospital, John Manchin, Sr. health care center, established as the Fairmont Emergency Hospital and
formerly known as the Marion Health Care Hospital, heretofore known as Fairmont Emergency
Hospital and Welch Emergency Hospital and such other state health care facilities as are or may
hereafter be created by law.
The director shall designate the functions of each facility and prescribe guidelines for the
admission of persons thereto, pursuant to rules and regulations promulgated by the board of health,
and shall supervise the business, personnel and clinical responsibilities of each facility: Provided,
That in prescribing admission guidelines, precedence shall be given to persons unable to pay
therefor."
The bill was then ordered to third reading.
The Clerk announced that, pursuant to House Rule 70a, Delegates Trump and Stemple had
requested S. B. 198 be removed from the Consent Calendar and be placed upon the House Calendar.
The Clerk announced that, pursuant to House Rule 70a, Delegate Trump had requested S.
B. 204 be removed from the Consent Calendar and be placed upon the House Calendar.
The Clerk announced that, pursuant to House Rule 70a, Delegate Michael had requested S.
B. 496 be removed from the Consent Calendar and be placed upon the House Calendar.
Special Calendar
Unfinished Business
H. C. R. 24, Requesting the United States Congress to broaden the eligibility categories of
membership in veterans organizations; coming up in regular order, as unfinished business, was
reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. C. R. 27, Requesting Joint Committee on Government and Finance study protection of
water supply; coming up in regular order, as unfinished business, was reported by the Clerk and
adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
H. C. R. 35, Requesting a study of the shortage of qualified nursing personnel to be involved
in various studies; coming up in regular order, as unfinished business, was reported by the Clerk and
adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. C. R. 47, Requesting construction of access road to Beckley Veterans Administration
Medical Center; coming up in regular order, as unfinished business, was reported by the Clerk and
adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
H. C. R. 66, Requesting a study of the benefits of captive insurance companies and the most
effective means of regulating these entities; coming up in regular order, as unfinished business, was
reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 67, Requesting a study on payday advances and lending; coming up in regular
order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 68, Requesting a study of the availability and affordability of automobile insurance
in West Virginia; coming up in regular order, as unfinished business, was reported by the Clerk and
adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 69, Requesting a study of the availability and affordability of commercial, property
and casualty insurance; coming up in regular order, as unfinished business, was reported by the
Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 70, Naming the new bridge crossing the Elk River on State Route 4, south of
Gassaway, the "Veterans Memorial Bridge"; coming up in regular order, as unfinished business, was
reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 72, Naming the lane, immediately to the right after crossing a cement bridge and
after turning left off of U.S. Route 250 North of the Town of Metz in Marion County, "Sam Slay
Lane"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 74, Naming the bridge to be built over Pigeon Creek above Taylorville, Mingo
County, West Virginia, the "Ireland & Willis Duty Bridge"; coming up in regular order, as
unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 84, Calling upon the United States government to provide funding assistance for
the unfunded mandates it places upon the states; coming up in regular order, as unfinished business,
was, on motion of Delegate Staton, laid over one day.
Third Reading
H. B. 2119, Increasing the rate of the tax on cigarettes; on third reading, coming up in
regular order, was, on motion of Delegate Staton, laid upon the table.
S. B. 105, Increasing tax on cigarettes; on third reading, coming up in regular order, was read
a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 377),
and there were--yeas 59, nays 38, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Blair, Browning, Butcher, Calvert, Caputo,
Carmichael, Craig, Ellem, Ennis, Faircloth, Ferrell, Frederick, Hall, Hrutkay, Kuhn, Leggett,
Louisos, Overington, Schadler, Schoen, Shaver, Shelton, Sobonya, Stalnaker, Sumner, Thompson,
R., Wakim, Walters, Webb, White, G., White, H., Wright, Yeager and Yost.
Absent And Not Voting: Border, Coleman and Renner.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (S. B. 105) passed.
Delegate Staton moved that the bill take effect May 1, 2003.
On this question, the yeas and nays were taken (Roll No. 378), and there were--yeas 74, nays
24, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Azinger, Border, Browning, Butcher, Calvert, Carmichael, Ellem,
Faircloth, Ferrell, Hall, Hrutkay, Kuhn, Louisos, Overington, Schadler, Schoen, Sobonya, Sumner,
Tucker, Wakim, Walters, Webb and Yeager.
Absent And Not Voting: Coleman and Renner.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 105) takes effect May 1, 2003.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 329, Authorizing miscellaneous agencies and boards to promulgate legislative rules;
on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 379),
and there were--yeas 86, nays 12, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Ashley, Blair, Duke, Ellem, Hall, Louisos, Overington, Schoen, Sobonya, Trump,
Walters and Yost.
Absent And Not Voting: Coleman and Houston.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for S. B. 329) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 380), and there were--yeas 91, nays
8, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Duke, Ellem, Hall, Louisos, Overington, Schoen, Sobonya and Walters.
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 329) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 648, Relating to election laws generally; on third reading, coming up in regular order,
was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 381),
and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being
as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (S. B. 648) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 648 - "A Bill to repeal section forty, article one, chapter three of the code of West
Virginia, one thousand nine hundred thirty-one, as amended; to repeal section twenty, article two
of said chapter; to repeal section twenty-one, article four-a of said chapter; to repeal section twenty-
one, article nine of said chapter; to amend and reenact sections seven, nine, twenty, twenty-one,
twenty-four, twenty-five, twenty-eight, twenty-nine, thirty, thirty-four, thirty-nine, forty-one, forty-
four and forty-five, article one of said chapter; to further amend said article by adding thereto three
new sections, designated sections forty-eight, forty-nine and fifty; to amend and reenact sections
two, three, five, seven, ten, thirteen, nineteen and thirty, article two of said chapter; to further amend
said article by adding thereto a new section, designated section four-a; to amend and reenact sections
one, two, two-a, three, five, five-c, seven, eight, ten and eleven, article three of said chapter; to amend and reenact sections ten and twenty-three, article four of said chapter; to amend and reenact
sections nine, nineteen, twenty-two, twenty-four-a and twenty-seven, article four-a of said chapter;
to amend and reenact sections ten, thirteen, fifteen and nineteen, article five of said chapter; to
amend and reenact sections three, four-a, five, six, seven and nine, article six of said chapter; to
amend and reenact sections one and four, article seven of said chapter; to amend and reenact
sections two, four, five, and twelve, article eight of said chapter; to amend and reenact sections
seven and eight, article ten of said chapter; and to amend and reenact section two, article six, chapter
eight of said code, all relating to elections generally; requiring written notice to registered voters if
precinct is changed; clarifying how members of the state executive committees are elected and
providing for additional members; specifying the information to be on the general information cards;
providing instruction on casting a provisional ballot; requiring posting of names of official write-in
candidates; requiring all information available to voters on election day to be available during the
early in-person voting period; requiring the circuit clerk to transfer absentee ballots to the clerk of
the county commission where clerk of the county commission is responsible for absentee voting;
authorizing poll clerks to pick up election supplies; authorizing reimbursement for county
employees who deliver election supplies; prohibiting election officials from also being official
write-in candidates; making expanded receiving boards optional; clarifying that alternate election
officials be paid for attending training; changing challenged ballot to provisional ballot throughout;
clarifying that the clerk of the county commission may use election records and returns to update
voter registration records; eliminating the requirement for the immediate arrest of a person accused
of voting illegally; establishing procedures for taking and securing affidavits regarding illegal
voting; providing for the secured affidavits to be given to the prosecuting attorney; establishing
procedures for challenging ballots and voting a provisional ballot; requiring that the secretary of
state establish a system to allow provisional voters to learn whether or not their vote was counted
and why; requiring the circuit court to decide proceedings to compel performance of election duties
within fifteen days; establishing a state election fund; setting new standards for voting systems; providing for state administrative complaint procedures for election law violations; authorizing the
secretary of state to establish and maintain a statewide voter registration list; providing for stricter
identification procedures for voter registration; clarifying when seventeen-year-olds may vote in
municipal elections; providing that voter registration services will be provided whenever the office
of the clerk of the county commission is open for business; clarifying that the secretary of state must
periodically review and revise the rule relating to voter registration; clarifying that voter registration
lists or data files may not be used or sold for commercial or charitable solicitations or advertising;
changing regular absentee voting to early in-person voting; allowing voters who have resided in a
nursing home for less than thirty days to vote by an emergency absentee ballot; clarifying that
absentee ballots require a mail-in absentee ballot application; authorizing two representatives to
assist with absentee voting and establishing qualifications; expanding the early in-person voting
period to twenty days; eliminating voting on Monday before a Tuesday election and adding voting
on the two Saturdays prior to the election; requiring notice to voters that Monday voting is no longer
available; clarifying procedures for, and materials required for, early in-person voting; authorizing
representatives to sign the back of mail-in ballots; requiring proper supplies be sent to mail-in
absentee voters; establishing measures for securing mail-in absentee ballots; providing that the
emergency absentee ballot commissioners must sign an oath; authorizing counties that use paper
ballots to begin counting absentee ballots at nine o'clock the morning of election day; removing
certain requirements for challenging absentee ballots; removing language that require ballot
commissioner's signatures on absentee ballots; requiring that all electronic voting system materials
be retained twenty-two months; providing that a person who assists voters casting their ballots
cannot be a candidate on the ballot or an official write-in candidate; removing the requirement that
write-in votes be indicated by punching out write-in voting position on a punch card ballot in
addition to entering the candidate's name; providing that the publication of sample ballots will be
made not more than twenty-six nor less than twenty days prior to the primary and general elections;
requiring numbers and perforated stubs on paper ballots; clarifying the requirements for an executive committee to call a meeting to fill vacancies on a ballot; allowing issues of candidate eligibility to
be brought before the election commission; requiring the certificate of announcement for a write-in
candidate be received by the close of business the eighteenth day prior to the election; requiring
contests for state offices, legislative seats and judgeships to be filed within ten days of the
certification of the election; removing the requirement that political committees advocating for or
against an issue file financial statements; excluding federal political action committees from filing
with the state; allowing a change of treasurer of a campaign committee by filing a written statement;
requiring that candidates in a primary election file financial statements on the last Saturday in March
or within six days thereafter; requiring that candidates in a general election file financial statement
on the first Saturday in September or within six days thereafter; eliminating requirement that
financial reports be notarized and requiring them to be sworn; allowing corporations to participate
in nonpartisan registration and get-out-the-vote campaigns; prohibiting anonymous radio or
television advertisements advocating the election or defeat of candidates; clarifying how a vacancy
in the office of county commissioner or clerk of the county commission is to be filled; removing
requirement to fill certain vacancies by election if the unexpired term is greater than one year;
removing inconsistent time frames for holding annexation election; and clarifying that a majority
of votes in the municipality and a majority of votes in the territory to be annexed determine the
outcome of annexation elections."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegate Renner announced that she was absent when the votes were taken on Roll Nos. 377
and 378, and had she been present she would have voted "Yea" thereon.
Second Reading
Com. Sub. for S. B. 56, Prohibiting certain insurers to require persons under contract to use
mail-order pharmacy; on second reading, coming up in regular order, was read a second time and
ordered to third reading.
S. B. 76, Increasing amount from consolidated fund as loan to economic development
authority; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"That section twelve-a, article one, chapter twelve of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be repealed; that sections ten, fifteen, nineteen and
twenty-one, article six of said chapter be repealed; that sections two, seven, twelve and thirteen,
article one of said chapter be amended and reenacted; that sections one, two and three, article two
of said chapter be amended and reenacted; that sections one and one-a, article three of said chapter
be amended and reenacted; that sections three, four and six, article three-a of said chapter be
amended and reenacted; that sections one and five, article five of said chapter be amended and
reenacted; that sections one-a, two, five, eight, nine-e, twelve, thirteen and sixteen, article six of said
chapter be amended and reenacted; that said chapter be further amended by adding thereto a new
article, designated article six-c; and that section twenty, article fifteen, chapter thirty-one of said
code be amended and reenacted, all to read as follows:
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1. STATE DEPOSITORIES.
§12-1-2. Depositories for demand deposits; categories of demand deposits; competitive
bidding for disbursement accounts; maintenance of deposits by state
treasurer.
The state treasurer shall designate the state and national banks and the state and federal
savings and loan associations in this state which shall serve meeting the requirements of this chapter
as depositories for all state funds placed in demand deposits. Any such state or national bank shall,
upon request to the treasurer, be designated as a state depository for such deposits, if such bank
meets the requirements set forth in this chapter.
Demand deposit accounts shall consist of receipt and disbursement accounts. Receipt
accounts shall be those are accounts in which are deposited moneys belonging to or due the state of
West Virginia or any official, department, board, commission or agency thereof.
Disbursement accounts shall be those are accounts from which are paid moneys due from
the state of West Virginia or any official, department, board, commission, political subdivision or
agency thereof to any political subdivision, person, firm or corporation, except moneys paid from
investment accounts.
Investment accounts shall be those are accounts established by the West Virginia investment
management board or the state treasurer for the buying and selling of securities for investment for
the state of West Virginia purposes.
The state treasurer shall promulgate rules, in accordance with the provisions of article three,
chapter twenty-nine-a of this code, concerning depositories for receipt accounts prescribing the
selection criteria, procedures, compensation and such other contractual terms as it considers to be
in the best interests of the state giving due consideration to: (1) The activity of the various accounts
maintained therein; (2) the reasonable value of the banking services rendered or to be rendered the
state by such depositories; and (3) the value and importance of such deposits to the economy of the
communities and the various areas of the state affected thereby.
The state treasurer shall select depositories for disbursement accounts through competitive
bidding by eligible banks in this state. If none of the eligible banks in this state are able to provide
any of the needed services, then the treasurer may include eligible banks outside this state in the
competitive bidding process. The treasurer shall promulgate rules in accordance with the provisions
of article three, chapter twenty-nine-a of this code, prescribing the procedures and criteria for the
bidding and selection. The treasurer shall, in the invitations for bids, specify the approximate
amounts of deposits, the duration of contracts to be awarded and such other contractual terms as it
considers to be in the best interests of the state the treasurer determines appropriate, consistent with
obtaining the most efficient service at the lowest cost.
The amount of money needed for current operation purposes of the state government, as
determined by the state treasurer, shall be maintained at all times in the state treasury, in cash, in
short term investments not to exceed five days, or in disbursement accounts with banks designated
as depositories in accordance with the provisions of this section. No state officer or employee shall
make or cause to be made any deposits of state funds in banks not so designated. Only banks and
state and federal savings and loan associations designated by the treasurer as depositories may
accept deposits of state funds and only the Legislature and the state treasurer may determine whether
funds are state funds: Provided, That this provision shall not apply to the proceeds from the sale of
general obligation bonds or bonds issued by the school building authority, the parkways, economic
development and tourism authority, the housing development fund, the economic development
authority, the infrastructure and jobs development council, the water development authority or the
hospital finance authority. Notwithstanding any provision of this code to the contrary, approval of
the treasurer is required before any spending unit may open an account in or process a transaction
through a financial institution, except for trust and investment accounts and activities related to an
issuance of bonds.
As used in this chapter, 'spending unit' means a department, agency or institution of state
government for which an appropriation is requested, or to which an appropriation is made by the
Legislature.
§12-1-7.Rules; banking contracts and agreements; depositors; agreements.
In addition to rules specially authorized in this article, the West Virginia investment
management board and the state treasurer are generally authorized to promulgate any rules necessary
to protect the interests of the state, its depositories and taxpayers. All rules promulgated shall be are
subject to the provisions of article three, chapter twenty-nine-a of this code. Any rules previously
established by the board of public works, the board of investments, the investment management
board or the state treasurer pursuant to this article shall remain in effect until amended, superseded
or rescinded.
Only the treasurer may enter into contracts or agreements with financial institutions for
banking goods or services required by spending units, as defined in section one, article one, chapter
five-a of this code: Provided, That this provision does not apply to trust and investment accounts
and activities for general obligation bonds and bond issues of the school building authority, the
parkways, economic development and tourism authority, the housing development fund, the
economic development authority, the infrastructure and jobs development council, the water
development authority or the hospital finance authority. A state spending unit requiring banking
goods or services shall submit a request for the goods or services to the treasurer. If the treasurer
enters into a contract or agreement for the required goods or services, spending units using the
contract or agreement shall pay either the vendor or pay the treasurer for the goods or services used.
The treasurer is also authorized to enter into any depositors' agreements for the purpose of
reorganizing or rehabilitating any depository in which state funds are deposited, and for the purpose
of transferring the assets, in whole or in part, of any depository to any other lawful depository when,
in the judgment of the treasurer, the interests of the state will be are promoted thereby, and upon
condition that no right of the state to preferred payment be is waived.
§12-1-12.Investing funds in treasury; depositories outside the state.
When the funds in the treasury exceed the amount needed for current operational purposes,
as determined by the treasurer, the treasurer shall make all of such excess available for investment
by the investment management board which shall invest the excess for the benefit of the general
revenue fund: Provided, That the state treasurer, after reviewing the cash flow needs of the state,
may withhold and invest amounts not to exceed one hundred twenty-five million dollars of the
operating funds needed to meet current operational purposes. Investments made by the state
treasurer under this section shall be made in short term investments not to exceed five days.
Operating funds means the consolidated fund established in section eight, article six of this chapter,
including all cash and investments of the fund.
The state treasurer may invest funds in the consolidated fund through his or her office or with the West Virginia investment management board. Spending units with authority to retain interest
on a fund may submit requests to the treasurer to transfer moneys to a specific investment pool of
the state treasurer's office or the investment management board and retain any interest or other
earnings on the money invested. The general revenue fund shall receive all interest or other earnings
on money invested that are not designated for a specific fund.
Whenever the funds in the treasury exceed the amount for which depositories within the state
have qualified, or the depositories within the state which have qualified are unwilling to receive
larger deposits, the treasurer may designate depositories outside the state, disbursement accounts
being bid for in the same manner as required by depositories within the state, and when such
depositories outside the state have qualified by giving the bond prescribed in section four of this
article, the state treasurer shall deposit funds therein in like in the same manner as funds are
deposited in depositories within the state under this article.
The state treasurer may transfer funds to banks financial institutions outside the state to meet
obligations to paying agents outside the state and any such transfer if the financial institution must
meet meets the same bond collateral requirements as set forth in this article.
§12-1-13. Payment of banking services and litigation costs for prior investment losses.
(a) The treasurer is authorized to pay for banking services, and goods and services ancillary
thereto, by either a compensating balance in a noninterest-bearing account maintained at the
financial institution providing the services or with a state warrant as described in section one, article
five three of this chapter.
(b) The investment management board is authorized to pay for the investigation and pursuit
of claims against third parties for the investment losses incurred during the period beginning on the
first day of August, one thousand nine hundred eighty-four, and ending on the thirty-first day of
August, one thousand nine hundred eighty-nine. The payment may be in the form of a state warrant.
(c) If payment is made by a state warrant, the investment management board at the request
of the treasurer state treasurer is authorized to establish within the consolidated fund an investment pool which will generate sufficient income to pay for all banking services provided to the state and
to pay for the investigation and pursuit of the prior investment loss claims. All income earned by
the investment pool shall be paid into a special account of the treasurer to be known as the banking
services account and shall be used solely for the purpose of paying to pay for all banking services
and goods and services ancillary to the banking services provided to the state, for the investigation
and pursuit of the prior investment loss claims, amortize and for amortization of the balance in the
investment imbalance fund.
ARTICLE 2. PAYMENT AND DEPOSIT OF TAXES AND OTHER AMOUNTS DUE THE
STATE OR ANY POLITICAL SUBDIVISION
.
§12-2-1. How and to whom taxes and other amounts due the state or any political subdivision,
official, department, board, commission or other collecting agency thereof
may be paid.
All persons, firms and corporations shall promptly pay all taxes and other amounts due from
them to the state, or to any political subdivision, official, department, board, commission or other
collecting agency thereof authorized by law to collect the taxes and other amounts due by any
authorized commercially acceptable means, in money, United States currency or by check, bank
draft, certified check, cashier's check, post office money order, or express money order or electronic
funds transfer payable and delivered to the official, department, board, commission or collecting
agency thereof authorized by law to collect the taxes and other amounts due and having the account
upon which the taxes or amounts due are chargeable against the payer of the taxes or amounts due.
The duly elected or appointed officers of the state and of its political subdivisions, departments,
boards, commissions and collecting agencies having the account on which the taxes or other
amounts due are chargeable against the payer of the taxes or other amounts due and authorized by
law to collect the taxes or other amounts due, and their respective agents, deputies, assistants and
employees shall in no case be the agent of the payer in and about the collection of the taxes or other
amounts, but shall at all times and under all circumstances be the agent of the state, its political subdivision, official, department, board, commission or collecting agency having the account on
which the taxes or amounts are chargeable against the payer of the taxes or other amounts due and
authorized by law to collect the same.
§12-2-2.Itemized record of moneys received for deposit; rules governing deposits; credit
to state fund; exceptions.
(a) All officials and employees of the state authorized by statute to accept moneys due the
state of West Virginia shall keep a daily itemized record of moneys so received for deposit in the
state treasury and shall deposit within twenty-four hours with the state treasurer all moneys received
or collected by them for or on behalf of the state for any purpose whatsoever. The treasurer shall
be is authorized to review the procedures and methods used by officials and employees authorized
to accept moneys due the state and change such the procedures and methods if he or she determines
it to be is in the best interest of the state: Provided, That the treasurer shall not be is not authorized
to review or amend the procedures by which the department of tax and revenue accepts moneys due
the state. The treasurer shall propose rules, in accordance with the provisions of article three,
chapter twenty-nine-a of this code governing the procedure for deposits.
The official or employee making such deposits with the treasurer shall prepare deposit lists
in the manner and upon report forms as may be prescribed by the treasurer. Certified or receipted
copies shall be immediately forwarded by the state treasurer to the state auditor and to the secretary
of administration. The treasurer shall immediately forward certified or receipted copies to the state
auditor and secretary of administration. The original of the deposit report shall become is a part of
the treasurer's permanent record records.
(b) All moneys received by the state from appropriations made by the Congress of the United
States shall be recorded in special fund accounts, in the state treasury apart from the general
revenues of the state, and shall be expended in accordance with the provisions of article eleven,
chapter four of this code. All moneys, other than federal funds, defined in section two, article
eleven, chapter four of this code, shall be credited to the state fund and treated by the auditor and treasurer as part of the general revenue of the state except the following funds which shall be
recorded in separate accounts:
(1) All funds excluded by the provisions of section six, article eleven, chapter four of this
code;
(2) All funds derived from the sale of farm and dairy products from farms operated by any
agency of the state government other than the farm management commission spending unit of the
state;
(3) All endowment funds, bequests, donations, executive emergency funds, and death and
disability funds;
(4) All fees and funds collected at state educational institutions for student activities;
(5) All funds derived from collections from dormitories, boardinghouses, cafeterias and road
camps;
(6) All moneys received from counties by institutions for the deaf and blind on account of
clothing for indigent pupils;
(7) All insurance collected on account of losses by fire and refunds;
(8) All funds derived from bookstores and sales of blank paper and stationery; and
collections by the chief inspector of public offices
(9) All moneys collected and belonging to the capitol building fund, state road fund, state
road sinking funds, general school fund, school fund, state fund (moneys belonging to counties,
districts and municipalities), state interest and sinking funds, state compensation funds, the fund
maintained by the public service commission for the investigation and supervision of applications,
and all fees, money, interest or funds arising from the sales of all permits and licenses to hunt, trap,
fish or otherwise hold or capture fish and wildlife resources and money reimbursed and granted by
the federal government for fish and wildlife conservation;
(10) All moneys collected or received under any act of the Legislature providing that funds
collected or received thereunder shall be used for specific purposes.
(c) All moneys, excepted as provided in subdivisions (1) through (9), inclusive, subsection
(b) of this section, shall be paid into the state treasury in the same manner as collections not so
excepted, and shall be recorded in separate accounts to be used and expended only for receipt and
expenditure for the purposes for which the same are authorized to be collected by law: Provided,
That the Legislature may transfer any of the amounts collected pursuant to subdivision (10),
subsection (b) of this section, which are found from time to time to exceed funds needed for the
purposes set forth in general law may be transferred to other accounts or funds and redesignated for
other purposes by appropriation of the Legislature. The gross amount collected in all cases shall be
paid into the state treasury. and Commissions, costs and expenses, of collection authorized by
general law to be paid out of the gross collection, including bank and credit or check card fees, are
hereby authorized to be paid out of the moneys collected and paid into the state treasury including
without limitation amounts charged for use of bank, charge, check, credit or debit cards, incurred
in the collection process shall be paid from the gross amount collected in the same manner as other
payments are made from the state treasury.
(d) The state treasurer shall have authority is authorized to establish an imprest fund or funds
in the office of any state agency or institution making spending unit upon receipt of a proper
application. to the board To implement this authority, the treasurer shall propose rules in
accordance with the provisions of article three, chapter twenty-nine-a of this code. The treasurer
or his or her designee shall annually audit all imprest funds and prepare a list of all such the funds
showing the location and amount as of fiscal year end, retaining the list as a permanent record of the
treasurer until the legislative auditor has completed an audit of the imprest funds of all agencies and
institutions involved.
(e) The treasurer shall be is authorized to develop and implement a centralized receipts
processing center. The treasurer may request the transfer of equipment and personnel from
appropriate state agencies to the centralized receipts processing center in order to implement the
provisions of this subsection: Provided, That the governor or appropriate constitutional officer shall have final authority to authorize the transfer of equipment or personnel to the centralized receipts
processing center from the respective agency.
§12-2-3. Deposit of moneys not due the state.
All officials and employees of the state authorized to accept moneys that the state treasurer
determines or that this code specifies are not funds due the state pursuant to the provisions of section
two of this article shall deposit the moneys, as soon as practicable in the manner and in the
depository specified by the treasurer. The treasurer shall prescribe the forms and procedures for
depositing the moneys.
A spending unit shall obtain written authorization from the state treasurer before depositing
the funds any moneys in an account outside the treasury. Upon the treasurer's written revocation
of the authorization, the spending unit shall deposit funds deposited in an account outside the
treasury in into the treasury in the manner and in the depository specified by the treasurer. The
treasurer is the final determining authority as to whether these funds are funds moneys are moneys
due or not due the state pursuant to section two of this article. The treasurer shall on a quarterly
basis provide the legislative auditor with a report of all accounts approved by him or her authorized
under this section.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS.
§12-3-1. Manner of payment from treasury; form of checks.
(a) Every person claiming to receive money from the treasury of the state shall apply to the
auditor for a warrant for same. The auditor shall thereupon examine the claim, and the vouchers,
certificates and evidence, if any, offered in support thereof, and for so much thereof as he or she
finds to be justly due from the state, if payment thereof is authorized by law, and if there is an
appropriation not exhausted or expired out of which it is properly payable, the auditor shall issue
his or her warrant on the treasurer, specifying to whom and on what account the money mentioned
therein is to be paid, and to what appropriation it is to be charged. The auditor shall present to the
treasurer daily reports on the number of warrants issued, the amounts of the warrants and the dates on the warrants for the purpose of effectuating the investment policy policies of the state treasurer
and the investment management board. On the presentation of the warrant to the treasurer, the
treasurer shall ascertain whether there are sufficient funds in the treasury to pay that warrant, and
if he or she finds it to be so, he or she shall in that case, but not otherwise, endorse his or her check
upon the warrant, directed to some depository, which check shall be payable to the order of the
person who is to receive the money therein specified.
(b) If the a check is not presented for payment within six months after it is drawn, it shall
then be is the duty of the treasurer to credit it to the depository on which it was drawn, to credit the
unclaimed property fund pursuant to the provisions of article eight, chapter thirty-six of this code
stale check account, which is hereby created, and immediately notify the auditor to make
corresponding entries on the auditor's books. If the state treasurer determines any funds deposited
in the stale check account are federal funds, the state treasurer shall notify the spending unit
authorizing the payment. Within six months following issuance of the notice, the spending unit shall
inform the state treasurer of the amount of federal funds included in the check, the account from
which the federal funds were disbursed, and the current fiscal year account to which the federal
funds are to be transferred. After receiving the information, the state treasurer shall transfer the
amount of federal funds specified as a reimbursement to the current fiscal year account specified to
receive federal funds by the spending unit. For a period of up to six months, the state treasurer shall
endeavor to pay the money in the stale check account to the payee. The treasurer shall credit the
money that has been in the stale check account for six months, or for a shorter period as determined
by the treasurer, to the unclaimed property fund pursuant to the provisions of article eight, chapter
thirty-six of this code, and shall immediately notify the auditor to make corresponding entries on
the auditor's books.
(c) No state depository may pay a check unless it is presented within six months after it is
drawn and every check shall bear upon its face the words 'Void, unless presented for payment
within six months.'
(d) Any information or records maintained by the treasurer concerning any check which has
not been not presented for payment within six months one year of the date of issuance may only be
disclosed is confidential and exempt from disclosure under the provisions of article one, chapter
twenty-nine-b of this code, and is disclosable only to the state agency specified on spending unit
authorizing the check, or to the payee, his or her personal representative, next of kin or
attorney-at-law. and is otherwise confidential and exempt from disclosure under the provisions of
article one, chapter twenty-nine-b of this code
(e) All claims required by law to be allowed by any court, and payable out of the state
treasury, shall have the seal of the court allowing or authorizing the payment of the claim affixed
by the clerk of the court to his or her certificate of its allowance. No claim may be audited and paid
by the auditor unless the seal of the court is thereto attached as aforesaid. No tax or fee may be
charged by the clerk for affixing his or her seal to the certificate, referred to in this section. The
treasurer shall propose rules in accordance with the provisions of article three, chapter twenty-nine-a
of this code governing the procedure for such payments from the treasury.
§12-3-1a. Payment by deposit in bank account.
The auditor may issue his warrant on the treasurer to pay any person claiming to receive
money from the treasury by deposit to the person's account in any bank or other financial institution
by electronic funds transfer, if the person furnishes authorization of the method of payment. The
auditor shall prescribe the form of the authorization. If the authorization is in written form, it shall
be sent to the auditor for review and approval and then forwarded in electronic form to the treasurer.
If the authorization is in electronic form, it shall be sent to both the auditor and the treasurer. The
auditor must review and approve the authorization. This section shall may not be construed to
require the auditor to utilize the method of payment authorized by this section. An authorization
furnished pursuant to this section may be revoked by written notice furnished to the auditor and then
forwarded by the auditor in electronic form to the treasurer or by electronic notice furnished to both
the auditor and the treasurer. Upon execution of the authorization and its receipt by the office of the auditor, the warrant shall be created in the manner specified on the authorization and forwarded to
the treasurer for further disposition to the designated bank or other financial institution specified on
the electronic warrant: Provided, That after the first day of July, two thousand two, the state auditor
shall cease issuing paper warrants except for income tax refunds. After that date all warrants except
for income tax refunds, shall be issued by electronic funds transfer: Provided, however, That the
auditor, in his or her discretion, may issue paper warrants on an emergency basis. Provided further,
That the treasurer and the auditor may contract with any bank or financial institution for the
processing of electronic authorizations
ARTICLE 3A. FINANCIAL ELECTRONIC COMMERCE.
§12-3A-3. Financial electronic commerce.
The state auditor and the state treasurer shall implement electronic commerce capabilities
for each of their offices to facilitate the performance of their duties under this code. The state
auditor and the shall competitively bid the selection of vendors for the payment card program, the
state treasurer shall competitively bid the selection of vendors needed to provide the necessary
banking, investment and related services, for their offices and the provisions of article one-b, chapter
five, and articles three and seven, chapter five-a of this code shall not apply, unless requested by
the state auditor or state treasurer.
A record, or an authentication, a document or a signature issued or used by the auditor, or
the treasurer or the comptroller authorized in article two, chapter five-a of this code shall be
considered an original and may not be denied legal effect solely on the ground that it is in electronic
form.
The head of each spending unit is responsible for adopting and implementing security
procedures to ensure adequate integrity, security, confidentiality, and auditability of the business
transactions of his or her spending unit when utilizing electronic commerce.
§12-3A-4. Payment by the West Virginia check card.
The state auditor treasurer may establish a state debit card known as the 'West Virginia Check Card' for recipients of employee payroll or of benefits or entitlement programs processed by
the auditor who are considered unbanked and who do not possess a federally insured depository
institution account. The state auditor treasurer shall use every reasonable effort to make a federally
insured depository account available to a recipient, and to encourage all recipients to obtain a
federally insured depository account. Prior to issuing the West Virginia check card, the state auditor
treasurer shall first make a determination that a recipient has shown good cause that an alternative
method to direct deposit is necessary. The state auditor and the state treasurer shall jointly issue a
request for proposals in accordance with section three of this article to aid the auditor in the
administration of the program and to aid the treasurer in the establishment of state owned bank
accounts and accommodate accessible locations for use of the West Virginia check card. In carrying
out the purposes of this article, the state auditor and state treasurer shall not compete with banks or
other federally insured financial institutions, or for profit.
§12-3A-6. Receipting of electronic commerce purchases.
The state treasurer may establish a system for acceptance of credit card and other payment
methods for electronic commerce purchases from spending units. Each Notwithstanding any other
provision of this code to the contrary, each spending unit utilizing WEB commerce, electronic
commerce or other method that offers products or services for sale shall utilize the state treasurer's
system for acceptance of payments. To facilitate electronic commerce, the state treasurer may
authorize a spending unit to assess and collect a fee to recover or pay the cost of accepting bank,
charge, check, credit or debit cards from amounts collected. The state treasurer shall propose
legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-
nine-a of this code to establish the criteria and procedures involved in granting the authorization and
may promulgate emergency rules in accordance with the provisions of article three, chapter twenty-
nine-a of the code to implement the provisions of this section prior to authorization of the legislative
rules.
ARTICLE 5. PUBLIC SECURITIES.
§12-5-1. Securities defined.
The term 'securities' when used in this article shall include all bonds, securities, debentures,
notes or other evidences of indebtedness, and for purposes of this article all cash received with
restrictions on expenditures, whether by court order or otherwise.
§12-5-5. Protection and handling of securities.
(a) The noncash securities retained in the treasury shall be kept in a vault. The treasurer shall
use due diligence in protecting the securities against loss from any cause. The treasurer shall
designate certain employees to take special care of the securities. Only the treasurer and the
designated employees may have access to the securities, and at least two of these persons shall be
present whenever the securities are handled in any manner. The treasurer may contract with one or
more banking institutions in or outside the state for the custody, safekeeping and management of
securities. The contract shall prescribe the rules for the handling and protection of the securities.
(b) The treasurer shall deposit cash received in the state treasury in accounts as determined
by the treasurer, after discussion with the depositing spending unit. The treasurer is authorized to
create any accounts in the state treasury needed for purposes of this article and to invest the money
in accordance with this code and the restrictions placed on the money, with earnings retained. The
treasurer shall prescribe the forms and procedures for receipt and disbursement of the moneys.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§12-6-1a. Legislative findings.
(a) The Legislature hereby finds and declares that all the public employees covered by the
public employees retirement system, the teachers retirement system, the West Virginia state police
retirement system, the death, disability and retirement fund of the division of public safety, the
judges' retirement system and the deputy sheriff's retirement system should benefit from a prudent
and conscientious staff of financial professionals dedicated to the administration, investment and
management of those employees' and employers' financial contributions and that an independent
board and staff should be immune to changing political climates and should provide a stable and continuous source of professional financial investment and management.
(b) The Legislature finds and declares that teachers and other public employees throughout
the state are experiencing economic difficulty and that in order to reduce this economic hardship on
these dedicated public employees and to help foster sound financial practices, the West Virginia
investment management board is given the authority to develop, implement and maintain an
efficient and modern system for the investment and management of the state's money, except those
moneys managed by the state treasurer in accordance with article six-c of this chapter. The
Legislature further finds that in order to implement these sound fiscal policies, the West Virginia
investment management board shall operate as an independent board with its own full-time staff of
financial professionals, immune to changing political climates, in order to provide a stable and
continuous source of professional financial management.
(c) The Legislature hereby finds and declares further that experience has demonstrated that
prudent investment provides diversification and beneficial return not only for public employees but
for all citizens of the state and that in order to have access to this sound fiscal policy, public
employee and employer contributions to the 401(a) plans are declared to be made to an irrevocable
trust on behalf of each plan, available for no use or purpose other than for the benefit of those public
employees.
(d) The Legislature hereby finds and declares further that the workers' compensation funds
and coal-workers' pneumoconiosis fund are trust funds to be used exclusively for those workers,
miners and their beneficiaries who have sacrificed their health in the performance of their jobs and
further finds that the assets available to pay awarded benefits should be prudently invested so that
awards may be paid.
(e) The Legislature hereby finds and declares further that an independent public body
corporate with appropriate governance shall be the best means of assuring prudent financial
management of these funds under rapidly changing market conditions and regulations.
(f) The Legislature hereby finds and declares further that in accomplishing this purpose, the West Virginia investment management board, created and established by this article, is acting in all
respects for the benefit of the state's public employees and ultimately the citizens of the state and
the West Virginia investment management board is empowered by this article to act as trustee of
the irrevocable trusts created by this article and to manage and invest other state funds.
(g) The Legislature hereby finds and declares further that the standard of care and prudence
applied to trustees, the conduct of the affairs of the irrevocable trusts created by this article and the
investment of other state funds is intended to be that applied to the investment of funds as described
in the 'uniform prudent investor act' codified as article six-c, chapter forty-four of this code and as
described in section eleven of this article.
(h) The Legislature further finds and declares that the West Virginia supreme court of
appeals declared the 'West Virginia Trust Fund Act' unconstitutional in its decision rendered on the
twenty-eighth day of March, one thousand nine hundred ninety-seven, to the extent that it authorized
investments in corporate stock, but the court also recognized that there were other permissible
constitutional purposes of the 'West Virginia Trust Fund Act' and that it is the role of the
Legislature to determine those purposes consistent with the court's decision and the constitution of
West Virginia.
(i) The Legislature hereby further finds and declares that it is in the best interests of the state
and its citizens to create a new investment management board in order to: (1) Be in full compliance
with the provisions of the constitution of West Virginia; and (2) protect all existing legal and
equitable rights of persons who have entered into contractual relationships with the West Virginia
board of investments and the West Virginia trust fund.
§12-6-2. Definitions.
As used in this article, unless a different meaning clearly appears from the context:
(1) 'Beneficiaries' means those individuals entitled to benefits from the participant plans;
(2) 'Board' means the governing body for the West Virginia investment management board and any reference elsewhere in this code to board of investments or West Virginia trust fund means
the board as defined in this subdivision;
(3) 'Consolidated fund' means the investment fund established pursuant to subsection (a),
section eight of this article and managed by the board. and established pursuant to subsection (a),
section eight of this article Effective the first day of July, two thousand three, 'consolidated fund'
means the investment fund established in section eight of this article and transferred to and managed
by the state treasurer in accordance with article six-c of this chapter;
(4) '401(a) plan' means a plan which is described in section 401(a) of the Internal Revenue
Code of 1986, as amended, and with respect to which the board has been designated to hold assets
of the plan in trust pursuant to the provisions of section nine-a of this article;
(5) 'Local government funds' means the moneys of a political subdivision, including
policemen's pension and relief funds, firemen's pension and relief funds and volunteer fire
departments, transferred to the board for deposit;
(6) 'Participant plan' means any plan or fund subject now or hereafter to subsection (a),
section nine-a, of this article six of this chapter;
(7) 'Political subdivision' means and includes a county, municipality or any agency,
authority, board, county board of education, commission or instrumentality of a county or
municipality and regional councils created pursuant to the provisions of section five, article
twenty-five, chapter eight of this code;
(8) 'Trustee' means any member serving on the West Virginia investment management
board: Provided, That in section nine-a of this article in which the terms of the trusts are set forth,
'trustee' means the West Virginia investment management board;
(9) 'Securities' means all bonds, notes, debentures or other evidences of indebtedness and
other lawful investment instruments; and
(10) 'State funds' means all moneys of the state which may be lawfully invested except the
'school fund' established by section four, article XII of the state constitution.
§12-6-5. Powers of the board.
The board may exercise all powers necessary or appropriate to carry out and effectuate its
corporate purposes. The board may:
(1) Adopt and use a common seal and alter it at pleasure;
(2) Sue and be sued;
(3) Enter into contracts and execute and deliver instruments; (4) Acquire (by purchase,
gift or otherwise), hold, use and dispose of real and personal property, deeds, mortgages and other
instruments;
(5) Promulgate and enforce bylaws and rules for the management and conduct of its affairs;
(6) Notwithstanding any other provision of law, retain and employ legal, accounting,
financial and investment advisors and consultants;
(7) Acquire (by purchase, gift or otherwise), hold, exchange, pledge, lend and sell or
otherwise dispose of securities and invest funds in interest earning deposits and in any other lawful
investments;
(8) Maintain accounts with banks, securities dealers and financial institutions both within
and outside this state;
(9) Engage in financial transactions whereby securities are purchased by the board under an
agreement providing for the resale of the securities to the original seller at a stated price;
(10) Engage in financial transactions whereby securities held by the board are sold under an
agreement providing for the repurchase of the securities by the board at a stated price;
(11) Consolidate and manage moneys, securities and other assets of the other funds and
accounts of the state and the moneys of political subdivisions which may be made available to it
under the provisions of this article;
(12) Enter into agreements with political subdivisions of the state whereby moneys of the
political subdivisions are invested on their behalf by the board Accept and invest funds transferred to the board by the state treasurer on behalf of the state and political subdivisions;
(13) Charge and collect administrative fees from political subdivisions for its services;
(14) Exercise all powers generally granted to and exercised by the holders of investment
securities with respect to management of the investment securities;
(15) Contract with one or more banking institutions in or outside the state for the custody,
safekeeping and management of securities held by the board;
(16) Make and, from time to time, amend and repeal bylaws, regulations and procedures not
inconsistent with the provisions of this article;
(17) Hire its own employees, consultants, managers and advisors as it considers necessary
and fix their compensation and prescribe their duties;
(18) Develop, implement and maintain its own banking accounts and investments;
(19) Do all things necessary to implement and operate the board and carry out the intent of
this article;
(20) Require the state auditor and treasurer to transmit state funds on a daily basis for
investment: Provided, That money held for meeting the daily obligations of state government need
not be transferred;
(21) (20) Upon request of the treasurer, transmit funds for deposit in the state treasury to
meet the daily obligations of state government;
(22) (21) Establish one or more investment funds for the purpose of investing the funds for
which it is trustee, custodian or otherwise authorized to invest pursuant to this article. Interests in
each fund shall be designated as units and the board shall adopt industry standard accounting
procedures to determine each fund's unit value. The securities in each investment fund are the
property of the board and each fund shall be considered an investment pool or fund and may not be
considered a trust nor may the securities of the various investment funds be considered held in trust.
However, units in an investment fund established by or sold by the board and the proceeds from the
sale or redemption of any unit may be held by the board in its role as trustee of the participant plans; and
(23) (22) Notwithstanding any other provision of the code to the contrary, conduct
investment transactions, including purchases, sales, redemptions and income collections, which shall
not be treated by the auditor as recordable transactions on the state's accounting system.
§12-6-8. Investment funds established; management thereof.
(a) There is hereby continued a special investment fund to be managed by the board and
designated as the 'consolidated fund.' On the first day of July, two thousand three, the board shall
transfer the consolidated fund, all moneys, obligations, assets, securities and other investments of
the consolidated fund and all records, properties and any other document or item pertaining to the
consolidated fund in its possession or under its control to the state treasurer for investment in
accordance with article six-c of this chapter.
(b) Each board, commission, department, official or agency charged with the administration
of state funds may request the state treasurer to make moneys available to the board for investment.
(c) Each political subdivision of this state through its treasurer or equivalent financial officer
may enter into agreements with the board state treasurer for the investment of moneys of the
political subdivision. Any political subdivision may enter into an agreement with any a state agency
spending unit from which it receives funds to allow the funds to be transferred request transfer of
the funds to their its investment account with the investment management board or the state
treasurer. Nothing herein shall preclude political subdivisions, including without limitation, the
boards of trustees of policemen's pension and relief funds, the boards of trustees of firemen's pension
and relief funds and volunteer fire departments from investing in equities with the investment
management board.
(d) Moneys held in the various funds and accounts administered by the board shall be
invested as permitted by this article and subject to the restrictions contained in this article. For the
consolidated fund, the treasurer shall maintain records of the deposits and withdrawals of each
participant and the performance of the various funds and accounts. The board shall report the earnings on the various funds under management to the state treasurer at the times determined by
the state treasurer. The board shall also establish rules for the administration of the various funds
and accounts established by this section as it considers necessary for the administration of the funds
and accounts, including, but not limited to: (1) The specification of amounts which may be
deposited in any fund or account and minimum periods of time for which deposits will be retained;
and (2) creation of reserves for losses: Provided, That in the event any moneys made available to
the board may not lawfully be combined for investment or deposited in the consolidated fund
established by this section, the board may create special accounts and may administer and invest
those moneys in accordance with the restrictions specially applicable to those moneys.
§12-6-9e. Legislative findings; loans for industrial development; availability of funds and
interest rates.
(a) The Legislature hereby finds and declares that the citizens of the state benefit from the
creation of jobs and businesses within the state; that a business and industrial development loan
program provides for economic growth and stimulation within the state; that loans from pools
established in the consolidated fund will assist in providing the needed capital to assist business and
industrial development; and that time constraints relating to business and industrial development
projects prohibit duplicative review by both the board and West Virginia economic development
authority board. The Legislature further finds and declares that an investment in the West Virginia
Enterprise Capital Fund, LLC, of moneys in the consolidated fund as hereinafter provided will assist
in creating jobs and businesses within the state and providing the needed risk capital to assist
business and industrial development. This section is enacted in view of these findings.
(b) The board shall make available, subject to cash availability, in the form of a revolving
loan, up to one hundred fifty million dollars from the consolidated fund to loan the West Virginia
economic development authority for business or industrial development projects authorized by
section seven, article fifteen, chapter thirty-one of this code and to consolidate existing loans
authorized to be made to the West Virginia economic development authority pursuant to this section and pursuant to section twenty, article fifteen, chapter thirty-one of this code which authorizes a one
hundred fifty million dollar revolving loan and article eighteen-b, chapter thirty-one of this code
which authorizes a fifty million dollar investment pool: Provided, That the West Virginia economic
development authority may not loan more than fifteen million dollars for any one business or
industrial development project. The revolving loan authorized by this subsection shall be secured
by one note at a variable interest rate equal to the twelve-month average of the board's yield on its
cash liquidity pool. The rate shall be set on the first day of July and the rate shall be adjusted
annually on the same date. The maximum annual adjustment may not exceed one percent. Monthly
payments made by the West Virginia economic development authority to the board shall be
calculated on a one hundred twenty-month amortization. The revolving loan shall be secured by a
security interest that pledges and assigns the cash proceeds of collateral from all loans under this
revolving loan pool. The West Virginia economic development authority may also pledge as
collateral certain revenue streams from other revolving loan pools which source of funds does not
originate from federal sources or from the board.
The outstanding principal balance of the revolving loan from the board to the West Virginia
economic development authority may at no time exceed one hundred three percent of the aggregate
outstanding principal balance of the business and industrial loans from the West Virginia economic
development authority to economic development projects funded from this revolving loan pool.
This provision shall be certified annually by an independent audit of the West Virginia economic
development authority financial records.
(c) The interest rates and maturity dates on the loans made by the West Virginia economic
development authority for business and industrial development projects authorized by section seven,
article fifteen, chapter thirty-one of this code shall be at competitive rates and maturities as
determined by the West Virginia economic development authority board.
(d) Any and all outstanding loans made by the board, or any predecessor entity, to the West
Virginia economic development authority shall be refunded by proceeds of the revolving loan contained in this section and no loans may be made hereafter by the board to the West Virginia
economic development authority pursuant to section twenty, article fifteen, chapter thirty-one of this
code or article eighteen-b of said chapter.
(e) The trustees of the board shall bear no fiduciary responsibility as provided in section
eleven of this article with specific regard to the revolving loan contemplated in this section.
(f) Subject to cash availability, the board shall make available to the West Virginia economic
development authority from the consolidated fund a nonrecourse loan in an amount up to
twenty-five million dollars, for the purpose of the West Virginia economic development authority
making a loan or loans from time to time to the West Virginia enterprise advancement corporation,
an affiliated nonprofit corporation of the West Virginia economic development authority. The
respective loans authorized by this subsection by the board to the West Virginia economic
development authority and by the West Virginia economic development authority to the West
Virginia enterprise advancement corporation shall each be evidenced by one note and shall each bear
interest at the rate of three percent per annum. The proceeds of any and all loans made by the West
Virginia economic development authority to the West Virginia enterprise advancement corporation
pursuant to this subsection shall be invested by the West Virginia enterprise corporation in the West
Virginia enterprise capital fund, LLC, the manager of which is the West Virginia enterprise
advancement corporation. The loan to West Virginia economic development authority authorized
by this subsection shall be nonrevolving, and advances thereunder shall be made at times and in
amounts as may be requested or directed by the West Virginia economic development authority,
upon reasonable notice to the board, the loan authorized by this subsection is not subject to or
included in the limitations set forth in subsection (b) of this section with respect to the fifteen million
dollar limitation for any one business or industrial development project and limitation of one
hundred three percent of outstanding loans, and may not be included in the revolving fund loan
principal balance for purposes of calculating the loan amortization in subsection (b) of this section.
The loan authorized by this subsection to the West Virginia economic development authority shall be classified by the board as a long-term, fixed income investment, shall bear interest on the
outstanding principal balance thereof at the rate of three percent per annum payable annually on or
before the thirtieth day of June of each year, and the principal of which shall be repaid no later than
the thirtieth day of June, two thousand twenty-two, in annual installments due on or before the
thirtieth day of June of each year, which annual installments shall commence no later than the
thirtieth day of June, two thousand and three, in annual principal amounts as may be agreed upon
between the board and the West Virginia economic development authority, and which annual
installments need not be equal. The loan authorized by this subsection shall be nonrecourse and
shall be payable by the West Virginia economic development authority solely from amounts or
returns received by the West Virginia economic development authority in respect of the loan
authorized by this subsection to the West Virginia enterprise advancement corporation, whether in
the form of interest, dividends, realized capital gains, return of capital or otherwise, in all of which
the board shall have a security interest to secure repayment of the loan to the West Virginia
economic development authority authorized by this subsection. Any and all loans from the West
Virginia economic development authority to the West Virginia enterprise advancement corporation
made pursuant to this subsection shall also bear interest on the outstanding principal balance thereof
at the rate of three percent per annum payable annually on or before the thirtieth day of June of each
year, shall be nonrecourse and shall be payable by the West Virginia enterprise advancement
corporation solely from amounts of returns received by the West Virginia enterprise advancement
corporation in respect of its investment in the West Virginia enterprise capital fund, LLC, whether
in the form of interest, dividends, realized capital gains, return of capital or otherwise, in all of
which the board shall have a security interest to secure repayment of the loan to the West Virginia
economic development authority authorized by this subsection. In the event the amounts or returns
received by the West Virginia enterprise corporation in respect of its investment in the West
Virginia enterprise capital fund, LLC, are not adequate to pay when due the principal or interest
installments, or both, with respect to the loan from the West Virginia economic development authority and, as a result thereof, the West Virginia economic development authority is unable to
pay the principal or interest installments, or both, with respect to the loan authorized by this
subsection by the board to the West Virginia economic development authority, the principal or
interest, or both, as the case may be, due on the loan made to the West Virginia economic
development authority pursuant to this subsection shall be deferred, and any and all such past-due
principal and interest payments shall promptly be paid to the fullest extent possible upon receipt by
the West Virginia enterprise advancement corporation of moneys in respect of its investments in the
West Virginia enterprise capital fund, LLC. For tax years beginning after the thirtieth day of June,
two thousand one, the West Virginia enterprise capital fund, LLC, is exempt from the payment of
any taxes or fees to the state or any subdivision thereof or any municipalities or to any officer or
employee of the state or of any subdivision thereof or of any municipality. The property of the West
Virginia enterprise capital fund, LLC, shall be exempt from all state, county and municipal taxes.
The trustees or the board shall bear no fiduciary responsibility as provided in section eleven, article
six, chapter twelve of this code with regard to the loan authorized by this subsection.
(g) The authority of the investment management board to make loans pursuant to this section
expires on the thirtieth day of June, two thousand three. Beginning the first day of July, two
thousand three, the provisions of this section are superseded by the provisions of section ten, article
six-c of this chapter. All rights, duties and responsibilities of the investment management board
arising out of all loans made pursuant to this section and outstanding on the thirtieth day of June,
two thousand three, are hereby transferred to the state treasurer effective the first day of July, two
thousand three.
§12-6-12. Investment restrictions.
(a) The board shall hold in equity investments no more than sixty percent of the assets
managed by the board and no more than sixty percent of the assets of any individual participant plan.
or the consolidated fund
(b) The board shall hold in international securities no more than twenty percent of the assets managed by the board and no more than twenty percent of the assets of any individual participant
plan. or the consolidated fund
(c) The board may not at the time of purchase hold more than five percent of the assets
managed by the board in the equity securities of any single company or association: Provided, That
if a company or association has a market weighting of greater than five percent in the Standard &
Poor's 500 index of companies, the board may hold securities of that equity equal to its market
weighting.
(d) The board shall at all times limit its asset allocation and types of securities to the
following:
(1) The board may not hold more than twenty percent of the aggregate participant plan assets
in commercial paper. Any commercial paper at the time of its acquisition shall be in one of the two
highest rating categories by an agency nationally known for rating commercial paper;
(2) At no time shall the board hold more than seventy-five percent of the assets managed by
the board in corporate debt. Any corporate debt security at the time of its acquisition shall be rated
in one of the six highest rating categories by a nationally recognized rating agency; and
(3) No security may be purchased by the board unless the type of security is on a list
approved by the board. The board may modify the securities list at any time and shall give notice
of that action pursuant to subsection (g), section three of this article and shall review the list at its
annual meeting.
(e) Notwithstanding the investment limitations set forth in this section, it is recognized that
the assets managed by the board, or the assets of the consolidated fund or participant plans, whether
considered in the aggregate or individually, may temporarily exceed the investment limitations in
this section due to market appreciation, depreciation and rebalancing limitations. Accordingly, the
limitations on investments set forth in this section shall not be considered to have been violated if
the board rebalances the assets it manages or the assets of the consolidated fund or participant plans,
whichever is applicable, to comply with the limitations set forth in this section at least once every six months based upon the latest available market information and any other reliable market data
that the board considers advisable to take into consideration.
(f) The board, at the annual meeting provided for in subsection (h), section three of this
article, shall review, establish and modify, if necessary, the investment objectives of the individual
participant plans as incorporated in the investment policy statements of the respective trusts so as
to provide for the financial security of the trust funds giving consideration to the following:
(1) Preservation of capital;
(2) Diversification;
(3) Risk tolerance;
(4) Rate of return;
(5) Stability;
(6) Turnover;
(7) Liquidity; and
(8) Reasonable cost of fees.
§12-6-13. Board to manage certain investments; exceptions.
All duties vested by law in any agency, commission, official or other board of the state
relating to the investment of moneys, and the acquisition, sale, exchange or disposal of securities
or any other investment are hereby transferred to the board: Provided, That neither this section nor
any other section of this article applies to the duties vested by law in any agency, commission,
official or other board of the state relating to the investment of moneys, and the acquisition, sale,
exchange or disposal of securities or any other investments that are transferred to the state treasurer
pursuant to article six-c of this chapter, to the 'board of the school fund,' and or to the 'school fund'
established by section 4, article XII of the state constitution. Provided, however, That funds under
the control of the municipal bond commission may, in the discretion of the commission, be made
available to the board for investment to be invested by the commission as provided in article three,
chapter thirteen of this code
§12-6-16. Existing investments.
The board shall be is vested with ownership of all securities or other investments that were
lawfully held by the board of investments or the West Virginia trust fund as of the effective date of
this article under prior enactments of this article. All obligations and assets of the board of
investments and the West Virginia Trust Fund, Inc., shall be are vested in the West Virginia
investment management board as of the effective date of this article under prior enactments of this
article. On the first day of July, two thousand three, the investment management board shall transfer
the consolidated fund, all moneys, obligations, assets, securities and other investments of the
consolidated fund and all records, properties and any other document or item pertaining to the
consolidated fund in its possession or under its control to the state treasurer.
ARTICLE 6C. WEST VIRGINIA CONSOLIDATED FUND INVESTMENT ACT.
§12-6C-1. Purposes and objects; how article cited.
This article, cited as the 'West Virginia Consolidated Fund Investment Act,' is enacted to
provide investment and management services for the consolidated fund, comprised of the operating
funds of the state and of political subdivisions, for the purposes of making state moneys more
accessible to state government, enabling investment managers to focus on the consolidated fund and
allowing the West Virginia investment management board to focus on long-term investment of the
trust estates it manages pursuant to article six of this chapter.
§12-6C-2. Legislative findings.
(a) The Legislature finds and declares that the consolidated fund should benefit from
financial professionals dedicated to and focused on the sound administration, investment and
management of the fund.
(b) The Legislature finds and declares that the state treasurer currently enters into agreements
on behalf of the West Virginia investment management board and provides reporting services for
participants in the consolidated fund.
(c) The Legislature finds and declares that the transfer of the consolidated fund to the state
treasurer will allow for management of the fund within state government and will encourage better
cash management of state moneys.
(d) The Legislature finds and declares that in accomplishing these purposes, the state
treasurer is acting in all respects for the benefit of the citizens of the state in managing and investing
the consolidated fund.
(e) The Legislature further finds and declares that it is in the best interests of the state, its
citizens and the political subdivisions for the state treasurer to manage and invest the consolidated
fund to: (1) Provide focused investment services for the operating funds of the state and of its
political subdivisions; (2) provide better management of all state funds within state government;
and (3) allow the West Virginia investment management board to focus on the long-term
investment of the trust estates it manages pursuant to article six of this chapter.
§12-6C-3. Definitions.
As used in this article, unless a different meaning clearly appears from the context:
(1) 'Consolidated fund' means the investment fund transferred to the state treasurer by the
investment management board and continued pursuant to section five of this article;
(2) 'Local government funds' or 'moneys of a political subdivision' means the moneys of
a political subdivision, including policemen's pension and relief funds, firemen's pension and relief
funds and volunteer fire department funds, transferred to the state treasurer for deposit;
(3) 'Participant' means any state government spending unit or political subdivision which
transfers moneys to the board for investment;
(4) 'Political subdivision' means and includes a county, municipality or any agency,
authority, board, county board of education, commission or instrumentality of a county or
municipality and regional councils created pursuant to the provisions of section five, article twenty-
five, chapter eight of this code;
(5) 'Securities' means all bonds, notes, debentures or other evidences of indebtedness and other lawful investment instruments; and
(6) 'State funds' means all moneys of the state which may be lawfully invested except the
'school fund' established by section four, article XII of the state constitution.
§12-6C-4. Powers of the state treasurer.
The state treasurer may exercise all powers necessary or appropriate to carry out and
effectuate the purposes of this article. The state treasurer may:
(1) Enter into contracts and execute and deliver instruments utilizing the policies and
procedures of the state treasurer's office;
(2) Acquire (by purchase, gift or otherwise), hold, use and dispose of real and personal
property, deeds, mortgages and other instruments;
(3) Promulgate and enforce policies and rules for the management of the consolidated fund;
(4) Notwithstanding any other provision of law to the contrary, specifically article one-b,
chapter five, articles three and seven, chapter five-a, of this code, retain and contract with legal,
accounting, financial and investment managers, advisors and consultants;
(5) Acquire (by purchase, gift or otherwise), hold, exchange, pledge, lend and sell or
otherwise dispose of securities and invest funds in investments authorized by this article;
(6) Maintain accounts with banks, securities dealers and financial institutions both within
and outside this state;
(7) Engage in financial transactions whereby securities are purchased by the state treasurer
under an agreement providing for the resale of the securities to the original seller at a stated price;
(8) Engage in financial transactions whereby securities held by the state treasurer are sold
under an agreement providing for the repurchase of the securities by the state treasurer at a stated
price;
(9) Consolidate and manage moneys, securities and other assets of the consolidated fund and
accounts of the state and the moneys of political subdivisions which may be made available to the state treasurer under the provisions of this article;
(10) Abide by agreements entered into by the state treasurer with political subdivisions of
the state for investment of moneys of the political subdivisions by the state treasurer;
(11) Charge and collect administrative fees from participants, including political
subdivisions, for services in connection with the consolidated fund;
(12) Exercise all powers generally granted to and exercised by the holders of investment
securities with respect to management of the investment securities;
(13) Utilize any contract or agreement of the investment management board in effect on the
first day of July, two thousand three, and any contract or agreement of the state treasurer's office,
and enter into contracts or agreements, including without limitation entering into a contract or
agreement with one or more banking institutions in or outside the state for the custody, safekeeping
and management of securities held by the state treasurer and with any investment manager and
investment advisor needed;
(14) Make and, from time to time, amend and repeal policies, rules, regulations and
procedures not inconsistent with the provisions of this article;
(15)Hire employees, consultants, managers and advisors as the state treasurer considers
necessary and fix their compensation and prescribe their duties;
(16)Develop, implement and maintain investment accounts;
(17)Offer assistance and seminars to spending units and to political subdivisions; and
(18) Establish one or more investment funds, pools or participant accounts for the purpose
of investing the moneys and assets for which the state treasurer, a custodian or otherwise is
authorized to invest pursuant to this article. Interests in each fund, pool or participant account are
designated as units and the state treasurer shall adopt industry standard accounting procedures to
determine the unit value of each fund, pool or participant account. The securities in each investment
fund, pool or participant account are the property of the state treasurer, and each fund, pool or
participant account is considered an investment pool, investment fund or investment participant account.
§12-6C-5. Consolidated fund continued; management.
(a) The 'consolidated fund' is the special investment fund managed by the West Virginia
investment management board through the thirtieth day of June, two thousand three. The
consolidated fund is hereby continued and is vested in the state treasurer on the first day of July, two
thousand three. References elsewhere in this code to the entity investing the moneys of the
consolidated fund, to the West Virginia board of investments, to the West Virginia trust fund or to
the West Virginia investment management board in connection with investing the moneys of the
consolidated fund, means the state treasurer.
(b) Each spending unit authorized to invest moneys shall unless prohibited by law request
the state treasurer to invest its moneys. The state treasurer shall transfer the moneys to the
investment funds or pools of the consolidated fund or the investment management board specified
by the spending unit.
(c) Each political subdivision of this state through its treasurer or equivalent financial officer
may enter into agreements with the state treasurer for the investment of moneys of the political
subdivision. Any political subdivision may enter into an agreement with a state spending unit from
which it receives moneys to allow the state treasurer to invest the moneys. The state treasurer shall
transfer the moneys to the investment funds or pools of the consolidated fund or the investment
management board specified by the political subdivision.
(d) Moneys held in the various funds and accounts administered by the state treasurer are
invested as permitted by this article and subject to the restrictions contained in this article.
(e) The state treasurer shall maintain records of the deposits and withdrawals of each
participant and the performance of the various funds, pools and accounts.
(f) The state treasurer shall establish policies for the administration of the various funds, pool
and accounts authorized by this article as it determines necessary. The policies may specify the
minimum amounts and timing of deposits and withdrawals, and any other matters authorized by the state treasurer.
§12-6C-6. Management and control of fund; staff; liability.
(a) The management and control of the consolidated fund is vested solely in the state
treasurer in accordance with the provisions of this article.
(b) The state treasurer may utilize the staff of his or her office, employ personnel, and
contract with any person or entity needed to perform the tasks related to operating the consolidated
fund.
(c) The state treasurer shall retain an internal auditor to report directly to the state treasurer
and shall fix his or her compensation. As a minimum qualification, an internal auditor must be a
certified public accountant with at least three years experience as an auditor. The internal auditor
shall develop an internal audit plan for the testing of procedures and the security of transactions.
(d) The state treasurer and employees of the state treasurer performing work in connection
with the consolidated fund are not liable personally, either jointly or severally, for any debt or
obligation created by the state treasurer.
(e) Transactions, contracts and agreements for the consolidated fund are exempt from the
provisions of article one-b, chapter five, and articles three and seven, chapter five-a, of this code.
However, the transactions, contracts and agreements are subject to the purchasing policies and
procedures of the state treasurer's office.
§12-6C-7. Administration of consolidated fund.
(a) In the administration of the consolidated fund continued by this article, the state treasurer
may:
(1) Purchase, retain, hold, transfer and exchange and sell, at public or private sale, the whole
or any part of the fund or pools upon such terms and conditions as the state treasurer considers
advisable;
(2) Invest and reinvest the fund and pools or any part thereof in fixed income securities as
provided in this article;
(3) Carry the securities and other property held in trust either in the name of the state
treasurer or in the name of a nominee of the state treasurer;
(4) Vote, in person or by proxy, all securities held; to join in or to dissent from and oppose
the reorganization, recapitalization, consolidation, merger, liquidation or sale of corporations or
property; to exchange securities for other securities issued in connection with or resulting from any
transaction; to pay any assessment or expense which the state treasurer considers advisable for the
protection of any interest as holder of the securities; to exercise any option appurtenant to any
securities for the conversion of any securities into other securities; and to exercise or sell any rights
issued upon or with respect to the securities of any corporation, all upon terms the state treasurer
considers advisable;
(5) Prosecute, defend, compromise, arbitrate or otherwise adjust or settle claims in favor of
or against the state treasurer;
(6) Employ and pay from the fund any investment advisers, brokers, counsel, managers and
any other assistants and agents the state treasurer considers advisable;
(7) Develop, implement and modify an asset allocation plan and investment policy for each
fund or pool; and
(8) Create a local government investment pool, a program to purchase certificates of deposit
from West Virginia financial institutions that are depositories and any funds, pools or participant
accounts needed.
(b) All income and earnings are free from anticipation, alienation, assignment or pledge by,
and free from attachment, execution, appropriation or control by or on behalf of, any and all
creditors of any beneficiary by any proceeding at law, in equity, in bankruptcy or insolvency.
(c)The state treasurer shall render an annual accounting not more than one hundred
twenty days following the close of the fiscal year.
§12-6C-8. Asset allocation; investment policies; authorized investments; restrictions.
(a) The state treasurer shall develop, adopt, review or modify an asset allocation plan for the consolidated fund annually.
(b) The state treasurer shall adopt, review, modify or cancel the investment policy of each
fund or pool created annually. For each participant directed account the state treasurer may
authorize, the state treasurer shall create an account and develop an investment policy. The state
treasurer shall review all participant directed accounts and investment policies annually for
modification.
(c) The state treasurer shall consider the following when adopting, reviewing, modifying or
canceling investment policies:
(1) Preservation of capital;
(2) Risk tolerance;
(3) Credit standards;
(4) Diversification;
(5) Rate of return;
(6) Stability and turnover;
(7) Liquidity;
(8) Reasonable costs and fees;
(9) Permissible investments;
(10) Maturity ranges;
(11) Internal controls;
(12) Safekeeping and custody;
(13) Valuation methodologies;
(14) Calculation of earnings and yields;
(15) Performance benchmarks and evaluation; and
(16) Reporting.
(d) No security may be purchased by the state treasurer unless the type of security is on a list
approved by the state treasurer. The state treasurer shall review the list annually.
(e) Notwithstanding the restrictions which are otherwise provided by law with respect to the
investment of funds, the state treasurer and all participants, now and in the future, are authorized to
invest funds of the consolidated fund in these securities:
(1) Obligations of, or obligations that are insured as to principal and interest by, the United
States of America or any agency, association or corporation thereof, obligations and securities of
United States chartered, owned or sponsored enterprises, and obligations and securities considered
moral obligations of the United States government, including without limitation:
(i) United States Treasury;
(ii) Export-Import Bank of the United States;
(iii) Farmers Home Administration;
(iv) Federal Farm Credit Banks;
(v) Federal Home Loan Banks;
(vi) Federal Home Loan Mortgage Corporation;
(vii) Federal Intermediate Credit Banks;
(viii) Federal Land Banks;
(ix) Federal National Mortgage Association;
(x) Government National Mortgage Association;
(xi) Merchant Marine bonds;
(xii) Student Loan Marketing Association; and
(xiii) Tennessee Valley Authority.
(2) Commercial paper with one of the two highest commercial paper credit ratings by a
nationally recognized investment rating firm;
(3) Corporate debt rated in one of the six highest rating categories by a nationally recognized
rating agency;
(4) State and local government, or any instrumentality or agency thereof, securities with one
of the three highest ratings by a nationally recognized rating agency;
(5) Repurchase agreements involving the purchase of United States Treasury securities and
repurchase agreements fully collateralized by obligations of the United States government or its
agencies or instrumentalities;
(6) Reverse repurchase agreements involving the purchase of United States Treasury
securities and reverse repurchase agreements fully collateralized by obligations of the United States
government or its agencies or instrumentalities;
(7) Asset-backed securities rated in the highest category by a nationally recognized rating
agency, but excluding mortgage-backed securities;
(8) Investments in accordance with the linked deposit program, a program using West
Virginia banks to obtain certificates of deposit, loans and any other programs authorized by the
Legislature; and
(9) Any other fixed income security recommended to the treasurer by an investment advisor
in accordance with this article.
§12-6C-9. Investment authority for consolidated fund transferred to state treasurer.
All duties vested by law in state spending units and the West Virginia investment
management board relating to the consolidated fund are hereby transferred to the state treasurer,
including without limitation the investment of moneys, and the acquisition, sale, exchange or
disposal of securities or any other investment: Provided, That neither this section nor any other
section of this article applies to the 'board of the school fund' and the 'school fund' established by
section 4, article XII of the state constitution: Provided, however, That the municipal bond
commission may make funds under its control available to the state treasurer for investment.
§12-6C-10. Legislative findings; loans for industrial development; availability of funds and
interest rates.
(a) The Legislature hereby finds and declares that the citizens of the state benefit from the
creation of jobs and businesses within the state; that business and industrial development loan
programs provide for economic growth and stimulation within the state; that loans from pools established in the consolidated fund will assist in providing the needed capital to assist business and
industrial development; and that time constraints relating to business and industrial development
projects prohibit duplicative review by both the state treasurer and West Virginia economic
development authority board. The Legislature further finds and declares that an investment in the
West Virginia Enterprise Capital Fund, LLC, of moneys in the consolidated fund as provided in this
section will assist in creating jobs and businesses within the state and providing the needed risk
capital to assist business and industrial development. This section is enacted in view of these
findings.
(b) The state treasurer shall make available, subject to a liquidity determination, in the form
of a revolving loan, up to one hundred seventy-five million dollars from the consolidated fund to
loan the West Virginia economic development authority for business or industrial development
projects authorized by section seven, article fifteen, chapter thirty-one of this code and to
consolidate existing loans authorized to be made to the West Virginia economic development
authority pursuant to this section and pursuant to section twenty, article fifteen, chapter thirty-one
of this code which authorizes a one hundred fifty million dollar revolving loan and article eighteen-
b, chapter thirty-one of this code which authorizes a fifty million dollar investment pool: Provided,
That the West Virginia economic development authority may not loan more than fifteen million
dollars for any one business or industrial development project. The revolving loan authorized by this
subsection is secured by one note at a variable interest rate equal to the twelve-month average of the
board's yield on its cash liquidity pool. The rate is set on the first day of July and adjusted annually
on the same date. The maximum annual adjustment may not exceed one percent. Monthly
payments made by the West Virginia economic development authority to the state treasurer are
calculated on a one hundred twenty-month amortization. The revolving loan is secured by a security
interest that pledges and assigns the cash proceeds of collateral from all loans under this revolving
loan pool. The West Virginia economic development authority may also pledge as collateral certain
revenue streams from other revolving loan pools which source of funds does not originate from federal sources.
The outstanding principal balance of the revolving loan from the state treasurer to the West
Virginia economic development authority may at no time exceed one hundred three percent of the
aggregate outstanding principal balance of the business and industrial loans from the West Virginia
economic development authority to economic development projects funded from this revolving loan
pool. The independent audit of the West Virginia economic development authority financial records
shall annually certify the one hundred three percent requirement.
(c) The interest rates and maturity dates on the loans made by the West Virginia economic
development authority for business and industrial development projects authorized by section seven,
article fifteen, chapter thirty-one of this code are at competitive rates and maturities as determined
by the West Virginia economic development authority board.
(d) Any and all outstanding loans made by the state treasurer, or any predecessor person or
entity, to the West Virginia economic development authority are refundable by proceeds of the
revolving loan contained in this section and the state treasurer shall make no loans to the West
Virginia economic development authority pursuant to section twenty, article fifteen, chapter thirty-
one of this code or article eighteen-b of said chapter.
(e) The state treasurer bears no fiduciary responsibility with regard to any of the loans
contemplated in this section.
(f) Subject to cash availability, the state treasurer shall make available to the West Virginia
economic development authority from the consolidated fund a nonrecourse loan in an amount up
to twenty-five million dollars, for the purpose of the West Virginia economic development authority
making a loan or loans from time to time to the West Virginia enterprise advancement corporation,
an affiliated nonprofit corporation of the West Virginia economic development authority. The
respective loans authorized by this subsection by the state treasurer to the West Virginia economic
development authority and by the West Virginia economic development authority to the West
Virginia enterprise advancement corporation shall each be evidenced by one note and shall each bear interest at the rate of three percent per annum. The proceeds of any and all loans made by the West
Virginia economic development authority to the West Virginia enterprise advancement corporation
pursuant to this subsection shall be invested by the West Virginia enterprise corporation in the West
Virginia enterprise capital fund, LLC, the manager of which is the West Virginia enterprise
advancement corporation. The loan to West Virginia economic development authority authorized
by this subsection shall be nonrevolving, and advances under the loan shall be made at times and
in amounts requested or directed by the West Virginia economic development authority, upon
reasonable notice to the state treasurer, the loan authorized by this subsection is not subject to or
included in the limitations set forth in subsection (b) of this section with respect to the fifteen million
dollar limitation for any one business or industrial development project and limitation of one
hundred three percent of outstanding loans, and may not be included in the revolving fund loan
principal balance for purposes of calculating the loan amortization in subsection (b) of this section.
The loan authorized by this subsection to the West Virginia economic development authority shall
be classified by the state treasurer as a long-term, fixed income investment, shall bear interest on
the outstanding principal balance thereof at the rate of three percent per annum payable annually on
or before the thirtieth day of June of each year, and the principal of which shall be repaid no later
than the thirtieth day of June, two thousand twenty-two, in annual installments due on or before the
thirtieth day of June of each year. The annual installments shall commence no later than the thirtieth
day of June, two thousand three, in annual principal amounts agreed upon between the state treasurer
and the West Virginia economic development authority. The annual installments need not be equal.
The loan authorized by this subsection shall be nonrecourse and shall be payable by the West
Virginia economic development authority solely from amounts or returns received by the West
Virginia economic development authority in respect of the loan authorized by this subsection to the
West Virginia enterprise advancement corporation, whether in the form of interest, dividends,
realized capital gains, return of capital or otherwise, in all of which the state treasurer shall have a
security interest to secure repayment of the loan to the West Virginia economic development authority authorized by this subsection. Any and all loans from the West Virginia economic
development authority to the West Virginia enterprise advancement corporation made pursuant to
this subsection shall also bear interest on the outstanding principal balance of the loan at the rate of
three percent per annum payable annually on or before the thirtieth day of June of each year, shall
be nonrecourse and shall be payable by the West Virginia enterprise advancement corporation solely
from amounts of returns received by the West Virginia enterprise advancement corporation in
respect of its investment in the West Virginia enterprise capital fund, LLC, whether in the form of
interest, dividends, realized capital gains, return of capital or otherwise, in all of which the state
treasurer shall have a security interest to secure repayment of the loan to the West Virginia
economic development authority authorized by this subsection. In the event the amounts or returns
received by the West Virginia enterprise corporation in respect of its investment in the West
Virginia enterprise capital fund, LLC, are not adequate to pay when due the principal or interest
installments, or both, with respect to the loan from the West Virginia economic development
authority and, as a result thereof, the West Virginia economic development authority is unable to
pay the principal or interest installments, or both, with respect to the loan authorized by this
subsection by the state treasurer to the West Virginia economic development authority, the principal
or interest, or both, as the case may be, due on the loan made to the West Virginia economic
development authority pursuant to this subsection shall be deferred, and any and all past-due
principal and interest payments shall promptly be paid to the fullest extent possible upon receipt by
the West Virginia enterprise advancement corporation of moneys in respect of its investments in the
West Virginia enterprise capital fund, LLC. For tax years beginning after the thirtieth day of June,
two thousand one, the West Virginia enterprise capital fund, LLC, is exempt from the payment of
any taxes or fees to the state or any subdivision thereof or any municipalities or to any officer or
employee of the state or of any subdivision thereof or of any municipality. The property of the West
Virginia enterprise capital fund, LLC, shall be exempt from all state, county and municipal taxes. The state treasurer shall bear no fiduciary responsibility with regard to any loans authorized by this
code.
§12-6C-11. Securities handling.
In financial transactions whereby securities are purchased by the state treasurer under an
agreement providing for the resale of the securities to the original seller at a stated price, the state
treasurer shall take physical possession of the securities, directly, by a custodian bank or through
a neutral third party: Provided, That an agreement with a neutral third party may not waive liability
for the handling of the securities: Provided, however, That when the state treasurer is unable to take
possession, directly, by a custodian bank or through a mutual third party, the state treasurer may
leave securities in a segregated account with the original seller, provided the amount of the securities
with any one seller may not exceed one hundred fifty million dollars.
§12-6C-12. Standard of care.
(a) The 'Uniform Prudent Investor Act' codified in article six-c, chapter forty-four of this
code is the standard for any investments made under this article. Investments are further subject to
the following:
(1) The state treasurer shall diversify fund investment so as to minimize the risk of large
losses unless, under the circumstances, it is clearly prudent not to do so;
(2) The state treasurer shall defray reasonable expenses of investing and managing the
consolidated fund by charging fees as provided in this article; and
(3) The state treasurer shall discharge his or her duties in accordance with the documents and
instruments consistent with the provisions of this article.
(b) Duties of the state treasurer apply only with respect to those assets deposited with or
otherwise held for the consolidated fund.
§12-6C-13. Existing investments.
The investment management board shall transfer the cash, securities and other investments
of the consolidated fund it holds, maintains or administers to the state treasurer on the first day of July, two thousand three, which will lawfully vest the state treasurer with ownership of all securities
or other investments of the consolidated fund.
§12-6C-14. Annual audits; financial statements; information.
(a) The state treasurer shall have an annual financial and compliance audit of the assets,
funds, pools and participant accounts managed under this article made by a certified public
accounting firm which has a minimum staff of ten certified public accountants and which is a
member of the American institute of certified public accountants and, if doing business in West
Virginia, a member of the West Virginia society of certified public accountants.
(b) The state treasurer shall produce monthly financial statements for the assets managed by
the state treasurer and send them to the governor, president of the Senate, speaker of the House of
Delegates and legislative auditor, and provide copies as reasonably requested.
(c) Each quarter the state treasurer shall deliver a report for the prior quarter to the council
of finance and administration.
(d) The state treasurer shall contract with an investment consulting or a certified public
accounting firm meeting the criteria set out in subsection (a) of this section for an annual audit of
the reported returns of the assets of the consolidated fund.
(e) Unless specifically otherwise stated, copies of the reports required in this section shall
be furnished to the governor, state auditor, president of the Senate, speaker of the House of
Delegates, council of finance and administration, legislative librarian and upon request to any
legislator, legislative committee, financial institution, member of the media, and the public.
(f) The state treasurer shall provide any other information requested in writing by the council
of finance and administration or any member of the Legislature.
§12-6C-15. Reports to participants.
(a) On a monthly basis, the state treasurer shall provide an itemized statement of a spending
unit's or other participant's account in the consolidated fund to each state spending unit and any
other entity investing moneys in the consolidated fund. The statement shall include the beginning balance, contributions, withdrawals, income distributed, change in value and ending balance.
(b) The state treasurer shall prepare annually, or more frequently if determined necessary by
the state treasurer, a report of its operations and the performance of the various funds, pools and
participant accounts administered under this article. The state treasurer shall furnish copies of the
report to each participant, the governor, state auditor, president of the Senate, speaker of the House
of Delegates, legislative auditor, and upon request to any legislative committee, any legislator, any
banking institution or state or federal savings and loan association in this state, and any member of
the news media. The state treasurer shall also keep the reports available for inspection by any
citizen of this state.
§12-6C-16. Legal status of spending units continued.
Except as otherwise provided in this article, every state spending unit shall retain all of the
powers and shall exercise all of the functions and duties vested in or imposed upon it by law, as to
any fund or account.
§12-6C-17. Authorization for loans by the state treasurer.
(a) Any loans made from the consolidated fund prior to its transfer to the state treasurer shall
remain in existence and in accordance with the terms and conditions of the loan.
(b) The state treasurer shall continue the work of the investment management board in taking
the steps necessary to increase the liquidity of the consolidated fund to allow for any loans
authorized by the Legislature without increasing the risk of loss.
§12-6C-18. Creation of fee account and investment account; budget.
(a) The state treasurer may charge fees, which are subtracted from the total amount of assets
in the consolidated fund, for the reasonable and necessary expenses incurred by the state treasurer
in rendering services. All fees collected shall be deposited in a special account in the state treasury
to be known as the 'Consolidated Fund Fee Account.' Expenditures from the fund shall be for the
fulfillment of the provisions of this article.
(b) There is hereby created in the state treasury the 'Consolidated Fund Investment Account' for use in receiving funds for investment, disbursing funds from investments and processing
investment transactions.
(c) All fees dedicated, identified or readily identifiable to an entity, fund, pool or participant
account shall be charged to that entity, fund, pool or participant account and all other fees shall be
charged as a percentage of assets under management. Annually, the state treasurer shall adopt a fee
schedule and a budget reflecting fee schedules.
CHAPTER 31. CORPORATIONS.
ARTICLE 15. ECONOMIC DEVELOPMENT AUTHORITY.
§31-15-20. Consolidated fund investments as revolving loan fund.
The board of investments state treasurer shall, under the provisions of this article and section
ten, article six-c, chapter twelve of this code, invest moneys, securities and other assets of the special
account for the common investment of state funds designated as the state account within the special
investment fund designated as the consolidated fund established under the provisions of subsection
(b), section eight, article six, chapter twelve of this code as a revolving loan fund with the authority.
to enable the The authority to make may approve loans approved by the authority and to be funded
from such consolidated fund from the revolving loan fund in an amount which shall not at anytime
exceed one hundred fifty seventy-five million dollars in the aggregate principal amount outstanding.
With respect to loans funded under this article through the consolidated fund of the state, such the
loans shall be made in the name of the consolidated fund by the authority."
The bill was then ordered to third reading.
Com. Sub. for S. B. 136, Exempting mandatory immunizations for religious beliefs; on
second reading, coming up in regular order, was, at the request of Delegate Staton, and by
unanimous consent, further consideration of the bill was postponed to be taken up on the first
reading calendar
Com. Sub. for S. B. 181, Relating to compulsory school attendance and home school
instruction; on second reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, further consideration of the bill was postponed to be taken up on the first
reading calendar
Com. Sub. for S. B. 213, Restricting actions brought by nonresidents in state courts; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 1. VENUE.
§56-1-1. Venue generally.
(a) Any civil action or other proceeding, except where it is otherwise specially provided, may
hereafter be brought in the circuit court of any county:
(1) Wherein any of the defendants may reside or the cause of action arose, except that an
action of ejectment or unlawful detainer must be brought in the county wherein the land sought to
be recovered, or some part thereof, is; or
(2) If a corporation be a defendant, wherein its principal office is or wherein its mayor,
president or other chief officer resides; or if its principal office be not in this state, and its mayor,
president or other chief officer do not reside therein, wherein it does business; or if it be a
corporation organized under the laws of this state which has its principal office located outside of
this state and which has no office or place of business within the state, the circuit court of the county
in which the plaintiff resides or the circuit court of the county in which the seat of state government
is located shall have jurisdiction of all actions at law or suits in equity against such the corporation,
where the cause of action arose in this state or grew out of the rights of stockholders with respect
to corporate management; or
(3) If it be to recover land or subject it to a debt, wherein such where the land or any part
thereof may be; or
(4) If it be against one or more nonresidents of the state, wherein where any one of them may be found and served with process or may have estate or debts due him or them; or
(5) If it be to recover a loss under any policy of insurance upon either property, life or health
or against injury to a person, wherein where the property insured was situated either at the date of
the policy or at the time when the right of action accrued or the person insured had a legal residence
at the date of his or her death or at the time when the right of action accrued; or
(6) If it be on behalf of the state in the name of the attorney general or otherwise, wherein
where the seat of government is; or
(7) If a judge of a circuit be interested in a case which, but for such interest, would be proper
for the jurisdiction of his or her court, the action or suit may be brought in any county in an
adjoining circuit.
(b) Whenever a civil action or proceeding is brought in the county wherein where the cause
of action arose, under the provisions of subsection (a) of this section, if no defendant resides in such
the county, a defendant to the action or proceeding may move the court before which the action is
pending for a change of venue to a county wherein where one or more of the defendants resides and
upon a showing by the moving defendant that the county to which the proposed change of venue
would be made would better afford convenience to the parties litigant and the witnesses likely to be
called, and if the ends of justice would be better served by such the change of venue, the court may
grant such the motion.
(c) Effective for actions filed after the effective date of this section, a nonresident of the state
may not bring an action in a court of this state unless all or a substantial part of the acts or omissions
giving rise to the claim asserted occurred in this state: Provided, That unless barred by the statute
of limitations or otherwise time barred in the state where the action arose, a nonresident of this state
may file an action in state court in this state if the nonresident cannot obtain jurisdiction in either
federal or state court against the defendant in the state where the action arose. A nonresident
bringing such an action in this state shall be required to establish, by filing an affidavit with the
complaint for consideration by the court, that such action cannot be maintained in the state where the action arose due to lack of any legal basis to obtain personal jurisdiction over the defendant.
In a civil action where more than one plaintiff is joined, each plaintiff must independently establish
proper venue. A person may not intervene or join in a pending civil action as a plaintiff unless the
person independently establishes proper venue. If venue is not proper as to any such nonresident
plaintiff in any court of this state, the court shall dismiss the claims of the plaintiff without prejudice
to refiling in a court in any other state or jurisdiction."
The bill was then ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 382), and there were--yeas 95, nays
2, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Boggs and Yost.
Absent And Not Voting: Coleman, Fleischauer and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 383),
and there were--yeas 95, nays 3, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Boggs, Fragale and Yost.
Absent And Not Voting: Coleman and Fleischauer.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for S. B. 213) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 213 -- "A Bill to amend and reenact section one, article one, chapter fifty-six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating
to venue in West Virginia state courts as it applies to nonresidents of the state; providing that a
nonresident may not bring an action in this state unless all or a substantial part of the acts or
omissions giving rise to the claim asserted occurred in this state; setting forth the conditions under
which a nonresident can file an action in this state if the nonresident cannot obtain jurisdiction over
a defendant in the state where the action arose; requiring a nonresident to establish that such action
cannot be maintained in the state where the action arose due to lack of any legal basis to obtain
personal jurisdiction over the defendant; providing that in a civil action where more than one
plaintiff is joined, each plaintiff must independently establish proper venue; limiting a nonresident
from intervening or joining as a plaintiff unless the person independently establishes proper venue;
and requiring the court to dismiss a plaintiff without prejudice if venue is not proper as to any such
nonresident plaintiff in any court of this state."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 384), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Webb.
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 213) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 383, Allowing alcohol beverage control commissioner, with approval
of governor and board of public works, to sell warehouse and purchase replacement; on second
reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous
consent, further consideration of the bill was postponed to be taken up on the first reading calendar
S. B. 388, Modifying requirements for titling and registration of imported vehicles; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 3A. VEHICLE COMPLIANCE WITH FEDERAL CLEAN AIR STANDARDS
AND VEHICLE SAFETY.
§17A-3A-2. Consumer disclosure
Before a motor vehicle not originally manufactured in accordance with the laws and
regulations of the United States Clean Air Act and the United States Motor Vehicle Safety Act can
be sold to a consumer in this state, the seller must provide the purchaser with full written disclosure
of all modifications performed to the vehicle. This disclosure consists of a description phrased in
terms reasonably understandable to a consumer with no specialized technical training, accompanied
by a copy of technical submissions made to the environmental protection agency and department
of transportation in order to obtain certification of compliance. Failure to make this disclosure
renders the sale voidable.
§17A-3A-3. Certificates of title.
(a) Before any imported vehicle which has not previously been
titled or registered in the United States may be titled in this state, the applicant must submit: (1) a
manufacturer's certificate of origin issued by the actual vehicle manufacturer together with a
notarized translation thereof; or (2) the documents constituting valid proof of ownership in the
country in which the vehicle was originally purchased, by an individual owner or exporter and
evidencing a change of such ownership to the applicant, together with a notarized translation of any
document; or (3) with regard to vehicles imported from countries which cancel the vehicle
registration and title for export, the documents assigned to such vehicle after the registration and title
have been canceled, together with a notarized translation thereof, and proof satisfactory to the
division that the motor vehicle complies with the United States Clean Air Act and the Motor Vehicle Safety Act.
(b) In the event that the documents submitted as required by subsection (a) of this section
do not name as owner the current applicant for a certificate of title, the applicant must also submit
reliable proof of a chain of title. For those countries which utilize documents of registration rather
than a certificate of title, proof of a chain of title for purposes of this subsection shall be
accomplished by presenting the change of ownership certificate referred to in subsection (a) of this
section above.
The commissioner shall have the authority to issue a temporary title for vehicles subject to
the provisions of this section Application for a temporary title shall include an affidavit from a U.S.
Department of Transportation approved modification facility, stating that the standards required by
the U.S. Department of Transportation and the U.S. Environmental Protection Agency have been
met; and further an affidavit from the vehicle owner stating that all necessary paperwork has been
forwarded to the applicable federal agencies for consideration of a bond release letter. Temporary
titles shall not be transferable and shall be valid fora period of time not to exceed ten months.
The fee for the temporary title shall be twenty five dollars. Applicable privilege taxes, as
provided for in this or other sections of the code, shall be collected from the owner upon application
for the temporary title, and additional privilege taxes shall not be required upon application for
permanent titles issues following the issuance of said temporary titles. Receipt of a federal bond
release letter shall be required to be filed with the commissioner prior to issuance of a permanent
title."
The bill was then ordered to third reading.
S. B. 430, Providing additional restrictions on outdoor advertising; on second reading,
coming up in regular order, was read a second time and ordered to third reading.
S. B. 433, Relating to public employees insurance agency's cost-sharing and coverage plan;
on second reading, coming up in regular order, was, on motion of Delegate Staton, laid over one
day.
Com. Sub. for S. B. 529, Creating institute for health care professionals and center for
nursing; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page two, by striking out everything following the
enacting clause and inserting in lieu thereof the following:
"That chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended by adding thereto a new article, designated article seven-b, to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 7B. CENTER FOR NURSING.
§30-7B-1. West Virginia center for nursing; purpose and function.
(a) Effective the first day of July, two thousand three, the nursing shortage study
commission, established pursuant to the provisions of section eighteen, article seven, chapter thirty
of this code, is terminated and the powers and duties of the commission are transferred to the West
Virginia center for nursing.
(b) Effective the first day of July, two thousand three, the West Virginia center for nursing
is established, the purpose of which is to address the issues of recruitment and retention of nurses
in West Virginia.
(c) The West Virginia center for nursing shall:
(1) Establish a statewide strategic plan to address the nursing shortage in West Virginia;
(2) Establish and maintain a database of statistical information regarding nursing supply,
demand and turnover rates in West Virginia and future projections;
(3) Enhance and promote recruitment and retention of nurses by creating reward, recognition
and renewal programs;
(4) Promote media and positive image building efforts for nursing, including establishing
a statewide media campaign to recruit students of all ages and backgrounds to the various nursing programs throughout West Virginia;
(5) Promote nursing careers through educational and scholarship programs, programs
directed at nontraditional students and other workforce initiatives;
(6) Explore and establish loan repayment and scholarship programs, with participation
directed to nurses who remain in the state after graduation and who work in hospitals and other
health- care institutions with a critical shortage of nurses;
(7) Establish grants and other programs to provide tax incentives and other financial
incentives for employers to encourage and assist with nursing education, internships and residency
programs;
(8) Develop incentive and training programs for long term care facilities and other health
care institutions to use self-assessment tools documented to correlate with nurse retention, such as
the magnet hospital program;
(9) Explore and evaluate the use of year-round and day and evening nursing training and
education programs;
(10) Establish a statewide hotline and website for information about the center and its
mission and nursing careers and educational opportunities in West Virginia;
(11) Evaluate capacity for expansion of nursing programs, including the availability of
faculty, clinical laboratories, computers and software, library holdings and supplies;
(12) Oversee development and implementation of education and matriculation programs for
health care providers covering certified nursing assistants, licensed practical nurses, registered
professional nurses, advanced nurse practitioners and other advanced degrees;
(13) Seek to improve the compensation of all nurses, including nursing educators; and
(14) Perform such other activities as needed to alleviate the nursing shortage in West
Virginia.
§30-7B-2. Board of Directors.
(a) The West Virginia center for nursing shall be governed by a board of directors consisting of the following sixteen members:
(1) One citizen member;
(2) One representative from the West Virginia board of examiners for registered professional
nurses;
(3) One representative from the West Virginia board of examiners for licensed practical
nurses;
(4) One representative from the West Virginia nurses association;
(5) Three registered nurse educators, as follows:
(A) One nurse educator from a school that educates licensed practical nurses;
(B) One nurse educator representing associate degree programs; and
(C) One nurse educator representing baccalaureate and higher degree programs;
(6) Three representatives of employers of nurses, as follows: (A) One chief nurse executive;
(B) One director of nursing; and
(C) One health care administrator;
(7) Three registered professional staff nurses representing different areas of nursing; and
(8) Three ex-officio members, as follows:
(A) The secretary for education and the arts or his or her designee from within the agency;
(B) The secretary of the department of health and human resources or his or her designee
from within the agency; and
(C) A representative from the workforce development office.
(b) The members of the board shall be appointed by the governor, with the advice and
consent of the Senate, from names submitted by the president of the West Virginia Senate, the
speaker of the West Virginia House of Delegates, the West Virginia nurses association, the West
Virginia hospital association and other professional nursing associations.
(c) Before the first day of July, two thousand three, the governor shall appoint the citizen
member, the representatives of the licensing boards and the nursing association, and one representative each from the nurse educators, nurse employers and registered professional nurses,
for a term of two years, and the remainder of the board members for a term of four years.
(d) After the initial appointments expire, the terms of all members shall be four years, with
no member serving more than two consecutive terms.
(e) The board shall designate a chairperson. Nine members shall constitute a quorum.
§30-7B-3. Board's powers and duties.
(a) The board of directors shall:
(1) Employ an executive director;
(2) Determine operational policy;
(3) Seek and accept public and private funding;
(4) Expend money from the center for nursing fund to carry out the purposes of this article;
(5) Propose rules for legislative approval in accordance with the provisions of article three,
chapter twenty-nine of this code to implement the provisions of this article; and
(6) Do such other acts as necessary to alleviate the nursing shortage in West Virginia.
(b) The board shall report to the joint committee on government and finance on or before the
first day of January, two thousand four, as to its progress in developing a statewide strategic plan
to address the nursing shortage in West Virginia.
§30-7B-4. Reimbursement for expenses.
The board members shall serve without compensation, but may be reimbursed for actual and
necessary expenses incurred for each day or portion thereof engaged in the discharge of official
duties in a manner consistent with guidelines of the travel management office of the department of
administration.
§30-7B-5. Special revenue account.
(a) A special revenue account known as the 'center for nursing fund' is hereby established
to be administered by the board to carry out the purposes of this article.
(b) The account shall be funded by assessing all nurses licensed by the board of examiners for registered professional nurses and the board of examiners for licensed practical nurses, a
supplemental licensure and renewal fee, not to exceed ten dollars, to be established by legislative
rule, and by seeking other public and private funds.
(c) After the center's first year and in subsequent years thereafter, a minimum of an
equivalent of one third of the funding from the annual licensure fees shall be specifically used for
loan and scholarship programs.
§30-7B-6. Termination.
The West Virginia center for nursing shall terminate on the first day of July, two thousand
six."
The bill was then ordered to third reading.
S. B. 531, Exempting certain lodging franchise assessed fees from consumers sales and
service tax; on second reading, coming up in regular order, was, on motion of Delegate Staton, laid
over one day.
S. B. 547, Relating to judges and justices and judicial retirement; on second reading, coming
up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, following the enacting clause by striking out the remainder
of the bill and inserting in lieu thereof the following:
"That section four, article nine, chapter fifty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted, to read as follows:
ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.
§51-9-4. Required percentage contributions from salaries; any termination of required
contributions prior to actual retirement disallowed; leased employees;
military service credit; maximum allowable and qualified military service;
qualifiable prosecutorial service.
(a) Every person who is now serving or shall hereafter serve as a judge of any court of record of this state shall pay into the judges' retirement fund six percent of the salary received by such
person him or her out of the state treasury: Provided, That when a judge becomes eligible to receive
benefits from such the trust fund by actual retirement, no further payment by him or her shall be
required, since such the employee contribution, in an equal treatment sense, ceases to be required
in the other retirement systems of the state, also, only after actual retirement: Provided, however,
That on and after the first day of January, one thousand nine hundred ninety-five, every person who
is then serving or shall thereafter serve as a judge of any court of record in this state shall pay into
the judges' retirement fund nine percent of the salary received by that person him or her. Any prior
occurrence or practice to the contrary, in any way allowing discontinuance of required employee
contributions prior to actual retirement under this retirement system, is rejected as erroneous and
contrary to legislative intent and as violative of required equal treatment and is hereby nullified and
discontinued fully, with the state auditor to require such contribution in every instance hereafter,
except where no contributions are required to be made under any of the provisions of this article.
(b) An individual who is a leased employee shall not be eligible to participate in the system.
For purposes of this system, a 'leased employee' means any individual who performs services as
an independent contractor or pursuant to an agreement with an employee leasing organization or
other similar organization. If a question arises regarding the status of an individual as a leased
employee, the board has the final power to decide the question.
(c) In drawing warrants for the salary checks of judges, the state auditor shall deduct from
the amount of each such salary check six percent thereof, which amount so deducted shall be
credited by the consolidated public retirement board to the trust fund: Provided, That on or after
the first day of January, one thousand nine hundred ninety-five, the amount so deducted and credited
shall be nine percent of each such salary check.
(d) Any judge seeking to qualify military service to be claimed as credited service, in
allowable aggregate maximum amount up to five years, shall be entitled to be awarded the same
without any required payment in respect thereof to the judges' retirement fund.
(e) Notwithstanding the preceding provisions of this section, contributions, benefits and
service credit with respect to qualified military service shall be provided in accordance with Section
414(u) of the Internal Revenue Code. For purposes of this section, 'qualified military service' has
the same meaning as in Section 414(u) of the Internal Revenue Code. The retirement board is
authorized to determine all questions and make all decisions relating to this section and may
promulgate rules relating to contributions, benefits and service credit pursuant to the authority
granted to the retirement board in section one, article ten-d, chapter five of this code to comply with
Section 414(u) of the Internal Revenue Code.
(f) Any judge holding office as such on the effective date of the amendments to this article
adopted by the Legislature at its regular session in the year one thousand nine hundred eighty-seven,
who seeks to qualify service as a prosecuting attorney as credited service, which service credit must
have been earned prior to the year one thousand nine hundred eighty-seven, shall be required to pay
into the judges' retirement fund nine percent of the annual salary which was actually received by
such person him or her as prosecuting attorney during the time such prosecutorial service was
rendered prior to the year one thousand nine hundred eighty-seven, and for which credited service
is being sought, together with applicable interest: Provided, That for the purposes of this section,
prosecutorial service includes service as an elected, appointed or assistant prosecuting attorney:
Provided, however, That no more than six years as an assistant prosecuting attorney may be included
as credited service pursuant to this subsection. No judge whose term of office shall commence after
the effective date of such the amendments to this article shall be eligible to claim any credit for
service rendered as a prosecuting attorney as eligible service for retirement benefits under this
article, nor shall any time served as a prosecutor after the year one thousand nine hundred
eighty-eight be considered as eligible service for any purposes of this article.
(g) The Legislature finds that any increase in salary for judges of courts of record directly
affects the actuarial soundness of the retirement system for judges of courts of record and, therefore,
an increase in the required percentage contributions of members of that retirement system is the same subject for purposes of determining the single object of this bill."
The bill was then ordered to third reading.
S. B. 583, Creating coal resource transportation road system; on second reading, coming up
in regular order, was, at the request of Delegate Staton, and by unanimous consent, further
consideration of the bill was postponed to be taken up on the first reading calendar
Com. Sub. for S. B. 594, Increasing membership on public employees insurance agency
finance board; on second reading, coming up in regular order, was read a second time and ordered
to third reading.
S. B. 626, Revising works act; on second reading, coming up in regular order, was read a
second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page five, section two, line forty, following the word "responsibility"
and the period, by inserting the following sentence: "The success of the program is to be evaluated
on the following activities, including, but not limited to, the following: Job entry, job retention,
federal work participation requirements and completion of educational activities."
On page seven, section three, following line forty-one, by inserting the following:
"(h) 'Family assessments' means evaluation of the following: Work skills, prior work
experience, employability, education and challenges to becoming self-sufficient such as mental
health and physical health issues along with lack of transportation and child care" followed by a
semicolon.
And,
By relettering the remaining subsections.
On page nine, section three, following line seventy-five, by inserting the following:
"(n) 'Transitional assistance' may include medical assistance, food stamp assistance, child
care and supportive services as defined by the secretary and as funding permits" followed by a
semicolon.
On page seventeen, section eight, line twenty-six, by striking out the word "three" and
inserting in lieu thereof the word "six".
And,
On page seventeen, section eight, line twenty-seven, by striking out the word "three" and
inserting in lieu thereof the word "six".
The bill was then ordered to third reading.
S. B. 637, Supplementing, amending, reducing and increasing items from state road fund to
department of transportation, division of motor vehicles; on second reading, coming up in regular
order, was read a second time and ordered to third reading.
S. B. 638, Making supplementary appropriation to department of military affairs and public
safety, division of corrections, parolee supervision fees; on second reading, coming up in regular
order, was read a second time and ordered to third reading.
S. B. 639, Making supplementary appropriation to department of transportation, division of
motor vehicles, driver's license reinstatement fund; on second reading, coming up in regular order,
was read a second time and ordered to third reading.
S. B. 640, Making supplementary appropriation of federal funds to department of military
affairs and public safety, division of veterans' affairs; on second reading, coming up in regular order,
was read a second time and ordered to third reading.
S. B. 641, Making supplementary appropriation of federal funds to department of
administration, children's health insurance agency; on second reading, coming up in regular order,
was read a second time and ordered to third reading.
S. B. 642, Making supplementary appropriation to department of health and human
resources, division of human services; on second reading, coming up in regular order, was read a
second time and ordered to third reading.
S. B. 643, Making supplementary appropriation to bureau of commerce, division of natural
resources; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 644, Making supplementary appropriation of federal funds to department of military
affairs and public safety, division of corrections; on second reading, coming up in regular order, was
read a second time and ordered to third reading.
S. B. 645, Making supplementary appropriation of federal funds to public service
commission, motor carrier division; on second reading, coming up in regular order, was read a
second time and ordered to third reading.
Com. Sub. for S. B. 651, Creating academy of science and technology; on second reading,
coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page eleven, section four, line nine, by striking out all of subsection
(b) and inserting in lieu thereof the following:
"(b) The council may, through the West Virginia development office, receive and accept
gifts or grants from private foundations, corporations, individuals, devises and bequests or from
other lawful sources. All moneys collected shall be deposited in a special account in the state
treasury to be known as the 'West Virginia academy of science and technology fund'. Expenditures
from the fund shall be made by the West Virginia development office on the request of the council
for the purposes set forth in this article and are not authorized from collections but are to be made
only in accordance with appropriation by the Legislature and in accordance with the provisions of
article three, chapter twelve of this code and upon fulfillment of the provisions of article two,
chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, two
thousand four, expenditures are authorized from collections rather than pursuant to appropriation
by the Legislature."
On page eleven, section four, line twenty-five, following the words "House of Delegates",
by inserting a comma and striking out the word "and".
On page eleven, section four, line twenty-six, following the word "Senate", by inserting the words "and the joint commission on economic development".
On page fourteen, section six, line three, following the word "governor" and the comma, by
inserting the word "the".
On page fourteen, section six, line four, following the words "House of Delegates", by
inserting a comma and striking out the word "and".
And,
On page fourteen, section six, line four, following the word "Senate", by inserting the words
"and the joint commission on economic development".
The bill was then ordered to third reading.
Com. Sub. for H. B. 2050, Budget Bill, making appropriations of public money out of the
treasury in accordance with section fifty-one, article six of the Constitution; on second reading,
coming up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 3204, Expiring funds from the insurance commissioner -insurance commission fund;
on second reading, coming up in regular order, was read a second time and ordered to engrossment
and third reading.
H. B. 3205, Expiring funds from the public service commission; on second reading, coming
up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 3206, Supplemental appropriation to the department of tax and revenue -tax division;
on second reading, coming up in regular order, was read a second time and ordered to engrossment
and third reading.
H. B. 3207, Supplemental appropriation to the department of military affairs and public
safety - division of juvenile services; on second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
H. B. 3208, Supplemental appropriation to the department of military affairs and public
safety - division of corrections - correctional units; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 3209, Supplemental appropriation to the department of military affairs and public
safety - West Virginia parole board; on second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
H. B. 3210, Supplemental appropriation to the department of military affairs and public
safety - division of protective services; on second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
At 1:50 p.m., on motion of Delegate Staton, the House of Delegates recessed until 7:00 p.m.,
and reconvened at that time.
* * * * * * * * * *
Evening Session
* * * * * * * * * *
Reordering of the Calendar
Delegate Staton announced that the Committee on Rules had transferred S. B. 181, on second
reading, Special Calendar, to the House Calendar.
Messages from the Senate
The House then proceeded to further consideration of
H. B. 2511, Authorizing the issuance of a special motor vehicle license plate for "Nemesis
Shrine" members; having been received as a message from the Senate in earlier proceedings and
having been postponed until this time, was, on motion of Delegate Staton taken up for immediate
consideration.
The following Senate amendments were then reported by the Clerk:
On page three, by striking out everything following the enacting clause and inserting in lieu
thereof the following:
That section fourteen, article three, chapter seventeen-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and reenacted, to read as follows:
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-14. Registration plates generally; description of plates; issuance of special numbers
and plates; registration fees; special application fees; exemptions; commissioner to
promulgate forms; suspension and nonrenewal.
(a) The division upon registering a vehicle shall issue to the owner one registration plate for
a motorcycle, trailer, semitrailer or other motor vehicle.
(b) Registration plates issued by the division shall meet the following requirements:
(1) Every registration plate shall be of reflectorized material and have displayed upon it the
registration number assigned to the vehicle for which it is issued; the name of this state, which may
be abbreviated; and the year number for which it is issued or the date of expiration of the plate.
(2) Every registration plate and the required letters and numerals on the plate shall be of
sufficient size to be plainly readable from a distance of one hundred feet during daylight: Provided,
that the requirements of this subdivision shall not apply to the year number for which the plate is
issued or the date of expiration.
(3) Registration numbering for registration plates shall begin with number two.
(c) The division may not issue, permit to be issued or distribute any special registration
plates except as follows:
(1) The governor shall be issued two registration plates, on one of which shall be imprinted
the numeral one and on the other the word one.
(2) State officials and judges may be issued special registration plates as follows:
(A) Upon appropriate application, the division shall issue to the secretary of state, state
superintendent of schools, auditor, treasurer, commissioner of agriculture and the attorney general,
the members of both houses of the Legislature, including the elected officials of both houses of the
Legislature, the justices of the supreme court of appeals of West Virginia, the representatives and
senators of the state in the Congress of the United States, the judges of the West Virginia circuit courts, active and retired on senior status, the judges of the United States district courts for the state
of West Virginia and the judges of the United States court of appeals for the fourth circuit, if any
of the judges are residents of West Virginia, a special registration plate for a Class A motor vehicle
and a special registration plate for a Class G motorcycle owned by the official or his or her spouse:
Provided, that the division may issue a Class A special registration plate for each vehicle titled to
the official and a Class G special registration plate for each motorcycle titled to the official.
(B) Each plate issued pursuant to this subdivision shall bear any combination of letters and
numbers not to exceed an amount determined by the commissioner and a designation of the office.
Each plate shall supersede the regular numbered plate assigned to the official or his or her spouse
during the official's term of office and while the motor vehicle is owned by the official or his or her
spouse.
(C) The division shall charge an annual fee of fifteen dollars for every registration plate
issued pursuant to this subdivision, which is in addition to all other fees required by this chapter.
(3) The division may issue members of the national guard forces special registration plates
as follows:
(A) Upon receipt of an application on a form prescribed by the division and receipt of written
evidence from the chief executive officer of the army national guard or air national guard, as
appropriate, or the commanding officer of any United States armed forces reserve unit that the
applicant is a member thereof, the division shall issue to any member of the national guard of this
state or a member of any reserve unit of the United States armed forces a special registration plate
designed by the commissioner for any number of Class A motor vehicles owned by the member.
Upon presentation of written evidence of retirement status, retired members of this state's army or
air national guard, or retired members of any reserve unit of the United States armed forces, are
eligible to purchase the special registration plate issued pursuant to this subdivision.
(B) The division shall charge an initial application fee of ten dollars for each special
registration plate issued pursuant to this subdivision, which is in addition to all other fees required by this chapter. All initial application fees collected by the division shall be deposited into a special
revolving fund to be used in the administration of this section.
(C) A surviving spouse may continue to use his or her deceased spouse's national guard
forces license plate until the surviving spouse dies, remarries or does not renew the license plate.
(4) Specially arranged registration plates may be issued as follows:
(A) Upon appropriate application, any owner of a motor vehicle subject to Class A
registration, or a motorcycle subject to Class G registration, as defined by this article, may request
that the division issue a registration plate bearing specially arranged letters or numbers with the
maximum number of letters or numbers to be determined by the commissioner. The division shall
attempt to comply with the request wherever possible.
(B) The commissioner shall propose rules for legislative approval in accordance with the
provisions of chapter twenty-nine-a of this code regarding the orderly distribution of the plates:
Provided, that for purposes of this subdivision, the registration plates requested and issued shall
include all plates bearing the numbers two through two thousand.
(C) An annual fee of fifteen dollars shall be charged for each special registration plate issued
pursuant to this subdivision, which is in addition to all other fees required by this chapter.
(5) The division may issue honorably discharged veterans special registration plates as
follows:
(A) Upon appropriate application, the division shall issue to any honorably discharged
veteran of any branch of the armed services of the United States a special registration plate for any
number of vehicles titled in the name of the qualified applicant with an insignia designed by the
commissioner of the division of motor vehicles.
(B) The division shall charge a special initial application fee of ten dollars in addition to all
other fees required by law. This special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of the special registration and shall be collected
by the division and deposited in a special revolving fund to be used for the administration of this section: Provided, that nothing in this section may be construed to exempt any veteran from any
other provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased spouse's honorably
discharged veterans license plate until the surviving spouse dies, remarries or does not renew the
license plate.
(6) The division may issue disabled veterans special registration plates as follows:
(A) Upon appropriate application, the division shall issue to any disabled veteran who is
exempt from the payment of registration fees under the provisions of this chapter a registration plate
for a vehicle titled in the name of the qualified applicant which bears the letters "DV" in red and also
the regular identification numerals in red.
(B) A surviving spouse may continue to use his or her deceased spouse's disabled veterans
license plate until the surviving spouse dies, remarries or does not renew the license plate.
(C) A qualified disabled veteran may obtain a second disabled veteran license plate as
described in this section for use on a passenger vehicle titled in the name of the qualified applicant.
The division shall charge a one-time fee of ten dollars to be deposited into a special revolving fund
to be used in the administration of this section, in addition to all other fees required by this chapter,
for the second plate.
(7) The division may issue recipients of the distinguished purple heart medal special
registration plates as follows:
(A) Upon appropriate application, there shall be issued to any armed service person holding
the distinguished purple heart medal for persons wounded in combat a registration plate for a vehicle
titled in the name of the qualified applicant bearing letters or numbers. The registration plate shall
be designed by the commissioner of motor vehicles and shall denote that those individuals who are
granted this special registration plate are recipients of the purple heart. All letterings shall be in
purple where practical.
(B) Registration plates issued pursuant to this subdivision are exempt from all registration fees otherwise required by the provisions of this chapter.
(C) A surviving spouse may continue to use his or her deceased spouse's purple heart medal
license plate until the surviving spouse dies, remarries or does not renew the license plate.
(D) A recipient of the purple heart medal may obtain a second purple heart medal license
plate as described in this section for use on a passenger vehicle titled in the name of the qualified
applicant. The division shall charge a one-time fee of ten dollars to be deposited into a special
revolving fund to be used in the administration of this section, in addition to all other fees required
by this chapter, for the second plate.
(8) The division may issue survivors of the attack on Pearl Harbor special registration plates
as follows:
(A) Upon appropriate application, the owner of a motor vehicle who was enlisted in any
branch of the armed services that participated in and survived the attack on Pearl Harbor on the
seventh day of December, one thousand nine hundred forty-one, the division shall issue a special
registration plate for a vehicle titled in the name of the qualified applicant. The registration plate
shall be designed by the commissioner of motor vehicles.
(B) Registration plates issued pursuant to this subdivision are exempt from the payment of
all registration fees otherwise required by the provisions of this chapter.
(C) A surviving spouse may continue to use his or her deceased spouse's survivors of the
attack on Pearl Harbor license plate until the surviving spouse dies, remarries or does not renew the
license plate.
(D) A survivor of the attack on Pearl Harbor may obtain a second survivors of the attack on
Pearl Harbor license plate as described in this section for use on a passenger vehicle titled in the
name of the qualified applicant. The division shall charge a one-time fee of ten dollars to be
deposited into a special revolving fund to be used in the administration of this section, in addition
to all other fees required by this chapter, for the second plate.
(9) The division may issue special registration plates to nonprofit charitable and educational organizations authorized under prior enactment of this subdivision as follows:
(A) Approved nonprofit charitable and educational organizations previously authorized
under the prior enactment of this subdivision may accept and collect applications for special
registration plates from owners of Class A motor vehicles together with a special annual fee of
fifteen dollars, which is in addition to all other fees required by this chapter. The applications and
fees shall be submitted to the division of motor vehicles with the request that the division issue a
registration plate bearing a combination of letters or numbers with the organizations' logo or
emblem, with the maximum number of letters or numbers to be determined by the commissioner.
(B) The commissioner shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code regarding the procedures for and
approval of special registration plates issued pursuant to this subdivision.
(C) The commissioner shall set an appropriate fee to defray the administrative costs
associated with designing and manufacturing special registration plates for a nonprofit charitable
or educational organization. The nonprofit charitable or educational organization shall collect this
fee and forward it to the division for deposit in a special revolving fund to pay the administrative
costs. The nonprofit charitable or educational organization may also collect a fee for marketing the
special registration plates.
(D) The commissioner may not approve or authorize any additional nonprofit charitable and
educational organizations to design or market special registration plates.
(10) The division may issue specified emergency or volunteer registration plates as follows:
(A) Any owner of a motor vehicle who is a resident of the state of West Virginia and who
is a certified paramedic or emergency medical technician, a member of a paid fire department, a
member of the state fire commission, the state fire marshal, the state fire marshal's assistants, the
state fire administrator and voluntary rescue squad members may apply for a special license plate
for any number of Class A vehicles titled in the name of the qualified applicant which bears the
insignia of the profession, group or commission. Any insignia shall be designed by the commissioner. License plates issued pursuant to this subdivision shall bear the requested insignia
in addition to the registration number issued to the applicant pursuant to the provisions of this
article.
(B) Each application submitted pursuant to this subdivision shall be accompanied by an
affidavit signed by the fire chief or department head of the applicant stating that the applicant is
justified in having a registration with the requested insignia; proof of compliance with all laws of
this state regarding registration and licensure of motor vehicles; and payment of all required fees.
(C) Each application submitted pursuant to this subdivision shall be accompanied by
payment of a special initial application fee of ten dollars, which is in addition to any other
registration or license fee required by this chapter. All special fees shall be collected by the division
and deposited into a special revolving fund to be used for the purpose of compensating the division
of motor vehicles for additional costs and services required in the issuing of the special registration
and for the administration of this section.
(11) The division may issue specified certified firefighter registration plates as follows:
(A) Any owner of a motor vehicle who is a resident of the state of West Virginia and who
is a certified firefighter may apply for a special license plate which bears the insignia of the
profession, for any number of Class A vehicles titled in the name of the qualified applicant. Any
insignia shall be designed by the commissioner. License plates issued pursuant to this subdivision
shall bear the requested insignia pursuant to the provisions of this article. Upon presentation of
written evidence of certification as a certified firefighter, certified firefighters are eligible to
purchase the special registration plate, issued pursuant to this subdivision.
(B) Each year an application submitted pursuant to this subdivision shall be accompanied
by an affidavit signed by the West Virginia state fire commission or a copy of the applicant's
certification as a certified firefighter, with certification number, stating that the applicant is justified
in having a registration with the requested insignia; proof of compliance with all laws of this state
regarding registration and licensure of motor vehicles; and payment of all required fees. The firefighter certification department, section or division of the West Virginia university fire service
extension shall notify the commissioner in writing immediately when a firefighter loses his or her
certification. If a firefighter loses his or her certification, the commissioner may not issue him or
her a license plate under this subsection.
(C) Each year an application submitted pursuant to this subdivision shall be accompanied
by payment of a special initial application fee of ten dollars, which is in addition to any other
registration or license fee required by this chapter. All special fees shall be collected by the division
and deposited into a special revolving fund to be used for the purpose of compensating the division
of motor vehicles for additional costs and services required in the issuing of the special registration
and for the administration of this section.
(12) The division may issue special scenic registration plates as follows:
(A) Upon appropriate application, the commissioner shall issue a special registration plate
displaying a scenic design of West Virginia which displays the words "Wild Wonderful" as a slogan.
(B) The division shall charge a special one-time initial application fee of ten dollars in
addition to all other fees required by this chapter. All initial application fees collected by the
division shall be deposited into a special revolving fund to be used in the administration of this
chapter.
(13) The division may issue honorably discharged marine corps league members special
registration plates as follows:
(A) Upon appropriate application, the division shall issue to any honorably discharged
marine corps league member a special registration plate for any number of vehicles titled in the
name of the qualified applicant with an insignia designed by the commissioner of the division of
motor vehicles.
(B) The division may charge a special one-time initial application fee of ten dollars in
addition to all other fees required by this chapter. This special fee is to compensate the division of
motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the
administration of this section: Provided, That nothing in this section may be construed to exempt
any veteran from any other provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased spouse's honorably
discharged marine corps league license plate until the surviving spouse dies, remarries or does not
renew the license plate.
(14) The division may issue military organization registration plates as follows:
(A) The division may issue a special registration plate for the members of any military
organization chartered by the United States Congress upon receipt of a guarantee from organization
of a minimum of one hundred applicants. The insignia on the plate shall be designed by the
commissioner.
(B) Upon appropriate application, the division may issue members of the chartered
organization in good standing, as determined by the governing body of the chartered organization,
a special registration plate for any number of vehicles titled in the name of the qualified applicant.
(C) The division shall charge a special one-time initial application fee of ten dollars for each
special license plate in addition to all other fees required by this chapter. All initial application fees
collected by the division shall be deposited into a special revolving fund to be used in the
administration of this chapter: Provided, that nothing in this section may be construed to exempt
any veteran from any other provision of this chapter.
(D) A surviving spouse may continue to use his or her deceased spouse's military
organization registration plate until the surviving spouse dies, remarries or does not renew the
special military organization registration plate.
(15) The division may issue special nongame wildlife registration plates and special wildlife
registration plates as follows:
(A) Upon appropriate application, the division shall issue a special registration plate
displaying a species of West Virginia wildlife which shall display a species of wildlife native to West Virginia as prescribed and designated by the commissioner and the director of the division of
natural resources.
(B) The division shall charge an annual fee of fifteen dollars for each special nongame
wildlife registration plate and each special wildlife registration plate in addition to all other fees
required by this chapter. All annual fees collected for nongame wildlife registration plates and
wildlife registration plates shall be deposited in a special revenue account designated the nongame
wildlife fund and credited to the division of natural resources.
(C) The division shall charge a special one-time initial application fee of ten dollars in
addition to all other fees required by this chapter. All initial application fees collected by the
division shall be deposited in a special revolving fund to be used in the administration of this
chapter.
(16) The division may issue members of the silver haired legislature special registration
plates as follows:
(A) Upon appropriate application, the division shall issue to any person who is a duly
qualified member of the silver haired legislature a specialized registration plate which bears
recognition of the applicant as a member of the silver haired legislature.
(B) A qualified member of the silver haired legislature may obtain one registration plate
described in this subdivision for use on a passenger vehicle titled in the name of the qualified
applicant. The division shall charge an annual fee of fifteen dollars, in addition to all other fees
required by this chapter, for the plate. All annual fees collected by the division shall be deposited
in a special revolving fund to be used in the administration of this chapter.
(17) Upon appropriate application, the commissioner shall issue to a classic motor vehicle
or classic motorcycle as defined in section three-a, article ten of this chapter, a special registration
plate designed by the commissioner. An annual fee of fifteen dollars, in addition to all other fees
required by this chapter, shall be charged for each classic registration plate.
(18) Honorably discharged veterans may be issued special registration plates for motorcycles subject to Class G registration as follows:
(A) Upon appropriate application, there shall be issued to any honorably discharged veteran
of any branch of the armed services of the United States a special registration plate for any number
of motorcycles subject to Class G registration titled in the name of the qualified applicant with an
insignia designed by the commissioner of the division of motor vehicles.
(B) A special initial application fee of ten dollars shall be charged in addition to all other fees
required by law. This special fee is to compensate the division of motor vehicles for additional costs
and services required in the issuing of the special registration and shall be collected by the division
and deposited in a special revolving fund to be used for the administration of this section: Provided,
that nothing in this section may be construed to exempt any veteran from any other provision of this
chapter.
(C) A surviving spouse may continue to use his or her deceased spouse's honorably
discharged veterans license plate until the surviving spouse dies, remarries or does not renew the
license plate.
(19) Racing theme special registration plates:
(A) The division may issue a series of special registration plates displaying national
association for stock car auto racing themes.
(B) An annual fee of twenty-five dollars shall be charged for each special racing theme
registration plate in addition to all other fees required by this chapter. All annual fees collected for
each special racing theme registration plate shall be deposited into a special revolving fund to be
used in the administration of this chapter.
(C) A special application fee of ten dollars shall be charged at the time of initial application
as well as upon application for any duplicate or replacement registration plate, in addition to all
other fees required by this chapter. All application fees shall be deposited into a special revolving
fund to be used in the administration of this chapter.
(20) The division may issue recipients of the navy cross, distinguished service cross, distinguished flying cross, air force cross, bronze star or silver star special registration plates as
follows:
(A) Upon appropriate application, the division shall issue to any recipient of the navy cross,
distinguished service cross, distinguished flying cross, air force cross, silver star or bronze star, a
registration plate for any number of vehicles titled in the name of the qualified applicant bearing
letters or numbers. A separate registration plate shall be designed by the commissioner of motor
vehicles for each award that denotes that those individuals who are granted this special registration
plate are recipients of the navy cross, distinguished service cross, distinguished flying cross, air
force cross, silver star or bronze star, as applicable.
(B) The division shall charge a special initial application fee of ten dollars in addition to all
other fees required by law. This special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of the special registration and shall be collected
by the division and deposited in a special revolving fund to be used for the administration of this
section: Provided, that nothing in this section exempts the applicant for a special registration plate
under this subdivision from any other provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased spouse's navy cross,
distinguished service cross, distinguished flying cross, air force cross, silver star or bronze star
special registration plate until the surviving spouse dies, remarries or does not renew the special
registration plate.
(21) The division may issue honorably discharged veterans special registration plates as
follows:
(A) Upon appropriate application, the division shall issue to any honorably discharged
veteran of any branch of the armed services of the United States with verifiable service during
World War II, the Korean War, the Vietnam War, the Persian Gulf War or the War against
Terrorism, a special registration plate for any number of vehicles titled in the name of the qualified
applicant with an insignia designed by the commissioner denoting service in the applicable conflict.
(B) The division shall charge a special one-time initial application fee of ten dollars in
addition to all other fees required by law. This special fee is to compensate the division of motor
vehicles for additional costs and services required in the issuing of the special registration and shall
be collected by the division and deposited in a special revolving fund to be used for the
administration of this section: Provided, that nothing contained in this section may be construed to
exempt any veteran from any other provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased spouse's honorably
discharged veterans registration plate until the surviving spouse dies, remarries or does not renew
the special registration plate.
(22) The division may issue special volunteer firefighter registration plates as follows:
(A) Any owner of a motor vehicle who is a resident of West Virginia and who is a volunteer
fireman or woman firefighter may apply for a special license plate for one any Class A vehicle titled
in the name of the qualified applicant which bears the insignia of the profession in white letters on
a red background. The insignia shall be designed by the commissioner and shall contain a fireman's
helmet insignia on the left side of the license plate.
(B) Each application submitted pursuant to this subdivision shall be accompanied by an
affidavit signed by the applicant's fire chief, stating that the applicant is a volunteer fireman or
woman firefighter and justified in having a registration plate with the requested insignia. The
applicant must comply with all other laws of this state regarding registration and licensure of motor
vehicles and must pay all required fees. Only one such license plate may be issued to a volunteer
fireman or woman.
(C) Each application submitted pursuant to this subdivision shall be accompanied by
payment of a special one-time initial application fee of one dollar ten dollars, which is in addition
to any other registration or license fee required by this chapter. All application fees shall be
deposited into a special revolving fund to be used in the administration of this chapter.
(23) The division may issue special registration plates which reflect patriotic themes, including the display of any United States symbol, icon, phrase or expression, which evokes
patriotic pride or recognition.
(A) Upon appropriate application, the division shall issue to an applicant a registration plate
of the applicant's choice, displaying a patriotic theme as provided in this subdivision, for a vehicle
titled in the name of the applicant. A series of registration plates displaying patriotic themes shall
be designed by the commissioner of motor vehicles for distribution to applicants.
(B) The division shall charge a special one-time initial application fee of ten dollars in
addition to all other fees required by law. This special fee is to compensate the division of motor
vehicles for additional costs and services required in the issuing of the special registration and shall
be collected by the division and deposited in a special revolving fund to be used for the
administration of this section.
(24) Special license plates bearing the American flag and the logo "9/11/01".
(A) Upon appropriate application, the division shall issue special registration plates which
shall display the American flag and the logo "9/11/01".
(B) An annual fee of fifteen dollars shall be charged for each plate in addition to all other
fees required by this chapter.
(C) A special application fee of ten dollars shall be charged at the time of initial application
as well as upon application for any duplicate or replacement registration plate, in addition to all
other fees required by this chapter. All application fees shall be deposited into a special revolving
fund to be used in the administration of this chapter.
(25) The division may issue a special registration plate celebrating the centennial of the 4-H
youth development movement and honoring the future farmers of America organization as follows:
(A) Upon appropriate application, the division may issue a special registration plate
depicting the symbol of the 4-H organization which represents the head, heart, hands and health as
well as the symbol of the future farmers of America organization which represents a cross section
of an ear of corn for any number of vehicles titled in the name of the qualified applicant.
(B) The division shall charge a special initial application fee of ten dollars in addition to all
other fees required by law. This special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of the special registration and shall be collected
by the division and deposited in a special revolving fund to be used for the administration of this
section.
(C) The division shall charge an annual fee of fifteen dollars for each special 4-H future
farmers of America registration plate in addition to all other fees required by this chapter.
(26) The division may issue special registration plates to educators in the state's elementary
and secondary schools and in the state's institutions of higher education as follows:
(A) Upon appropriate application, the division may issue a special registration plate designed
by the commissioner for any number of vehicles titled in the name of the qualified applicant.
(B) The division shall charge a special initial application fee of ten dollars in addition to all
other fees required by law. This special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of the special registration and shall be collected
by the division and deposited in a special revolving fund to be used for the administration of this
section.
(C) The division shall charge an annual fee of fifteen dollars for each special educator
registration plate in addition to all other fees required by this chapter.
(27) The division may issue special registration plates to members of the Nemesis Shrine as
follows:
(A) Upon appropriate application, the division may issue a special registration plate designed
by the commissioner for any number of vehicles titled in the name of the qualified applicant.
Persons desiring the special registration plate shall offer sufficient proof of membership in Nemesis
Shrine.
(B) The division shall charge a special initial application fee of ten dollars in addition to all
other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected
by the division and deposited in a special revolving fund to be used for the administration of this
section.
(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other
fees required by this chapter.
(28) The division may issue volunteers and employees of the American Red Cross special
registration plates as follows:
(A) Upon appropriate application, the division shall issue to any person who is a duly
qualified volunteer or employee of the American Red Cross a specialized registration plate which
bears recognition of the applicant as a volunteer or employee of the American Red Cross for any
number of vehicles titled in the name of the qualified applicant.
(B) The division shall charge a special initial application fee of ten dollars in addition to all
other fees required by law. This special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of the special registration and shall be collected
by the division and deposited in a special revolving fund to be used for the administration of this
section.
(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other
fees required by this chapter.
(29) The division shall issue special registration plates to individuals who have received
either the Combat Infantry Badge or the Combat Medic Badge as follows:
(A) Upon appropriate application, the division shall issue a special registration plate
designed by the commissioner for any number of vehicles titled in the name of the qualified
applicant. Persons desiring the special registration plate shall offer sufficient proof that they have
received either the Combat Infantry Badge or the Combat Medic Badge.
(B) The division shall charge a special initial application fee of ten dollars in addition to all
other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected
by the division and deposited in a special revolving fund to be used for the administration of this
section.
(30) The division may issue special registration plates to members of the Knights of
Columbus as follows:
(A) Upon appropriate application, the division shall issue a special registration plate
designed by the commissioner for any number of vehicles titled in the name of the qualified
applicant. Persons desiring the special registration plate shall offer sufficient proof of membership
in the Knights of Columbus.
(B) The division shall charge a special initial application fee of ten dollars in addition to all
other fees required by law. This special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of the special registration and shall be collected
by the division and deposited in a special revolving fund to be used for the administration of this
section.
(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other
fees required by this chapter.
(31) The division may issue special registration plates to former members of the Legislature
as follows:
(A) Upon appropriate application, the division shall issue a special registration plate
designed by the commissioner for any number of vehicles titled in the name of the qualified
applicant. Persons desiring the special registration plate shall offer sufficient proof of former service
as an elected or appointed member of the West Virginia House of Delegates or the West Virginia
Senate.
(B) The division shall charge a special initial application fee of ten dollars in addition to all
other fees required by law. This special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this
section. The design of the plate shall indicate total years of service in the Legislature.
(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other
fees required by this chapter.
(32) Democratic state or county executive committee member special registration plates:
(A) The division shall design and issue special registration plates for use by democratic state
or county executive committee members. The design of the plates shall include an insignia of a
donkey and shall differentiate by wording on the plate between state and county executive
committee members.
(B) An annual fee of twenty-five dollars shall be charged for each democratic state or county
executive committee member registration plate in addition to all other fees required by this chapter.
All annual fees collected for each special plate issued under this subdivision shall be deposited into
a special revolving fund to be used in the administration of this chapter.
(C) A special application fee of ten dollars shall be charged at the time of initial application
as well as upon application for any duplicate or replacement registration plate, in addition to all
other fees required by this chapter. All application fees shall be deposited into a special revolving
fund to be used in the administration of this chapter.
(D) The division shall not begin production of a plate authorized under the provisions of this
subdivision until the division receives at least one hundred completed applications from the state
or county executive committee members, including all fees required pursuant to this subdivision.
(33) The division may issue honorably discharged female veterans special registration plates
as follows:
(A) Upon appropriate application, there shall be issued to any female honorably discharged
veteran, of any branch of the armed services of the United States, a special registration plate for any
number of vehicles titled in the name of the qualified applicant with an insignia designed by the
commissioner of the division of motor vehicles to designate the recipient as a woman veteran.
(B) A special initial application fee of ten dollars shall be charged in addition to all other fees
required by law. This special fee is to compensate the division of motor vehicles for additional costs
and services required in the issuing of the special registration and shall be collected by the division
and deposited in a special revolving fund to be used for the administration of this section: Provided,
that nothing in this section may be construed to exempt any veteran from any other provision of this
chapter.
(C) A surviving spouse may continue to use his deceased spouse's honorably discharged
veterans license plate until the surviving spouse dies, remarries or does not renew the license plate.
(34) The division may issue special registration plates bearing the logo, symbol, insignia,
letters or words demonstrating association with West Liberty State College to any resident owner
of a motor vehicle. Resident owners may apply for the special license plate for any number of Class
A vehicles titled in the name of the applicant. The special registration plates shall be designed by
the commissioner. Each application submitted pursuant to this subdivision shall be accompanied
by payment of a special initial application fee of fifteen dollars, which is in addition to any other
registration or license fee required by this chapter. The division shall charge an annual fee of fifteen
dollars for each special educator registration plate in addition to all other fees required by this
chapter. All special fees shall be collected by the division and deposited into a special revolving
fund to be used for the purpose of compensating the division of motor vehicles for additional costs
and services required in the issuing of the special registration and for the administration of this
section.
(35) The division may issue special registration plates to members of the Harley Owners
Group as follows:
(A) Upon appropriate application, the division may issue a special registration plate designed
by the commissioner for any number of vehicles titled in the name of the qualified applicant.
Persons desiring the special registration plate shall offer sufficient proof of membership in the
Harley Owners Group.
(B) The division shall charge a special initial application fee of ten dollars in addition to all
other fees required by law. This special fee is to compensate the division of motor vehicles for
additional costs and services required in the issuing of the special registration and shall be collected
by the division and deposited in a special revolving fund to be used for the administration of this
section.
(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other
fees required by this chapter.
(36) The division may issue special registration plates for persons retired from any branch
of the armed services of the United States as follows:
(A) Upon appropriate application, there shall be issued to any person who has retired after
service in any branch of the armed services of the United States, a special registration plate for any
number of vehicles titled in the name of the qualified applicant with an insignia designed by the
commissioner of the division of motor vehicles to designate the recipient as retired from the armed
services of the United States.
(B) A special initial application fee of ten dollars shall be charged in addition to all other fees
required by law. This special fee is to compensate the division of motor vehicles for additional costs
and services required in the issuing of a special registration and shall be collected by the division
and deposited in a special revolving fund to be used for the administration of this section: Provided,
that nothing in this section may be construed to exempt any registrants from any other provision of
this chapter.
(C) A surviving spouse may continue to use his or her deceased spouses retired military
license plate until the surviving dies, remarries or does not renew the license plate.
(d) The commissioner shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code regarding the proper forms to be used
in making application for the special license plates authorized by this section. The commissioner
may not begin the design or production of any license plates for which eligibility is based on membership or affiliation with a particular private organization until at least one hundred persons
complete an application and deposit a check to cover the first year's basic registration, one time
design and manufacturing costs and to cover the first year additional annual fee. If the organization
fails to submit the required number of applications with attached checks within six months of the
effective date of the authorizing legislation, the plate will not be produced and will require
legislative reauthorization: Provided, That the six month requirement in this subsection does not
apply to subdivisions (1) through (26) inclusive, subsection (c) of this section.
(e)(1) Nothing in this section may be construed to require requires a charge for a free
prisoner of war license plate or a free recipient of the Congressional Medal of Honor license plate
for a vehicle titled in the name of the qualified applicant as authorized by other provisions of this
code.
(2) A surviving spouse may continue to use his or her deceased spouse's prisoner of war or
Congressional Medal of Honor license plate until the surviving spouse dies, remarries or does not
renew the license plate.
(3) Qualified former prisoners of war and recipients of the Congressional Medal of Honor
may obtain a second special registration plate for use on a passenger vehicle titled in the name of
the qualified applicant. The division shall charge a one-time fee of ten dollars to be deposited into
a special revolving fund to be used in the administration of this chapter, in addition to all other fees
required by this chapter, for the second special plate.
(f) The division may issue special ten-year registration plates as follows:
(1) The commissioner may issue or renew for a period of no more than ten years any
registration plate exempted from registration fees pursuant to any provision of this code or any
restricted use antique motor vehicle license plate authorized by section three-a, article ten of this
chapter: Provided, that the provisions of this subsection do not apply to any person who has had a
special registration suspended for failure to maintain motor vehicle liability insurance as required
by section three, article two-a, chapter seventeen-d of this code or failure to pay personal property taxes as required by section three-a of this article.
(2) An initial nonrefundable fee shall be charged for each special registration plate issued
pursuant to this subsection, which is the total amount of fees required by section fifteen, article ten
of this chapter, section three, article three of this chapter or section three-a, article ten of this chapter
for the period requested.
(g) The provisions of this section may not be construed to exempt any registrant from
maintaining motor vehicle liability insurance as required by section three, article two-a, chapter
seventeen-d of this code or from paying personal property taxes on any motor vehicle as required
by section three-a of this article.
(h) The commissioner may, in his or her discretion, issue a registration plate of reflectorized
material suitable for permanent use on motor vehicles, trailers and semitrailers, together with
appropriate devices to be attached to the registration to indicate the year for which the vehicles have
been properly registered or the date of expiration of the registration. The design and expiration of
the plates shall be determined by the commissioner.
(i) Any license plate issued or renewed pursuant to this chapter, which is paid for by a check
that is returned for nonsufficient funds, is void without further notice to the applicant. The applicant
may not reinstate the registration until the returned check is paid by the applicant in cash, money
order or certified check and all applicable fees assessed as a result thereof have been paid.
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2511 - "A Bill to amend and reenact section fourteen, article three,
chapter seventeen-a of the code of West Virginia, one thousand nine hundred thirty-one, as
amended, relating to original and renewal of registration plates; authorizing the issuance of special
motor vehicle license plates for members of the Nemesis Shrine, volunteers and employees of the
American Red Cross, individuals who have received the Combat Infantry Badge or Combat Medic
Badge, members of the Knights of Columbus, former members of the Legislature, democratic state or county executive committee members, female veterans, West Liberty State College, Harley
Owners and military retirees; prescribing fees; providing that special registration plates may only
be issued to those nonprofit charitable and educational organizations authorized by prior law;
prohibiting the commissioner of motor vehicles from approving or authorizing additional nonprofit
charitable and educational organizations to design or market special registration plates; eliminating
the requirement that a certified firefighter produce annual evidence of certification; requiring the
West Virginia university fire service extension to notify the division of motor vehicles when a
firefighter loses his or her certification; making technical corrections; removing the restriction on
the number of plates a volunteer firefighter may obtain and increasing the cost of those plates;
prohibiting the division of motor vehicles from beginning the design or production of any license
plate based on membership or affiliation with a private organization until a minimum number of
persons have applied and paid for the plate; and procedure where minimum number not met by
private organization."
On motion of Delegate Warner, the House of Delegates concurred in the Senate amendments
with amendment, by inserting the following at the end of the Senate amendment:
§17A-3-23. Registration plates to state, county, municipal and other governmental vehicles;
use for undercover activities.
(a) Any motor vehicle designed to carry passengers, owned or leased by the state of West
Virginia, or any of its departments, bureaus, commissions or institutions, except vehicles used by
the governor, treasurer, three plates vehicles per elected office of the board of public works, vehicles
operated by the state police, vehicles operated by conservation officers of the division of natural
resources, not to exceed ten vehicles operated by the arson investigators of the office of state fire
marshal, not to exceed two vehicles operated by the division of protective services and not to exceed
sixteen vehicles operated by inspectors of the office of the alcohol beverage control commissioner,
may not be operated or driven by any person unless it has displayed and attached to the front thereof,
in the same manner as regular motor vehicle registration plates are attached, a plate of the same size as the regular registration plate, with white lettering on a green background bearing the words "West
Virginia" in one line and the words "State Car" in another line and the lettering for the words "State
Car" shall be of sufficient size to be plainly readable from a distance of one hundred feet during
daylight.
The vehicle shall also have attached to the rear a plate bearing a number and any other words
and figures as the commissioner of motor vehicles shall prescribe. The rear plate shall also be green
with the number in white.
(b) On registration plates issued to vehicles owned by counties, the color shall be white on
red with the word "County" on top of the plate and the words "West Virginia" on the bottom. On
any registration plates issued to a city or municipality, the color shall be white on blue with the word
"City" on top and the words "West Virginia" on the bottom. The colors may not be reversed and
shall be of reflectorized material. The registration plates issued to counties, municipalities and other
governmental agencies authorized to receive colored plates hereunder shall be affixed to both the
front and rear of the vehicles.
(c) Registration plates issued to vehicles operated by county sheriffs shall be designed by
the commissioner in cooperation with the sheriffs' association with the word "Sheriff" on top of the
plate and the words "West Virginia" on the bottom. The plate shall contain a gold shield
representing the sheriff's star and a number assigned to that plate by the commissioner. Every
county sheriff shall provide the commissioner with a list of vehicles operated by the sheriff, unless
otherwise provided in this section, and a fee of ten dollars for each vehicle submitted by the first day
of July, two thousand two.
(d) The commissioner is authorized to designate the colors and design of any other
registration plates that are issued without charge to any other agency in accordance with the motor
vehicle laws.
(e) Upon application, the commissioner is authorized to issue a maximum of five Class A
license plates per applicant to be used by county sheriffs and municipalities on law-enforcement vehicles while engaged in undercover investigations.
(f) The commissioner is authorized to issue an unlimited number of license plates per
applicant to authorized drug and violent crime task forces in the state of West Virginia when the
chairperson of the control group of a drug and violent crime task force signs a written affidavit
stating that the vehicle or vehicles for which the plates are being requested will be used only for
official undercover work conducted by a drug and violent crime task force.
(g) The commissioner is authorized to issue twenty Class A license plates to the criminal
investigation division of the department of tax and revenue for use by its investigators.
(h) The commissioner may issue a maximum of ten Class A license plates to the division of
natural resources for use by conservation officers. The commissioner shall designate the color and
design of the registration plates to be displayed on the front and the rear of all other state-owned
vehicles owned by the division of natural resources and operated by conservation officers.
(i) The commissioner is authorized to issue an unlimited number of Class A license plates
to the commission on special investigations for state-owned vehicles used for official undercover
work conducted by the commission on special investigations. The commissioner is authorized to
issue a maximum of two Class A plates to the division of protective services for state owned
vehicles used by the division of protective services in fulfilling its mission.
(j) No other registration plate may be issued for, or attached to, any state-owned vehicle.
(k) The commissioner of motor vehicles shall have a sufficient number of both front and rear
plates produced to attach to all state-owned cars. The numbered registration plates for the vehicles
shall start with the number "five hundred" and the commissioner shall issue consecutive numbers
for all state-owned cars.
(l) It is the duty of each office, department, bureau, commission or institution furnished any
vehicle to have plates as described herein affixed thereto prior to the operation of the vehicle by any
official or employee.
(m) Any person who violates the provisions of this section shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than
one hundred dollars. Magistrates shall have concurrent jurisdiction with circuit and criminal courts
for the enforcement of this section.
And,
By amending the enacting section to read as follows:
"That sections fourteen and twenty-three, article three, chapter seventeen-a of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all
to read as follows" followed by a colon.
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 385), and there were--yeas
87, nays 9, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Blair, Brown, Calvert, Carmichael, Ellem, Frich, Manuel, Smirl and Tabb.
Absent And Not Voting: Coleman, Faircloth, Frederick and Spencer.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2511) passed.
On motion of Delegate Warner, the title of the bill was amended to read as follows:
Com. Sub. for H. B. 2511 - "A Bill to amend and reenact sections fourteen and twenty-
three, article three, chapter seventeen-a of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, all relating to original and renewal of registration plates; authorizing the
issuance of special motor vehicle license plates for members of the Nemesis Shrine, volunteers and
employees of the American Red Cross, individuals who have received the Combat Infantry Badge
or Combat Medic Badge, members of the Knights of Columbus, former members of the Legislature,
democratic state or county executive committee members, female veterans, West Liberty State
College, Harley Owners and Knights of Columbus; prescribing fees; providing that special
registration plates may only be issued to those nonprofit charitable and educational organizations authorized by prior law; prohibiting the commissioner of motor vehicles from approving or
authorizing additional nonprofit charitable and educational organizations to design or market special
registration plates; eliminating the requirement that a certified firefighter produce annual evidence
of certification; requiring the West Virginia university fire service extension to notify the division
of motor vehicles when a firefighter loses his or her certification; making technical corrections;
removing the restriction on the number of plates a volunteer firefighter may obtain and increasing
the cost of those plates; prohibiting the division of motor vehicles from beginning the design or
production of any license plate based on membership or affiliation with a private organization until
a minimum number of persons have applied and paid for the plate; procedure where minimum
number not met by private organization; and providing that the division of protective services may
have up to two Class A license plates."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 136, Exempting mandatory immunizations for religious beliefs; on second reading,
coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Health and Human Resources, was
reported by the Clerk and adopted, amending the bill on page two, line one, by striking out
everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. PREVENTION AND CONTROL OF COMMUNICABLE AND OTHER
INFECTIOUS DISEASES.
§16-3-4. Compulsory immunization of school children; information disseminated;
exemptions; offenses; penalties.
(a) Whenever a resident birth occurs, the state director of health shall promptly provide
parents of the newborn child with information on immunizations mandated by this state or required
for admission to a public school in this state.
(b) Subject to the exceptions provided in subsection (c) of this section, all children entering school for the first time in this state and all persons who are admitted or received in any of the
schools of this state shall have been be immunized against diphtheria, polio, rubeola, rubella, tetanus
and whooping cough prior to being admitted to school. Any person who cannot give satisfactory
proof of having been immunized previously or a certificate from a reputable physician showing that
an immunization for any or all diphtheria, polio, rubeola, rubella, tetanus and whooping cough is
impossible or improper or sufficient reason why any or all immunizations should not be done, shall
be immunized for diphtheria, polio, rubeola, rubella, tetanus and whooping cough prior to being
admitted in any of the schools in the state. No child or person shall be admitted or received in any
of the schools of the state until he or she has been immunized as hereinafter provided or produces
a certificate from a reputable physician showing that an immunization for diphtheria, polio, rubeola,
rubella, tetanus and whooping cough has been done or is impossible or improper or other sufficient
reason why such immunizations have not been done.
(c) The immunization requirements of this section shall not apply to any child or person
entering the schools of this state if:
(1) The parent or guardian of a child entering school or the person entering the school
provides satisfactory proof that the child or person has been immunized previously; or
(2) The parent or guardian of a child entering school or the person entering the school
provides a certificate from a reputable physician stating that an immunization for diphtheria, polio,
rubeola, rubella, tetanus or whooping cough is impossible or improper or stating sufficient other
reasons why any or all of the required immunizations should not be done; or
(3) The parent or guardian of a child entering school or the person entering school submits
a notarized affidavit to the county superintendent of schools, or his or her designee, stating that he
or she has received information from the department of health and human resources as required by
subsection (a) of this section, that he or she understands the risks and benefits of immunizations and
the potential risks of non-immunization and that, due to religious beliefs, the parent or guardian does
not consent to the immunization of the child entering school or that the person entering school does not consent to receiving the immunizations required by this section.
(d) Any teacher having information concerning any person who attempts to enter school for
the first time without having been immunized against diphtheria, polio, rubeola, rubella, tetanus and
whooping cough and who is not exempt from the required immunizations pursuant to subsection (c),
shall report the names of all such persons to the county health officer. It shall be is the duty of the
health officer in counties having a full-time health officer to see that such persons are immunized
before entering school: Provided, That persons enrolling from schools outside of the state who are
not subject to the exemptions provided by subsection (c) may be provisionally enrolled under
minimum criteria established by the director of the department division of health so that the person's
immunization may be completed while missing a minimum amount of school: Provided, however,
That no person who is not entitled to the exemptions provided by subsection (c) shall be allowed to
enter school without at least one dose of each required vaccine.
(e) In counties where there is no full-time health officer or district health officer, the county
commission or municipal council shall appoint competent physicians to do the immunizations
required by this section and fix their compensation. County health departments shall furnish the
biologicals for this immunization free of charge.
(f) Health officers and physicians who shall do this immunization work provide the
immunizations required by this section shall give to all persons and children a certificate free of
charge showing that they have been immunized against diphtheria, polio, rubeola, rubella, tetanus
and whooping cough, or he or she may give the certificate to any person or child whom he or she
knows to have been immunized against diphtheria, polio, rubeola, rubella, tetanus and whooping
cough. If any physician shall gives any person a false certificate of immunization against diphtheria,
polio, rubeola, rubella, tetanus and whooping cough, he or she shall be is guilty of a misdemeanor,
and, upon conviction, shall be fined not less than twenty-five nor more than one hundred dollars.
(g) Subject to the exemptions provided by subsection (c) of this section, any parent or
guardian who refuses to permit his or her child to be immunized against diphtheria, polio, rubeola, rubella, tetanus and whooping cough, who cannot give satisfactory proof that the child or person has
been immunized against diphtheria, polio, rubeola, rubella, tetanus and whooping cough previously,
or a certificate from a reputable physician showing that immunization for any or all is impossible
or improper, or sufficient reason why any or all immunizations should not be done, shall be guilty
of a misdemeanor, and except as herein otherwise provided, shall, upon conviction, be punished by
a fine of not less than ten nor more than fifty dollars for each offense: Provided, That the provisions
of this subsection shall not apply to any person who presents evidence that the child or person
entering school in this state is entitled to an exemption provided by subsection (c)."
The bill was then ordered to third reading.
S. B. 383, Allowing alcohol beverage control commissioner, with approval of governor and
board of public works, to sell warehouse and purchase replacement; on second reading, coming up
in regular order, was read a second time and advanced to third reading, and the rule was suspended
tp permit the offering of an amendment on that reading.
S. B. 583, Creating coal resource transportation road system; on second reading, having been
postponed until this time, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
on page four, following the enacting clause, by striking out the remainder of the bill, and inserting
in lieu thereof the following language:
That section one, article six, chapter seventeen-c of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended
by adding thereto a new section, designated section ten; that section ten, article seventeen of said
chapter be amended and reenacted; that said article be further amended by adding thereto a new
section, designated section eleven-d; that said chapter be further amended by adding thereto two a
new article, designated article seventeen-a; that section three, article one, chapter seventeen-e of said
code be amended and reenacted; that chapter twenty-four-a of said code be amended by adding
thereto a new article, designated article one-a; and that article seven of said chapter be amended by adding thereto a new section, designated section seven, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAW OF THE ROAD.
ARTICLE 6. SPEED RESTRICTIONS.
§17C-6-1. Speed limitations generally; penalty.
(a) No person may drive a vehicle on a highway at a speed greater than is reasonable and
prudent under the existing conditions and the actual and potential hazards. In every event speed
shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other
conveyance on or entering the highways in compliance with legal requirements and the duty of all
persons to use due care.
(b) Where no special hazard exists that requires lower speed for compliance with subsection
(a) of this section, the speed of any vehicle not in excess of the limits specified in this section or
established as hereinafter authorized in this section is lawful, but any speed in excess of the limits
specified in this subsection or established as hereinafter authorized in this section is unlawful. The
following speed limits apply:
(1) Fifteen miles per hour in a school zone during school recess or while children are going
to or leaving school during opening or closing hours. A school zone is all school property including
school grounds and any street or highway abutting such the school grounds and extending one
hundred twenty-five feet along such the street or highway from the school grounds. The speed
restriction does not apply to vehicles traveling on a controlled access highway which is separated
from the school or school grounds by a fence or barrier approved by the division of highways;
(2) Twenty-five miles per hour in any business or residence district; and
(3) Fifty-five miles per hour on open country highways, except as otherwise provided by this
chapter.
The speeds set forth in this section may be altered as authorized in sections two and three
of this article.
(c) The driver of every vehicle shall, consistent with the requirements of subsection (a) of this section, drive at an appropriate reduced speed when approaching and crossing an intersection
or railway grade crossing, when approaching and going around a curve, when approaching a hill
crest, when traveling upon any narrow or winding roadway and when a special hazard exists with
respect to pedestrians or other traffic or by reason of weather or highway conditions.
(d) The speed limit on controlled access highways and interstate highways, where no special
hazard exists that requires a lower speed, shall be not less than fifty-five miles per hour and the
speed limits specified in subsection (b) of this section do not apply.
(e) Unless otherwise provided in this section, any person who violates the provisions of this
section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one
hundred dollars; upon a second conviction within one year thereafter, shall be fined not more than
two hundred dollars; and, upon a third or subsequent conviction within two years thereafter, shall
be fined not more than five hundred dollars: Provided, That if such the third or subsequent
conviction is based upon a violation of the provisions of this section where the offender exceeded
the speed limit by fifteen miles per hour or more, then upon conviction, shall be fined not more than
five hundred dollars or confined in the county or regional jail for not more than six months, or both.
(f) Any person who violates the provisions of subdivision (1), subsection (b) of this section
is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred
dollars nor more than five hundred dollars: Provided, That if such the conviction is based upon a
violation of the provisions of subdivision (1), subsection (b) of this section where the offender
exceeded the speed limit by fifteen miles per hour or more in the presence of one or more children,
then upon conviction, shall be fined not less than one hundred dollars nor more than five hundred
dollars or confined in the regional or county jail for not more than six months, or both.
(g) If an owner or driver is arrested under the provisions of this section for the offense of
driving above the posted speed limit on a controlled access highway or interstate highway, and if
the evidence shall show shows that the motor vehicle was being operated at ten miles per hour or
less above said the speed limit, then, upon conviction thereof, such that person shall be fined not more than five dollars, plus court costs.
(h) Any person operating a commercial motor vehicle engaged in the transportation of coal
on the coal resource transportation road system who violates subsection (a), (b) or (c) of this section
shall, upon conviction, be subject to fines in triple the amount otherwise provided in subsection (e)
of this section.
(i) If an owner or driver is convicted under the provisions of this section for the offense of
driving above the speed limit on a controlled access highway or interstate highway of this state, and
if the evidence shall show shows that the motor vehicle was being operated at ten miles per hour or
less above said the speed limit, then notwithstanding the provisions of section four, article three,
chapter seventeen-b of this code, a certified abstract of the judgment on such the conviction shall
not be transmitted to the division of motor vehicles: Provided, That the provisions of this subsection
do not apply to conviction of owners or drivers who have been issued a commercial driver's license
as defined in chapter seventeen-e of this code, if the offense was committed while operating a
commercial vehicle.
(h) (j) If an owner or driver is convicted in another state for the offense of driving above the
maximum speed limit on a controlled access highway or interstate highway, and if the maximum
speed limit in such the other state is less than the maximum speed limit for a comparable controlled
access highway or interstate highway in this state, and if the evidence shall show shows that the
motor vehicle was being operated at ten miles per hour or less above what would be the maximum
speed limit for a comparable controlled access highway or interstate highway in this state, then
notwithstanding the provisions of section four, article three, chapter seventeen-b of this code, a
certified abstract of the judgment on such the conviction shall not be transmitted to the division of
motor vehicles or, if transmitted, shall not be recorded by the division, unless within a reasonable
time after conviction, the person convicted has failed to pay all fines and costs imposed by the other
state: Provided, That the provisions of this subsection do not apply to conviction of owners or
drivers who have been issued a commercial driver's license as defined in chapter seventeen-e of this code, if the offense was committed while operating a commercial vehicle.
§17C-6-10. Enforcement of article with respect to operations of commercial motor vehicles.
In addition to enforcement by officers and other persons authorized by law, designated
employees of the public service commission of West Virginia may enforce the provisions of this
article as they relate to the operation of commercial motor vehicles.
ARTICLE 17. SIZE, WEIGHT AND LOAD.
§17C-17-10. Officers may weigh, measure, or examine vehicles and require removal or
rearrangement of excess loads.
(a) Any police officer or employee of the department of highways designated by the
commissioner of highways as a member of an official weighing crew may require the driver of any
vehicle or combination of vehicles located on or within one hundred feet of any public highway or
right-of-way, and whether moving or stopped, to stop and submit such the vehicle or combination
of vehicles to a weighing with portable or stationary weighing devices or submit such the vehicle
or combination of vehicles to a measuring or to any other examination necessary to determine if
such the vehicle or combination of vehicles is in violation of any of the provisions of this article or
article seventeen-a of this chapter, and may require that such the vehicle or combination of vehicles
be driven to the nearest weighing device.
No police officer or member of an official weighing crew may stop a vehicle or combination
of vehicles may be submitted for weighing unless a portable or stationary weighing device is
actually present at the location where, and at the time, the vehicle or combination of vehicles is
stopped or unless the vehicle or combination of vehicles is escorted immediately after being stopped
to a the nearest portable or stationary weighing device. In no case may a vehicle or combination of
vehicles be detained more than one hour from the time the same it is stopped for weighing unless
the vehicle or combination of vehicles is impounded for a another violation. in accordance with the
provisions of section fourteen of this article.
(b) Whenever a police officer or a member of an official weighing crew determines that a vehicle or combination of vehicles is in violation of any of the provisions of this article or article
seventeen-a of this chapter, he or she may require the driver to stop such vehicle or combination of
vehicles in a suitable place and to remain standing until such the vehicle or combination of vehicles
is brought into conformity with the provisions violated.
In the case of a weight violation all material unloaded shall be cared for by the owner, lessee
or borrower of such the vehicle or combination of vehicles at the risk of such the owner, lessee or
borrower: Provided, That no criminal charge shall be preferred against any driver, operator or
owner of a vehicle when a rearrangement of the load upon the vehicle, without removal therefrom
of the load from the vehicle, reduces the axle loads of said the vehicle to such the limit as is
permitted under this chapter.
(c) Any driver of a vehicle or combination of vehicles who fails or refuses to comply with
any requirement or provision of this section shall be guilty of a misdemeanor, or in the case of any
vehicles engaged in the transportation of coal, any other additional penalties that may be applicable
under the provisions of article seventeen-a of this chapter.
§17C-17-11d. Establishing maximum road highway weights.
Effective the first day of July, two thousand three, the maximum gross vehicle weight on
existing state-maintained roads and public highways designated for gross weight vehicle load of
eighty thousand pounds, shall have a tolerance of ten percent. All requirements for vehicle design
and axle weights otherwise established under this code remain applicable. In no case may the
commissioner authorize weight limits on any state maintained road or public highway that would
jeopardize or otherwise limit federal highway fund appropriations to this state. The commissioner
of highways shall by the thirty-first day of December two thousand three, review and revise as the
commissioner deems appropriate, weight limits for all state maintained roads and public highways,
and provide to the joint committee of government and finance a report denoting all weight limits
as they have been designated on state maintained roads and public highways.
ARTICLE 17A. REGULATION OF THE COMMERCIAL TRANSPORTATION OF COAL.
§17C-17A-1. Legislative findings and creation of program.
(a) The Legislature finds and declares that:
(1) No other economic undertaking in the history of West Virginia has had a greater impact
upon the citizens of this state, providing such an economic force and affecting the social construct
and day-to-day life and environment of the people and communities of this state, than the activities
associated with the extraction, transportation and consumption of coal or its byproducts. In areas
of this state where the coal industry exists, the economic benefits of coal production are an
indispensable part of the local community's vitality.
(2) The historic progression of the coal industry has resulted in an increasing use of the
public highways of this state for the transportation of coal to river ports, power generators or rail
loading facilities. Roads where coal is transported are mainly two lane rural roads and highways
of varying grades and conditions. The daily presence of large commercial motor vehicles on these
roads and highways causes significant impact to local communities and the local transportation
infrastructure. Local residents are exposed on a daily basis to the dangers associated with sharing
the road with a large number of these vehicles.
(3) The increased capacity and ability of coal hauling vehicles, tied with increased economic
pressures to reduce industry transportation costs, have created economic incentives for transporting
coal at higher than legal limits, and for drivers to drive long hours and operate these vehicles at
higher rates of speed. Consequently, average vehicle weights have increased and many coal
transport vehicles regularly exceed the lawful limit by more than one hundred percent. The
excessive weights of these vehicles have also resulted in the rapid deterioration of state roads and
bridges, creating significant costs to the state of millions of dollars in lost road and bridge use and
life.
(4) Advances in truck stability, braking, and safety technology have made modern coal
transporters much safer conveyances than those used by the industry when the state's current weight
laws were enacted. Further advances in technology have made tracking and recording individual vehicles, their operators and load significantly more efficient.
(5) The resulting need for a remedy for hauling these additional amounts of coal is most
severe in a limited and discrete geographic area of the state where the limited access to rail and river
transportation options require a regulatory program that allows a greater weight allowance for coal
hauling vehicles to address the unique economic circumstances of that region.
(6) That this limited highway system must include additional safety protections for the public
sharing the roads with a large coal hauling vehicle fleet and specialized training for operators of
these vehicles, requiring the program be designed to assure that state weight and safety requirements
be effectively administered and enforced.
(b) A special regulatory program with administrative enforcement authority over all vehicles
hauling coal in West Virginia is created. This program is designed to address the economic needs
of the state coal industry within the confines of the ability of the transportation infrastructure to
accommodate these needs and in careful consideration for road safety and maintenance requirements
of these vehicles, by allowing a limited statewide increase in weights for commercial vehicles and
an additional, limited increase for vehicles hauling coal where the greater increase is required.
§17C-17A-2. Definitions.
For purposes of this article:
(a) A "coal resource transportation road" means a road designated by the department of
transportation as safe and sufficient to allow vehicles hauling coal to carry a greater gross and axle
weight of up to one hundred and twenty thousand pounds, with a five percent variance.
(b) "Coal" or "coal by-products" means the mineral in raw or clean state, and includes
synthetic fuel manufactured or produced for which credit is allowable under 26 U. S. C. §29 of the
Internal Revenue Code (1996).
(c) "Commission" means the public service commission of West Virginia.
(d) "Division" means the division of highways within the department of transportation.
(e) "Mining operation" means any activity related to extraction of coal regulated under the provisions of this code.
(f) "Operator" means the person driving a commercial motor vehicle transporting coal on
any public highway of this state;
(g) "Person" means any individual, partnership, firm, society, association, trust, corporation,
other business entity or any agency, unit or instrumentality of federal, state or local government.
(h) "Shipper" means the person who loads coal or causes coal to be loaded into any
commercial motor vehicle that will operate on any public highway in this state;
(i) "Receiver" means the person who accepts for unloading coal from any vehicle that has
operated on any public highway in this state;
(j) "Vehicle owner" means the person who as owner of a commercial motor vehicle employs,
contracts or otherwise directs a driver to operate that vehicle on a public highway of this state for
the purpose of transporting coal.
§17C-17A-3. Authority of the division of highways and public service commission generally.
(a) The division of highways shall establish all legal vehicle weight limits for all public
highways including roads within the coal resource transportation system. Public highways shall be
designated as coal resource transportation roads by the commissioner of the division of highways
pursuant to this article. Only state-maintained roads and public highways found in the following
areas: Boone; Fayette; Lincoln; Logan; McDowell; Mercer; Mingo; Raleigh; Wayne and Wyoming
counties; in Greenbrier County, routes west of Sam Black Church and southwest to the Summers
County line; in Clay County, routes 4 and 16; in Nicholas County, routes 19, 20, 39, 41 and 55; in
Webster County, routes 9, 20 and 82; and all state-maintained roads and public highways found in
Washington, Malden, Louden and Cabin Creek districts, Kanawha county, are eligible to qualify as
part of the coal resource transportation road system. The division shall post signs on roads
informing the public of the designation and shall also list a toll free telephone line for public
reporting of poor driving or law violations by special permit operators. The division shall provide
periodic reports to the commercial motor vehicle weight and safety enforcement advisory committee as established in section two, article one-a, chapter twenty-four-a of this code relating to the study
of coal resource transportation roads. The periodic reports shall include the following at a
minimum: (1) citations issued for violations of this chapter; (2) disposition of the violations; (3)
road conditions and maintenance; and (4) the amount of undue road damage attributable to coal
resource transportation road system permit use.
(b) The public service commission shall administer the coal resource transportation road
permitting program and otherwise enforce the provisions of this article. The commission shall
establish requirements for vehicle operators holding coal resource transportation road permits
pursuant to section five of this article consistent with federal statutory and regulatory requirements.
(1) The commission may, during normal business hours, conduct inspections of all trucking
related records of shippers, vehicle operators, vehicle owners and receivers engaged in the
transportation of coal. This provision may not be construed to authorize the commission to reveal
trade secrets or other confidential financial information of those persons inspected; however the
commission may use any weight measurement records as evidence of a violation of this article.
(2) The commission shall establish and maintain a toll free telephone line for public
reporting of poor driving or law violations by special permit operators. In addition, the commission
shall require all vehicles operating under a permit issued pursuant to the provisions of this article
to clearly display on the vehicle the toll free telephone number.
(3) The commission shall implement a study of commercial vehicle safety related issues,
including using higher education institutions and other research organizations. The commission
shall provide periodic reports to the commercial motor vehicle weight and safety enforcement
advisory committee as established in section two, article one-a, chapter twenty-four-a of this code
relating to the study of motor vehicle weight and safety enforcement.
(4) The commission shall establish procedures to use electronic real time reporting of coal
vehicle weights by shippers and receivers. The commission may require daily certified reports from
shippers or receivers if electronic reporting methods are not used. The commission may authorize alternative measures of reporting that require same day reporting of weight measurements by
shippers and receivers.
(5) The commission shall impose and collect from shippers of coal on the coal resource
transportation road system through the use of the special permit, issued pursuant to section five of
this article, for the privilege of loading coal in excess of eighty-eight thousand pounds for transport
on a coal resource transportation road. The fee shall be assessed in the amount of five cents per ton
of coal hauled over the road. Revenue from the fees shall be deposited in the coal resource
transportation fund created in section five of this article.
(c) Notwithstanding the provisions of section three, article one, chapter twenty-nine-a of this
code, the commission and the division shall each propose legislative rules for promulgation in
accordance with the provisions of article three, chapter twenty-nine-a of this code to carry out their
duties and responsibilities pursuant to the provisions of this article.
§17C-17A-4. Special permit issuance; and promulgation of rules.
(a) The commission may issue permits to authorize the hauling of coal of a greater gross and
axle weight than otherwise authorized by state law on roads designated by the commissioner of
highways as coal resource transportation roads.
(b) Notwithstanding the provisions of section three, article one, chapter twenty-nine-a of this
code, the commission shall promulgate emergency and legislative rules to effectuate purposes of this
section, which shall provide, at a minimum, the following:
(1) Twenty-four hours mandatory specialized training requirements for commercial vehicles
operators with less than two years of commercial driving experience;
(2) Requirements for random drug and alcohol testing; and
(3) Requirements for daily records consistent with the provisions of any applicable federal
statutory or regulatory requirements.
§17C-17A-5. Operation of coal trucks under special permits; weight limitations; payment of
permit fees.
(a) Any vehicle, when transporting coal over certain public highways, designated as coal
resource transportation roads by the commissioner of the department of highways, may be operated
at the weights as set forth in this section in excess of the maximum gross weight prescribed in
section nine, article seventeen of this chapter and any other maximum weight limitations on any
public highway by paying the corresponding special permit fee and otherwise complying with the
provisions of this article.
(b) Special permits shall be issued subject to the following requirements:
(1) A single unit truck having one steering axle and two axles in tandem shall be limited to
a maximum gross weight of eighty thousand pounds with a tolerance of five percent and pay a
special permit fee annually of one hundred dollars;
(2) A single unit truck having one steering axle and three axles in tridem arrangement shall
be limited to a maximum gross weight of ninety thousand pounds with a tolerance of five percent
and pay a special permit fee annually of one hundred sixty dollars;
(3) A tractor-semitrailer combination with five axles shall be limited to a maximum gross
weight of one hundred ten thousand pounds with a tolerance of five percent and pay a special permit
fee annually of three hundred dollars;
(4) A tractor-semitrailer combination with six or more axles shall be limited to a maximum
gross weight of one hundred twenty thousand pounds with a tolerance of five percent and pay a
special permit fee annually of five hundred dollars.
(c) The axle loads set forth in subsection (b) of this section may in no event exceed the
maximum axle load allowable based upon the minimum axle spacings as determined by the division
of highways in accordance with generally accepted industry standards and bridge loading analysis.
(d) In order to qualify for issuance of a special permit, the applicant shall provide
information that demonstrates that the vehicle, as configured, has a total combined axle rating
capacity equal to or greater than the maximum amount of weight for which a special permit is
sought. The information may include, but not be limited to, the manufacturer's rated capacity. In the event that manufacturer's rated capacity is not available, any other information reasonably
determined by the secretary of the department of transportation to give evidence of adequate
combined axle rating capacity may be submitted.
(e) Special permits authorized by this section shall be issued by the commission on forms
prescribed and furnished by it. The special permit indicium shall be permanently affixed
immediately below the window glass on the top of the door on the driver's side of the vehicle. Lost,
destroyed, stolen or otherwise unusable special permits indicia shall be replaced in accordance with
legislative rules to be promulgated by the commission. The special permit indicium shall be issued
to a particular vehicle and shall remain with the vehicle upon transfer of possession or ownership
of the vehicle.
(f) Special permits issued pursuant to the provisions of this article are valid for a period of
one year from the date of purchase: Provided, That no renewal permits shall be issued to any
permittee who, at the time of the renewal, has any administrative or criminal actions pending
relating to the operation of commercial motor vehicles in this or other states.
(g) For purposes of this section, the dimensional requirements of motor vehicles shall
conform to all applicable federal laws and regulations. Nothing in this section may be construed or
administered to jeopardize the receipt of federal funds for highway purposes.
(h) Any operator of a vehicle with a special permit issued under the provisions of this article
shall submit the vehicle or combination of vehicles to weighing with portable or stationary weighing
devices as required by section ten, article seventeen of this chapter. Any driver or owner of a
vehicle or combination of vehicles operating under the provisions of this section who fails or refuses
to comply with any requirement of section ten, article seventeen of this chapter forfeits all privileges
granted by the special permits.
(i) Any vehicle or combination of vehicles transporting coal pursuant to the provisions of
this article shall be securely covered to prevent the escape of the load on any trip exceeding a total
distance of one mile on any public highway.
(j) The commission shall propose rules in accordance with the provisions of article three,
chapter twenty-nine-a of this code regarding the implementation of the requirements of this section.
The rules shall be initially promulgated as emergency rules pursuant to the provisions of article
three, chapter twenty-nine-a of this code by no later than the first day of October, two thousand
three.
(k) The payment of the special permit fee is in addition to any state registration fee, user fee
or other decal fee.
(l) All revenues generated pursuant to this section shall be credited to a special account
within the road fund which is created and shall be designated as the "coal resource transportation
road fund". Moneys of the fund shall be used, by the division of highways for construction,
maintenance, and repair of public highways and bridges over which substantial quantities of coal
are transported.
(m) For periods of less than one year, the permit fee imposed by subsection (b)of this section
shall be prorated to the nearest month.
§17C-17A-6. Reporting requirements for shippers, vehicle owners and receivers of coal
transported on public highways.
(a) Every shipper of coal for transport on a public highway in this state that loads vehicles
to a gross weight of in excess of eighty thousand gross pounds shall report to the commission weight
and other transport related data as required by the commission. The commission shall by rule
establish special recording and reporting methods for timely and accurate disclosure of all shipments
of coal made by these vehicles upon any public highway of this state.
(b) Every vehicle owner who transports coal on a public highway of this state is subject to
the provisions of this article and any rules established by the commission requiring reporting,
monitoring or removal from service of any unsafe vehicle or driver.
(c) Every receiver of coal transported on a public highway in this state that unloads or causes
to be unloaded any shipment of coal shall report to the commission the weight of the shipment and other data related to the shipment as required by rules promulgated by the commission. The rules
shall provide for administrative penalties to be imposed for failure to timely or accurately report the
weight or other data. Compliance with the reporting requirements shall cause the receiver to be
immune from any and all criminal, civil and administrative liability, damages, costs, fines and
penalties, based on, arising out of or resulting from the receiver's receipt or acceptance of the
shipment.
(d) The commission shall by rule establish special recording and reporting methods for
timely and accurate disclosure of all shipments of coal made by commercial motor vehicles upon
a public highway of this state.
§17C-17A-7. Permit application procedure.
The commission shall propose in accordance with provisions of article three, chapter twenty-
nine-a of this code by emergency and legislative rules, filed no later than the first day of October,
two thousand three, a permit application procedure for the issuance of permits pursuant to the
authority contained within this article.
§17C-17A-8. Powers and duties of the commission.
In addition to all other powers, duties, responsibilities and authority granted and assigned
to the commission in this code and elsewhere prescribed by law, notwithstanding any provision of
the code to the contrary:
(1) the commission shall promulgate rules in accordance with the provisions of article three,
chapter twenty-nine-a of this code to carry out the provisions of this article including modifying any
existing rules and establishing permit application fees up to an amount sufficient to defray the costs
of permit review;
(2) The commission or any authorized representative, employee or agent may, at reasonable
times, enter onto any coal shipping or receiving facility for the purpose of making an inspection or
investigation;
(3) The commission may also perform or require a person, by order, to perform any and all acts necessary to carry out the provisions of this article or the rules promulgated under this article;
(4) The commission, its authorized representative, employee or agent shall make periodic
inspections at coal shipping or receiving facilities to effectively implement and enforce the
requirements of this article or its rules and may conduct at weigh stations or any other adequate site
or facility inspections of coal in transit.
§17C-17A-9. Administrative sanctions.
(a) This section imposes administrative sanctions for violations occurring on the coal
resource transportation system. It is the intent of the Legislature to impose administrative sanctions
in addition to any criminal or civil penalties upon any person violating or assisting in the violation
of the provisions of this article. The commission may, based on a criminal violation pursuant to this
article, also assess administrative sanctions based on a criminal conviction.
(b) After providing notice and an opportunity to show cause why penalties should not be
imposed for the violation of provisions of this article, the commission may impose sanctions upon
an operator, shipper, receiver or truck owner when a violation is found to have occurred. Lack of
intent is not a defense to a violation except as it applies to receivers.
(c) Administrative sanctions for violations may be imposed as follows:
(1) Every shipper of coal for transport on the public roads or highways of this state which
loads coal in an amount which results in gross vehicle weight to be in excess of the weight limits
established in this article shall be subject to an administrative penalty per pound in excess of the
lawful weight pursuant to the penalty schedule established in section ten of this article.
(2) It is unlawful for any person to operate a commercial motor vehicle engaged in the
transportation of coal with a gross vehicle weight for non-permitted vehicles in excess of the lawful
maximum weight on a coal resource transportation road without a permit required by section five,
of this article. Any person violating this subsection shall have his or her driver's license suspended
by the commissioner of the division of motor vehicles for a period of ninety days for the first
offense, six months for the second offense, and one year for the third offense: Provided, That in the case of a permit, expired for less than thirty days, the operator my present a valid permit to the
commission within five days of the date of the offense in order to avoid the penalty;
(3) Any owner of a commercial motor vehicle engaged in the transportation of coal operating
without an excess weight hauling permit and bearing a gross vehicle weight in excess of the lawful
maximum weight for the public highway for non-permitted vehicles who allows the operation of that
vehicle upon a coal resource transportation road of this state shall have any state-issued hauling
permit then in force suspended by the commission for a period of ninety days for the first offense,
six months for the second offense, and revoked for the third offense: Provided, That in the case of
a permit, expired for less than thirty days, the operator my present a valid permit to the commission
of motor vehicles within five days of the date of the offense in order to avoid the penalty;
(4) Any operator who operates a vehicle engaged in the transportation of coal that has been
issued a special permit by the division upon the coal resource transportation road system and who
operates the vehicle with a gross vehicle weight that is in excess of the lawful maximum weight
allowed pursuant to the permit, shall have his or her driver's license suspended by the commissioner
of the division of motor vehicles for a period of three days for the first offense, thirty days for the
second offense, and six months for the third offense;
(5) Any owner of a vehicle engaged in the transportation of coal that has been issued a
special permit by the commission who allows the operation of that vehicle upon the coal resource
transportation road system with a gross vehicle weight that is in excess of the lawful maximum
weight allowed pursuant to the permit shall have the special permit suspended by the commission
for a period of three days for the first offense, thirty days for the second offense, and revoked for
the third offense;
(6) Any operator who operates a vehicle engaged in the transportation of coal with a
suspended excess weight hauling permit at a weight in excess of the limits imposed by article
seventeen of this chapter upon the coal resource transportation system shall have his or her driver's
license suspended by the commissioner of the division of motor vehicles for a period of six months for the first offense, twelve months for the second offense, and two years for the third offense:
Provided, That if the operator is also the owner of the vehicle, the owner penalties set forth in
subdivision (5) of this subsection also apply;
(7) Any owner of a vehicle engaged in the transportation of coal with a suspended excess
weight hauling permit who allows the operation of that vehicle upon the roads or highways of this
state during a period of permit suspension at a weight in excess of the limits imposed by article
seventeen of this chapter shall have all state-issued hauling permits then in force suspended by the
commission or, if applicable, the commissioner of highways for a period of twelve months for the
first offense, two years for the second offense, and revoked for the third offense;
(8) Any operator who operates a vehicle engaged in the transportation of coal that has been
issued a special permit by the commission under the provisions of section five of this article and
who is charged with a violation of section one, article six, chapter seventeen-c of this code upon a
road or highway of this state designated by the commissioner of division of highways as a part of
the coal resource transportation road system shall have his or her driver's license suspended by the
commissioner of the division of motor vehicles for a period of three days for the first offense, thirty
days for the second offense, and revoked for the third offense.
(9) Any person who falsifies information relating to the acquisition of a hauling permit shall
have his or her driver's license suspended by the commissioner of the division of motor vehicles for
a period of sixty days for the first offense, one hundred twenty days for the second offense, and six
months for the third offense;
(10) Any person regulated pursuant to this article that falsifies information relating to the
acquisition of a hauling permit shall have its state-issued business license suspended by the
commissioner of the state tax division for a period of six months for the first offense, one year for
the second offense, and two years for the third offense;
(11) Any person who fabricates or displays an altered, forged, or counterfeited permit shall
have his or her driver's license suspended by the commissioner of the division of motor vehicles for a period of sixty days for the first offense, one hundred twenty days for the second offense, and
revoked for the third offense;
(12) Any person that bribes or attempts to bribe an employee of the state of West Virginia,
or who gives an employee of the state of West Virginia a gift, gratuity, entertainment, loan, favor
or other thing of monetary value for the purpose of avoiding any penalties permitted under this
article shall have his or her state-issued hauling permit then in force suspended by the commission
for a period of sixty days for the first offense, one hundred twenty days for the second offense, and
revoked for the third offense; and
(13) In the case of multiple violations by a permittee, shipper, operator or receiver, the
commission may direct that the imposed suspension be served concurrently or consecutively, taking
into account the frequency of violations committed during the inclusive time periods, or in the same
course of misconduct if the commission determines that sufficient mitigating or aggravating
circumstances are present.
(14) Any person who aids or abets another person's attempt to avoid suspension shall have
his or her driver's license suspended by the commissioner of the division of motor vehicles for a
period of sixty days for the first offense, one hundred twenty days for the second offense and six
months for the third offense.
(15) Any person that aids or abets a person's attempt to avoid suspension shall have its state-
issued business license suspended by the tax commissioner for a period of three months for the first
offense, six months for the second offense and one year for the third offense.
(d) Without providing a hearing, the commission may immediately suspend a person from
obtaining permits or operating under permit authority for failure to pay a fee required under this
article until proper payment is received. Upon the completion of all administrative appeals of any
violation that results in a license suspension, the commission shall notify the division of motor
vehicles which shall act accordingly.
(e) Without providing a hearing, the commission and law-enforcement personnel may immediately confiscate an altered, forged, or counterfeited permit, or a permit used in violation of
its terms and conditions. Upon issuance of a citation alleging a violation of this subsection, the
vehicle and its load shall be impounded by law-enforcement personnel until such time as a hearing
on the matter is conducted by the division.
(f) Administrative sanctions may be imposed pursuant to the following procedures:
(1) No administrative sanction may be imposed until after the person has been notified by
certified mail or personal service. The notice shall include: a reference to the section of statute, rule,
order, or permit violated; a concise statement of the facts alleged to constitute a violation; a
statement of the administrative penalties to be imposed; and a statement of the person's right to a
hearing. The person has twenty days from receipt of the notice within which to deliver to the
commission a written request for a hearing.
(2) Subsequent to the hearing and upon finding that a violation has occurred, the commission
shall issue a final order. If no hearing is requested, the notice shall become a final order upon the
expiration of the twenty-day period.
(3) For purposes of the enhanced penalty provisions of this section, the second and
subsequent offenses shall be calculated on a per year basis.
§17C-17A-10. Penalties for violation of weight laws; impounding vehicles.
(a) Any owner, lessee or borrower of a commercial motor vehicle or combination of vehicles
transporting coal who operates or permits to be operated on any highway the vehicle or combination
of vehicles with a total gross weight with load imposed upon the highway by any one group of two
or more consecutive axles in excess of that permitted by section five of this article, is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a fine based on the number of
pounds in excess of the registered weight, or in excess of allowable weights for single axle, or in
excess of allowable weights for groups of two or more consecutive axles, in accordance with the
following schedule:
Excess WeightAmount of Fine
1 to 4,000 pounds1 cent per overweight pound
4,001 to 8,000 pounds3 cents per overweight pound
8,001 to 12,000 pounds7 cents per overweight pound
12,001 to 16,000 pounds10 cents per overweight pound
16,001 to 20,000 pounds15 cents per overweight pound
20,001 to 40,000 pounds30 cents per overweight pound
40,001 pounds or more45 cents per overweight pound
(b) Upon a second or subsequent conviction within two years thereafter, the owner, lessee
or borrower shall be punished by a fine according to the following schedule:
Excess WeightAmount of Fine
1 to 4,000 pounds 1 cent per overweight pound
4,001 to 8,000 pounds5 cents per overweight pound
8,001 to 12,000 pounds10 cents per overweight pound
12,001 to 16,000 pounds15 cents per overweight pound
16,001 to 20,000 pounds20 cents per overweight pound
20,001 to 40,000 pounds40 cents per overweight pound
40,001 pounds or more80 cents per overweight pound
(c) The fines specified in subsections (a) and (b) of this section are mandatory and may not
be waived or reduced by any judicial officer.
(d) In the event any owner, lessee or borrower of a vehicle is charged with violating this
section, the vehicle charged to have been overloaded shall be impounded by the arresting officer.
The vehicle shall not be released to the alleged offender or the owner unless and until he or she
either has: (1) Been acquitted of the charge; (2) been found guilty of the charge and paid any fine
assessed under subsection (a) or (b) of this section; or (3) furnished cash or surety bond in at least
double the amount of the fine which may be assessed the offender under subsection (a) or (b) of this
section conditioned upon the payment of any fine and costs assessed for the violation. The offender is liable for any reasonable storage costs incurred in storing impounded vehicles: Provided, That
if the owner of the vehicle is a resident of or has a principal place of business located in this state,
and the vehicle has been duly licensed in the state, then the vehicle may not be impounded by the
arresting officer who shall deliver to the operator a written notice of the violation; the place, date,
and time of violation; the license number of the vehicle; the title number and name and address of
the owner; the driver's name, address, and the number of his or her commercial driver's license; and
the court, place, date and time for hearing, which shall be within ten days of the violation, Saturdays,
Sundays, and holidays excluded. A copy of the notice shall be mailed to the owner of the vehicle
within forty-eight hours. If the owner or his, her or its agent fails to appear at the designated place
and time or, if convicted, fails to pay the fine and costs assessed for the violation, the court shall
order the owner to post a bond or the impounding of the vehicle as provided in this section.
(e) Any shipper or receiver who directs or knowingly permits a commercial motor vehicle
to be loaded in excess of registered weight, allowable weights for single axle or allowable weights
for groups of two or more consecutive axles, is also guilty of a misdemeanor and, upon conviction,
shall be punished by a fine equal to that which may be imposed on the owner, lessee or borrower
of a commercial motor vehicle under subsection (a) of this section.
(f) The penalties and fees specified in this section are in addition to any other liability that
may be legally fixed against the owner, operator or other person charged with a weight violation.
§17C-17A-11. Effective date.
Criminal and administrative penalties imposed by this article take effect on the first day of
October, two thousand three.
§17C-17A-12. Designating special coal resource transportation roads, highways and bridges.
(a) From those counties and districts described in subdivision (a), section two of this article,
the commissioner of the division of highways shall identify those public roads, highways and
bridges used during the previous twelve month period for transportation of quantities of coal in
excess of fifty thousand tons, or projected to be used for transporting quantities of coal in excess of fifty thousand tons during the ensuing year. The identification process shall include the following
as to each discretely identifiable section of the public highway:
(1) The current condition of the public roads, highways and bridges;
(2) The estimated quantities of coal transported;
(3) Any planned or necessary maintenance or improvement;
(4) The number of truck loads of coal transported in an average day;
(5) Any anticipated increase or decrease in the quantity of coal being transported; and
(6) Other information determined by the commissioner to be relevant.
(b) Upon completion of the identification process, but in no event later than the first day of
July, two thousand three, the commissioner shall designate by order an interim coal resource
transportation road system consisting of those public roads, highways, bridges or segments thereof
which may be used as special coal haulage roads consistent with the authority contained in this
article. The commissioner shall establish a process for the receipt and evaluation of public comment
on the designations contained within the interim coal resource transportation road system, and
designate weight limits and other conditions for used of the coal resource transportation road system
as public interest so provides. The commissioner shall publish a directory, including supporting
maps and other documents, of the interim coal resource transportation road system.
(c) By no later than the first day of January, two thousand four, the commissioner shall
designate by order the coal resource transportation road system and shall publish a directory,
including supporting maps and other documents, of that road system.
(d) The commissioner shall establish a process for periodic evaluation of the designations
contained in the coal resource transportation road system in order to add to or delete from the road
system certain additional sections of public highways: Provided, That the evaluations and
modifications of the road system shall be completed at a minimum on an annual basis.
§17C-17A-13. Authority of the commissioner of the division of highways relating to road and
bridge repair on designated coal resource transportation roads.
(a) In addition to all other powers provided by law to the commissioner of highways, her or
she may enter into agreements with coal shippers, motor vehicle operators or owners holding or
applying for permits issued pursuant to this article, or with any other persons, for the purpose of
replacing, repairing, widening, reconstructing, altering, improving or maintaining public highways
used for coal resource transportation. These agreements shall contain necessary criteria to assure
any damages associated with the transport of coal upon the respective public highways are
ameliorated.
(b) All moneys collected by the commissioner shall be deposited in a special account created
within the state road fund, known as the coal resource transportation fund, to be expended for the
purposes set forth in subsection (a) of this section.
§17C-17A-14. Exclusion of off-road vehicles.
Notwithstanding any other provisions of state law to the contrary, the provisions of this
article shall not apply to coal hauling vehicles operating off-road or vehicles designed for off-road.
§17C-17A-15. Exclusion of interstate highways.
Notwithstanding any other provisions of this code to the contrary, the provisions of this
article shall not apply to the interstate highways in this state.
§17C-17A-16. Spotting unlawful; penalties.
It is unlawful for any person to intentionally assist an owner or operator of a commercial
motor vehicle engaged in the transportation of coal to avoid a road, safety or other lawful inspection
or enforcement activity by any law or weight enforcement officer through electronic
communications or other means intended to give the commercial vehicle driver knowledge of the
location of the officers. Any person who violates this section is guilty of a misdemeanor and shall,
upon conviction, be fined not less than one thousand dollars, and upon a second or subsequent
conviction, fined not less than two thousand dollars.
CHAPTER 17E. UNIFORM COMMERCIAL DRIVER'S LICENSE ACT.
ARTICLE 1. COMMERCIAL DRIVER'S LICENSE.
§17E-1-3. Definitions.
Notwithstanding any other provision of this code, the following definitions apply to this
article:
"Alcohol" means:
(a) Any substance containing any form of alcohol, including, but not limited to, ethanol,
methanol, propanol and isopropanol;
(b) Beer, ale, port or stout and other similar fermented beverages (including sake or similar
products) of any name or description containing one half of one percent or more of alcohol by
volume, brewed or produced from malt, wholly or in part, or from any substitute therefor for malt;
(c) Distilled spirits or that substance known as ethyl alcohol, ethanol, or spirits of wine in
any form (including all dilutions and mixtures thereof from whatever source or by whatever process
produced); or
(d) Wine of not less than one half of one percent of alcohol by volume.
"Alcohol concentration" means:
(a) The number of grams of alcohol per one hundred milliliters of blood; or
(b) The number of grams of alcohol per two hundred ten liters of breath; or
(c) The number of grams of alcohol per sixty-seven milliliters of urine.
"Commercial driver license" means a license issued in accordance with the requirements of
this article to an individual which authorizes the individual to drive a class of commercial motor
vehicle.
"Commercial driver license information system" is the information system established
pursuant to the federal commercial motor vehicle safety act to serve as a clearinghouse for locating
information related to the licensing and identification of commercial motor vehicle drivers.
"Commercial driver instruction permit" means a permit issued pursuant to subsection (d),
section nine of this article.
"Commercial motor vehicle" means a motor vehicle designed or used to transport passengers or property:
(a) If the vehicle has a gross vehicle weight rating as determined by federal regulation;
(b) If the vehicle is designed to transport sixteen or more passengers, including the driver;
or
(c) If the vehicle is transporting hazardous materials and is required to be placarded in
accordance with 49 C. F. R. part 172, subpart F.
"Commissioner" means the commissioner of motor vehicles of this state.
"Controlled substance" means any substance so classified under the provisions of chapter
sixty-a of this code (uniform controlled substances act) and includes all substances listed on
Schedules I through V, article two of said chapter sixty-a, as they may be are revised from time to
time.
"Conviction" means the final judgment in a judicial or administrative proceeding or a verdict
or finding of guilty, a plea of guilty, a plea of nolo contendere or a forfeiture of bond or collateral
upon a charge of a disqualifying offense, as a result of proceedings upon any violation of the
requirement of this article.
"Division" means the division of motor vehicles.
"Disqualification" means a prohibition against driving a commercial motor vehicle.
"Drive" means to drive, operate or be in physical control of a motor vehicle in any place
open to the general public for purposes of vehicular traffic. For the purposes of sections twelve,
thirteen and fourteen of this article, "drive" includes operation or physical control of a motor vehicle
anywhere in this state.
"Driver" means any person who drives, operates or is in physical control of a commercial
motor vehicle, in any place open to the general public for purposes of vehicular traffic, or who is
required to hold a commercial driver license.
"Driver license" means a license issued by a state to an individual which authorizes the
individual to drive a motor vehicle of a specific class.
"Employee" means a person who is employed by an employer to drive a commercial motor
vehicle, including independent contractors. An employee who is self-employed as a commercial
motor vehicle driver must shall comply with both the requirements of this article pertaining to both
employees and employers.
"Employer" means any person, including the United States, a state, or a political subdivision
of a state, who owns or leases a commercial motor vehicle, or assigns a person to drive a commercial
motor vehicle.
"Farm vehicle" includes a motor vehicle or combination vehicle registered to the farm owner
or entity operating the farm and used exclusively in the transportation of agricultural or horticultural
products, livestock, poultry and dairy products from the farm or orchard on which they are raised
or produced to markets, processing plants, packing houses, canneries, railway shipping points and
cold storage plants and in the transportation of agricultural or horticultural supplies and machinery
to such the farms or orchards to be used thereon on the farms or orchards.
"Farmer" includes an owner, tenant, lessee, occupant or person in control of the premises
used substantially for agricultural or horticultural pursuits, who is at least eighteen years of age with
two years licensed driving experience.
"Farmer vehicle driver" means the person employed and designated by the "farmer" to drive
a "farm vehicle" as long as driving is not his or her sole or principal function on the farm, who is at
least eighteen years of age with two years licensed driving experience.
"Gross combination weight rating (GCWR)" means the value specified by the manufacturer
as the loaded weight of a combination (articulated) vehicle. In the absence of a value specified by
the manufacturer, GCWR will be determined by adding the GVWR of the power unit and the total
weight of the towed unit and any load thereon.
"Gross vehicle weight rating (GVWR)" means the value specified by the manufacturer as
the loaded weight of a single vehicle. In the absence of a value specified by the manufacturer the
GVWR will be determined by the total weight of the vehicle and any load thereon.
"Hazardous materials" has the meaning as that found in the Hazardous Materials
Transportation Act (§ 49 U.S.C. 5101 et seq. (1998)).
"Motor vehicle" means every vehicle which is self-propelled, and every vehicle which is
propelled by electric power obtained from overhead trolley wires but not operated upon rails.
"Out-of-service order" means a temporary prohibition against driving a commercial motor
vehicle as a result of a determination by a federal agency or the public service commission, pursuant
to chapter twenty-four-a of this code, that: (a) The continued use of a commercial motor vehicle
may result in death, serious injury or severe personal injury; or (b) the continued actions by the
driver of a commercial motor vehicle poses an imminent hazard to public safety.
"Violation of an out-of-service order" means: (a) The operation of a commercial motor
vehicle during the period the driver was placed out of service; or (b) the operation of a commercial
motor vehicle by a driver after the vehicle was placed out of service and before the required repairs
are made.
"Serious traffic violation" means:
(a) Excessive speeding which is defined as fifteen miles per hour in excess of all posted
limits;
(b) Reckless driving as defined in section three, article five, chapter seventeen-c of this code
including erratic lane changes and following the vehicle ahead too closely;
(c) A violation of state or local law relating to motor vehicle traffic control, other than a
parking violation, arising in connection with a fatal traffic accident. Vehicle weight and vehicle
defects are excluded as serious traffic violations, except as to violations committed by a special
permittee on the coal resource transportation system; or
(d) Any other serious violations as may be determined by the U.S. United States Secretary
of Transportation.
"State" means a state of the United States and the District of Columbia.
"Tank vehicle" means any commercial motor vehicle that is designed to transport any liquid or gaseous materials within a tank that is either permanently or temporarily attached to the vehicle
or the chassis. Such These vehicles include, but are not limited to, cargo tanks and portable tanks,
as defined in 49 C.F.R. Part 171 (1998). However, this definition does not include portable tanks
having a rated capacity under one thousand gallons.
"At fault traffic accident" means for the purposes of waiving the road test, a determination,
by the official filing the accident report, of fault as evidenced by an indication of contributing
circumstances in the accident report.
CHAPTER 24A. COMMERCIAL MOTOR CARRIERS.
ARTICLE 1A. COMMERCIAL VEHICLE REGULATION.
§24A-1A-1. Regulation of commercial vehicle weights.
Effective the first day of July, two thousand three, the commission has jurisdiction over the
enforcement of this code and rules promulgated under this code, including, but not limited to,
applicable provisions of article seventeen-a, chapter seventeen-c of this code.
§24A-1A-2. Creation of advisory committee; purpose; members; terms.
(a) There is created the commercial motor vehicle weight and safety enforcement advisory
committee, the purpose of which is to study the implementation of the commercial motor vehicle
weight and safety enforcement program set forth in this article.
(b) The committee consists of the following members:
(1) One member who is an employee of the division of highways, to be appointed by the
commissioner of highways;
(2) One member who is an employee of the public service commission, to be appointed by
the chairman of the public service commission;
(3) One member who is a state police officer, to be appointed by the superintendent of the
state police;
(4) One member who is an employee of the division of motor vehicles, to be appointed by
the commissioner of motor vehicles;
(5) One member who is an employee of the development office, to be appointed by the
governor;
(6) One member who is representative of the coal industry, to be appointed by the governor;
(7) One member of the senate, to be appointed by the president of the senate;
(8) One member of the house of delegates, to be appointed by the speaker of the house of
delegates;
(9) One citizen member, to be appointed by the governor, and
(10) One member of the largest organization representing coal miners, to be appointed by
the governor.
(c) Members shall serve for terms of three years. No member may be appointed to serve
more than two consecutive terms.
(d) The committee shall annually nominate from its members a chair, who shall hold office
for one year.
(e) The committee shall hold at least four meetings each year, or more often as may, in the
discretion of the chair, be necessary to effectuate the purposes of this article.
(f) The public members of the committee may receive compensation for attendance at
official meetings, not to exceed the amount paid to members of the Legislature for their interim
duties as recommended by the citizens legislative compensation commission and authorized by law.
(g) Committee members may be reimbursed for actual and necessary expenses incurred for
each day or portion of a day engaged in the discharge of committee duties in a manner consistent
with guidelines of the travel management office of the department of administration.
(h) On or before the first day of January, two thousand four and each subsequent year
thereafter, the committee shall submit to the governor and to the Legislature a report of its
recommendations for improving the effectiveness of the commercial vehicle weight and safety
enforcement program.
(i) The commercial vehicle weight and safety enforcement advisory committee shall continue to exist until the first day of July, two thousand seven, pursuant to the provisions of article ten,
chapter four of this code, unless sooner terminated, continued or reestablished pursuant to the
provisions of that article.
§24A-7-7. Authority of motor carrier inspectors to enforce all traffic rules as to commercial
vehicles; use of radar as evidence.
(a) The employees of the commission designated as motor carrier inspectors have the same
authority as law-enforcement officers generally to enforce the provisions of chapter seventeen-c of
this code with respect to commercial motor vehicles owned or operated by motor carriers, exempt
carriers or private commercial carriers, where vehicles have a gross vehicle weight rating of ten
thousand pounds or more.
(b) The speed of a commercial motor vehicle owned or operated by a motor carrier, exempt
carrier or private commercial carrier may be proved by evidence obtained by use of any device
designed to measure and indicate or record the speed of a moving object by means of microwaves,
when the evidence is obtained by employees of the commission designated as motor carrier
inspectors. The evidence so obtained is prima facie evidence of the speed of the vehicle.
(c) Motor carrier inspectors shall also perform a North American standard safety inspection
of each commercial motor vehicle stopped for enforcement purposes pursuant to this section.
(d) Before exercising the provisions of this section, the motor carrier inspectors shall receive
adequate training.
(e) Nothing in this section affects the existing authority of law-enforcement officers not
employed by the commission to enforce the provisions of chapter seventeen-c of this code.
And,
By amending the title of the bill to read as follows:
Com. Sub. for S. B. 583 - "A Bill to amend and reenact section one, article six, chapter
seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to
further amend said article by adding thereto a new section, designated section ten; to amend and reenact section ten, article seventeen of said chapter; to further amend said article by adding thereto
a new section, designated section eleven-d; to further amend said chapter by adding thereto a new
article, designated article seventeen-a; to amend and reenact section three, article one, chapter
seventeen-e of said code; to amend chapter twenty-four-a of said code by adding thereto a new
article, designated article one-a; and to amend article seven of said chapter by adding thereto a new
section, designated section seven, all relating to the regulation of commercial vehicles; increasing
speeding fines for commercial vehicles transporting coal; authorizing public service commission and
its employees to enforce laws of the road for commercial vehicles; authorizing weight enforcement
for commercial vehicles moving or parked on or within one hundred feet of a public highway or
right-of-way; increasing weight limits for certain public highways; establishing administrative
enforcement process and penalties for vehicles transporting coal or certain roads; issuance of special
permits; setting maximum highway weights; providing legislative findings for special regulation of
coal transportation on the coal resource transportation road system; defining terms; designating
eligible counties; directing public service commission to administer commercial vehicle weights and
measures; providing that division of highways and public service commission administer all aspects
of weight and safety requirements; providing that division of highways coordinate establishment of
coal resource transportation roads with the public service commission; establishing a permitting
program for vehicles transporting coal which allows higher weight limits upon meeting certain
requirements; authorizing public service commission and division of highways to promulgate
legislative rules; providing special operator and vehicle permit requirements; providing for fees to
be assessed for permits; providing reporting requirements for vehicle owners, coal shippers and coal
receivers; authorizing commission employees to inspect certain weight transportation records;
establishing administrative sanctions for coal vehicle weight violations; establishing new penalties
for weight violations, permit violations, falsification of information or assisting persons violating
the act; providing for appeals of penalties; establishing procedure and criteria for commissioner of
division of highways to designate special coal resource transportation roads; setting an effective date; authorizing commissioner of division of highways to enter into agreements with persons
responsible for coal transport to undertake road and bridge improvements; exclusion of off-road
vehicles and interstate highways; providing penalties for spotting; removing weight from the list of
nonserious traffic violations; creating commercial motor vehicle weight and safety enforcement
advisory committee; and providing for its membership, organization, compensation, expense
reimbursements, duties and termination of committee and allowing certain public service
commission employees to enforce traffic rules for commercial vehicles."
During consideration of the Judiciary Committee amendment, Delegate Trump presided for
a portion of the debate.
Delegate Coleman entered the Chamber, having been absent for much of the session due to
illness, and took his seat. (Applause, the members and guests rising in ovation.)
Delegate Talbott moved to amend the amendment on page thirteen, section three, subsection
(a), by striking the words "in Webster County, routes 9, 20, and 82;" .
On the adoption of the amendment to the amendment, Delegate Talbott demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 386), and there
were--yeas 44, nays 55, absent and not voting 1, with the yeas and absent and not voting being as
follows:
Yeas: Armstead, Ashley, Boggs, Border, Brown, Butcher, Cann, Canterbury, Caputo,
Carmichael, Coleman, Crosier, DeLong, Duke, Ellem, Evans, Faircloth, Fleischauer, Foster, Fragale,
Frich, Hamilton, Houston, Iaquinta, Kuhn, Louisos, Mahan, Manchin, Manuel, Martin, Palumbo,
Paxton, Perdue, Poling, Renner, Susman, Tabb, Talbott, R. Thompson, Trump, Tucker, Walters,
Webb and Webster.
Absent And Not Voting: Spencer.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegates Fleischauer and Caputo moved to amend the committee amendment, on page
seventeen, section four, line ten, following the word "requirements.", by inserting the following:
"The commission and the division shall give deference to the legislative findings contained
in section one of this article. Any decision to designate a road, highway or bridge as a special coal
resource transportation road, highway or bridge shall be accompanied by a written finding that the
designation serve the public interest, and the reasons supporting such a finding."
And,
On page thirty-five, section twelve, line five, following the word "commissioner" by striking
out the remainder of subsection "b" and inserting in lieu thereof the following:
"shall prior to any final decision of the Division of Highways designating special coal resource
transportation roads, highways and bridges:
(1) Prepare and reduce to writing the reasons and supporting data regarding such designation,
including supporting maps and other documents, of the roads, highways, and bridges which have
been identified for that are to potentially be designated. The written reasons required under this
section shall be available for public inspection at the office of the county clerk at the county
courthouse of each county in which the affected roads, highways and bridges are located during the
two successive weeks before the date of the public hearing required by this section;
(2) Provide for a public hearing to be held at a reasonable time and place within each county
in which the affected roads, highways and bridges are located to allow interested members of the
public to attend the hearing without undue hardship. Members of the public may be present, submit
statements and testimony and question the commissioner and/or his/her representative appointed
pursuant to this section;
(3) Not less than thirty days prior to such public hearing, provide notice to all members of
the Legislature, to the head of the governing body of any political subdivision within the county
within which the roads, highways and bridges are located and to the head of any political
subdivision having administrative or public services responsibility in the geographic area within which the roads, highways and bridges are located;
(4) Cause to be published a notice of the required public hearing. The notice shall be
published as a Class II legal advertisement in compliance with the provisions of article three, chapter
fifty-nine of this code and the publication area shall be each county in which the affected road,
highways and bridges are located. The public hearing shall be held no earlier than the fourteenth
successive day and no later than the twenty-first successive day following the first publication of
the notice. The notice shall contain the time and place of the public hearing along with a brief
description of the affected roads, highways and bridges that are to potentially be designated;
(5) Cause a copy of the required notice to be posted in a conspicuous place at the county
courthouse where the affected roads, highways and bridges are located, for members of the public
to observe. Such notice shall remain posted for two successive weeks prior to the date of the public
hearing;
(6) The commissioner and/or his/her designee shall conduct the required public hearing. The
commissioner and/or his/her designee shall have full knowledge of the facts and circumstances
surrounding the proposed designation of the road, highway and bridges as special coal resource
transportation roads. The commissioner and/or his/her designee shall make a report of the public
hearing available for inspection by the public or, upon written request of any interested person,
provide a written copy thereof and to all individuals previously receiving written notice of the
hearing within thirty days following the public hearing; and
(7) The commissioner and/or his/her designee conducting the public hearing shall make the
results of the hearing available to the division of highways for its consideration prior to the
commissioner making decisions regarding the affected roads, highways and bridges."
On the adoption of the amendment to the amendment, Delegate Caputo demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 387), and there
were--yeas 41, nays 57, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Boggs, Brown, Browning, Butcher, Canterbury, Caputo,
Carmichael, Coleman, DeLong, Duke, Ellem, Fleischauer, Foster, Fragale, Frich, Hamilton,
Hatfield, Houston, Iaquinta, Louisos, Mahan, Manchin, Manuel, Martin, Palumbo, Paxton, Perdue,
Poling, Renner, Schoen, Susman, Tabb, R. Thompson, Trump, Tucker, Webb, Webster, Yeager and
Yost.
Absent And Not Voting: Kuhn and Spencer.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegate Perdue then moved to amend the amendment on page twenty-four, section nine,
line seven, following the word "commission" by striking out the word "may" and inserting in lieu
thereof the word "shall";
And,
On line eleven, following the word "violations" by striking out the word "may" and inserting
in lieu thereof the word "shall".
On the adoption of the amendment to the amendment, Delegate Perdue demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 388), and there
were--yeas 99, nays 1, absent and not voting 0, with the nays being as follows:
Nays: Staton.
So, a majority of the members present and voting having voted in the affirmative, the
amendment to the amendment was adopted.
Delegate Perdue moved to amend the amendment on page fifteen, section three, line fifteen,
following the word "organizations" by inserting the following: "The study shall include an analysis
of the effect, if any, of the size, weight and load requirements of vehicles traveling on any coal
resource transportation road in this state on the automobile insurance rates and premiums of citizens in this state domiciled in the areas in which the coal resource transportation roads are located."
On the adoption of the amendment to the amendment, Delegate Perdue demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 389), and there
were--yeas 41, nays 59, absent and not voting 0, with the yeas being as follows:
Yeas: Armstead, Ashley, Boggs, Brown, Browning, Butcher, Canterbury, Caputo, Coleman,
DeLong, Duke, Ellem, Evans, Faircloth, Fleischauer, Fragale, Hamilton, Hatfield, Howard, Iaquinta,
Kuhn, Leach, Leggett, Louisos, Manchin, Manuel, Martin, Paxton, Perdue, Poling, Renner, Romine,
Susman, Talbott, R. Thompson, Trump, Tucker, Wakim, Webb, Webster and Yeager.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegate Kominar requested to be excused from voting on amendments and ultimate passage
of the bill under the provisions of House Rule 49, stating that he owned coal trucks and possibly
may benefit from the passage of the bill and incidental questions relative thereto.
The Speaker replied that it was his opinion that Delegate Kominar was a member of a class
of persons who might be affected by the passage of the bill and incidental questions relative thereto
and, therefore, refused to excuse Delegate Kominar from voting.
The question now before the House being the amendment recommended by the Committee
on the Judiciary, as amended, the same was put and prevailed.
Delegate Caputo moved to amend the bill on page four, following the enacting clause, by
striking out the remainder of the bill and inserting in lieu thereof the following:
That section one, article six, chapter seventeen-c of the code of West Virginia, one thousand
nine hundred and thirty-one, as amended, be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section ten; that sections ten and eleven, article
seventeen of said chapter be amended and reenacted; that said chapter be further amended by adding
thereto two new articles, designated articles seventeen-a and seventeen-b; that section three, article one, chapter seventeen-e of said code be amended and reenacted; and that chapter twenty-four-a of
said code be amended by adding thereto a new article, designated article one-a, all to read as
follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 6. SPEED RESTRICTIONS.
§17C-6-1. Speed limitations generally; penalty.
(a) No person may drive a vehicle on a highway at a speed greater than is reasonable and
prudent under the existing conditions and the actual and potential hazards. In every event speed
shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other
conveyance on or entering the highways in compliance with legal requirements and the duty of all
persons to use due care.
(b) Where no special hazard exists that requires lower speed for compliance with subsection
(a) of this section, the speed of any vehicle not in excess of the limits specified in this section or
established as hereinafter authorized is lawful, but any speed in excess of the limits specified in this
subsection or established as hereinafter authorized is unlawful.
(1) Fifteen miles per hour in a school zone during school recess or while children are going
to or leaving school during opening or closing hours. A school zone is all school property including
school grounds and any street or highway abutting such school grounds and extending one hundred
twenty-five feet along such street or highway from the school grounds. The speed restriction does
not apply to vehicles traveling on a controlled access highway which is separated from the school
or school grounds by a fence or barrier approved by the division of highways;
(2) Twenty-five miles per hour in any business or residence district;
(3) Fifty-five miles per hour on open country highways, except as otherwise provided by this
chapter.
The speeds set forth in this section may be altered as authorized in sections two and three
of this article.
(c) The driver of every vehicle shall, consistent with the requirements of subsection (a) of
this section, drive at an appropriate reduced speed when approaching and crossing an intersection
or railway grade crossing, when approaching and going around a curve, when approaching a hill
crest, when traveling upon any narrow or winding roadway and when special hazard exists with
respect to pedestrians or other traffic or by reason of weather or highway conditions.
(d) The speed limit on controlled access highways and interstate highways, where no special
hazard exists that requires a lower speed, shall be not less than fifty-five miles per hour and the
speed limits specified in subsection (b) of this section do not apply.
(e) The speed limit for any commercial motor vehicle engaged in the transportation of coal
with a gross vehicle weight of twenty-six thousand pounds or more shall be five miles per hour less
than the speed limit applicable to other vehicles on that road, highway or street.
(e) (f) Unless otherwise provided in this section, any person who violates the provisions of
this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than
one hundred dollars; upon a second conviction within one year thereafter, shall be fined not more
than two hundred dollars; and, upon a third or subsequent conviction within two years thereafter,
shall be fined not more than five hundred dollars: Provided, That if such third or subsequent
conviction is based upon a violation of the provisions of this section where the offender exceeded
the speed limit by fifteen miles per hour or more, then upon conviction, shall be fined not more than
five hundred dollars or confined in the county or regional jail for not more than six months, or both.
(f) (g) Any person who violates the provisions of subdivision (1), subsection (b) of this
section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than five hundred dollars: Provided, That if such conviction is based upon
a violation of the provisions of subdivision (1), subsection (b) of this section where the offender
exceeded the speed limit by fifteen miles per hour or more in the presence of one or more children,
then upon conviction, shall be fined not less than one hundred dollars nor more than five hundred
dollars or confined in the regional or county jail for not more than six months, or both.
(g) (h) If an owner or driver is arrested under the provisions of this section for the offense
of driving above the posted speed limit on a controlled access highway or interstate highway, and
if the evidence shall show that the motor vehicle was being operated at ten miles per hour or less
above said speed limit, then, upon conviction thereof, such person shall be fined not more than five
dollars, plus court costs.
(i) Any person operating a commercial motor vehicle engaged in the transportation of coal
who violates subsection (e) of this section by exceeding the speed limit therein declared by ten miles
per hour or more shall, upon conviction, be fined not less than one thousand dollars, plus court costs.
Upon conviction for a second and each subsequent offense, such fine shall be no less than two
thousand dollars, plus court costs.
(j) If an owner or driver is convicted under the provisions of this section for the offense of
driving above the speed limit on a controlled access highway or interstate highway of this state, and
if the evidence shall show shows that the motor vehicle was being operated at ten miles per hour or
less above said speed limit, then notwithstanding the provisions of section four, article three, chapter
seventeen-b of this code, a certified abstract of the judgment on such conviction shall not be
transmitted to the division of motor vehicles: Provided, That the provisions of this subsection do
not apply to conviction of owners or drivers who have been issued a commercial driver's license as
defined in chapter seventeen-e of this code, if the offense was committed while operating a
commercial vehicle.
(h) (k) If an owner or driver is convicted in another state for the offense of driving above the
maximum speed limit on a controlled access highway or interstate highway, and if the maximum
speed limit in such other state is less than the maximum speed limit for a comparable controlled
access highway or interstate highway in this state, and if the evidence shall show that the motor
vehicle was being operated at ten miles per hour or less above what would be the maximum speed
limit for a comparable controlled access highway or interstate highway in this state, then
notwithstanding the provisions of section four, article three, chapter seventeen-b of this code, a certified abstract of the judgment on such conviction shall not be transmitted to the division of motor
vehicles, or, if transmitted, shall not be recorded by the division, unless within a reasonable time
after conviction, the person convicted has failed to pay all fines and costs imposed by the other state:
Provided, That the provisions of this subsection do not apply to conviction of owners or drivers who
have been issued a commercial driver's license as defined in chapter seventeen-e of this code, if the
offense was committed while operating a commercial vehicle.
§17C-6-10. Enforcement of article with respect to operations of commercial motor vehicles.
In addition to enforcement by officers and other persons authorized by law, designated
employees of the public service commission of West Virginia may enforce the provisions of this
article as they relate to the operation of commercial motor vehicles.
ARTICLE 17. SIZE, WEIGHT AND LOAD.
§17C-17-10. Officers may weigh, measure, or examine vehicles and require removal or
rearrangement of excess loads.
(a) Any police officer or employee of the department of highways or the public service
commission designated by the commissioner of highways as a member of an official weighing crew
may require the driver of any vehicle or combination of vehicles located on or within one hundred
feet of any public highway or right of way, and whether moving or stopped, to stop and submit such
vehicle or combination of vehicles to a weighing with portable or stationary weighing devices or
submit such vehicle or combination of vehicles to a measuring or to any other examination
necessary to determine if such vehicle or combination of vehicles is in violation of any of the
provisions of this article or article seventeen-a, and may require that such vehicle or combination
of vehicles be driven to the nearest weighing device.
No police officer or member of an official weighing crew may stop a vehicle or combination
of vehicles may be submitted for weighing unless a portable or stationary weighing device is
actually present at the location where, and at the time, the vehicle or combination of vehicles is
stopped or unless the vehicle or combination of vehicles is escorted immediately after being stopped to a the nearest portable or stationary weighing device. In no case may a vehicle or combination of
vehicles be detained more than one hour from the time the same it is stopped for weighing unless
the vehicle or combination of vehicles is impounded for a another violation. in accordance with the
provisions of section fourteen of this article.
(b) Whenever a police officer or a member of an official weighing crew determines that a
vehicle or combination of vehicles is in violation of any of the provisions of this article or article
seventeen-a, he or she may require the driver to stop such vehicle or combination of vehicles in a
suitable place and to remain standing until such vehicle or combination of vehicles is brought into
conformity with the provisions violated.
In the case of a weight violation all material unloaded shall be cared for by the owner, lessee
or borrower of such vehicle or combination of vehicles at the risk of such owner, lessee or borrower:
Provided, That no criminal charge shall be preferred against any driver, operator or owner of a
vehicle when a rearrangement of the load upon the vehicle, without removal therefrom, reduces the
axle loads of said vehicle to such limit as is permitted under this chapter.
(c) Any driver of a vehicle or combination of vehicles who fails or refuses to comply with
any requirement or provision of this section shall be guilty of a misdemeanor, or in the case of any
vehicles engaged in the transportation of coal, subject to any other additional penalties that may be
applicable under the provisions of article seventeen-a of this chapter.
§17C-17-11. Permits for excess size and weight.
(a) The commissioner of highways public service commission may, in its his or her
discretion, upon application in writing and good cause being shown therefor issue a special permit
in writing authorizing: (1) The applicant, in crossing any highway of this state, to operate or move
a vehicle or combination of vehicles of a size or weight or load exceeding the maximum specified
in this chapter or otherwise not in conformity with the provisions of this chapter, whether the
operation be continuous or not, provided the applicant shall agree to compensate the commissioner
of highways for all damages or expenses incurred in connection with the crossing; (2) the applicant to operate or move a vehicle or combination of vehicles of a size or weight of vehicles or
nondivisible load exceeding the maximum specified in this chapter or otherwise not in conformity
with the provisions of this chapter; and (3) the applicant to move or operate, for limited or
continuous operation, a vehicle hauling containerized cargo in a sealed, seagoing container to or
from a seaport or inland waterway port that has or will be transported by marine shipment where the
vehicle is not, as a result of hauling the container, in conformity with the provisions of this article
relating to weight limitations, upon the conditions that: (A) The container be hauled only on the
roadways and highways designated by the commissioner of highways; (B) the contents of the
container are not changed from the time it is loaded by the consignor or the consignor's agent to the
time it is delivered to the consignee or the consignee's agent; and (C) any additional conditions as
the commissioner of highways or the public service commission may impose to otherwise ensure
compliance with the provisions of this chapter.
(b)(1) The commissioner of highways may issue a special permit to operate or move a
vehicle or combination of vehicles of a size or weight of vehicles or nondivisible load exceeding the
maximum specified in this chapter or otherwise not in conformity with the provisions of this chapter
over routes designated by the commissioner of highways upon such terms and restrictions as the
public service commission, together with the commissioner of highways, may prescribe.
(2) For purposes of this section, nondivisible load means any load exceeding applicable
length or weight limits which, if separated into smaller loads or vehicles, would: (A) Compromise
the intended use of the vehicle, to the extent that the separation would make it unable to perform the
function for which it was intended; (B) destroy the value of the load or vehicle, to the extent that the
separation would make it unusable for its intended purpose; or (C) require more than eight
workhours to dismantle using appropriate equipment: Provided, That the applicant for a
nondivisible load permit has the burden of proof as to the number of workhours required to
dismantle the load.
(c) The application for any permit other than a special annual permit shall specifically describe the vehicle or vehicles and load to be operated or moved along or across the highway and
the particular highway or crossing of the highway for which permit to operate is requested, and
whether the permit is requested for a single trip or for a continuous operation.
(d) The commissioner of highways public service commission is authorized to issue or
withhold a permit at his or her discretion; or, if the permit is issued, to limit the number of trips, or
to establish seasonal or other time limitations within which the vehicles described may be operated
on or across the highways indicated, or otherwise to limit or prescribe conditions of operation of the
vehicle or vehicles, when necessary to assure against undue damage to the road foundations, surface,
or structures, and may require the undertaking, bond or other security as may be considered
necessary to compensate for any injury to any roadway structure and to specify the type, number and
the location for escort vehicles for any vehicle: Provided, That in establishing limitations on permits
issued under this section, the public service commission shall consult with the commissioner of
highways, and may not issue, limit or condition a permit in a manner inconsistent with the authority
of the commissioner of highways.
The commissioner public service commission may charge a fee not to exceed five dollars
for the issuance of a permit for a mobile home and a reasonable fee for the issuance of a permit for
any other vehicle under the provisions of this section to pay the administrative costs thereof.
(e) Every permit shall be carried in the vehicle or combination of vehicles to which it refers
and shall be open to inspection by any police officer or authorized agent of the commissioner of
highways or the public service commission granting the permit, and no person shall violate any of
the terms or conditions of the special permit.
ARTICLE 17A. REGULATION OF THE COMMERCIAL TRANSPORTATION OF COAL.
§17C-17A-1. Legislative findings and creation of program.
(a) The Legislature finds and declares that:
(1) No other economic undertaking in the history of West Virginia has had a greater impact
upon the citizens of this state, providing such an economic force and affecting the social construct and day to day life and environment of the people and communities of this state, than the activities
associated with the extraction, transportation and consumption of coal or its byproducts. In areas
of this state where the coal industry exists, the economic benefits of coal production are an
indispensable part of the local community's vitality.
(2) The historic progression of the coal industry has resulted in an increasing use of the
public highways of this state for the transportation of coal to river ports, power generators or rail
loading facilities. Roads where coal is transported are mainly two lane rural roads and highways
of varying grades and conditions. The daily presence of large commercial motor vehicles on these
roads and highways causes significant impact to local communities and the local transportation
infrastructure. Local residents are exposed on a daily basis exposed to the dangers associated with
sharing the road with a large number of these vehicles.
(3) The increased capacity of coal hauling vehicles, tied with increased economic pressures
to reduce industry transportation costs, have created economic incentives for transporting coal at
higher than legal limits, and for drivers to drive long hours and operate these vehicles at higher rates
of speed. Consequently, average vehicle weights have increased and many coal transport vehicles
regularly exceed the lawful limit by more than one hundred percent. The excessive weights of these
vehicles have also resulted in the rapid deterioration of state roads and bridges, creating significant
costs to the state of millions of dollars in lost road and bridge use and life.
(4) Advances in technology have made tracking and recording individual vehicles, their
operators and load significantly more efficient.
(5) Enforcement of truck safety and driver safety laws has been divided between various
jurisdictions such as local and state law-enforcement, division of highways, and the public service
commission. As a result, local and state enforcement of those comprehensive laws has not been
uniform, with the result that many of these laws have not been enforced.
(6) The current condition of the state's coal transportation system requires that a
comprehensive regulatory enforcement program be established; that this program include special safety protections for the public that shares the roads with the large coal hauling vehicle fleet of this
state; that the program be designed to assure that state weight and safety requirements be effectively
enforced to provide protections for the public sharing these roadways.
(b) A special centralized regulatory program with administrative enforcement authority over
all vehicles hauling coal in West Virginia is hereby created. This program is designed to address
the economic needs of the coal industry within the confines of the ability of the transportation
infrastructure to accommodate these needs and in careful consideration for road safety.
§17C-17A-2. Definitions.
For purposes of this article:
(a) "Coal" or coal by-products means the mineral in raw or clean state, and includes such
synthetic fuel manufactured or produced for which credit is allowable under 26 U.S.C. § 29 of the
Internal Revenue Code (1996).
(b) "Commission" means the public service commission of West Virginia.
(c) "Division" means the division of highways within the department of transportation.
(d) "Mining operation" means any activity related to extraction of coal regulated under the
provisions of this code.
(e) "Operator" means the person driving a commercial motor vehicle transporting coal on
any public highway of this state.
(f) "Person" means any individual, partnership, firm, society, association, trust, corporation,
other business entity or any agency, unit or instrumentality of federal, state or local government.
(g) "Shipper" means the person who loads coal or causes coal to be loaded into any
commercial motor vehicle that will operate on any public highway in this state.
(h) "Receiver" means the person who accepts for unloading coal from any vehicle that has
operated on any public highway in this state.
(i) "Vehicle owner" means the person who as owner of a commercial motor vehicle employs,
contracts or otherwise directs a driver to operate that vehicle on a public highway of this state for the purpose of transporting coal.
§17C-17A-3. Authority of the division of highways and public service commission generally.
(a) The commission may, during normal business hours, conduct inspections of all trucking
related records of shippers, vehicle operators, vehicle owners and receivers engaged in the
transportation of coal. This provision may not be construed to authorize the commission to reveal
trade secrets or other confidential financial information of those persons inspected; however the
commission may use any weight measurement records as evidence of a violation of this article.
(b) The commission shall implement a study of commercial vehicle safety related issues,
including utilizing higher education institutions and other research organizations.
(c) The commission shall establish procedures to utilize electronic real time reporting of coal
vehicle weights by shippers and receivers. The commission may require daily certified reports from
shipper or receiver if electronic reporting methods are not used. The commission may authorize
alternative measures of reporting that require same day reporting of weight measurements by
shippers and receivers.
(d) Notwithstanding the provisions of section three, article one of chapter twenty-nine-a of
this code, both the commission and the division shall propose legislative rules for promulgation in
accordance with the provisions of article three, chapter twenty-nine-a of this code to carry out and
implement the provisions of this article.
§17C-17A-4. Coal truck operation requirements.
(a) Notwithstanding the provisions of section three, article one, chapter twenty-nine-a, the
commission shall promulgate emergency and legislative rules to effectuate purposes of this section,
which shall provide, at a minimum, the following:
(1) Twenty-four hours mandatory specialized training requirements for commercial vehicles
operators with less than two years of commercial driving experience;
(2) Requirements for random drug and alcohol testing;
(3) Requirements for daily records consistent with the provisions of any applicable federal statutory or regulatory requirements.
C§17C-17A-5. Operation of coal trucks; authorizing commission to promulgate rules.
(a) For purposes of this section, the dimensional requirements of motor vehicles shall
conform to all applicable federal laws and regulations. Nothing in this section may be construed or
administered so as to jeopardize the receipt of federal funds for highway purposes.
(b) Any vehicle or combination of vehicles transporting coal pursuant to the provisions of
this article shall be securely covered to prevent the escape of the load on any trip exceeding a total
distance of one mile on any public highway.
(c) The commission shall propose rules in accordance with the provisions of article three,
chapter twenty-nine-a of this code regarding the implementation of the requirements of this section.
The rules shall be initially promulgated as emergency rules pursuant to the provisions of article
three, chapter twenty-nine-a of this code by no later than the first day of July two thousand three.
§17C-17A-6. Reporting requirements for shippers, vehicle owners and receivers of coal
transported on public highways.
(a) Every shipper of coal for transport on a public highway in this state must report to the
commission weight and other transport related data as required by the commission. The commission
shall by rule establish special recording and reporting methods for timely and accurate disclosure
of all shipments of coal made by a vehicle upon a public highway of this state.
(b) Every vehicle owner who transports coal on a public highway of this state is subject to
the provisions of this article and any rules established by the commission requiring reporting,
monitoring or removal from service any unsafe vehicle or driver.
(c) Every receiver of coal transported on a public highway in this state that unloads or causes
to be unloaded coal must report the weight of any vehicle delivering the coal.
(d) The commission shall by rule establish special recording and reporting methods for
timely and accurate disclosure of all shipments of coal made by commercial motor vehicles upon
a public highway of this state. The commission shall by rule establish a schedule to assess a fee on shippers and receivers of coal based on the method used to report weight-shipping records.
§17C-17A-7. Powers and duties of the commission; rules and rulemaking.
In addition to all other powers, duties, responsibilities and authority granted and assigned
to the commission in this code and elsewhere prescribed by law, notwithstanding any provision of
the code to the contrary, the commission:
(1) The commission or any authorized representative, employee or agent may, at reasonable
times, enter onto any coal shipping or receiving facility for the purpose of making an inspection or
investigation;
(2) The commission may also perform or require a person, by order, to perform any and all
acts necessary to carry out the provisions of this article or the rules promulgated thereunder;
(3) The commission, its authorized representative, employee or agent shall make periodic
inspections at coal shipping or receiving facilities to effectively implement and enforce the
requirements of this article or its rules and may conduct at weigh stations or any other adequate site
or facility inspections of coal in transit.
§17C-17A-8. Administrative sanctions.
(a) It is the intent of the Legislature to impose administrative sanctions in addition to any
criminal or civil penalties upon any person violating or assisting in the violation of the provisions
of this article.
(b) After providing notice and an opportunity to show cause why penalties should not be
imposed for the violation of provisions of this article, the commission may impose sanctions upon
an operator, shipper, receiver or truck owner when a violation is found to have occurred. Lack of
intent is not a defense to a violation except as it applies to receivers.
(c) Administrative sanctions for violations may be imposed as follows:
(1) It is unlawful for any person to operate a commercial motor vehicle engaged in the
transportation of coal with a gross vehicle weight in excess of the lawful maximum weight on a
public highway. Any person violating this subsection shall have his or her driver's license suspended by the commissioner of the division of motor vehicles for a period of ninety days for the
first offense, six months for the second offense, and one year for the third offense.
(2) Any shipper or receiver that ships or receives an overweight coal load transported by a
vehicle in violation of the law shall have its state-issued business license suspended by the
commissioner of the state tax division for a period of ninety days for the first offense, six months
for the second offense, and revoked for the third offense.
(3) Any person who aids or abets another person's attempt to avoid suspension shall have
his or her driver's license suspended by the commissioner of the division of motor vehicles for a
period of sixty days for the first offense, one hundred twenty days for the second offense, and six
months for the third offense.
(4) Any person that aids or abets a person's attempt to avoid suspension shall have its state-
issued business license suspended by the commissioner of the state tax division for a period of three
months for the first offense, six months for the second offense, and one year for the third offense.
(d) Administrative sanctions may be imposed pursuant to the following procedures:
(1) No administrative sanction may be imposed until after the person has been notified by
certified mail or personal service. The notice shall include: a reference to the section of statute, rule,
order, or permit violated; a concise statement of the facts alleged to constitute a violation; a
statement of the administrative penalties to be imposed; and a statement of the person's right to a
hearing. The person shall have twenty days from receipt of the notice within which to deliver to the
commission a written request for a hearing.
(2) Subsequent to the hearing and upon finding that a violation has occurred, the commission
shall issue a final order. If no hearing is requested, the notice shall become a final order upon the
expiration of the twenty-day period.
(3) The authority to levy an administrative sanction is in addition to all other sanctions
provided by law, and the imposition of any civil or criminal penalty may not affect the availability
of any other enforcement provision in connection with the violation.
(4) In addition to the imposition of an administrative sanction, the commission may, by
administrative order and upon an appropriate finding, assess a violator for the reasonable costs of
any investigation, inspection, or monitoring survey which led to the establishment of the violation.
§17C-17A-9. Penalties for violation of weight laws; impounding vehicles.
(a) Any owner, lessee or borrower of a commercial motor vehicle or combination of vehicles
transporting coal who operates or permits to be operated on any highway such vehicle or
combination of vehicles with a total gross weight with load imposed upon the highway in excess
of that permitted by law, is guilty of a misdemeanor and, upon conviction thereof, shall be fined in
proportion to the number of pounds in excess of the registered weight, in accordance with the
following schedule.
Excess WeightAmount of Fine
1 to 4,000 pounds1 cent per overweight pound
4,001 to 8,000 pounds3 cents per overweight pound
8,001 to 12,000 pounds7 cents per overweight pound
12,001 to 16,000 pounds10 cents per overweight pound
16,001 to 20,000 pounds15 cents per overweight pound
20,001 to 40,000 pounds30 cents per overweight pound
40,001 pounds or more45 cents per overweight pound
(b) Upon a second or subsequent conviction within two years thereafter, the owner, lessee
or borrower shall be fined according to the following schedule:
Excess WeightAmount of Fine
1 to 4,000 pounds 1 cent per overweight pound
4,001 to 8,000 pounds5 cents per overweight pound
8,001 to 12,000 pounds10 cents per overweight pound
12,001 to 16,000 pounds15 cents per overweight pound
16,001 to 20,000 pounds20 cents per overweight pound
20,001 to 40,000 pounds40 cents per overweight pound
40,001 pounds or more80 cents per overweight pound
(c) The fines specified in subsections (a) and (b) of this section are mandatory and may not
be waived or reduced by any judicial officer.
(d) In the event any owner, lessee or borrower of a vehicle is charged with violating this
section, the vehicle charged to have been overloaded shall be impounded by the arresting officer.
The vehicle shall not be released to the alleged offender or the owner unless and until he or she
either has: (1) Been acquitted of the charge; (2) been found guilty of the charge and paid any fine
assessed under subsection (a) or (b); or (3) furnished cash or surety bond in at least double the
amount of the fine which may be assessed the offender under subsection (a) or (b) conditioned upon
the payment of any fine and costs assessed for such violation. The offender is liable for any
reasonable storage costs incurred in storing impounded vehicles: Provided, That if the owner of the
vehicle is a resident of or has a principal place of business located in this state, and the vehicle has
been duly licensed in the state, then the vehicle may not be impounded by the arresting officer who
shall deliver to the operator a written notice of the violation; place, date, and time of violation; the
license number of the vehicle; the title number and name and address of the owner; the driver's
name, address, and the number of his or her commercial driver's license; and the court, place, date
and time for hearing, which shall be within ten business days of the violation. A copy of the notice
shall be mailed to the owner of the vehicle within two business days. If the owner or his, her or its
agent fails to appear at the designated place and time or, if convicted, fails to pay the fine and costs
assessed for the violation, the court shall order the owner to post a bond or the impounding of the
vehicle as provided in this section.
(e) Any shipper or receiver who directs or knowingly permits a commercial motor vehicle
to be loaded in excess of a lawful weight is also guilty of a misdemeanor and, upon conviction, shall
be fined equal to that amount which may be imposed on the owner, lessee or borrower of a
commercial motor vehicle under subsection (a).
(f) The penalties and fees specified in this section shall be in addition to any other liability
that may be legally fixed against the owner, operator or other person charged with a weight
violation.
§17C-17A-10. "Spotting" unlawful; penalties.
It is unlawful for any person to intentionally assist an owner or operator of a commercial
motor vehicle engaged in the transportation of coal to avoid a road, safety or other lawful inspection
or enforcement activity by any law or weight enforcement officer though electronic communications
or other means intended to give the commercial vehicle driver knowledge of the location of such
officers. Any person who violates this section is guilty of a misdemeanor and shall, upon
conviction, be fined not less than one thousand dollars, and, upon a second or subsequent
conviction, fined not less than two thousand dollars.
ARTICLE 17B. TRANSFER OF CERTAIN JURISDICTION AND EMPLOYEES TO
PUBLIC SERVICE COMMISSION.
§17C-17B-1. Legislative findings and purposes.
(a) The Legislature finds that:
(1) Enforcement officers of the public service commission of West Virginia are, as part of
their enforcement of chapters twenty-four and twenty-four-a of this code with respect to common
and contract carriers by motor vehicle, other for-hire carriers, and private commercial carriers,
currently inspecting for safety many of the same vehicles and loads that are inspected for size and
weight by employees of the department of transportation;
(2) To effectuate the legislative findings and declarations set forth in section one, article one,
chapter five-f of this code, the jurisdiction over the administration and enforcement of state statutes
and rules relating to vehicular weight and the jurisdiction over the issuance of permits for excess
vehicular weight should be transferred to the public service commission;
(3) To preserve continuity and to maximize efficiency, those employees of the department
of transportation who are employed primarily in the performance of the governmental duties described in this section should be transferred to the public service commission;
(4) The enforcement of state statutes and rules relating to coal truck weight, including costs
of inspections of such vehicles and loads, training of enforcement officers, program oversight,
administrative proceedings, personal services, employee benefits and all other costs associated with
enforcement matters, falls within the scope of maintenance of state roads and public highways as
described in section fifty-two, article six of the constitution of this state and in section one, article
three, chapter seventeen of this code; and
(5) Revenues in the state road fund, established pursuant to the provisions of section one,
article three, chapter seventeen, of this code shall be used to fund costs relating to enforcing the
provisions of this article.
(b) The purposes of this article are:
(1) To transfer jurisdiction over the enforcement of state statutes and rules, including but not
limited to the provisions of article seventeen-a of this chapter, relating to coal truck weight, from
the commissioner of highways, division of highways, and department of transportation to the public
service commission of West Virginia;
(2) To transfer jurisdiction over the issuance of permits for excess vehicular weight under
section eleven, article seventeen, of this chapter, from the commissioner of highways, division of
highways, and department of transportation to the public service commission of West Virginia; and
(3) To transfer to the public service commission of West Virginia those employees of the
division of highways and department of transportation whose primary governmental duties include
the administration and enforcement of statutes and rules relating to vehicular weight.
§17C-17B-2. Transfer of jurisdiction over vehicle weight enforcement and excess weight
permit issuances to public service commission.
(a) Effective the first day of July, two thousand three, the jurisdiction over the enforcement
of state statutes and rules, including but not limited to applicable provisions of article seventeen of
this chapter, relating to vehicular weight, shall be transferred from the commissioner of highways, division of highways, and department of transportation to the public service commission of West
Virginia.
(b) Effective the first day of July, two thousand three, the jurisdiction over the issuance of
permits for excess vehicular weight shall be transferred from the commissioner of highways,
division of highways, and department of transportation to the public service commission of West
Virginia.
§17C-17B-3. Transfer of certain employees from department of transportation to public
service commission.
(a) Effective the first day of July, two thousand three, employees of the division of highways,
department of transportation whose primary governmental duties as of the thirty-first day of
December, two thousand two, included the administration and enforcement of state statutes and rules
relating to vehicular weight or the issuance of permits for excess vehicular weight shall be
transferred from the division of highways and department of transportation to the public service
commission of West Virginia.
(b) Upon the transfer of employees as provided in subsection a of this section, the division
of highways of the department of transportation shall pay to the public service commission the costs
of personal services, employees benefits and other associated costs of the transferred employees.
The funds necessary to effectuate the purposes of this section shall be transferred from the state road
fund to the public service commission motor carrier fund.
§17C-17B-4. Costs of enforcement to be funded from revenues in state road fund.
(a) On and after the first day of July one, two thousand three, costs of enforcement of state
statutes and rules relating to vehicular weight, including inspections of vehicles and loads, training
of enforcement officers, administrative proceedings, personal services, employees benefits and all
other costs associated with enforcement matters, shall be funded by revenues in the state road fund,
established pursuant to the provisions of section one, article three, chapter seventeen of this code.
(b) The commissioner of highways and the treasurer shall take all actions necessary to implement the transfer of funding to effectuate the purposes of this article.
§17C-17B-5. Exceptions.
(a) Nothing in this article may be construed to reduce or eliminate the authority of any police
officer to enforce the provisions of article seventeen of this chapter.
(b) Nothing in this article may be construed to reduce or eliminate the jurisdiction of the
commissioner of highways, division of highways, or department of transportation to administer and
enforce sections eleven-a, eleven-b, eleven-c, and twelve, article seventeen, of this chapter.
(c) Nothing in this article may be construed to expand, reduce, or eliminate any remedies
otherwise available by law.
CHAPTER 17E. UNIFORM COMMERCIAL DRIVER'S LICENSE ACT.
ARTICLE 1. COMMERCIAL DRIVER'S LICENSE.
§17E-1-3. Definitions.
Notwithstanding any other provision of this code, the following definitions apply to this
article:
"Alcohol" means:
(a) Any substance containing any form of alcohol, including, but not limited to, ethanol,
methanol, propanol and isopropanol;
(b) Beer, ale, port or stout and other similar fermented beverages (including sake or similar
products) of any name or description containing one half of one percent or more of alcohol by
volume, brewed or produced from malt, wholly or in part, or from any substitute therefor;
(c) Distilled spirits or that substance known as ethyl alcohol, ethanol, or spirits of wine in any
form (including all dilutions and mixtures thereof from whatever source or by whatever process
produced); or
(d) Wine of not less than one half of one percent of alcohol by volume.
"Alcohol concentration" means:
(a) The number of grams of alcohol per one hundred milliliters of blood; or
(b) The number of grams of alcohol per two hundred ten liters of breath; or
(c) The number of grams of alcohol per sixty-seven milliliters of urine.
"Commercial driver license" means a license issued in accordance with the requirements of
this article to an individual which authorizes the individual to drive a class of commercial motor
vehicle.
"Commercial driver license information system" is the information system established
pursuant to the federal commercial motor vehicle safety act to serve as a clearinghouse for locating
information related to the licensing and identification of commercial motor vehicle drivers.
"Commercial driver instruction permit" means a permit issued pursuant to subsection (d),
section nine of this article.
"Commercial motor vehicle" means a motor vehicle designed or used to transport passengers
or property:
(a) If the vehicle has a gross vehicle weight rating as determined by federal regulation;
(b) If the vehicle is designed to transport sixteen or more passengers, including the driver;
or
(c) If the vehicle is transporting hazardous materials and is required to be placarded in
accordance with 49 C.F.R. part 172, subpart F.
"Commissioner" means the commissioner of motor vehicles of this state.
"Controlled substance" means any substance so classified under the provisions of chapter
sixty-a of this code (uniform controlled substances act) and includes all substances listed on
Schedules I through V, article two of said chapter sixty-a, as they may be revised from time to time.
"Conviction" means the final judgment in a judicial or administrative proceeding or a verdict
or finding of guilty, a plea of guilty, a plea of nolo contendere or a forfeiture of bond or collateral
upon a charge of a disqualifying offense, as a result of proceedings upon any violation of the
requirement of this article.
"Division" means the division of motor vehicles.
"Disqualification" means a prohibition against driving a commercial motor vehicle.
"Drive" means to drive, operate or be in physical control of a motor vehicle in any place open
to the general public for purposes of vehicular traffic. For purposes of sections twelve, thirteen and
fourteen of this article "drive" includes operation or physical control of a motor vehicle anywhere
in this state.
"Driver" means any person who drives, operates or is in physical control of a commercial
motor vehicle, in any place open to the general public for purposes of vehicular traffic, or who is
required to hold a commercial driver license.
"Driver license" means a license issued by a state to an individual which authorizes the
individual to drive a motor vehicle of a specific class.
"Employee" means a person who is employed by an employer to drive a commercial motor
vehicle, including independent contractors. An employee who is self-employed as a commercial
motor vehicle driver must comply with both the requirements of this article pertaining to both
employees and employers.
"Employer" means any person, including the United States, a state, or a political subdivision
of a state, who owns or leases a commercial motor vehicle, or assigns a person to drive a commercial
motor vehicle.
"Farm vehicle" includes a motor vehicle or combination vehicle registered to the farm owner
or entity operating the farm and used exclusively in the transportation of agricultural or horticultural
products, livestock, poultry and dairy products from the farm or orchard on which they are raised
or produced to markets, processing plants, packing houses, canneries, railway shipping points and
cold storage plants and in the transportation of agricultural or horticultural supplies and machinery
to such farms or orchards to be used thereon.
"Farmer" includes owner, tenant, lessee, occupant or person in control of the premises used
substantially for agricultural or horticultural pursuits, who is at least eighteen years of age with two
years licensed driving experience.
"Farmer vehicle driver" means the person employed and designated by the "farmer" to drive
a "farm vehicle" as long as driving is not his sole or principal function on the farm, who is at least
eighteen years of age with two years licensed driving experience.
"Gross combination weight rating (GCWR)" means the value specified by the manufacturer
as the loaded weight of a combination (articulated) vehicle. In the absence of a value specified by
the manufacturer, GCWR will be determined by adding the GVWR of the power unit and the total
weight of the towed unit and any load thereon.
"Gross vehicle weight rating (GVWR)" means the value specified by the manufacturer as the
loaded weight of a single vehicle. In the absence of a value specified by the manufacturer the
GVWR will be determined by the total weight of the vehicle and any load thereon.
"Hazardous materials" has the meaning as that found in the Hazardous Materials
Transportation Act (
§
49 U.S.C. 5101 et seq. (1998)).
"Motor vehicle" means every vehicle which is self-propelled, and every vehicle which is
propelled by electric power obtained from overhead trolley wires but not operated upon rails.
"Out-of-service order" means a temporary prohibition against driving a commercial motor
vehicle as a result of a determination by a federal agency or the public service commission, pursuant
to chapter twenty-four-a of this code, that: (a) The continued use of a commercial motor vehicle
may result in death, serious injury or severe personal injury; or (b) the continued actions by the
driver of a commercial motor vehicle poses an imminent hazard to public safety.
"Violation of an out-of-service order" means: (a) The operation of a commercial motor
vehicle during the period the driver was placed out of service; or (b) the operation of a commercial
motor vehicle by a driver after the vehicle was placed out of service and before the required repairs
are made.
"Serious traffic violation" means:
(a) Excessive speeding defined as fifteen miles per hour in excess of all posted limits;
(b) Reckless driving as defined in section three, article five, chapter seventeen-c of this code including erratic lane changes and following the vehicle ahead too closely;
(c) A violation of state or local law relating to motor vehicle traffic control (other than a
parking violation) arising in connection with a fatal traffic accident. Vehicle weight and vehicle
defects are excluded as serious traffic violations; or
(d) Any other serious violations as may be determined by the U.S. United States Secretary
of Transportation.
"State" means a state of the United States and the District of Columbia.
"Tank vehicle" means any commercial motor vehicle that is designed to transport any liquid
or gaseous materials within a tank that is either permanently or temporarily attached to the vehicle
or the chassis. Such vehicles include, but are not limited to, cargo tanks and portable tanks, as
defined in 49 C.F.R. Part 171 (1998). However, this definition does not include portable tanks
having a rated capacity under one thousand gallons.
"At fault traffic accident" means for the purposes of waiving the road test, a determination,
by the official filing the accident report, of fault as evidenced by an indication of contributing
circumstances in the accident report.
CHAPTER 24A. COMMERCIAL MOTOR CARRIERS.
ARTICLE 1A. COMMERCIAL VEHICLE REGULATION.
§24A-1A-1. Regulation of commercial vehicle weights.
(a) Effective the first day of July, two thousand three, the commission has jurisdiction over
the enforcement of state statutes and rules, including but not limited to applicable provisions of
articles seventeen and seventeen-a of chapter seventeen-c of this code, relating to vehicular weight.
(b) Effective the first day of July, two thousand three, the commission has jurisdiction over
the issuance of permits for excess vehicular weight.
(c) Effective the first day of July, two thousand three, employees of the division of highways,
department of transportation, whose primary governmental duties as of the thirty-first day of
December, two thousand two, included the administration and enforcement of state statutes and rules relating to vehicular weight or the issuance of permits for excess vehicular weight shall be
transferred from the division of highways and department of transportation to the commission.
(d) The commission shall implement and administer the provisions of this section, and of
articles six, six-a and six-b of this chapter.
On the adoption of the amendment, Delegate Caputo demanded the yeas and nays, which
demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 390), and there
were--yeas 41, nays 59, absent and not voting 0, with the yeas being as follows:
Yeas: Anderson, Armstead, Ashley, Boggs, Border, Brown, Butcher, Canterbury, Caputo,
Carmichael, Coleman, DeLong, Duke, Ellem, Evans, Fleischauer, Foster, Fragale, Frich, Hamilton,
Hatfield, Iaquinta, Kuhn, Leach, Louisos, Mahan, Manchin, Manuel, Martin, Paxton, Perdue, Poling,
Renner, Schoen, Susman, Talbott, Thompson, R., Tucker, Webster, Yeager and Yost.
So, a majority of the members present and not voting having voted in the affirmative, the
amendment was not adopted.
At the request of Delegate Staton, and by unanimous consent, the bill was then advanced to
third reading and the rule was suspended to permit the offering and consideration of a single
amendment to the bill on that reading.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates
returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
On motions for leave, bills were introduced (Originating in the Committee on Finance and
reported with the recommendation that they each do pass), which were read by their titles, as
follows:
By Delegates Warner, Boggs, Border, Browning, Frederick, R. M. Thompson and
Ashley:
H. B. 3211 - "A Bill expiring funds to the unappropriated surplus balance in the state fund, general revenue, for the fiscal year ending the thirtieth day of June, two thousand three, in the
amount of five hundred seventy-seven thousand nine hundred nine dollars from the office of
emergency services-flood disaster, January 1996, fund 6258, fiscal year 2003, organization 0606,
in the amount of one hundred sixteen thousand three hundred eighteen dollars from the office of
emergency services-flood disaster, May 1996, fund 6260, fiscal year 2003, organization 0606, in
the amount of two hundred thirty-one thousand eight hundred twenty-one dollars from the office of
emergency services-flood disaster, July 1996, fund 6261, fiscal year 2003, organization 0606, in
the amount of fifty-seven thousand one hundred twenty-two dollars from the office of emergency
services-flood disaster, September 1996, fund 6262, fiscal year 2003, organization 0606, in the
amount of one hundred twenty-three thousand four hundred eighty-eight dollars from the office of
emergency services-flood disaster, June 1998, fund 6264, fiscal year 2003, organization 0606, in
the amount of thirteen thousand three hundred fifty-eight dollars from the office of emergency
services-flood disaster, February 2000-governor's civil contingent fund, fund 6266, fiscal year
2003, organization 0606, in the amount of seventy-seven thousand nine hundred seventy-seven
dollars from the governor's office - flood disaster, January 1996, fund 1021, fiscal year 2003,
organization 0100, in the amount of ten thousand six hundred forty one dollars from the division of
health - flood disaster, January 1996, fund 5194, fiscal year 2003, organization 0506, in the amount
of three thousand seven hundred nineteen dollars from the division of human services - flood
disaster, January 1996, fund 5095, fiscal year 2003, organization 0511, in the amount of six
thousand three hundred eighty nine dollars from the division of health - flood disaster, June 1998,
fund 5206, fiscal year 2003, organization 0506, and in the amount of one hundred fifty one thousand
two hundred seventy four dollars from the West Virginia state police, central abuse registry fund,
fund 6527, fiscal year 2003, organization 0612, and making a supplementary appropriation of public
moneys out of the treasury from the unappropriated surplus balance for the fiscal year ending the
thirtieth day of June, two thousand three, to the department of administration-public defender
services, fund 0226, fiscal year 2003, organization 0221 and to the department of military affairs and public safety- division of corrections-correctional units, fund 0450, fiscal year 2003,
organization 0608,"
And,
H. B. 3212 - "A Bill expiring funds to the department of military affairs and public
safety-West Virginia state police-surplus real property proceeds fund, fund 6516, fiscal year
2003, organization 0612, for the fiscal year ending the thirtieth day of June, two thousand three, in
the amount of one million two hundred thousand dollars from the department of military affairs and
public safety-West Virginia state police-surplus transfer account, fund 6519, fiscal year 2003,
organization 0612, and making a supplementary appropriation from the balance of moneys
remaining unappropriated for the fiscal year ending the thirtieth day of June, two thousand three,
to the West Virginia state police-surplus real property proceeds fund, fund 6516, fiscal year 2003,
organization 0612, all supplementing and amending the appropriation for the fiscal year ending the
thirtieth day of June, two thousand three."
At the respective requests of Delegate Staton, and by unanimous consent, the bills (H. B.
3211 and H. B. 3212) were each taken up for immediate consideration, read a first time and then
ordered to second reading.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 422, Allowing public service commission to change certain rates for
municipalities or cooperative utilities,
And,
S. B. 657, Relating to capitol company act,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that they each do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (Com. Sub. for S. B. 422 and S. B. 657) were each taken up for immediate consideration, read a first time,
ordered to second reading and then, in accordance with the provisions of House Rule 70a, were
ordered to the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 424, Authorizing commissioner of corrections to consent to transfer of
convicted offenders under federal treaty; informed consent,
And,
S. B. 635, Clarifying foster care services in relation to behavioral health,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that they each do pass.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (Com. Sub. for 424 and S. B. 635) will be placed
on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
S. B. 52, Eliminating certain bond on out-of-state defendants in automobile accident cases,
And reports the same back with the recommendation that it do pass.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 162, Expunging certain motor vehicle license information for
nineteen-year-olds,
S. B. 400, Allowing insurance commissioner to disclose confidential information in certain cases,
S. B. 486, Requiring certified public accountant to notify insurer's board or audit committee
of adverse financial condition,
And,
S. B. 589, Relating to common interest communities and condominiums; restrictive
covenants,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that they each do pass.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bills (Com. Sub. for S. B. 162, S. B. 400, S. B. 486 and
S. B. 589) will be placed on the Consent Calendar.
On motion for leave, a resolution was introduced (Originating in the Committee on Banking
and Insurance and reported with the recommendation that it be adopted), which was read by its title,
as follows:
By Delegates H. White, G. White, Spencer, Hartman, Hamilton, Azinger, Hatfield,
Walters, Carmichael, Iaquinta, Beach, Canterbury, Perdue and R. M. Thompson:
H. C. R. 92 - "Requesting the Joint Committee on Government Finance to conduct a study
of the factors affecting the costs of private health insurance and the best means of ensuring access
to affordable health care coverage for West Virginia citizens and employers."
Whereas, in excess of three hundred thousand West Virginians do not have health insurance
and are not eligible to be covered under existing health care programs; and
Whereas, the amount of reimbursements to health care providers from public health
insurance programs have been inadequate to meet the increased demand being placed on health care
providers; and
Whereas, the combination of inadequate reimbursements from public programs and the
financial burden of providing healthcare to the uninsured have resulted in healthcare providers shifting these burdens to those covered by private insurance which in turn has resulted in an increase
in the cost of private health insurance; and
Whereas, the increasing costs of healthcare insurance will continue to have a negative
impact on West Virginia citizens and businesses; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby directed to conduct a study
of the factors affecting the costs of private health insurance and the best means of ensuring access
to affordable health care coverage for West Virginia citizens and employers; and, be it
Further Resolved, That the Joint Committee on Government and Finance report its findings
and recommendations resulting from the study to the regular session of Legislature, 2004, together
with drafts of any proposed legislation necessary to effectuate such recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
The Speaker then referred the resolution to the Committee on Rules.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S.B. 443, Establishing economic and infrastructure projects under development office
guidelines,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that they each do pass.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (S. B. 443) will be placed on the Consent Calendar.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S.B. 384, Repealing section relating to location of offices of alcohol beverage control
administration,
And reports the same back with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 384)
was taken up for immediate consideration, read a first time and then ordered to second reading.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 404, Establishing blue and gray intermodal highway authority,
S. B. 493, Eliminating certain administrative duties of commissioner of agriculture,
Com. Sub for S. B. 505, Providing municipal fire chiefs retain rank in certain cases,
And,
S. B. 627, Renaming Guthrie Center Gus R. Douglass Agricultural Center,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that they each do pass.
At the respective requests of Delegate Staton, and by unanimous consent, Com. Sub. for S.
B. 404, S. B. 493 and S. B. 627 were each taken up for immediate consideration, read a first time,
ordered to second reading and then, in accordance with the provisions of House Rule 70a, were
ordered to the Consent Calendar.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, Com. Sub. for S. B. 505 will be placed on the Consent Calendar.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 405, Changing personal care homes to assisted living residences; extending board,
And reports the same back with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 405) was taken up for immediate consideration, read a first time and then ordered to second
reading.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub for S. B. 155, Establishing western highway authority to include representatives
from certain counties,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass, but that it first be referred to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 155) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the former direction of the Speaker, referred to the Committee on
Finance.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 611, Defining podiatric medical assistants; other provisions,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 611) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent
Calendar.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 423, Allowing board of examiners of land
surveyors set certain fees by legislative rule,
And,
Com. Sub. for S. B. 340, Permitting county commissions to establish different building
requirements in floodplain for insurance purposes,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (Com.
Sub. for S. B. 423 and Com. Sub. for S. B. 340) were each taken up for immediate consideration,
read a first time and then ordered to second reading.
On motions for leave, resolutions were introduced (Originating in the Committee on
Government Organization and reported with the recommendation that they each be adopted), which
were read by their titles, as follows:
By Delegates Beane, Kuhn, Butcher, Ferrell, Hatfield, Iaquinta, Manchin, Manuel,
Martin, Perdue, Tucker, Wright, Yeager, Yost, Azinger, Blair, Caruth, Frich and
Walters:
H. C. R. 93 - "Requesting that the joint committee on government and finance study the
feasibility of establishing a statewide trail coordinator to promote tourism and economic
development throughout West Virginia."
Whereas, The Legislature finds that tourism is a significant economic benefit to West
Virginia and utilization of outdoor areas in this state contribute to the vibrant economy of the state;
and
Whereas, The wide variety of outdoor recreational activities that take place in West Virginia utilize recreational trails throughout the state; and
Whereas, The West Virginia Trails Coalition has been acting as the temporary statewide
trail coordinator, bringing together volunteer organizations for purposes of mapping, maintenance
and the development of the various trail systems in the state, including hiking, biking, horse trails,
motorcycle trails and all terrain vehicle trails; and
Whereas, The West Virginia Trails Coalition has published a statewide trail plan, but does
not have the funding available to fully implement the plan; therefore, be it
Resolved by the Legislature of West Virginia:
That the joint committee on government and finance is hereby directed to study the
feasibility of establishing a statewide trails coordinator, to coordinate activities with existing entities
and agencies to promote the use of trails in West Virginia, and to explore all possible sources of
funding to support a statewide trails system; and, be it
Further Resolved, That joint committee on government and finance shall report to the
Legislature on or before the first day of December 2003, on its findings, conclusions and
recommendations, and shall submit drafts of any legislation deemed necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the joint committee on
government and finance.
And,
By Delegates Beane, Kuhn, Butcher, Ferrell, Iaquinta, Manchin, Manuel, Martin,
Perdue, Tucker, Wright, Yeager, Yost, Azinger and Blair:
H. C. R. 94 - "Requesting the Joint Committee on Government and Finance to study the
feasibility of combining the activities of the racing commission and the lottery commission to create
a single governmental entity."
whereas, The State of West Virginia has a projected deficit of twenty million dollars for the current fiscal year with a anticipated deficit of two hundred fifty million for fiscal year 2004; and
whereas, Duplication of services presently exists in state government and investigating the
elimination of that duplication through the consolidation of agencies would be in the best interest
of the citizens of West Virginia; and
whereas, The Legislature finds that dog and horse racing, the state owned lottery, racetrack
video lottery, limited video lottery games, gaming facilities, charitable bingo, charitable raffles and
charitable raffle boards and games are all legal gaming activities of a similar nature and would be
better served if regulated by a single agency; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
feasibility of combining the activities of the racing commission and the lottery commission to create
a single governmental entity, and to further study the powers, duties, and functions of state agencies
with particular emphasis on areas of overlapping or duplicative activities and services to determine
whether the executive branch of state government should be reorganized; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2004, its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
The Speaker then referred the resolutions to the Committee on Rules.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 372, Allowing state police to engage in political activities in certain
cases,
And,
Com. Sub. for S. B. 535, Providing mandatory carding for all purchasers of nonintoxicating
beer, wine and liquor; liability protection,
And reports the same back with the recommendation that they each do pass.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 436, Directing public service commission implement 211 information and referral
system,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass, and with the recommendation that second reference of the bill to the Committee on
Finance be dispensed with.
In the absence of objection, reference of the bill (S. B. 436) to the Committee on Finance was
abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 436)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 364, Strengthening multi-disciplinary treatment team process for
children involved in court system,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass, but that it first be referred to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 364) was taken up for immediate consideration, read a first time, ordered to second reading and then, in accordance with the former direction of the Speaker, referred to the Committee on
Finance.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S.B. 558, Establishing County and Municipal Economic Opportunity Development District
Acts,
And reports the same back, with amendment, with the recommendation that it do pass.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S.B. 605, Establishing Community Improvement Act,
S.B. 655, Creating public utilities tax loss restoration fund,
S.B. 437, Requiring joint committee on government and finance approve certain acquisitions,
construction and long-term agreements,
S.B. 467, Allowing insurance agencies to operate as managing general agents; other
provisions,
S.B. 534, Creating Third-Party Administrator Act,
And,
S.B. 538, Allowing supplemental assessment of personal property in certain cases,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that they each do pass.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (S. B. 605, S. B. 655, S. B. 437, S. B. 467, S. B.
534 and S. B. 538) will be placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 440, Establishing Contractors Notice and Opportunity to Cure Act,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 440) will be placed on the
Consent Calendar.
Chairman Mezzatesta, from the Committee on Education, submitted the following report,
which was received:
Your Committee on Education has had under consideration:
S. B. 206, Authorizing aides to supervise students in in-school suspensions; limitation,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 206)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Spencer, from the Joint Committee on Enrolled Bills, submitted the following
report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 6th
day of March, 2003, presented to His Excellency, the Governor, for his action, the following bills,
signed by the President of the Senate and the Speaker of the House of Delegates:
(S.B. 205), Modifying criminal intent for animal cruelty crimes; fines,
And,
(S.B. 447), Allowing reciprocal agreements with Ohio regarding hunting and fishing.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 620, Relating to racetrack video lottery capital reinvestment fund generally,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but that it first be referred to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 620)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the former direction of the Speaker, referred to the Committee on Finance.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 2500, Clarifying the authority of the courts to continue protective
orders during certain proceedings.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything following the enacting section and inserting in lieu
thereof the following:
ARTICLE 5. DIVORCE.
§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court shall enjoin the offending party
from molesting or interfering with the other, or otherwise imposing any restraint on the personal
liberty of the other or interfering with the custodial or visitation rights of the other. The order may
permanently enjoin the offending party from entering the school, business or place of employment
of the other for the purpose of molesting or harassing the other; or from contacting the other, in
person or by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place.
(b) Any order entered by the court to protect a party from abuse may grant relief pursuant
to the provisions of article twenty-seven of this chapter.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
PART 4. COORDINATION WITH PENDING COURT ACTIONS.
§48-27-401. Interaction between domestic proceedings.
(a) During the pendency of a divorce action, a person may file for and be granted relief
provided by this article, until an order is entered in the divorce action pursuant to part 5-501, et seq.
(b) If a person who has been granted relief under this article should subsequently become a
party to an action for divorce, separate maintenance or annulment, such person shall remain entitled
to the relief provided under this article including the right to file for and obtain any further relief,
so long as no temporary order has been entered in the action for divorce, annulment and separate
maintenance, pursuant to part 5-501, et seq.
(c) Except as provided in section 5-509 of this chapter and section 27-402 of this article for
a petition and a temporary emergency protective order, no person who is a party to a pending action
for divorce, separate maintenance or annulment in which an order has been entered pursuant to part
5-501, et seq. of this chapter, shall be entitled to file for or obtain relief against another party to that
action under this article until after the entry of a final order which grants or dismisses the action for
divorce, annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section 27-505, any order, issued pursuant to
this section article where a subsequent action is filed seeking a divorce, an annulment or separate
maintenance, the allocation of custodial responsibility or a habeas corpus action to establish custody,
the establishment of paternity, the establishment or enforcement of child support, or other relief
under the provisions of this chapter, shall remain in full force and effect by operation of this statute
until a temporary or final order is entered pursuant to part 5-501, et seq. of this chapter, or a final
order is entered granting or dismissing the action for divorce, annulment or separate maintenance.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 391), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2500) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
H. B. 2765, Relating generally to insurance vending machines.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 2910, Establishing an "Amber Alert" system to be utilized to rapidly
disseminate information with regard to abducted and missing children.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything following the enacting section and inserting in lieu
thereof the following:
ARTICLE 3A. AMBER ALERT PLAN.
§15-3A-1. Short title.
This article shall be known and may be cited as "Amber's Plan".
§15-3A-2. Findings and determinations relative to "Amber's Plan".
(a) The Legislature finds and determines that:
(1) Public alerts can be one of the most effective tools in combating child abductions;
(2) Law-enforcement officers and other professionals specializing in the field of abducted
and missing children agree that the most critical moments in the search for an abducted child are the
first few hours immediately following the abduction, asserting that if a child is not found within two
to four hours, it is unlikely that child will be found alive;
(3) The rapid dissemination of information, including a description of the abducted child,
details of the abduction, abductor and vehicle involved, to the citizens of the affected community
and region is, therefore, critical;
(4) Alerted to an abduction, the citizenry become an extensive network of eyes and ears
serving to assist law enforcement in quickly locating and safely recovering the child; and
(5) The most effective method of immediately notifying the public of a child abduction is
through the broadcast media.
(b) The Legislature declares that given the successes other states and regions have
experienced in using broadcast media alerts to quickly locate and safely recover abducted children,
it is altogether fitting and proper, and within the public interest, to establish such a program for West
Virginia.
§15-3A-3. Establishment of "Amber's Plan".
(a) The secretary of the department of military affairs and public safety shall establish
"Amber's Plan", a program authorizing the broadcast media, upon notice from the state police, to
transmit an emergency alert to inform the public of a child abduction. The program shall be a
voluntary, cooperative effort between state and local law-enforcement agencies and the broadcast
media.
(b) The secretary shall notify the broadcast media serving the state of West Virginia of the
establishment of "Amber's Plan" and invite their voluntary participation.
§15-3A-4. Activation of Amber Alert.
The following criteria shall be met before the state police activate the Amber Alert:
(1) The child is believed to be abducted;
(2) The child is seventeen years of age or younger;
(3) The child may be in danger of death or serious bodily injury; and
(4) There is sufficient information available to indicate that an Amber Alert would assist in
locating the child.
§15-3A-5. Notice to participating media; broadcast of alert.
(a) The participating media shall voluntarily agree, upon notice from the state police, to
transmit emergency alerts to inform the public of a child abduction that has occurred within their
broadcast service regions.
(b) The alerts shall be read after a distinctive sound tone and a statement notifying that the
broadcast is an abducted child alert. The alerts shall be broadcast as often as possible, pursuant to
guidelines established by the West Virginia Broadcasters' Association, for the first three hours.
After the initial three hours, the alert shall be rebroadcast at such intervals as the investigating
authority, the state police and the participating media deem appropriate.
(c) The alerts shall include a description of the child, such details of the abduction and
abductor as may be known, and such other information as the state police may deem pertinent and
appropriate. The state police shall in a timely manner update the broadcast media with new
information when appropriate concerning the abduction.
(d) The alerts also shall provide information concerning how those members of the public
who have information relating to the abduction may contact the state police or other appropriate law-
enforcement agency.
(e) Concurrent with the notice provided to the broadcast media, the state police shall also
notify the department of transportation, the division of highways and the West Virginia turnpike
commission of the "Amber Alert" so that the department and the affected authorities may, if
possible, through the use of their variable message signs, inform the motoring public that an "Amber Alert" is in progress and may provide information relating to the abduction and how motorists may
report any information they have to the state police or other appropriate law-enforcement agency.
(f) The alerts shall terminate upon notice from the state police.
(g) The secretary, with the assistance of the participating broadcast media, shall develop and
undertake a campaign to inform law-enforcement agencies about "Amber's Plan" and the emergency
alert program established under this article.
§15-3A-6. Guidelines; procedural rules.
The secretary may adopt guidelines and procedural rules to effectuate the purposes of this
article.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 392), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2910) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
H. B. 3077, Authorizing the tax commissioner to enter into agreements with the internal
revenue service for offsetting tax refunds against tax liabilities.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-11. Collection of tax.
(a) General. -- The tax commissioner shall collect the taxes, additions to tax, penalties and
interest imposed by this article or any of the other articles of this chapter to which this article is
applicable. In addition to all other remedies available for the collection of debts due this state, the
tax commissioner may proceed by foreclosure of the lien provided in section twelve, or by levy and
distraint under section thirteen.
(b) Prerequisite to final settlement of contracts with nonresident contractor; user personally
liable.
(1) Any person contracting with a nonresident contractor subject to the taxes imposed by
articles thirteen, twenty-one and twenty-four of this chapter, shall withhold payment, in the final
settlement of such the contract, of such a sufficient amount, not exceeding six percent of the contract
price, as will in such the person's opinion be sufficient to cover such the taxes, until the receipt of
a certificate from the tax commissioner to the effect that the above referenced taxes imposed against
the nonresident contractor have been paid or provided for.
(2) If any person shall fail to withhold as provided herein, such in subdivision (1) of this
subsection, that person shall be is personally liable for the payment of all such taxes attributable to
the contract, not to exceed six percent of the contract price. The same taxes attributable shall be
recoverable by the tax commissioner by appropriate legal proceedings, which may include issuance
of an assessment under this article.
(c) Prerequisite for issuance of certificate of dissolution or withdrawal of corporation. -- The
secretary of state shall withhold the issuance of any certificate of dissolution or withdrawal in the
case of any corporation organized under the laws of this state, or organized under the laws of another
state and admitted to do business in this state, until the receipt of a certificate from the tax
commissioner to the effect that every tax administered under this article imposed against any such corporation has been paid or provided for, or that the applicant is not liable for any tax administered
under this article.
(d) Prerequisite to final settlement of contract with this state or political subdivision; penalty.
-- All state, county, district and municipal officers and agents making contracts on behalf of this
state or any political subdivision thereof shall withhold payment, in the final settlement of any such
contract, until the receipt of a certificate from the tax commissioner to the effect that the taxes
imposed by articles thirteen, twenty-one and twenty-four of this chapter against the contractor have
been paid or provided for. If the transaction embodied in such the contract or the subject matter of
the contract is subject to county or municipal business and occupation tax, then such the payment
shall also be withheld until receipt of a release from such the county or municipality to the effect
that all county or municipal business and occupation taxes levied or accrued against the contractor
have been paid. Any official violating this section shall be is subject to a civil penalty of one
thousand dollars, recoverable as a debt in a civil action brought by the tax commissioner.
(e) Limited effect of tax commissioner's certificates. -- The certificates of the tax
commissioner provided for in subsections (b), (c) and (d) of this section shall not bar subsequent
investigations, assessments, refunds and credits with respect to the taxpayer.
(f) Payment when person sells out or quits business; liability of successor; lien.
(1) If any person subject to any tax administered under this article sells out his, her or its
business or stock of goods, or ceases doing business, any tax, additions to tax, penalties and interest
imposed by this article or any of the other articles of this chapter to which this article is applicable
shall become due and payable immediately and such that person shall, within thirty days after selling
out his, her or its business or stock of goods or ceasing to do business, make a final return or returns
and pay any tax or taxes which may be are due. The unpaid amount of any such tax shall be is a lien
upon the property of such that person.
(2) The successor in business of any person who sells out his, her or its business or stock of
goods, or ceases doing business, shall be is personally liable for the payments of tax, additions to tax, penalties and interest unpaid after expiration of the thirty-day period allowed for payment:
Provided, That if the business is purchased in an arms-length transaction, and if the purchaser
withholds so much of the consideration for the purchase as will satisfy any tax, additions to tax,
penalties and interest which may be due until the seller produces a receipt from the tax
commissioner evidencing the payment thereof, the purchaser shall is not be personally liable for any
taxes attributable to the former owner of the business unless the contract of sale provides for the
purchaser to be liable for some or all of such the taxes. The amount of tax, additions to tax,
penalties and interest for which the successor is liable shall be is a lien on the property of the
successor, which shall be enforced by the tax commissioner as provided in this article.
(g) Priority in distribution of estate or property in receivership; personal liability of
fiduciary. -- All taxes due and unpaid under this article shall be paid from the first money available
for distribution, voluntary or compulsory, in receivership, bankruptcy or otherwise, of the estate of
any person, firm or corporation, in priority to all claims, except taxes and debts due the United States
which under federal law are given priority over the debts and liens created by this article. Any
trustee, receiver, administrator, executor or person charged with the administration of an estate who
shall violate violates the provisions of this section shall be is personally liable for any taxes accrued
and unpaid under this article, which are chargeable against the person, firm or corporation whose
estate is in administration.
(h) Injunction. -- If the taxpayer fails for a period of more than sixty days to fully comply
with any of the provisions of this article or of any other article of this chapter to which this article
is applicable, the tax commissioner may institute a proceeding to secure an injunction to restrain the
taxpayer from doing business in this state until the taxpayer fully complies with the provisions of
this article or any of such other articles. No bond shall be is required of the tax commissioner in any
action instituted under this subsection.
(i) Costs. -- In any proceeding under this section, upon judgment or decree for the tax
commissioner, he or she shall be awarded his or her costs.
(j) Refunds; credits; right to offset.
(1) Whenever a taxpayer has a refund or credit due it for an overpayment of any tax
administered under this article, the tax commissioner may reduce the amount of such the refund or
credit by the amount of any tax administered under this article, whether it be the same tax or any
other tax, which is owed by the same taxpayer, and collectible as provided in subsection (a) of this
section.
(2) The tax commissioner may enter into agreements with the Internal Revenue Service that
provide for offsetting state tax refunds against federal tax liabilities; offsetting federal tax refunds
against state tax liabilities; and establishing the amount of the offset fee per transaction which both
agencies may charge each other: Provided, That offsets under subdivision (1) of this subsection
shall occur prior to offset under this subdivision. At the times moneys are received as a result of an
offset of a taxpayer's federal tax refund under the provisions of section 6402(e) of the Internal
Revenue Code, the taxpayer is given credit against state tax liability for the amount of the offset less
a deduction for the offset fee imposed by the Internal Revenue Service.
(k) Spouse relieved of liability in certain cases.
(1) In general. -- Under regulations prescribed by the tax commissioner, if:
(A) A joint personal income tax return has been made for a taxable year;
(B) On such the return there is a substantial understatement of tax attributable to grossly
erroneous items of one spouse;
(C) The other spouse establishes that in signing the return he or she did not know, and had
no reason to know, that there was such a substantial understatement; and
(D) Taking into account all the facts and circumstances, it is inequitable to hold the other
spouse liable for the deficiency in tax for such the taxable year attributable to such the substantial
understatement, then the other spouse shall be is relieved of any liability for tax, including interest,
additions to tax, and other amounts for such the taxable year to the extent such the liability is
attributable to such the substantial understatement.
(2) Grossly erroneous items. -- For purposes of this subsection, the term "grossly erroneous
items" means, with respect to any spouse:
(A) Any item of gross income attributable to such a spouse which is omitted from gross
income; and
(B) Any claim of a deduction, credit, or basis by such a spouse in an amount for which there
is no basis in fact or law.
(3) Substantial understatement. -- For purposes of this subsection, the term "substantial
understatement" means any understatement, as defined in regulations prescribed by the tax
commissioner which exceed five hundred dollars.
(4) Understatement must exceed specified percentage of spouse's income.
(A) Adjusted gross income of $20,000 or less. -- If the spouse's adjusted gross income for
the preadjustment year is twenty thousand dollars or less, this subsection shall apply applies only
if the liability described in paragraph (1) of this subsection is greater than ten percent of such the
adjusted gross income.
(B) Adjusted gross income of more than twenty thousand dollars. -- If the spouse's adjusted
gross income for the preadjustment year is more than twenty thousand dollars, subparagraph (A)
shall be of this subdivision is applied by substituting "twenty-five percent" for "ten percent."
(C) Preadjustment year. -- For purposes of this paragraph, the term "preadjustment year"
means the most recent taxable year of the spouse ending before the date the deficiency notice is
mailed.
(D) Computation of spouse's adjusted gross income. -- If the spouse is married to another
spouse at the close of the preadjustment year, the spouse's adjusted gross income shall include the
income of the new spouse whether or not they file a joint return.
(E) Exception for omissions from gross income. -- This paragraph shall not apply to any
liability attributable to the omission of an item from gross income.
(5) Adjusted gross income. -- For purposes of this subsection, the term "adjusted gross income" means the West Virginia adjusted gross income of the taxpayer, determined under article
twenty-one of this chapter.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 393), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Hall.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3077) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment
and requested the House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
H. B. 2866, Relating to construction financing for surface transportation improvements
through federal grant anticipation notes.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Plymale, Bailey and Facemyer.
On motion of Delegate Staton, the House of Delegates agreed to the appointment of a
Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Mezzatesta, Stalnaker and Ashley.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The Clerk announced that, pursuant to House Rule 70a, Delegate Sobonya had requested S.
B. 507 be removed from the Consent Calendar and be placed upon the House Calendar.
The Clerk announced that, pursuant to House Rule 70a, Delegate Manchin had requested S.
B. 652 be removed from the Consent Calendar and be placed upon the House Calendar.
The Clerk announced that, pursuant to House Rule 70a, Delegate Frich had requested S. B.
400, S. B. 404 and S. B. 443 be removed from the Consent Calendar and each be placed upon the
House Calendar.
Delegate Manchin asked and obtained unanimous consent that the remarks of Delegate
Caputo regarding S. B. 583 be printed in the Appendix to the Journal.
Delegate Border announced that he was absent on Thursday, March 6, 2003 when the votes
were taken on Roll No. 377, and that had he been present, he would have voted "Nay" thereon.
Delegate Talbott asked and obtained unanimous consent that his remarks regarding S. B. 583
be printed in the Appendix to the Journal.
The Speaker stated that all business on the calendar having been completed, the next item
coming before the House was the motion offered by Delegate Browning in earlier proceedings that
the Senate be requested to return H. B. 2866, relating to construction financing for surface
transportation improvements through federal grant anticipation notes, to the House.
The Speaker further stated that the current parliamentary posture of the bill had changed
radically since Delegate Browning had offered his motion, that the Clerk had communicated H. B.
2866 to the Senate and requested the Senate to recede from its amendments; the Senate had
thereupon refused to recede, had requested a committee of conference on the disagreeing votes, had
appointed conferees to act on the part of the Senate and had requested the House to do the same. In
view of the foregoing parliamentary posture of the bill, the Speaker stated that the motion now
before the House heretofore offered by Delegate Browning was moot and would have no effect.
Whereupon,
Delegate Browning asked and obtained unanimous consent that his motion to request the
return of the bill from the Senate be withdrawn.
At 10:00 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00
a.m., Friday, March 7, 2003.