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Saturday, March 8, 2003


The House of Delegates met at 10:00 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 Friday, March 7, 2003, being the first order of business, when the further reading thereof was dispensed with and the same approved.
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. 34, Requesting the Committee on Government and Finance to conduct a study of adding wheelchair accessible ramps and covered walkways to the wings of the state capitol,
And reports back a committee substitute therefor, with a new title, as follows:
Com. Sub. for H. C. R. 34 - "Requesting the Department of Administration and the Capitol Building Commission determine the feasibility of enclosing both wings of the State Capitol for the purpose of providing easier wheelchair access and providing additional legislative office space,"
With the recommendation that the committee substitute be adopted.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
S. C. R. 35, Relating to pension fund bonds,
And reports the same back with the recommendation that it be adopted.
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. 60, Requesting the Joint Committee on Government and Finance appoint an interim committee to study the feasibility of providing retirement programs for emergency medical system personnel, Division of Natural Resources conservation officers, Division of Juvenile Services employees,
H. C. R. 80, Requesting the Joint Committee on Government and Finance to study the use, benefits and management of technology as it impacts the Legislature,
H. C. R. 85, Directing the Joint Committee on Government and Finance to make a study on the changing role of school counseling and the potential impact of counselors on students in the public schools of the state,
H. C. R. 87, Requesting the Division of Highways to name the proposed replacement bridge on 12 Pole Road at Breeden, Mingo Count, West Virginia, the "Woodrow Baisden Bridge",
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 of technology,
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",
S. C. R. 45, Urging Congress provide additional funding from the Abandoned Mine Reclamation Fund to finance future water projects in West Virginia,
S. C. R. 46, Requesting the Joint Committee on Government and Finance appoint an interim committee to review the current need for and feasibility of existing state legislative rules and federal regulations promulgated by the Office of Surface Mining Reclamation and Enforcement,
S. C. R. 11, Requesting the Division of Highways name the new bridge on Route 5 near Elizabeth, Wirt County, the "World War II Veterans Memorial Bridge",
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,
And,
H. C. R. 95, Studying the annexation laws of the state of West Virginia and of the various states to develop responsible and fair annexation alternatives,
And reports the same back with the recommendation that they each be adopted.
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. 475, Relating to rehabilitation and liquidation of insurers,
And reports the same back, with amendment, with the recommendation that it do pass, as amended.
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. 51, Setting required and permitted uses of proceeds from charitable bingo and raffles,
And reports the same back, with amendment, with the recommendation that it do pass, as amended, 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 (Com. Sub. for S. B. 51) to the Committee on Finance was abrogated.
Messages from the Executive

Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor, advising that on March 7, 2003, he approved Com. Sub. for H. B. 2359, S. B. 182, S. B. 415, S. B. 416, S. B. 418, S. B. 469 and S. B. 471.
Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Youth Services and Comprehensive Plan Update for the West Virginia Department of Health and Human Services, in accordance with section seven, article five-b, chapter forty-nine of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Geological and Economic Survey in accordance with the provisions of the code; which was filed in the House Clerk's Office.
Messages from the Senate

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. 2003, Allowing municipalities to self-insure together and promulgation of rules by the Commissioner of Insurance.
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 article twelve, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section fourteen, and that section sixteen, article twelve-a of said chapter be amended and reenacted, all to read as follows:
ARTICLE 12. STATE INSURANCE.
§29-12-14. Promulgation of rules.
The board of risk and insurance management is authorized to propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine a of this code, that are necessary to administer the powers and duties of the board including, but not limited to, rules setting minimum contract terms for entities participating in insurance programs and mandatory waiting periods for reentry into insurance programs for entities which have terminated coverage through the board.
ARTICLE 12A. GOVERNMENTAL TORT CLAIMS AND INSURANCE REFORM ACT.
§29-12A-16. Procurement of liability insurance and self-insurance.
(a) A political subdivision may use public funds to secure insurance with respect to its potential liability and that of its employees in for damages in civil actions for injury, death or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees, including insurance coverage procured through the state board of risk and insurance management. The insurance may be at the limits for the circumstances, and subject to the terms and conditions that are determined by the political subdivision in its discretion.
The insurance may be for the period of time that is set forth in specifications for competitive bids or, when competitive bidding is not required, for the period of time that is mutually agreed upon by the political subdivision and insurance company. The period of time does not have to be, but can be, limited to the fiscal cycle under which the political subdivision is funded and operates.
(b)(1) Regardless of whether a political subdivision procures a policy or policies of liability insurance pursuant to subsection (a) of this section or otherwise:
(A) the Any political subdivision may establish and maintain a self-insurance program relative to its potential liability and that of its employees in for damages in civil actions for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees; or
(B) Any group of two or more political subdivisions may establish and maintain a self- insurance pool relative to their collective potential liability and that of their collective employees for damages in civil actions for injury, death or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees.
(2) If it so chooses, the political subdivision or group of political subdivisions may contract with any person, any licensed West Virginia insurance agent, other political subdivision, municipal association, county association or regional council of governments for purposes of the administration of such a the program or pool.
(c) Political subdivisions that have established self-insurance programs relative to their potential liability and that of their employees, as described in subdivision (A), subsection (b)(1) of this section, may mutually agree that their self-insurance programs will may be jointly administered in a specified manner.
(d) The purchase of liability insurance, or the establishment and maintenance of a self- insurance program, by a political subdivision does not constitute a waiver of any immunity it may have pursuant to this article or any defense of the political subdivision or its employees.
(e) The authorization for political subdivisions to secure insurance and to establish and maintain self-insurance programs and pools, as set out in subsections (a) and (b) in this section, are in addition to any other authority to secure insurance or to establish and maintain self-insurance that is granted pursuant to this code or the constitution of this state, and they are not in derogation of any other authorization.
(f) An insurance agent licensed in West Virginia is authorized to establish or write policies for a self-insurance program or pool for political subdivisions, pursuant to the provisions of this section.
(f) (g) The commissioner of insurance shall promulgate legislative propose rules for legislative approval, or regulations pursuant to the provisions of chapter twenty-nine-a of this code, setting forth guidelines relating to self-insurance programs the criteria for establishing and maintaining self-insurance programs and pools for political subdivisions."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2003 - "A Bill to amend article twelve, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fourteen; and to amend and reenact section sixteen, article twelve-a of said chapter, all relating to authorizing political subdivisions to establish and maintain self-insurance pools; authorizing the board of risk and insurance management to propose rules dealing with insurance programs; authorizing West Virginia insurance agents to establish and write policies for self-insurance programs and pools; and requiring the insurance commissioner to propose legislative rules relating to self-insurance programs and pools for political subdivisions."
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. 482), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Hatfield and R. M. Thompson.
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. 2003) 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 July 1, 2003, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2118, Adjusting the retirement benefits for all members of the West Virginia state police retirement system.
On motion of Delegate Martin, 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 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-12. Awards and benefits to dependents of member - When member dies in performance of duty, etc.; dependent child scholarship and amount.

The surviving spouse, the dependent child or children or dependent parent or parents of any member who has lost or shall lose loses his or her life by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of members while the member was or shall be is engaged in the performance of his or her duties as a member of the division, or the survivor of a member who dies from any cause after having been retired pursuant to the provisions of section nine of this article, shall be is entitled to receive and shall be paid from the fund benefits as follows: To the surviving spouse annually, in equal monthly installments during his or her lifetime, one or the other of two amounts, which shall become immediately available and which shall be the greater of:
(1) An amount equal to seven nine tenths of the base salary received in the preceding twelve- month employment period by the deceased member: Provided, That if the member had not been employed with the division for twelve months prior to his or her death, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or
(2) The sum of six ten thousand dollars.
In addition thereto, the surviving spouse shall be is entitled to receive and there shall be paid to such that person one hundred fifty dollars monthly for each dependent child or children. If the surviving spouse dies or if there is no surviving spouse, there shall be paid monthly to each dependent child or children from the fund a sum equal to one fourth third of the surviving spouse's entitlement. If there is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is but one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.
Any person qualifying as a surviving dependent child under this section shall is, in addition to any other benefits due under this or other sections of this article, be entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding seven thousand five hundred dollars, shall be paid from the fund to any university or college in this state or to any trade or vocational school or other entity in this state approved by the board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of these institutions so long as the recipient makes application to the board on an approved form and under such any rules as the board may provide provides and maintains scholastic eligibility as defined by the institution or the board. The board may by appropriate rules define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section.
Awards and benefits for a surviving spouse or dependents of a member received under any section or any of the provisions of this retirement system shall be in lieu of receipt of any benefits for these persons under the provisions of any other state retirement system. Receipt of benefits under any other state retirement system shall be in lieu of any right to receive any benefits under this retirement system, so that only a single receipt of state retirement benefits shall occur."
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. 483), 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. 2118) passed.
Delegate Staton moved that the bill take effect July 1, 2003.
On this question, the yeas and nays were taken (Roll No. 484), 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, 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. 2118) takes effect July 1, 2003.
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:
Com. Sub. for H. B. 2126, Strengthening penalties relating to violations of fire laws and 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 two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
"That sections twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section four, article three-a of said chapter be amended and reenacted; and that article three, chapter sixty-one of said code be amended by adding thereto a new section, designated section five-a, all to read as follows:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-12. Powers and duties of state fire marshal.
(a) Enforcement of laws. -- The state fire marshal and any other person authorized to enforce the provisions of this article under the supervision and direction of the state fire marshal has the authority to enforce all laws of the state having to do with:
(1) Prevention of fire;
(2) The storage, sale and use of any explosive,
combustible or other dangerous article or articles in solid, flammable liquid or gas form;
(3) The installation and maintenance of equipment of all sorts intended to extinguish, detect and control fires;
(4) The means and adequacy of exit, in case of fire, from buildings and all other places in which persons work, live or congregate, from time to time, for any purpose, except buildings used wholly as dwelling houses for no more than two families;
(5) The suppression of arson; and
(6) Any other thing necessary to carry into effect the provisions of this article including, but not limited to, confiscating any materials, chemicals, items, or personal property owned, possessed or used in direct violation of the state fire code.
(b) Assistance upon request. -- Upon request, the state fire marshal shall assist any chief of any recognized fire company or department. Upon the request of any federal law-enforcement officer, state police officer, conservation officer or any county or municipal law-enforcement officer, the state fire marshal, any deputy state fire marshal or assistant state fire marshal employed pursuant to section eleven of this article and any person deputized pursuant to subsection (j) of this section may assist in the lawful execution of the requesting officer's official duties: Provided, That the state fire marshal or other person authorized to act under this subsection shall at all times work under the direct supervision of the requesting officer.
(c) Enforcement of rules. -- The state fire marshal shall enforce the rules promulgated by the state fire commission as authorized by this article.
(d) Inspections generally. -- The state fire marshal shall inspect all structures and facilities, other than one- and two-family dwelling houses, subject to the state fire code and this article, including, but not limited to, state, county and municipally owned institutions, all public and private schools, health care facilities, theaters, churches and other places of public assembly to determine whether the structures or facilities are in compliance with the state fire code.
(e) Right of entry. -- The state fire marshal may, at all reasonable hours, enter any building or premises, other than dwelling houses, for the purpose of making an inspection which he or she may consider necessary under the provisions of this article. The state fire marshal and any deputy state fire marshal or assistant state fire marshal approved by the state fire marshal may enter upon any property, or enter any building, structure or premises, including dwelling houses during construction and prior to occupancy, for the purpose of ascertaining compliance with the conditions set forth in any permit or license issued by the office of the state fire marshal pursuant to subdivision (1), subsection (a), section twelve-b of this article or of article three-b of this chapter.
(f) Investigations. -- The state fire marshal may, at any time, investigate as to the origin or circumstances of any fire or explosion or attempt to cause fire or explosion occurring in the state. The state fire marshal has the authority at all times of the day or night, in performance of the duties imposed by the provisions of this article, to investigate where any fires or explosions or attempt to cause fires or explosions may have occurred, or which at the time may be burning. Notwithstanding the above provisions of this subsection, prior to entering any building or premises for the purposes of such the investigation, the state fire marshal shall obtain a proper search warrant: Provided, That a search warrant is not necessary where there is permissive waiver or the state fire marshal is an invitee of the individual having legal custody and control of the property, building or premises to be searched.
(g) Testimony. -- The state fire marshal, in making an inspection or investigation when in his or her judgment such proceedings are it is necessary, may take the statements or testimony under oath of all persons who may be cognizant of any facts or have any knowledge about the matter to be examined and inquired into and may have the statements or testimony reduced to writing; and shall transmit a copy of such the statements or testimony so taken to the prosecuting attorney for the county wherein where the fire or explosion or attempt to cause a fire or explosion occurred. Notwithstanding the above, no person may be compelled to testify or give any such a statement under this subsection.
(h) Arrests; warrants. -- The state fire marshal, any full-time deputy fire marshal or any full- time assistant fire marshal employed by the state fire marshal pursuant to section eleven of this article is hereby authorized: and empowered and any person deputized pursuant to subsection(j) of this section may be authorized and empowered by the state fire marshal:
(1) To arrest any person anywhere within in the confines of the state of West Virginia, or have him or her arrested, for any violation of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter: Provided, That any and all persons so arrested shall be forthwith brought before the magistrate or circuit court.
(2) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute an arrest warrant when knowing or having reason to believe that anyone has committed an offense under any provision of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all arrest warrants before the tribunal having jurisdiction over such the violation.
(3) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute a warrant for the search of any premises that may possess evidence or unlawful contraband relating to violations of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all search warrants before the tribunal having jurisdiction over such the violation.
(i) Witnesses and oaths. -- The state fire marshal is empowered and authorized to may issue subpoenas and subpoenas duces tecum to compel the attendance of persons before him or her to testify in relation to any matter which is, by the provision of this article, a subject of inquiry and investigation by the state fire marshal and cause to be produced before him or her such papers as he or she may require that he or she requires in making such the examination. The state fire marshal is hereby authorized to administer oaths and affirmations to persons appearing as witnesses before him or her. False swearing in any matter or proceeding aforesaid shall be considered these inquiries or investigations is perjury and shall be is punishable as such perjury.
(j) Deputizing members of fire departments in this state. -- The state fire marshal may deputize a member of any fire department, duly organized and operating in this state, who is approved by the chief of his or her department and who is properly qualified to act as his or her assistant for the purpose of making inspections with the consent of the property owner or the person in control of the property and such the investigations as may be directed by the state fire marshal, and the carrying out of such other orders as may be prescribed by him or her, to enforce and make effective the provisions of this article and any and all rules promulgated by the state fire commission under authority of this article: Provided, That in the case of a volunteer fire department, only the chief thereof or his or her of the department or the chief's single designated assistant may be so deputized.
(k) Written report of examinations. -- The state fire marshal shall, at the request of the county commission of any county or the municipal authorities of any incorporated municipality in this state, make to them a written report of the examination made by him or her regarding any fire happening within their respective jurisdictions.
(l) Report of losses by insurance companies. -- It is the duty of each fire insurance company or association doing business in this state, within ten days after the adjustment of any loss sustained by it that exceeds fifteen hundred dollars, to report to the state fire marshal information regarding the amount of insurance, the value of the property insured and the amount of claim as adjusted. This report is in addition to any such other information required by the state insurance commissioner. Upon the request of the owner or insurer of any property destroyed or injured by fire or explosion, or in which an attempt to cause a fire or explosion may have occurred, the state fire marshal shall report in writing to the owner or insurer the result of the examination regarding the property.
(m) Issuance of permits and licenses. -- The state fire marshal is authorized to issue permits, documents and licenses in accordance with the provisions of this article or of article three-b of this chapter. The state fire marshal may require any person who applies for a permit to use explosives, other than an applicant for a license to be a pyrotechnic operator under section twenty-four of this article, to be fingerprinted and to authorize the state fire marshal to conduct a criminal records check through the criminal identification bureau of the West Virginia state police and a national criminal history check through the federal bureau of investigation. The results of any criminal records or criminal history check shall be sent to the state fire marshal.
(n) Issuance of citations for fire and life safety violations. -- The state fire marshal, any deputy fire marshal and any assistant fire marshal employed pursuant to section eleven of this article are hereby authorized, and any person deputized pursuant to subsection (j) of this section may be authorized by the state fire marshal to issue citations, in his or her jurisdiction, for fire and life safety violations of the state fire code and as provided for by the rules promulgated by the state fire commission in accordance with article three, chapter twenty-nine-a of this code: Provided, That a summary report of all citations issued pursuant to this section by persons deputized under subsection (j) of this section shall be forwarded monthly to the state fire marshal in such the form and containing information as he or she may by rule require, including the violation for which the citation was issued, the date of issuance, the name of the person issuing the citation and the person to whom the citation was issued. The state fire marshal may at any time revoke the authorization of a person deputized pursuant to subsection (j) of this section to issue citations, if in the opinion of the state fire marshal, the exercise of authority by the person is inappropriate. Violations for which citations may be issued include, but are not limited to:
(1) Overcrowding places of public assembly;
(2) Locked or blocked exits in public areas;
(3) Failure to abate a fire hazard;
(4) Blocking of fire lanes or fire department connections; and
(5) Tampering with, or rendering inoperable except during necessary maintenance or repairs, on-premise fire-fighting equipment, fire detection equipment and fire alarm systems.
(o) Required training; liability coverage. -- No person deputized pursuant to subsection (j) of this section may be authorized to issue a citation unless that person has satisfactorily completed a law-enforcement officer training course designed specifically for fire marshals. The course shall be approved by the law-enforcement training subcommittee of the governor's committee on criminal justice and highway safety and the state fire commission. In addition, no person deputized pursuant to subsection (j) of this section may be authorized to issue a citation until evidence of liability coverage of such the person has been provided, in the case of a paid municipal fire department by the municipality wherein where the fire department is located, or in the case of a volunteer fire department, by the county commission of the county wherein where the fire department is located or by the municipality served by the volunteer fire department and that evidence of liability coverage has been filed with the state fire marshal.
(p) Penalties for violations. -- Any person who violates any fire and life safety rule of the state fire code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned confined in the county or regional jail not more than ninety days, or both fined and imprisoned confined. Each and every day during which any violation of the provisions of this article continues after knowledge or official notice that same is illegal is a separate offense.
§29-3-16a. Smoke detectors in one- and two-family dwellings; carbon monoxide detectors in residential units; penalty.

(a) On or before the first day of July, one thousand nine hundred ninety-one, An operational smoke detector shall be installed in the immediate vicinity of each sleeping area within all one- and two-family dwellings, including any "manufactured home" as that term is defined in subsection (j), section two, article nine, chapter twenty-one of this code. The smoke detector shall be capable of sensing visible or invisible particles of combustion and shall meet the specifications and be installed as provided in the national fire protection association standard 72, 'Standard for the Installation, Maintenance and Use of Household Fire Warning Equipment', 1996 1999 edition, and in the manufacturer's specifications. When activated, the smoke detector shall provide an alarm suitable to warn the occupants of the danger of fire.
(b) The owner of each dwelling described in subsection (a) of this section shall provide, install and replace the operational smoke detectors required by this section. So as to assure that the smoke detector continues to be operational, in each dwelling described in subsection (a) of this section which is not occupied by the its owner thereof, the tenant in any dwelling shall perform routine maintenance on the smoke detectors within the dwelling.
(c) Where a dwelling is not occupied by the owner and is occupied by an individual who is deaf or hearing impaired, the owner shall, upon written request by or on behalf of the individual, provide and install a smoke detector with a light signal sufficient to warn the deaf or hearing- impaired individual of the danger of fire.
(d) An automatic fire sprinkler system installed in accordance with the national fire protection association standard 13D, 'Standard for the Installation of Sprinkler Systems in Residential Occupancies', 1989 1999 edition, may be provided in lieu of smoke detectors.
(e) After investigating a fire in any dwelling described in subsection (a) of this section, the local investigating authority shall issue to the owner a smoke detector installation order in the absence of the required smoke detectors.
(f) After the first day of July, one thousand nine hundred ninety-eight, An operational carbon monoxide detector with a suitable alarm shall be installed in accordance with the manufacturer's direction:
(1) In any newly constructed residential unit which has a fuel-burning heating or cooking source including, but not limited to, an oil or gas furnace or stove; and
(2) In any residential unit which is connected to a newly constructed building, including, but not limited to, a garage, storage shed or bar, which has a fuel-burning heating or cooking source, including, but not limited to, an oil or gas furnace or stove.
(g) Any person installing a carbon monoxide detector in a residential unit shall inform the owner, lessor or the occupant or occupants of the residential unit of the dangers of carbon monoxide poisoning and instructions on the operation of the carbon monoxide detector installed.
(h) When repair or maintenance work is undertaken on a fuel-burning heating or cooking source or a venting system in an existing residential unit, the person making the repair or performing the maintenance shall inform the owner, lessor or the occupant or occupants of the unit being served by the fuel-burning heating or cooking source or venting system of the dangers of carbon monoxide poisoning and recommend the installation of a carbon monoxide detector.
(i) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty one hundred dollars nor more than one hundred thousand dollars.
(j) A violation of this section may not be considered by virtue of the violation to constitute is not evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages.
(k) A violation of this section may not constitute is not a defense in any civil action or proceeding involving any insurance policy.
(l) Nothing in this section shall be construed to limit limits the rights of any political subdivision in this state to enact laws imposing upon owners of any dwelling or other building described in subsection (a) or (f) of this section a greater duty with regard to the installation, repair and replacement of the smoke detectors or carbon monoxide detectors than is required by this section.
§29-3-27. Penalties.
(a) Any person who violates any regulations rule promulgated by the state fire commission as provided in section five of this article, shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one hundred thousand dollars or imprisoned confined in the a county or regional jail not more than ninety days, or both fined and imprisoned confined.
Each and every day during which any illegal erection, construction, reconstruction, alteration, maintenance or use continues after knowledge or official notice that same is illegal shall be deemed is a separate offense.
(b) Any person who violates the provisions of section twenty- one of this article shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined for a first offense not less than one hundred dollars nor more than one hundred thousand dollars or imprisoned confined in the a county or regional jail for not more than thirty days, or both fined and imprisoned confined, and for a second and each subsequent offense fined not less than one five hundred dollars nor more than five hundred one thousand dollars or imprisoned confined in the a county or regional jail for not less than ninety days nor more than one year, or both fined and imprisoned confined.
(c) Any officer who shall fail fails to perform any duty required of him or her by this article or who shall violate violates any of its provisions shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five one hundred dollars nor more than fifty one thousand dollars for each failure or violation.
(d) Any person who violates any other provision of this article shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one hundred thousand dollars, or imprisoned confined in the a county or regional jail not more than ninety days, or both fined and imprisoned confined.
ARTICLE 3A. AUTHORITY OF LOCAL FIRE DEPARTMENTS.
§29-3A-4. Person attacking or hindering or obstructing firefighter or emergency equipment; penalties.

(a) It is unlawful, while any fire department or company or firefighter is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, for any person to:
(1) Attack any firefighter or any of his or her equipment with any deadly weapon as defined in section two, article seven, chapter sixty-one of this code; or
(2) Intentionally hinder, obstruct, oppose, or attempt to hinder, obstruct or oppose, or counsel, advise or invite others to hinder, obstruct or oppose, any fire department, fire company or firefighter.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than ten years, or, in the discretion of the court, be confined in the regional or county jail not more than one year or fined not less than five hundred dollars nor more than five hundred one thousand dollars, or both.
(c) Any person willfully violating any of the provisions of section one or three of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred one thousand dollars.
(d) Nothing in this article shall be construed to prevent prevents law-enforcement officials from controlling traffic and otherwise maintaining order at the scene of a fire.
(e) No person may willfully fail or refuse to comply with a lawful order or direction of any fire department or company or firefighter who is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, relating to directing, controlling or regulating traffic, so long as such order or direction is conveyed by a retro-reflective hand signing device. Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof: (1) For a first offense shall be fined not less than one hundred dollars nor more than one hundred thousand dollars; (2) for a second offense occurring within one year of a previous conviction shall be fined not less than two three hundred nor more than one thousand dollars; and (3) for a third and subsequent offense shall be fined not less than five hundred nor more than five hundred one thousand dollars or confined in a county jail or a regional jail for not less than ninety days nor more than one year or both fined and confined.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-5a. Burning personal property of another of the value of five hundred dollars or less; fifth degree arson; penalty.

Any person who knowingly and intentionally sets fire to or burns, or who causes to be burned, or who aids, counsels, procures, persuades, incites, entices or solicits any person to burn, any personal property of any class or character of the value of less than five hundred dollars, and the property of another person, shall be guilty of arson in the fifth degree and, upon conviction thereof, be confined in a county or regional jail for not less than thirty days or more than one year, fined no less than one hundred dollars nor more than one thousand dollars, or both."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2126 - "A Bill to amend and reenact sections twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section four, article three-a of said chapter; and to amend article three, chapter sixty-one of said code by adding thereto a new section, designated section five-a, all relating to violations of fire laws and rules; increasing penalties; providing for increased criminal penalties; and providing criminal penalty under certain circumstances for persons involved in setting fires to the property of others or in public rights-of- way."
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 twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section four, article three-a of said chapter be amended and reenacted; and that article three, chapter sixty-one of said code be amended by adding thereto a new section, designated section five-a, all to read as follows:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-12. Powers and duties of state fire marshal.
(a) Enforcement of laws. -- The state fire marshal and any other person authorized to enforce the provisions of this article under the supervision and direction of the state fire marshal has the authority to enforce all laws of the state having to do with:
(1) Prevention of fire;
(2) The storage, sale and use of any explosive, combustible or other dangerous article or articles in solid, flammable liquid or gas form;
(3) The installation and maintenance of equipment of all sorts intended to extinguish, detect and control fires;
(4) The means and adequacy of exit, in case of fire, from buildings and all other places in which persons work, live or congregate, from time to time, for any purpose, except buildings used wholly as dwelling houses for no more than two families;
(5) The suppression of arson; and
(6) Any other thing necessary to carry into effect the provisions of this article including, but not limited to, confiscating any materials, chemicals, items, or personal property owned, possessed or used in direct violation of the state fire code.
(b) Assistance upon request. -- Upon request, the state fire marshal shall assist any chief of any recognized fire company or department. Upon the request of any federal law-enforcement officer, state police officer, conservation officer or any county or municipal law-enforcement officer, the state fire marshal, any deputy state fire marshal or assistant state fire marshal employed pursuant to section eleven of this article and any person deputized pursuant to subsection (j) of this section may assist in the lawful execution of the requesting officer's official duties: Provided, That the state fire marshal or other person authorized to act under this subsection shall at all times work under the direct supervision of the requesting officer.
(c) Enforcement of rules. -- The state fire marshal shall enforce the rules promulgated by the state fire commission as authorized by this article.
(d) Inspections generally. -- The state fire marshal shall inspect all structures and facilities, other than one- and two-family dwelling houses, subject to the state fire code and this article, including, but not limited to, state, county and municipally owned institutions, all public and private schools, health care facilities, theaters, churches and other places of public assembly to determine whether the structures or facilities are in compliance with the state fire code.
(e) Right of entry. -- The state fire marshal may, at all reasonable hours, enter any building or premises, other than dwelling houses, for the purpose of making an inspection which he or she may consider necessary under the provisions of this article. The state fire marshal and any deputy state fire marshal or assistant state fire marshal approved by the state fire marshal may enter upon any property, or enter any building, structure or premises, including dwelling houses during construction and prior to occupancy, for the purpose of ascertaining compliance with the conditions set forth in any permit or license issued by the office of the state fire marshal pursuant to subdivision (1), subsection (a), section twelve-b of this article or of article three-b of this chapter.
(f) Investigations. -- The state fire marshal may, at any time, investigate as to the origin or circumstances of any fire or explosion or attempt to cause fire or explosion occurring in the state. The state fire marshal has the authority at all times of the day or night, in performance of the duties imposed by the provisions of this article, to investigate where any fires or explosions or attempt to cause fires or explosions may have occurred, or which at the time may be burning. Notwithstanding the above provisions of this subsection, prior to entering any building or premises for the purposes of such the investigation, the state fire marshal shall obtain a proper search warrant: Provided, That a search warrant is not necessary where there is permissive waiver or the state fire marshal is an invitee of the individual having legal custody and control of the property, building or premises to be searched.
(g) Testimony. -- The state fire marshal, in making an inspection or investigation when in his or her judgment such proceedings are it is necessary, may take the statements or testimony under oath of all persons who may be cognizant of any facts or have any knowledge about the matter to be examined and inquired into and may have the statements or testimony reduced to writing; and shall transmit a copy of such the statements or testimony so taken to the prosecuting attorney for the county wherein where the fire or explosion or attempt to cause a fire or explosion occurred. Notwithstanding the above, no person may be compelled to testify or give any such a statement under this subsection.
(h) Arrests; warrants. -- The state fire marshal, any full-time deputy fire marshal or any full- time assistant fire marshal employed by the state fire marshal pursuant to section eleven of this article is hereby authorized: and empowered and any person deputized pursuant to subsection (j) of this section may be authorized and empowered by the state fire marshal:
(1) To arrest any person anywhere within in the confines of the state of West Virginia, or have him or her arrested, for any violation of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter: Provided, That any and all persons so arrested shall be forthwith brought before the magistrate or circuit court.
(2) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute an arrest warrant when knowing or having reason to believe that anyone has committed an offense under any provision of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all arrest warrants before the tribunal having jurisdiction over such the violation.
(3) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute a warrant for the search of any premises that may possess evidence or unlawful contraband relating to violations of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all search warrants before the tribunal having jurisdiction over such the violation.
(i) Witnesses and oaths. -- The state fire marshal is empowered and authorized to may issue subpoenas and subpoenas duces tecum to compel the attendance of persons before him or her to testify in relation to any matter which is, by the provision of this article, a subject of inquiry and investigation by the state fire marshal and cause to be produced before him or her such papers as he or she may require that he or she requires in making such the examination. The state fire marshal is hereby authorized to administer oaths and affirmations to persons appearing as witnesses before him or her. False swearing in any matter or proceeding aforesaid shall be considered these inquiries or investigations is perjury and shall be is punishable as such perjury.
(j) Deputizing members of fire departments in this state. -- The state fire marshal may deputize a member of any fire department, duly organized and operating in this state, who is approved by the chief of his or her department and who is properly qualified to act as his or her assistant for the purpose of making inspections with the consent of the property owner or the person in control of the property and such the investigations as may be directed by the state fire marshal, and the carrying out of such other orders as may be prescribed by him or her, to enforce and make effective the provisions of this article and any and all rules promulgated by the state fire commission under authority of this article: Provided, That in the case of a volunteer fire department, only the chief thereof or his or her of the department or the chief's single designated assistant may be so deputized.
(k) Written report of examinations. -- The state fire marshal shall, at the request of the county commission of any county or the municipal authorities of any incorporated municipality in this state, make to them a written report of the examination made by him or her regarding any fire happening within their respective jurisdictions.
(l) Report of losses by insurance companies. -- It is the duty of each fire insurance company or association doing business in this state, within ten days after the adjustment of any loss sustained by it that exceeds fifteen hundred dollars, to report to the state fire marshal information regarding the amount of insurance, the value of the property insured and the amount of claim as adjusted. This report is in addition to any such other information required by the state insurance commissioner. Upon the request of the owner or insurer of any property destroyed or injured by fire or explosion, or in which an attempt to cause a fire or explosion may have occurred, the state fire marshal shall report in writing to the owner or insurer the result of the examination regarding the property.
(m) Issuance of permits and licenses. -- The state fire marshal is authorized to issue permits, documents and licenses in accordance with the provisions of this article or of article three-b of this chapter. The state fire marshal may require any person who applies for a permit to use explosives, other than an applicant for a license to be a pyrotechnic operator under section twenty-four of this article, to be fingerprinted and to authorize the state fire marshal to conduct a criminal records check through the criminal identification bureau of the West Virginia state police and a national criminal history check through the federal bureau of investigation. The results of any criminal records or criminal history check shall be sent to the state fire marshal.
(n) Issuance of citations for fire and life safety violations. -- The state fire marshal, any deputy fire marshal and any assistant fire marshal employed pursuant to section eleven of this article are hereby authorized, and any person deputized pursuant to subsection (j) of this section may be authorized by the state fire marshal to issue citations, in his or her jurisdiction, for fire and life safety violations of the state fire code and as provided for by the rules promulgated by the state fire commission in accordance with article three, chapter twenty-nine-a of this code: Provided, That a summary report of all citations issued pursuant to this section by persons deputized under subsection (j) of this section shall be forwarded monthly to the state fire marshal in such the form and containing information as he or she may by rule require, including the violation for which the citation was issued, the date of issuance, the name of the person issuing the citation and the person to whom the citation was issued. The state fire marshal may at any time revoke the authorization of a person deputized pursuant to subsection (j) of this section to issue citations, if in the opinion of the state fire marshal, the exercise of authority by the person is inappropriate.
Violations for which citations may be issued include, but are not limited to:
(1) Overcrowding places of public assembly;
(2) Locked or blocked exits in public areas;
(3) Failure to abate a fire hazard;
(4) Blocking of fire lanes or fire department connections; and
(5) Tampering with, or rendering inoperable except during necessary maintenance or repairs, on-premise fire-fighting equipment, fire detection equipment and fire alarm systems.
(o) Required training; liability coverage. -- No person deputized pursuant to subsection (j) of this section may be authorized to issue a citation unless that person has satisfactorily completed a law-enforcement officer training course designed specifically for fire marshals. The course shall be approved by the law-enforcement training subcommittee of the governor's committee on criminal justice and highway safety and the state fire commission. In addition, no person deputized pursuant to subsection (j) of this section may be authorized to issue a citation until evidence of liability coverage of such the person has been provided, in the case of a paid municipal fire department by the municipality wherein where the fire department is located, or in the case of a volunteer fire department, by the county commission of the county wherein where the fire department is located or by the municipality served by the volunteer fire department and that evidence of liability coverage has been filed with the state fire marshal.
(p) Penalties for violations. -- Any person who violates any fire and life safety rule of the state fire code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned confined in the county or regional jail not more than ninety days, or both fined and imprisoned confined.
Each and every day during which any violation of the provisions of this article continues after knowledge or official notice that same is illegal is a separate offense.
§29-3-16a. Smoke detectors in one- and two-family dwellings; carbon monoxide detectors in residential units; penalty.

(a) On or before the first day of July, one thousand nine hundred ninety-one, An operational smoke detector shall be installed in the immediate vicinity of each sleeping area within all one- and two-family dwellings, including any 'manufactured home' as that term is defined in subsection (j), section two, article nine, chapter twenty-one of this code. The smoke detector shall be capable of sensing visible or invisible particles of combustion and shall meet the specifications and be installed as provided in the national fire protection association standard 72, 'Standard for the Installation, Maintenance and Use of Household Fire Warning Equipment', 1996 1999 edition, and in the manufacturer's specifications. When activated, the smoke detector shall provide an alarm suitable to warn the occupants of the danger of fire.
(b) The owner of each dwelling described in subsection (a) of this section shall provide, install and replace the operational smoke detectors required by this section. So as to assure that the smoke detector continues to be operational, in each dwelling described in subsection (a) of this section which is not occupied by the its owner thereof, the tenant in any dwelling shall perform routine maintenance on the smoke detectors within the dwelling.
(c) Where a dwelling is not occupied by the owner and is occupied by an individual who is deaf or hearing impaired, the owner shall, upon written request by or on behalf of the individual, provide and install a smoke detector with a light signal sufficient to warn the deaf or hearing- impaired individual of the danger of fire.
(d) An automatic fire sprinkler system installed in accordance with the national fire protection association standard 13D, 'Standard for the Installation of Sprinkler Systems in Residential Occupancies', 1989 1999 edition, may be provided in lieu of smoke detectors.
(e) After investigating a fire in any dwelling described in subsection (a) of this section, the local investigating authority shall issue to the owner a smoke detector installation order in the absence of the required smoke detectors.
(f) After the first day of July, one thousand nine hundred ninety-eight, An operational carbon monoxide detector with a suitable alarm shall be installed in accordance with the manufacturer's direction:
(1) In any newly constructed residential unit which has a fuel-burning heating or cooking source including, but not limited to, an oil or gas furnace or stove; and
(2) In any residential unit which is connected to a newly constructed building, including, but not limited to, a garage, storage shed or bar, which has a fuel-burning heating or cooking source, including, but not limited to, an oil or gas furnace or stove.
(g) Any person installing a carbon monoxide detector in a residential unit shall inform the owner, lessor or the occupant or occupants of the residential unit of the dangers of carbon monoxide poisoning and instructions on the operation of the carbon monoxide detector installed.
(h) When repair or maintenance work is undertaken on a fuel-burning heating or cooking source or a venting system in an existing residential unit, the person making the repair or performing the maintenance shall inform the owner, lessor or the occupant or occupants of the unit being served by the fuel-burning heating or cooking source or venting system of the dangers of carbon monoxide poisoning and recommend the installation of a carbon monoxide detector.
(i) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty one hundred dollars nor more than one hundred thousand dollars.
(j) A violation of this section may not be considered by virtue of the violation to constitute is not evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages.
(k) A violation of this section may not constitute is not a defense in any civil action or proceeding involving any insurance policy.
(l) Nothing in this section shall be construed to limit limits the rights of any political subdivision in this state to enact laws imposing upon owners of any dwelling or other building described in subsection (a) or (f) of this section a greater duty with regard to the installation, repair and replacement of the smoke detectors or carbon monoxide detectors than is required by this section. §29-3-27. Penalties.
(a) Any person who violates any regulations rule promulgated by the state fire commission as provided in section five of this article, shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one hundred thousand dollars or imprisoned confined in the a county or regional jail not more than ninety days, or both fined and imprisoned confined.
Each and every day during which any illegal erection, construction, reconstruction, alteration, maintenance or use continues after knowledge or official notice that same is illegal shall be deemed is a separate offense.
(b) Except as provided by the provisions of subsection (c) of this section, any Any person who violates the provisions of section twenty- one of this article shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined for a first offense not less than one hundred dollars nor more than one hundred thousand dollars or imprisoned confined in the a county or regional jail for not more than thirty days, or both fined and imprisoned confined, and for a second and each subsequent offense fined not less than one five hundred dollars nor more than five hundred one thousand dollars or imprisoned confined in the a county or regional jail for not less than ninety days nor more than one year, or both fined and imprisoned confined.
(c) Any person who violates the provisions of section twenty-one of this article with the intent to cause injury to the person of another, to cause destruction of the property of another or to divert the attention of law enforcement or fire personnel to help effectuate the commission of another crime shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than one nor more than three years, or fined not more than five thousand dollars, or both.
(c) (d) Any officer who shall fail fails to perform any duty required of him or her by this article or who shall violate violates any of its provisions shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five one hundred dollars nor more than fifty one thousand dollars for each failure or violation.
(d) (e) Any person who violates any other provision of this article shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one hundred thousand dollars, or imprisoned confined in the a county or regional jail not more than ninety days, or both fined and imprisoned confined.
ARTICLE 3A. AUTHORITY OF LOCAL FIRE DEPARTMENTS.
§29-3A-4. Person attacking or hindering or obstructing firefighter or emergency equipment; penalties.

(a) It is unlawful, while any fire department or company or firefighter is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, for any person to:
(1) Attack any firefighter or any of his or her equipment with any deadly weapon as defined in section two, article seven, chapter sixty-one of this code; or
(2) Intentionally hinder, obstruct, oppose, or attempt to hinder, obstruct or oppose, or counsel, advise or invite others to hinder, obstruct or oppose, any fire department, fire company or firefighter.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than ten years, or, in the discretion of the court, be confined in the regional or county jail not more than one year or fined not less than five hundred dollars nor more than five hundred one thousand dollars, or both.
(c) Any person willfully violating any of the provisions of section one or three of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred one thousand dollars.
(d) Nothing in this article shall be construed to prevent prevents law-enforcement officials from controlling traffic and otherwise maintaining order at the scene of a fire.
(e) No person may willfully fail or refuse to comply with a lawful order or direction of any fire department or company or firefighter who is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, relating to directing, controlling or regulating traffic, so long as such order or direction is conveyed by a retro-reflective hand signing device. Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof: (1) For a first offense shall be fined not less than one hundred dollars nor more than one hundred thousand dollars; (2) for a second offense occurring within one year of a previous conviction shall be fined not less than two three hundred nor more than one thousand dollars; and (3) for a third and subsequent offense shall be fined not less than five hundred nor more than five hundred one thousand dollars or confined in a county jail or a regional jail for not less than ninety days nor more than one year or both fined and confined.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-5a. Burning personal property of another of the value of five hundred dollars or less; fifth degree arson; penalty.

Any person who knowingly and intentionally sets fire to or burns, or who causes to be burned, or who aids, counsels, procures, persuades, incites, entices or solicits any person to burn, any personal property of any class or character of the value of less than five hundred dollars, and the property of another person, shall be guilty of arson in the fifth degree and, upon conviction thereof, be confined in a county or regional jail for not less than thirty days or more than one year, fined no less than one hundred dollars nor more than one thousand dollars, or both."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2126 - "A Bill to amend and reenact sections twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section four, article three-a of said chapter; and to amend article three, chapter sixty-one of said code by adding thereto a new section, designated section five-a, all relating to violations of fire laws and rules; increasing the criminal offense for a false fire alarm to a felony when it is done with intent to cause injury to persons or property to divert attention from another offense; providing for increased criminal penalties; and providing criminal penalty under certain circumstances for persons involved in setting fires to the property of others or in public rights-of-way."
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. 485), 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. 2126) 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 amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2239, Requiring foreign collection agencies to obtain a certificate of authority from the secretary of state.
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:
"CHAPTER 31D. WEST VIRGINIA BUSINESS CORPORATION ACT.
ARTICLE 15. FOREIGN CORPORATIONS.
§31D-15-1501. Authority to transact business and jurisdiction over foreign corporations.
(a) A foreign corporation may not transact business conduct affairs in this state until it obtains a certificate of authority from the secretary of state.
(b) The following activities, among others, do not constitute conducting affairs within the meaning of subsection (a) of this section:
(1) Maintaining, defending or settling any proceeding;
(2) Holding meetings of the board of directors or shareholders or carrying on other activities concerning internal corporate affairs;
(3) Maintaining bank accounts;
(4) Selling through independent contractors;
(5) Soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts;
(6) Creating or acquiring indebtedness, mortgages and security interests in real or personal property;
(7) Securing or collecting debts or enforcing mortgages and security interests in property securing the debts: Provided, That this exemption does not include debts collected by collection agencies as defined in subdivision (b), section two, article sixteen, chapter forty-seven of this code;
(8) Owning, without more, real or personal property;
(9) Conducting an isolated transaction that is completed within thirty days and that is not one in the course of repeated transactions of a like nature;
(10) Conducting affairs in interstate commerce;
(11) Granting funds or other gifts;
(12) Distributing information to its shareholders or members;
(13) Effecting sales through independent contractors;
(14) The acquisition by purchase of lands secured by mortgage or deeds;
(15) Physical inspection and appraisal of property in West Virginia as security for deeds of trust, or mortgages and negotiations for the purchase of loans secured by property in West Virginia; and
(16) The management, rental, maintenance and sale or the operating, maintaining, renting or otherwise dealing with selling or disposing of property acquired under foreclosure sale or by agreement in lieu of foreclosure sale.
(c) The list of activities in subsection (b) of this section is not exhaustive.
(d) A foreign corporation is deemed to be transacting business in this state if:
(1) The corporation makes a contract to be performed, in whole or in part, by any party thereto in this state;
(2) The corporation commits a tort, in whole or in part, in this state; or
(3) The corporation manufactures, sells, offers for sale or supplies any product in a defective condition and that product causes injury to any person or property within this state notwithstanding the fact that the corporation had no agents, servants or employees or contacts within this state at the time of the injury.
(e) A foreign corporation's making of a contract, the committing of a manufacture or sale, offer of sale or supply of defective product as described in subsection (d) of this section is deemed to be the agreement of that foreign corporation that any notice or process served upon, or accepted by, the secretary of state in a proceeding against that foreign corporation arising from, or growing out of, contract, tort or manufacture or sale, offer of sale or supply of the defective product has the same legal force and validity as process duly served on that corporation in this state.
CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.
ARTICLE 14. FOREIGN CORPORATIONS.
§31E-14-1401. Authority to conduct affairs required.
(a) A foreign corporation may not conduct affairs in this state until it obtains a certificate of authority from the secretary of state.
(b) The following activities, among others, do not constitute conducting affairs within the meaning of subsection (a) of this section:
(1) Maintaining, defending, or settling any proceeding;
(2) Holding meetings of the board of directors or members or carrying on other activities concerning internal corporate affairs;
(3) Maintaining bank accounts;
(4) Selling through independent contractors;
(5) Soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts;
(6) Creating or acquiring indebtedness, mortgages, and security interests in real or personal property: Provided, That this exemption does not include debts collected by collection agencies as defined in subdivision (b), section two, article sixteen, chapter forty-seven of this code;
(7) Securing or collecting debts or enforcing mortgages and security interests in property securing the debts;
(8) Owning, without more, real or personal property;
(9) Conducting an isolated transaction that is completed within thirty days and that is not one in the course of repeated transactions of a like nature;
(10) Conducting affairs in interstate commerce;
(11) Granting funds or other gifts;
(12) Distributing information to its shareholders or members;
(13) Effecting sales through independent contractors;
(14) The acquisition by purchase of lands secured by mortgage or deeds;
(15) Physical inspection and appraisal of property in West Virginia as security for deeds of trust, or mortgages and negotiations for the purchase of loans secured by property in West Virginia; and
(16) The management, rental, maintenance and sale; or the operating, maintaining, renting or otherwise, dealing with selling or disposing of property acquired under foreclosure sale or by agreement in lieu of foreclosure sale.
(c) The list of activities in subsection (b) of this section is not exhaustive.
(d) A foreign corporation is to be deemed to be conducting affairs in this state if:
(1) The corporation makes a contract to be performed, in whole or in part, by any party thereto, in this state;
(2) The corporation commits a tort, in whole or in part, in this state; or
(3) The corporation manufactures, sells, offers for sale or supplies any product in a defective condition and that product causes injury to any person or property within this state notwithstanding the fact that the corporation had no agents, servants or employees or contacts within this state at the time of the injury.
(e) A foreign corporation's making of a contract, the committing of a manufacture or sale, offer of sale or supply of defective product as described in subsection (d) of this section is deemed to be the agreement of that foreign corporation that any notice or process served upon, or accepted by, the secretary of state in a proceeding against that foreign corporation arising from, or growing out of, contract, tort, or manufacture or sale, offer of sale or supply of the defective product has the same legal force and validity as process duly served on that corporation in this state.
CHAPTER 47. REGULATION OF TRADE.

ARTICLE 16. COLLECTION AGENCIES.

§47-16-2. Definitions.

The following words and terms as used in this article shall be construed as follows:
(a) 'Claim' means any obligation for the payment of money due or asserted to be due to another person, firm, corporation or association.
(b) 'Collection agency' means and includes all persons, firms, corporations and associations: (1) Directly or indirectly engaged in the business of soliciting from or collecting for others any account, bill or indebtedness originally due or asserted to be owed or due another and all persons, firms, corporations and associations directly or indirectly engaged in asserting, enforcing or prosecuting those claims; (2) which, in attempting to collect or in collecting his or her or its own accounts or claims uses a fictitious name or names other than his or her or its own name; (3) which attempts to or does give away or sell to others any system or series of letters or forms for use in the collection of accounts or claims which assert or indicate directly or indirectly that the claims or accounts are being asserted or collected by any person, firm, corporation or association other than the creditor or owner of the claim or account; or (4) directly or indirectly engaged in the business of soliciting, or who holds himself or herself out as engaged in the business of soliciting, debts of any kind owed or due, or asserted to be owed or due, to any solicited person, firm, corporation or association for fee, commission or other compensation.
The term 'collection agency' shall not mean or include: (1) Regular employees of a single creditor or of a collection agency licensed hereunder; (2) banks; (3) trust companies; (4) savings and loan associations; (5) building and loan associations; (6) industrial loan companies; (7) small loan companies; (8) abstract companies doing an escrow business; (9) duly licensed real estate brokers or agents when the claims or accounts being handled by such broker or agent are related to or in connection with such brokers' or agents' regular real estate business; (10) express and telegraph companies subject to public regulation and supervision; (11) attorneys-at-law handling claims and collections in their own names and not operating a collection agency under the management of a layman; or (12) any person, firm, corporation or association acting under the order of any court of competent jurisdiction; or (13) any person collecting a debt owed to another person only where: (A) Both persons are related by wholly-owned, common ownership or affiliated by wholly-owned corporate control; (B) the person collecting the debt acts only on behalf of persons related as described in paragraph (A) of this subdivision; and (C) debt collection is not the principal business of the person collecting the debt.
(c) 'Commissioner' means the state tax commissioner or his or her agent.
(d) 'Customer' means any person, firm, corporation or association who has filed, assigned or sold any claim or chose in action with or to a collection agency for collection.
(e) 'Licensee' means any person holding a business franchise registration certificate under section two, article twelve, chapter eleven of this code and under the provisions of this article.
(f) 'Trust account' means a special account established by a collection agency with a banking institution in this state, wherein funds collected on behalf of a customer shall be deposited."
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. 486), 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. 2239) 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:
Com. Sub. for H. B. 2240, Allowing persons purchasing or renewing hunting or fishing licenses to donate to the "hunters helping the hungry program".
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page nine, section thirty-four, following line forty-three, by adding a new section, designated section forty-three, to read as follows:
"§20-2-43. Class E, Class EE, Class F, Class H and Class J licenses for nonresidents.
The licenses in this section shall be are required of nonresidents to hunt, trap or fish in West Virginia.
(1) A Class E license shall be is a nonresident hunting and trapping license and shall entitle entitles the licensee to hunt or trap all legal species of wild animals and wild birds in all counties of the state except when other licenses or permits are required. The fee therefor shall be for the license is one hundred dollars.
(2) A Class EE license shall be is a nonresident bear hunting license and shall entitle entitles the licensee to hunt bear in all counties of the state, except when additional licenses or permits are required. The fee therefor shall be for the license is one hundred fifty dollars.
(3) A Class F license shall be is a nonresident fishing license and shall entitle entitles the licensee to fish for all fish in all counties of the state except when additional licenses or permits are required. The fee therefor shall be for the license is thirty dollars. Trout fishing is not permitted with a Class F license unless such the license has affixed thereto to it an appropriate trout stamp as prescribed by the division of natural resources.
(4) A Class H license shall be is a nonresident small game hunting license and shall entitle entitles the licensee to hunt small game in all counties of the state, except when additional licenses or permits are required, for a period of six days beginning with the date it is issued.
The fee therefor shall be for the license is twenty dollars. As used in this section, 'small game' means all game except bear, deer, wild turkey and wild boar.
(5) A Class J license is a nonresident small game shooting preserve license and entitles the licensee to hunt small game on designated shooting preserves, except when additional licenses or permits are required, for a period of six days beginning with the date it is issued. The fee for the license is ten dollars."
On page two, by amending the enacting section to read as follows:
"That sections thirty, thirty-three, thirty-four and forty-three, article two, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section thirty-three-a, all to read as follows" followed by a colon.
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2240 - "A Bill to amend and reenact sections thirty, thirty-three, thirty- four and forty-three, article two, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section thirty-three-a, all relating generally to hunting and fishing license applications and fees; statement of eligibility for license; false statement; electronic application for license to apprise applicant of hunters helping the hungry program; voluntary donations; creating sub-account designated 'hunters helping the hungry fund'; authorized expenditures; establishing a Class J license for small game preserves; and technical amendments."
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. 487), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Renner.
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. 2240) 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. 2670, Continuing the office of judges until July 1, 2009.
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, section seventeen, line four, by striking out the word "nine" and inserting in lieu thereof the word "four" and a comma.
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. 488), 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 (H. B. 2670) 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. 2797, Authorizing the DMV to reimburse members of the motor vehicle dealer advisory board and the motorcycle safety awareness board for necessary expenses.
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:
"CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION, CERTIFICATE OF TITLE, AND ANTI-THEFT PROVISIONS.

ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS; SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.

§17A-6-18a. Motor vehicle dealers advisory board.
(a) There is created continued a motor vehicle dealers advisory board to assist and to advise the commissioner on the administration of laws regulating the motor vehicle industry; to work with the commissioner in developing new laws, rules or policies regarding the motor vehicle industry; and to give the commissioner such any further advice and assistance as he or she may from time to time require.
The board shall consist of nine members and the commissioner of motor vehicles, or his or her representative, who shall be an ex-officio member. Two members shall represent new motor vehicle dealers, with one of these two members representing dealers that sell less than one hundred new vehicles per year; one member shall represent used motor vehicle dealers; one member shall represent wrecker/dismantler/rebuilders; one member shall represent automobile auctions; one member shall represent recreational dealers; one member shall represent the West Virginia attorney general's office; and two members shall represent consumers. All of the representatives, except the attorney general representative who shall be designated by the attorney general, shall be appointed by the governor with the advice and consent of the Senate, with no more than five representatives being from the same political party. The appointed members shall serve without compensation
The terms of the board members shall be for three years commencing the first day of July, one thousand nine hundred ninety-six. Two members shall be appointed to serve one year, two members shall be appointed to serve two years and five members shall be appointed to serve three years. Successive appointments shall be for the full three years. The attorney general representative shall serve continuously.
The board shall meet at least four times annually and at the call of the commissioner.
(b) The commissioner shall consult with the board before he or she takes any disciplinary action against a dealer, an automobile auction or a license service to revoke, or suspend a license, place the licensee on probation or levy a civil penalty, unless the commissioner determines that the consultation would endanger a criminal investigation.
(c) The commissioner may consult with the board by mail, by facsimile, by telephone or at a meeting of the board, but the commissioner is not bound by the recommendations of the board. The commissioner shall give members seven days from the date of a mailing or other notification to respond to proposed actions, except in those instances when the commissioner determines that the delay in acting creates a serious danger to the public's health or safety or would unduly compromise the effectiveness of the action.
(d) No action taken by the commissioner shall be is subject to challenge or rendered invalid on account of his or her failure to consult with the board.
(e) The appointed members shall serve without compensation, however, members are entitled to reimbursement of travel and other necessary expenses actually incurred while engaged in legitimate board activities in accordance with the guidelines of the travel management office of the department of administration or its successor agency.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 1D. MOTORCYCLE SAFETY EDUCATION.
§17B-1D-8. Motorcycle safety awareness board continued.
(a) The motorcycle safety and education committee created pursuant to subsection (f), of section forty-four, article fifteen, chapter seventeen-c of this code will terminate on the thirtieth day of June, two thousand one.
(b) Effective the first day of July, two thousand one, There is created continued an eight member motorcycle safety awareness board consisting of four ex-officio members and four nongovernmental members. The ex-officio members are the motorcycle safety program coordinator, as appointed under section two of this article, or a designee; the superintendent of the state police or a designee; the commissioner of the bureau of public health or a designee; and the commissioner of the division of tourism or a designee. The four nongovernmental members are a licensed motorcycle operator who will be appointed for an initial term of one year; a member of American bikers aimed toward education (ABATE) or the West Virginia confederation of motorcycle clubs who will be appointed for an initial term of one year; a licensed insurance agent who has a valid motorcycle endorsement who will be appointed for an initial term of two years; and, an owner of a motorcycle dealership or supplier of aftermarket nonfranchised motorcycle supplies who will be appointed for an initial term of three years. The motorcycle safety program coordinator shall serve as chair of the board. The nongovernmental members will shall be appointed by the governor with the advice and consent of the Senate. and will serve without compensation The terms will be are for three years, except for the initial appointments which will be staggered according to the provisions of this article. Members may be reappointed to the board. Any nongovernmental member who is absent without good cause from three consecutive meetings of the board may be removed from the board and a new member appointed by the governor.
(c) (b) The board may recommend to the superintendent of the state police types and makes of protective helmets, eye protection devices and equipment offered for sale, purchased or used by any person. The board may make recommendations to the commissioner of motor vehicles regarding the use of the moneys in the motorcycle safety fund created under section seven of this article. The board shall report annually to the Legislature on or before the first day of each regular legislative session.
(c) The appointed members shall serve without compensation, however, members are entitled to reimbursement of travel and other necessary expenses actually incurred while engaged in legitimate board activities in accordance with the guidelines of the travel management office of the department of administration or successor agency."
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. 489), 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 (H. B. 2797) 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. 2847, Making the law-enforcement agency that places a person under arrest responsible for that person's initial transportation to a regional or county jail.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then passed over temporarily.
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. 2878, Allowing certain municipalities providing advanced life support ambulance services to examine, train and employ fire medics.
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-a, line six, by striking out the word "licensed" and inserting in lieu thereof the word "certified".
On page two, section twenty-a, line ten, by striking out the word "a".
And,
On page two, section twenty-a, line eleven, by striking out the word "license" and inserting in lieu thereof the word "certification".
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. 490), and there were--yeas 95, nays 4, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Hall, Hamilton, Schoen and 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 (H. B. 2878) 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. 2915, Authorizing continued payment of Class VI rate of compensation to the prosecuting attorney of Wetzel County.
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:
"ARTICLE 7. COMPENSATION OF ELECTED COUNTY OFFICIALS.
§7-7-4. Compensation of elected county officials and county commissioners for each class of county; effective date.

(a)(1) All county commissioners shall be paid compensation out of the county treasury in amounts and according to the schedule set forth in subdivision (2) of this subsection for each class of county as determined by the provisions of section three of this article: Provided, That as to any county having a tribunal in lieu of a county commission, the county commissioners of the county may be paid less than the minimum compensation limits of the county commission for the particular class of such county.
(2) COUNTY COMMISSIONERS
Class I
$ 20,000

Class II
$ 15,500

Class III
$ 14,000

Class IV
$ 10,000

Class V
$ 7,000

Class VI
$ 4,000

(3) The compensation, set out in subdivision (2) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred eighty-five, to each county commissioner. Within each county, every county commissioner whose term of office commenced prior to the first day of January, one thousand nine hundred eighty-five, shall receive the same annual compensation as commissioners commencing a term of office on or after that date by virtue of the new duties imposed upon county commissioners pursuant to the provisions of chapter fifteen, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-three.
(4) For the purpose of determining the compensation to be paid to the elected county officials of each county, the compensations for each office by class, set out in subdivision (5) of this subsection, are established and shall be used by each county commission in determining the compensation of each of their county officials other than compensation of members of the county commission.
(5) OTHER ELECTED OFFICIALS
County
Circuit
Prosecuting

Sheriff
Clerk
Clerk
Assessor
Attorney

Class I
$24,200
$31,300
$31,300
$24,200
$41,500

Class II
$24,200
$28,000
$28,000
$24,200
$39,500

Class III
$24,200
$28,000
$28,000
$24,200
$30,000

Class IV
$22,300
$24,000
$24,000
$22,300
$26,500

Class V$20,400
$22,000
$22,000
$20,400
$23,500

Class VI
$17,200
$17,200
$17,200
$17,200
$17,000

(6) Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor, sheriff and prosecuting attorney of a Class I county, any assessor of a Class II and Class III county, any sheriff of a Class II and Class III county and any prosecuting attorney of a Class II county shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not be restricted on his or her outside activities during the remainder of the term for which he or she is elected. The compensation, set out in subdivision (5) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred eighty-five, to each elected county official.
(7) In the case of a county that has a joint clerk of the county commission and circuit court, the compensation of the joint clerk shall be fixed in an amount twenty-five percent higher than the compensation would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
(8) The Legislature finds that the duties imposed upon county clerks by the provisions of chapter sixty-four, acts of the Legislature, regular session, one thousand nine hundred eighty-two, and by chapter fifteen, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-three, constitute new and additional duties for county clerks and as such justify the additional compensation provided in this section without violating the provisions of section thirty-eight, article VI of the constitution of West Virginia.
(9) The Legislature further finds that the duties imposed upon circuit clerks by the provisions of chapters sixty-one and one hundred eighty-two, acts of the Legislature, regular session, one thousand nine hundred eighty-one, and by chapter sixty, acts of the Legislature, regular session, one thousand nine hundred eighty-three, constitute new and additional duties for circuit clerks and as such justify the additional compensation provided by this section without violating the provisions of section thirty-eight, article VI of the constitution of West Virginia.
(b)(1) Prior to the primary election in the year one thousand nine hundred ninety-two, and for the fiscal year beginning on the first day of July, one thousand nine hundred ninety-two, or for any subsequent fiscal year if the approval, set out in subdivision (2) of this subsection, is not granted for any fiscal year, and at least thirty days prior to the meeting to approve the county budget, the commission shall provide notice to the public of the date and time of the meeting and that the purpose of the meeting of the county commission is to decide upon their budget certification to the auditor.
(2) Upon submission by the county commission to the auditor of a proposed annual budget which contains anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance, equal to anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance and any federal or state special grants, for the immediately preceding fiscal year, plus such additional amount as is necessary for payment of the increases in the salaries set out in subdivisions (3) and (5) of this subsection, and related employment taxes over that paid for the immediately preceding fiscal year, and upon approval thereof by the auditor, which approval shall not be granted for any proposed annual budget containing anticipated receipts which are unreasonably greater or lesser than that of the immediately preceding fiscal year, for the purpose of determining the compensation to be paid to the elected county officials of each county office by class are established and shall be used by each county commission in determining the compensation of each of their county officials: Provided, That as to any county having a tribunal in lieu of a county commission, the county commissioners of the county may be paid less than the minimum compensation limits of the county commission for the particular class of the county.
(3) COUNTY COMMISSIONERS
Class I
$24,000

Class II
$18,600

Class III
$16,800

Class IV
$12,000

Class V
$8,400

(4) If the approval, set out in subdivision (2) of this subsection, is granted, the compensation, set out in subdivision (3) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred ninety-three, to each county commissioner. Within each county, every county commissioner shall receive the same annual compensation by virtue of the new duties imposed upon county commissioners pursuant to the provisions of chapter one hundred seventy-two, acts of the Legislature, second regular session, one thousand nine hundred ninety and chapter five, acts of the Legislature, third extraordinary session, one thousand nine hundred ninety.
(5) OTHER ELECTED OFFICIALS
County
Circuit
Prosecuting

Sheriff
Clerk
Clerk
Assessor
Attorney

Class I
$29,040
$37,560
$37,560
$29,040
$59,500

Class II
$29,040
$33,600
$33,600
$29,040
$59,500

Class III
$29,040
$33,600
$33,600
$29,040
$36,000

Class IV
$26,760
$28,800
$28,800
$26,760
$31,800

Class V
$24,480
$26,400
$26,400
$24,480
$28,200

Class VI
$24,480
$26,400
$26,400
$24,480
$28,200

(6) Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor, sheriff and prosecuting attorney of a Class I county, any assessor of a Class II and Class III county, any sheriff of a Class II and Class III county and any prosecuting attorney of a Class II county shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not be restricted on his or her outside activities during the remainder of the term for which he or she is elected. If the approval, set out in subdivision (2) of this subsection, is granted, the compensation, set out in subdivision (5) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred ninety-three, to each elected county official.
(7) In the case of a county that has a joint clerk of the county commission and circuit court, the compensation of the joint clerk shall be fixed in an amount twenty-five percent higher than the compensation would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
(8) Prior to the primary election in the year one thousand nine hundred ninety-two, in the case of a Class III, Class IV or Class V county which has a part-time prosecuting attorney, the county commission may find that such facts and circumstances exist that require the prosecuting attorney to devote full-time to his or her public duties for the four-year term, beginning the first day of January, one thousand nine hundred ninety-three. If the county commission makes such a finding, it may by proper order adopted and entered, require the prosecuting attorney who takes office on the first day of January, one thousand nine hundred ninety-three, to devote full-time to his or her public duties and the county commission shall then compensate said prosecuting attorney at the same rate of compensation as that of a prosecuting attorney in a Class II county.
(9) For any county: (A) Which on and after the first day of July, one thousand nine hundred ninety-four, is classified as a Class II county; and ( B) which prior to such date was classified as a Class III, Class IV or Class V county and maintained a part-time prosecuting attorney, the county commission may elect to maintain the prosecuting attorney as a part-time prosecuting attorney: Provided, That prior to the first day of January, one thousand nine hundred ninety-six, the county commission shall make a finding, by proper order and entered, whether to maintain a full-time or part-time prosecuting attorney. The part-time prosecuting attorney shall be compensated at the same rate of compensation as that of a prosecuting attorney in the class for the county prior to being classified as a Class II county.
(c)(1) Prior to the primary election in the year one thousand nine hundred ninety-six, and for the fiscal year beginning on the first day of July, one thousand nine hundred ninety-six, or for any subsequent fiscal year if the approval, set out in subdivision (2) of this subsection, is not granted for any fiscal year, and at least thirty days prior to the meeting to approve the county budget, the commission shall provide notice to the public of the date and time of the meeting and that the purpose of the meeting of the county commission is to decide upon their budget certification to the auditor.
(2) Upon submission by the county commission to the auditor of a proposed annual budget which contains anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance, equal to anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance and any federal or state special grants, for the fiscal year beginning the first day of July, one thousand nine hundred ninety-six, plus such additional amount as is necessary for payment of the increases in the salaries set out in subdivisions (3) and (6) of this subsection, and related employment taxes over that paid for the immediately preceding fiscal year, and upon approval thereof by the auditor, which approval shall not be granted for any proposed annual budget containing anticipated receipts which are unreasonably greater or lesser than that of the immediately preceding fiscal year for the purpose of determining the compensation to be paid to the elected county officials of each county office by class are established and shall be used by each county commission in determining whether county revenues are sufficient to pay the compensation mandated herein for their county officials: Provided, That as to any county having a tribunal in lieu of a county commission, the county commissioners of the county may be paid less than the minimum compensation limits of the county commission for the particular class of the county: Provided, however, That should there be an insufficient projected increase in revenues to pay the increased compensation and related employment taxes, then the compensation of that county's elected officials shall remain at the level in effect at the time certification was sought.
(3) COUNTY COMMISSIONERS
Class I
$28,000

Class II$27,500
Class III$27,000
Class IV$26,500
Class V$26,000
Class VI$21,500
Class VII$21,000
Class VIII$19,000
Class IX$18,500
Class X$15,000
(4) The compensation, set out in subdivision (3) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred ninety-seven, to each county commissioner. Every county commissioner in each county, whose term of office commenced prior to or on or after the first day of January, one thousand nine hundred ninety-seven, shall receive the same annual compensation by virtue of legislative findings of extra duties as set forth in section one of this article.
(5) For the purpose of determining the compensation to be paid to the elected county officials of each county, the compensations for each county office by class, set out in subdivision (6) of this subsection, are established and shall be used by each county commission in determining the compensation of each of their county officials other than compensation of members of the county commission.
(6) OTHER ELECTED OFFICIALS

CountyCircuit
Prosecuting

SheriffClerkClerkAssessorAttorney
Class I
$34,000$42,000$42,000$34,000$76,000

Class II$33,500$41,500$41,500$33,500$74,000
Class III$33,250$40,500$40,500$33,250$72,000
Class IV$33,000$40,250$40,250$33,000$70,000
Class V$32,750$40,000$40,000$32,750$68,000
Class VI$32,500$37,500$37,500$32,500$45,000
Class VII$32,250$37,000$37,000$32,250$43,000
Class VIII$32,000$36,500$36,500$32,000$41,000
Class IX$31,750$36,000$36,000$31,750$38,000
Class X$29,000$32,000$32,000$29,000$35,000
(7) The compensation, set out in subdivision (6) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred ninety-seven, to each elected county official. Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor or sheriff of a Class I through Class V county, inclusive, any assessor or any sheriff of a Class VI through Class IX county, inclusive, shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not be restricted on his or her outside activities during the remainder of the term for which he or she is elected.
(8) In the case of a county that has a joint clerk of the county commission and circuit court, the compensation of the joint clerk shall be fixed in an amount twenty-five percent higher than the compensation would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
(9) Any prosecuting attorney of a Class I through Class V county, inclusive, shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any county which under the prior provisions of this section was classified as a Class II county and elected to maintain a part-time prosecutor may continue to maintain a part-time prosecutor, until such time as the county commission, on request of the part-time prosecutor, approves and makes a finding, by proper order entered, that the prosecuting attorney shall devote full-time to his or her public duties. The county commission shall then compensate said prosecuting attorney at the same rate of compensation as that of a prosecuting attorney in a Class V county: Provided, however, That any county which under the prior provisions of this section was classified as a Class II county and which did not elect to maintain a part-time prosecutor shall maintain a full-time prosecuting attorney and shall compensate said prosecuting attorney at the same rate of compensation as that of a prosecuting attorney in a Class V county: Provided further, That, until the first day of January, two thousand one, when a vacancy occurs in the office of prosecuting attorney prior to the end of a term, the county commission of a Class IV or Class V county may elect to allow the position to become part-time for the end of that term, and thereafter the position of prosecuting attorney shall become full-time.
(d) (1) The increased salaries to be paid to the county commissioners and the other elected county officials described in this subsection on and after the first day of July, two thousand two, are set out in subdivisions (5) and (7) of this subsection. Every county commissioner and elected county official in each county, whose term of office commenced prior to or on or after the first day of July, two thousand two, shall receive the same annual salary by virtue of legislative findings of extra duties as set forth in section one of this article.
(2) Before the increased salaries, as set out in subdivisions (5) and (7) of this subsection, are paid to the county commissioners and the elected county officials, the following requirements must be met:
(A) The auditor has certified that the proposed annual county budget for the fiscal year beginning the first days of July, two thousand two, has increased over the previous fiscal year in an amount sufficient for the payment of the increase in the salaries, set out in subdivisions (5) and (7) of this subsection, and the related employment taxes: Provided, That the auditor may not approve the budget certification for any proposed annual county budget containing anticipated receipts which are unreasonably greater or lesser than that of the previous year. For purposes of this subdivision, the term "receipts" does not include unencumbered fund balance or federal or state grants; and
(B) Each county commissioner or other elected official described in this subsection in office on the effective date of the increased salaries provided by this subsection who desires to receive the increased salary has prior to that date filed in the office of the clerk of the county commission his or her written agreement to accept the salary increase. The salary for the person who holds the office of county commissioner or other elected official described in this subsection who fails to file the written agreement as required by this paragraph shall be the salary for that office in effect immediately prior to the effective date of the increased salaries provided by this subsection until the person vacates the office or his or her term of office expires, whichever first occurs.
(3) If there is an insufficient projected increase in revenues to pay the increased salaries and the related employment taxes, then the salaries of that county's elected officials and commissioners shall remain at the level in effect at the time certification was sought.
(4) In any county having a tribunal in lieu of a county commission, the county commissioners of that county may be paid less than the minimum salary limits of the county commission for that particular class of the county.
(5) COUNTY COMMISSIONERS
Class I
$30,800

Class II
$30,250

Class III
$29,700

Class IV
$29,150

Class V
$28,600

Class VI
$23,650

Class VII
$23,100

Class VIII
$20,900

Class IX
$20,350

Class X
$16,500

(6) For the purpose of determining the salaries to be paid to the elected county officials of each county, the salaries for each county office by class, set out in subdivision (7) of this subsection, are established and shall be used by each county commission in determining the salaries of each of their county officials other than salaries of members of the county commission.
(7) OTHER ELECTED OFFICIALS
County
Circuit
Prosecuting

Sheriff Clerk
ClerkAssessor
Attorney

Class I
$37,400$46,200$46,200$37,400
$83,600

Class II
$36,850
$45,650$45,650$36,850$81,400

Class III
$36,575
$44,550
$44,550$36,575$79,200

Class IV
$36,300
$44,295$44,295$36,300$77,000

Class V
$36,025
$44,000$44,000$36,025$74,800

Class VI
$35,750
$41,250$41,250$35,750$49,500

Class VII
$35,475
$40,700$40,700$35,475$47,300

Class VIII
$35,200
$40,150$40,150$35,200$45,100

Class IX
$34,925
$39,600$39,600$34,925$41,800

Class X
$31,900
$35,200$35,200$31,900$38,500

(8) Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor or sheriff of a Class I through Class V county, inclusive, any assessor or any sheriff of a Class VI through Class IX county, inclusive, shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, may not be restricted on his or her outside activities during the remainder of the term for which he or she is elected.
(9) In the case of a county that has a joint clerk of the county commission and circuit court, the salary of the joint clerk shall be fixed in an amount twenty-five percent higher than the salary would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
(10) Any prosecuting attorney of a Class I through Class V county, inclusive, shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any county which under the prior provisions of this section was classified as a Class II county and elected to maintain a part-time prosecutor may continue to maintain a part-time prosecutor, until such time as the county commission, on request of the part-time prosecutor, approves and makes a finding, by proper order entered, that the prosecuting attorney shall devote full-time to his or her public duties. The county commission shall then compensate said prosecutor at the same salary as that of a prosecuting attorney in a Class V county: Provided, however, That any county which under the prior provisions of this section was classified as a Class II county and which did not elect to maintain a part-time prosecutor shall maintain a full-time prosecuting attorney and shall compensate said prosecuting attorney at the same salary as that of a prosecuting attorney in a Class V county: Provided further, That, until the first day of January, two thousand three, when a vacancy occurs in the office of prosecuting attorney prior to the end of a term, the county commission of a Class IV or Class V county may elect to allow the position to become part-time for the end of that term and thereafter the position of prosecuting attorney shall become full-time.
(e) Notwithstanding any provision of this code to the contrary, effective the first day of January, two thousand five, the prosecuting attorney of Mingo county shall become a part-time position with a salary as that of a prosecuting attorney in a class VI county.
(f) Notwithstanding any provision of this code to the contrary, the position of prosecuting attorney of Wetzel county shall be a part-time position regardless of the county's classification with the salary as that of a prosecuting attorney in a Class VI county."
And,
By amending the title of the bill to read as follows:
H. B. 2915 - "A Bill to amend and reenact section four, article seven, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to making the prosecuting attorney of Mingo county a part-time position; and making the Wetzel county prosecuting attorney to remain part-time; effective dates; and salaries."
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. 491), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Blair and Sobonya.
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 (H. B. 2915) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
[Clerk's Note: Following close examination by the Clerk and the Speaker, the foregoing bill was not enrolled due to inappropriate amendments thereto having been made, thereby creating technical deficiencies in the bill.]
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. 2961, Limiting idling of school bus engines for more than five minutes except for certain reasons.
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 section and inserting in lieu thereof the following:
"ARTICLE 12. SPECIAL STOPS REQUIRED.
§17C-12-7. Overtaking and passing school bus; penalties; signs and warning lights upon buses; removal of warning lights, lettering, etc., upon sale of buses; highways with separate roadways; limitation on idling.

(a) The driver of a vehicle, upon meeting or overtaking from either direction any school bus which has stopped for the purpose of receiving or discharging any school children, shall stop the vehicle before reaching such the school bus when there is in operation on said the school bus flashing warning signal lights, as referred to in section eight of this article, and said the driver shall not proceed until such the school bus resumes motion, or is signaled by the school bus driver to proceed or the visual signals are no longer actuated. This section applies wherever the school bus is receiving or discharging children including, but not limited to, any street, highway, parking lot, private road or driveway: Provided, That the driver of a vehicle upon a controlled access highway need not stop upon meeting or passing a school bus which is on a different roadway or adjacent to such the highway and where pedestrians are not permitted to cross the roadway. Any such driver acting in violation of this subsection is guilty of a misdemeanor and, upon conviction, thereof, shall be fined not less than fifty nor more than two hundred dollars, or imprisoned in the county jail not more than six months, or both fined and imprisoned. If the identity of the driver cannot be ascertained, then any such owner or lessee of the vehicle in violation of this subsection is guilty of a misdemeanor and, upon conviction, thereof, shall be fined not less than twenty-five nor more than one hundred dollars. Provided, however, That such The conviction shall not subject such the owner or lessee to further administrative or other penalties for said the offense, notwithstanding other provisions of this code to the contrary.
(b) Every bus used for the transportation of school children shall bear upon the front and rear thereof of the bus a plainly visible sign containing the words "school bus" in letters not less than eight inches in height. When a contract school bus is being operated upon a highway for purposes other than the actual transportation of children either to or from school, all markings thereon on the contract school bus indicating "school bus" shall be covered or concealed. Any school bus sold or transferred to another owner by a county board of education, agency or individual shall have all flashing warning lights disconnected and all lettering removed or permanently obscured, except when sold or transferred for the transportation of school children.
(c) The state board of education shall write a policy governing the idling of school buses."
And,

By amending the title of the bill to read as follows:
H. B. 2961 - "A Bill to amend and reenact section seven, article twelve, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to school buses generally; and requiring the state board of education develop a policy concerning idling of school buses."
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. 492), and there were--yeas 73, nays 26, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Blair, Border, Carmichael, DeLong, Ellem, Ennis, Evans, Hall, Hamilton, Hartman, Howard, Leggett, Louisos, Overington, Romine, Schadler, Schoen, Sobonya, Stalnaker, Sumner, Talbott, R. Thompson, R. M. Thompson, Walters, Webb and Yost.
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 (H. B. 2961) 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, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 3009, Excluding certain records from the freedom of information act that are collected in the interest of homeland security by governmental bodies.
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 section and inserting in lieu thereof the following:
"ARTICLE 1. PUBLIC RECORDS.
§29B-1-4. Exemptions.

(a) The following categories of information are specifically exempt from disclosure under the provisions of this article:
(1) Trade secrets, as used in this section, which may include, but are not limited to, any formula, plan pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors;
(2) Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance: Provided, That nothing in this article shall be construed as precluding an individual from inspecting or copying his or her own personal, medical or similar file;
(3) Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination;
(4) Records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement;
(5) Information specifically exempted from disclosure by statute;
(6) Records, archives, documents or manuscripts describing the location of undeveloped historic, prehistoric, archaeological, paleontological and battlefield sites or constituting gifts to any public body upon which the donor has attached restrictions on usage or the handling of which could irreparably damage such record, archive, document or manuscript;
(7) Information contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions, except those reports which are by law required to be published in newspapers; and
(8) Internal memoranda or letters received or prepared by any public body;
(9) Records assembled, prepared or maintained to prevent, mitigate or respond to terrorist acts or the threat of terrorist acts, the public disclosure of which threaten the public safety or the public health;
(10) Those portions of records containing specific or unique vulnerability assessments or specific or unique response plans, data, databases, and inventories goods or materials collected or assembled to respond to terrorist acts; and communication codes or deployment plans of law enforcement or emergency response personnel;
(11) Specific intelligence information and specific investigative records dealing with terrorist acts or the threat of a terrorist act shared by and between federal and international law-enforcement agencies, state and local law enforcement and other agencies within the department of military affairs and public safety;
(12) National security records classified under federal executive order and not subject to public disclosure under federal law that are shared by federal agencies, and other records related to national security briefings to assist state and local government with domestic preparedness for acts of terrorism;
(13) Computing, telecommunications and network security records, passwords, security codes or programs used to respond to or plan against acts of terrorism which may be the subject of a terrorist act;
(14) Security or disaster recovery plans, risk assessments, tests, or the results of those tests;
(15) Architectural or infrastructure designs, maps or other records that show the location or layout of the facilities where computing, telecommunications or network infrastructure used to plan against or respond to terrorism are located or planned to be located; and
(16) Codes for facility security systems; or codes for secure applications for such facilities referred to in subdivision (15), subsection (a) of this section.
(b) As used in subdivisions (9) through (16), subsection (a) of this section, the term 'terrorist act' means an act that is likely to result in serious bodily injury or damage to property or the environment and is intended to:
(1) Intimidate or coerce the civilian population;
(2) Influence the policy of a branch or level of government by intimidation or coercion;
(3) Affect the conduct of a branch or level of government by intimidation or coercion; or
(4) Retaliate against a branch or level of government for a policy or conduct of the government.
(c) Nothing in the provisions of subdivision (9) through (16), subsection (a) of this section, should be construed to make subject to the provisions of this chapter any evidence of an immediate threat to public health or safety unrelated to a terrorist act or the threat thereof which comes to the attention of a public entity in the course of conducting a vulnerability assessment response or similar activity."
And,

By amending the title of the bill to read as follows:
H. B. 3009 - "A Bill to amend and reenact section four, article one, chapter twenty-nine-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to excluding certain records from disclosure under the freedom of information act collected in response to and in preparation for terrorist acts or threats of terrorist acts; definitions; and exceptions."
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. 493), 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 (H. B. 3009) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 494), 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, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3009) 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, with amendments, a bill of the House of Delegates as follows:
H. B. 3050, Authorizing the county commission of Jefferson County to convey parcel of county-owned land to the Jefferson County fairgrounds
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:
"JEFFERSON COUNTY.
§1. County commission authorized to convey land to the Jefferson County Fair Association.

(a) The Legislature finds that:
(1) An adequate site is necessary for the citizens of Jefferson County to conduct a county fair to enable youth and adults to exhibit livestock, horticultural products, agricultural products and home economic skills;
(2) Transfers of property, real or personal, made by county commissions to any person, organization or corporation for the furtherance of county fair activities promotes the cultural and educational welfare of the public and, therefore, is a public purpose; and
(3) Transfers and conveyances of real property by county commissions are authorized without legislative approval, by article three, chapter seven of the code of West Virginia, as amended.
(b) Therefore, the Legislature declares that the county commission of Jefferson County is hereby authorized and empowered to transfer and convey unto the Jefferson County Fair Association the tract or parcel of land described in subsection (c), after the county commission of Jefferson County has approved such transfer and conveyance by a majority vote of the commission.
(c) The tract or parcel of land situate in Middleway District, Jefferson County, West Virginia, to the north of West Virginia County Route 15 (Leetown Road), approximately 0.5 mile east of its intersection with WV Co. Rte. 6, on the waters of Hopewell Run, more particularly described as follows:
Beginning at (200) a found No. 5 Capped Rebar (Shepp), corner in the line of the Jefferson County Volunteer Fireman Association (D.B. 346, P. 603) and to the Jefferson County Fair Association (D.B. 754, P. 48), thence leaving the Jefferson County Volunteer Fireman Association and with the Jefferson County Fair Association in part and finally with a 13.457 acre Lease Parcel of the Overseers of the Poor of Jefferson County (now the Jefferson County Commission, Lease recorded in D.B. 931, P. 581) N 650 00'00" W, 1367.26', passing (211) a Set No. 5 Capped Rebar at 931.09', corner to the above mentioned Lease Parcel, to (347) a Set No. 5 Capped Rebar, corner to the above mentioned Lease Parcel; thence again with the Lease Parcel S 260 58'25" W, 182.62', to (216) a Set No. 5 Capped Rebar, corner to the Lease Parcel and to the Jefferson County Solid Waste Authority (D.B. 778, P. 630), said corner being located N 260 58'25" E, 1183.82', from (472) a Set No. 5 Capped Rebar; thence leaving the Lease Parcel and with the Jefferson County Solid Waste Authority N 220 17'06" W, 166.82', to (38) a Found No. 5 Capped Rebar (Shepp) corner to the Jefferson County Solid Waste Authority (D.B. 778, P. 630) and to other lands of the Jefferson County Solid Waste Authority (D.B. 665., P. 201); thence with said other lands of the Jefferson County Solid Waste Authority (D.B. 665, P.201) N 320 53'05" E, 1147.92', to (34) a Found No. 5 Capped Rebar (Shepp), corner to the Jefferson County Solid Waste Authority (D.B. 665, P. 201) and to Tabb (D.B. 770, P. 581); thence with Tabb S 550 03'35" E, 1440.31', to (345) a Set No. 5 Capped Rebar, corner to Tabb and the aforementioned Jefferson County Volunteer Fireman Association, thence with the Jefferson County Volunteer Fireman Association S 300 34'53" W, 822.99', to (200) the Point of Beginning containing 32.145 acres, more or less, as surveyed by Appalachian Surveys of West Virginia, L.L.C., in May, 2001, and as shown on the Plat of Survey.
Being a part of the property conveyed to the Overseers of the Poor of Jefferson County (now the Jefferson County Commission), by deed of record in the office of the clerk of the county commission of Jefferson County in Deed Book 38 at page 24.
(d) Any proper conveyance made by the county commission of Jefferson County transferring ownership of the tract or parcel of land, described in subsection (c), to the Jefferson County Fair Association shall contain a provision that ownership of the tract or parcel of land, described in subsection (c), shall revert to the county commission of Jefferson County should the land cease to be used for the purpose of conducting a county fair."
And,
By amending the title of the bill to read as follows:
H. B. 3050 - "A Bill authorizing the county commission of Jefferson County to convey a parcel of county-owned land to the Jefferson County Fair Association after authorization by a majority vote of the county commission of Jefferson County; and requiring reversionary rights provision."
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. 495), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Sobonya and 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 (H. B. 3050) 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. 3084, Restructuring the support enforcement commission in the areas of membership, duties and powers.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page four, section one hundred two, line four, following the word "governor" by inserting the following proviso: "Provided, That no more than five members of the commission may belong to the same political party."
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. 496), 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 (H. B. 3084) 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. 3089, Modifying various requirements of financial institutions; notifying the real estate commission in certain circumstances.
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 eighteen, line sixty-nine, following the word "funds" by striking out the comma.
On page six, section eighteen, lines seventy-one and seventy-two, following "(f)" by striking out the comma and the words "section eighteen of this article" and inserting in lieu thereof the words "of this section".
On pages eight and nine, section twenty-two, line thirty-six, following the word "broker" and the period, by striking out the remainder of the bill.
And,
By amending the title of the bill to read as follows:
H. B. 3089 - "A Bill to amend and reenact sections eighteen and twenty-two, article forty, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to modifying the requirement that financial institutions which maintain a trust fund deposit account for real estate brokers notify the real estate commission if any checks drawn against the account are returned for any cause; providing that a financial institution is required to notify the real estate commission if any checks drawn against the trust fund account are returned for insufficient funds; removing criminal and civil penalties applicable to a financial institution if a trust fund account for a real estate broker fails to notify the real estate commission if any check drawn against the account is returned for insufficient funds."
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. 497), 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 Manchin.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3089) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Conference Committee Report Availability

At 11:00 a.m., the Clerk announced the availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 2122, Relating to medical professional liability generally.
Messages from the Senate

The House then proceeded to further consideration of H. B. 2847, making the law-enforcement agency that places a person under arrest responsible for that person's initial transportation to a regional or county jail, having been reported in earlier proceedings and postponed until this time.
The following Senate amendments were then reported by the Clerk:
On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 7. COMPENSATION OF ELECTED COUNTY OFFICIALS.
§7-7-13. Allowance for expenses of sheriff.
The county commission of every county having a population of thirty thousand or less as determined by the latest official census available and which, as provided in section two-a, article eight of this chapter, has directed the sheriff as jailer to feed prisoners shall, in addition to his or her compensation, allow to the sheriff for keeping and feeding each prisoner, other than federal prisoners or prisoners held under civil process as provided by law, not more than five dollars per day for each prisoner.
The limitation per day shall not include cost of personal service, bed or bedding, soaps and disinfectants and items of like kind, the cost of which shall be paid out of the allowance fixed by the county commission under the provisions of present law.
All supplies of whatever kind for keeping and feeding prisoners shall be purchased upon the requisition of the sheriff under rules and regulations prescribed by the county commission. At the end of each month the sheriff shall file with the county commission a detailed statement showing the name of each prisoner, date of commitment, date of discharge, the number of days in jail and an itemized statement showing each purchase and the cost for keeping and feeding prisoners.
The county commission of every county shall allow the actual and necessary expenses incurred by the sheriff in the discharge of his or her duties including, but not limited to, those incurred in arresting, pursuing or transporting persons accused or convicted of crimes and offenses; in the cost of law-enforcement and safety equipment; in conveying or transporting a prisoner from and to jail to participate in court proceedings; and in conveying or transferring any person to or from any state institution where he or she may be committed from his or her county, where the sheriff is authorized to convey or transfer the person: Provided, That the law-enforcement agency that places a person under arrest shall be responsible for the person's initial transportation to a regional or county jail, except where there is a preexisting agreement between the county and the political body the other law-enforcement agency serves. Any person transported to the regional jail as provided for by the provisions of this section shall, upon conviction for the offense causing his or her incarceration, pay the reasonable costs of the transportation. The money is to be collected by the court of conviction at the current mileage reimbursement rate. The county commission shall allow the actual and necessary expenses incurred in serving summonses, notices or other official papers in connection with the sheriff's office.
Every sheriff shall file monthly, under oath, an accurate account of all the actual and necessary expenses incurred by him or her, his or her deputies, assistants and employees in the performance and discharge of their official duties supported by verified accounts before reimbursement thereof shall be allowed by the county commission. Reimbursement, properly allowed, shall be made from the general county fund."
And,
By amending the title of the bill to read as follows:
H. B. 2847 - "A Bill to amend and reenact section thirteen, article seven, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the law- enforcement agency that places a person under arrest being responsible for the person's initial transportation to a regional or county jail, except where a transportation agreement exists between the other agency and the sheriff; and requiring convicted persons to pay cost of transportation."
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. 498), and there were--yeas 90, nays 8, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Blair, Border, Canterbury, Caruth, Duke, Faircloth and Hall.
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. 2847) 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 concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 191, Relating to state-chartered credit union converting to federal or another state charter,
S. B. 192, Relating to notice from certain bank holding companies,
Com. Sub. for S. B. 204, Relating to involuntary commitment generally,
Com. Sub. for S. B. 338, Establishing medicaid buy-in program for certain individuals with disabilities,
Com. Sub. for S. B. 354, Relating to operating or attempting to operate clandestine drug laboratory; penalty,
S. B. 388, Modifying requirements for titling and registration of imported vehicles,
S. B. 608, Allowing continuance of summary certificate of need reviews for proposed behavioral health services,
S. B. 626, Revising works act,
Com. Sub. for S. B. 651, Creating academy of science and technology,
And,
S. B. 652, Renaming Marion health care hospital John Manchin, Sr., health care center.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, to take effect from passage, of
Com. Sub. for S. B. 329, Authorizing miscellaneous agencies and boards to promulgate legislative rules,
And,
Com. Sub. for S. B. 583, Creating coal resource transportation road system.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, to take effect May 1, 2003, of
S. B. 105, Increasing tax on cigarettes.
A message from the Senate, by
The Clerk of the Senate, announced the concurrence by the Senate as to the effective date, from passage, of
Com. Sub. for S. B. 455, Authorizing retirement credit for public employment in another state,
And,
Com. Sub. for S. B. 387, Increasing time to perfect liens for certain debts.
Reordering of the Calendar

Delegate Staton announced that the Committee on Rules had transferred Com. Sub. for S. B. 372, on second reading, Special Calendar, to the House Calendar; and Com. Sub. for S. B. 206, Com. Sub. for S. B. 440 and S. B. 655 on third reading, House Calendar, to the Special Calendar.
Resolutions Introduced

Delegates Fleischauer, Amores, Beach, Caputo, Craig, Fragale, Hall, Hatfield, Hrutkay, Iaquinta, Kominar, Leach, Manchin, Morgan, Renner, Smirl, Susman, Trump and Warner offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 96 - "Requesting the Committee on Judiciary to conduct a study on misdemeanors, looking into the possibility of expungement of a criminal record for first-time nonviolent misdemeanor offenses, for employment purposes only, after a period of three years, in which no subsequent convictions have occurred."
Whereas, Many people have at one time or another committed an irresponsible and/or juvenile action; and
Whereas, The irresponsible and/or juvenile action may have had an unintended consequence of violating the laws of the State; and
Whereas, Many citizens who at one time committed a minor violation of the law have now become well respected, upstanding citizens of their communities; and
Whereas, A misdemeanor criminal conviction on their criminal record may hinder them from receiving financial aid, jobs and/or accepting positions that they would otherwise be more than qualified for and actually excel at; therefore, be it
Resolved by the Legislature of West Virginia:
The Legislature should explore the possibilities of expunging first offense convictions of nonviolent misdemeanors, for employment purposes only, after three years in which no subsequent convictions have occurred; and, be it
Further Resolved, That the Committee on Judiciary is hereby requested to study the benefits and possible downfalls that may be created by expunging first offense convictions of nonviolent misdemeanors, for employment purposes only, after three years in which no further convictions occurred; and, be it
Further Resolved, That the Committee on Judiciary 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 Committee on Judiciary.
Delegates Michael, Mezzatesta and Williams offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 98 - "Requesting the Joint Committee on Government and Finance to conduct a study to determine the means of best facilitating the creation of a new Water Quality Board and transferring the water quality standard rule-making authority from the Environmental Quality Board to the Water Quality Board."
Whereas, The Environmental Quality Board currently functions as an appellate body reviewing certain orders, permits or official actions of the Chief of Water Resources or the Director of the Department of Environmental Protection; and
Whereas, The Environmental Quality Board also functions as a rule-making body with authority to promulgate legislative rules setting standards of water quality which are applicable to both surface and ground waters of this State; and
Whereas, There is a pressing need to separate these joint, and sometimes conflicting, functions of the Environmental Quality Board to provide a more effective, efficient and equitable administration of water quality rules in this State; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the means of best facilitating the creation of a new Water Quality Board and transferring the water quality standard rule-making authority from the Environmental Quality Board to the Water Quality Board; and, be it
Further Resolved, That the Joint Committee on Government and Finance report two months prior 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.
Delegates Foster, Perdue, Leach, Long, Hatfield and Border offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 20 - "Proclaiming August 23rd as 'Health Unit Coordinators Day'."
Whereas, Health unit coordinators are valued members of the health care team, and the demand for this profession continues to grow; and
Whereas, Continued advances in medicine, along with the increasing demands of this profession, have encouraged the growth and expansion of the unit coordinator's responsibilities; and
Whereas, These responsibilities include; setting up hospital patient charts, ordering lab tests and x-rays, transcribing physician orders and performing other functions -- all in order to keep their units running smoothly while serving patients and physicians; and
Whereas, With these multifaceted ranges of expertise, health unit coordinators are employed in essential medical areas in; hospitals, nursing homes, home health care agencies, hospital admitting and medical records departments, clinics and physician offices; and
Whereas, In 1980, as a direct result of this growing profession, the National Association of Health Unit Coordinators (NAHUC) was founded; and
Whereas, The mission of the National Association of Health Unit Coordinators is to promote health unit coordinating as a profession through education, certification, compliance with the NAHUC Standards of Practice, Standards of Education and a Code of Ethics; and
Whereas, Each year since the Association's establishment, August 23rd has been declared Health Unit Coordinators Day by mayors, governors, senates and assemblies of many states across the nation, and the U.S. Senate and House of Representatives; and
Whereas, It is the House of Delegates desire and intention to promote NAHUC's goals by declaring a day of recognition in honor of health unit coordinators; therefore, be it
Resolved by the House of Delegates:
That the West Virginia House of Delegates hereby designates August 23rd as "Health Unit Coordinators Day"; and, be it
Further Resolved, That the House of Delegates hereby requests that the Governor of West Virginia issue a proclamation declaring August 23, of each respective year, officially as "Health Unit Coordinators Day"; 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, the President of the State Senate and the President of the National Association of the Health Unit Coordinators.
Mr. Speaker, Mr. Kiss, and Delegates Ennis, Browning, R. M. Thompson, Manchin and Swartzmiller offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 21 - "Supporting West Virginia men and women of the Air and Army National Guard and the Army, Navy and Marine Reserves participating in homeland and international operations."
Whereas, Since the terrorist attack on the World Trade Center on September 11, 2001, members of the West Virginia Air and Army National Guard and the Navy, Army and Marine Reserves have been activated to assist in international and homeland operations; and
Whereas, Nationwide, 176,553 guard and reserve units have been called up to support Operation Noble Eagle, the domestic security campaign and Operation Enduring Freedom, the campaign outside U.S. Borders; and
Whereas, According to the U.S. Department of Defense and state records, nearly 2,400 West Virginia National Guard and Army and Navy Reserve units are now on active duty; and
Whereas, These units called to active duty include the; 38th Ordnance Ammo Unit, 1092nd Engineer, 130th Airlift Wing, 156th Military Police, 157th Military Police, 167th Airlift Wing, 1863rd Truck Company, 261st Ordnance Company 1 Platoon Medical Lifort, 261st Ordnance Company Detachment 1, 261st Ordnance Company Detachment 2, 2nd Special Forces Battalion 19th Special Forces Group 1st Special Forces, 300th Chemical Company, 304th Military Police, 321st Ordnance Battalion Headquarters and Headquarters Company, 351st Ordnance Company, 363rd Military Police Company, 459th Engineer Company Detachment 3, 459th Engineer Company Heavy Boat, 811th Ordnance Company, Fleet Maintenance Detachment 0202, National Guard Special Operations Detachment 105, Special Operations Detachment 3, Special Operations Detachment E, Special Operations Europe Forward 2 and the State Command National Guard; and
Whereas, Four more units have recently been given their mobilization orders to be deployed on March 15th - - those being the 111th Engineer Group (88 troops), 119th Engineer Company (159 troops), 152nd Military Police Detachment (45 troops) and the 1257th Transportation Company (167 troops), 459 additional soldiers in total; and
Whereas, Currently, two more units (557 troops) are poised to be placed on active duty; and
Whereas, The dedication and sacrifices which these men and women are exercising in this ongoing effort will never be forgotten; therefore, be it
Resolved by the House of Delegates:
That the West Virginia House of Delegates does hereby support the West Virginia men and women in the Air and Army National Guard and the Army, Navy and Marine Reserves who are participating in homeland and international operations; and, be it
Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this Resolution to the Governor, the Secretary of Military Affairs and Public Safety and the Adjutant General of the West Virginia National Guard.
Petitions

Delegate Pethtel presented a petition, signed by four hundred seventy-six residents of Wetzel County, in support of S. B. 56 and H. B. 2142, prohibiting insurers from requiring persons covered under a contract to obtain prescription drugs from a mail-order pharmacy under certain circumstances; which was referred to the Committee on Banking and Insurance.
Consent Calendar

Third Reading

Com. Sub. for S. B. 162, Expunging certain motor vehicle license information for nineteen-year-olds; on third reading, coming up in regular order, was reported by the Clerk.
The Clerk announced that, pursuant to House Rule 70a, Delegate Mezzatesta had requested Com. Sub. for S. B. 162 be removed from the Consent Calendar and be placed upon the House Calendar.
The following bills on third reading, coming up in regular order, were each read a third time:
S. B. 357, Relating to standard non-forfeiture law for individual deferred annuities,
Com. Sub. for S. B. 422, Allowing public service commission to change certain rates for municipalities or cooperative utilities,
Com. Sub. for S. B. 424, Authorizing commissioner of corrections to consent to transfer of convicted offenders under federal treaty; informed consent,
S. B. 436, Directing public service commission implement 211 information and referral system,
And,
Com. Sub. for S. B. 437, Requiring joint committee on government and finance approve certain acquisitions, construction and long-term agreements.
Com. Sub. for S. B. 467, Allowing insurance agencies to operate as managing general agents; other provisions; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
The Clerk announced that, pursuant to House Rule 70a, Mr. Speaker, Mr. Kiss, had requested Com. Sub. for S. B. 467 be removed from the Consent Calendar and be placed upon the House Calendar.
The following bills on third reading, coming up in regular order, were each read a third time:
S. B. 486, Requiring certified public accountant to notify insurer's board or audit committee of adverse financial condition,
S. B. 493, Eliminating certain administrative duties of commissioner of agriculture
Com. Sub. for S. B. 534, Creating Third-Party Administrator Act,
S. B. 538, Allowing supplemental assessment of personal property in certain cases,
S. B. 589, Relating to common interest communities and condominiums; restrictive covenants,
S. B. 605, Establishing Community Improvement Act,
Com. Sub. for S. B. 611, Defining podiatric medical assistants; other provisions,
S. B. 627, Renaming Guthrie Center Gus R. Douglass Agricultural Center,
S. B. 635, Clarifying foster care services in relation to behavioral health,
S. B. 649, Relating to use of waste tire remediation funds,
And,
S. B. 657, Relating to capitol company act.
On the passage of the bills, the yeas and nays were taken (Roll Nos. 499-516), 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 present and voting having voted in the affirmative, the Speaker declared the bills (S. B. 357, Com. Sub. for S. B. 422, Com. Sub. for S. B. 424, S. B. 436, Com. Sub. for S. B. 437, S. B. 486, S. B. 493, Com. Sub. for S. B. 534, S. B. 538, S. B. 589, S. B. 605, Com. Sub. for S. B. 611, S. B. 627, S. B. 635, S. B. 649 and S. B. 657) passed.
An amendment to the title of Com. Sub. for S. B. 437, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 437 - "A Bill to amend and reenact section four, article six, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section forty, article three, chapter five-a of said code, all relating to state interest in real property; requiring presentation of certain information to the joint committee on government and finance; tax exemption not affected by lease-backs; exemptions available to private entity who is a party to the leaseback; lease-backs to be considered public improvements; and personal liability of a private entity who is a party to a leaseback."
An amendment to the title of S. B. 538, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 538 - "A Bill to amend and reenact section five, article three, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to allowing a supplemental assessment on personal property when personal property has been omitted from the recordbooks."
An amendment to the title of S. B. 605, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 605 - "A Bill to amend article twenty-four, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto two new section, designated sections eighty-six and eighty-seven; and to amend chapter sixteen of said code, by adding thereto a new article, designated article thirteen-e, all relating to expanding funding methods for community improvement generally; authorizing the use of voluntary proffers through zoning ordinance; providing enforcement mechanism for proffers; authorizing the creation of and empowerment of community improvement districts; providing for the development, construction, acquisition, financing, extension and improvement of projects; providing for notice to owners of real property of assessments; authorizing the issuance of assessment bonds; and providing for assessments and liens related thereto."
An amendment to the title of Com. Sub. for S. B. 611, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 611 - "A Bill to amend and reenact sections two, six, nine and ten, article twenty-three, chapter thirty of the code of West Virginia, one thousand nine hundred thirty- one, as amended; and to further amend said article by adding thereto two new sections, designated sections six-a and six-b, all relating to licenses and permits issued by the board of radiologic technologists; defining podiatric medical assistants; establishing the requirement of a permit to perform podiatric radiographs and eligibility criteria therefor; restricting the scope of practice under such permit; and requiring the promulgation of legislative rules."
On motion of Delegate Amores, the title of S. B. 657 was amended to read as follows:
S. B. 657 - "A Bill to amend and reenact section eight, article one, chapter five-e of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to reducing the total tax credits available under the capital company act during the fiscal year beginning on the first day of July, two thousand three."
Delegate Staton moved that Com. Sub. for S. B. 424 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 517), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman, Hartman, Renner and Wakim.
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. 424) takes effect from its passage.
Delegate Staton moved that S. B. 538 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 518), 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, Renner and Wakim.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 538) takes effect from its passage.
Delegate Staton moved that S. B. 635 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 519), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, 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. 635) 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 on those bills requiring the same. Delegate Manchin announced that he was absent earlier when the vote was taken on Roll No. 497, and that had he been present, he would have voted "Yea" thereon.
Second Reading

S. B. 95, Increasing length and width for certain 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 four, section four, at the end of line twenty-seven, by striking out the word "provided", and inserting in lieu thereof the word "if",
And,
On page five, section four, line thirty-one, by striking out the word "sixty-five" and inserting in lieu thereof the word "seventy-five".
The bill was then ordered to third reading.
Com. Sub. for S. B. 109, Notifying third party of entry of order affecting child's care and education; on second reading, coming up in regular order, was read a second time.
The Clerk announced that, pursuant to House Rule 70a, Delegate Trump had requested Com. Sub. for S. B. 109 be removed from the Consent Calendar and be placed upon the House Calendar.
Com. Sub. for S. B. 178, Relating to subject matter jurisdiction in family courts; on second reading, coming up in regular order, was read a second time.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed until the completion of all items remaining on the Consent Calendar, second reading.
S. B. 186, Defining aggrieved person for purposes of board of zoning appeals; on second reading, coming up in regular order, was read a second time.
The Clerk announced that, pursuant to House Rule 70a, Delegate Doyle had requested S. B. 186 be removed from the Consent Calendar and be placed upon the House Calendar.
S. B. 341, Creating Uniform Interstate Enforcement of Domestic Violence Protection Orders Act; 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 language:
"ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-310. Full faith and credit.
Any protective order issued pursuant to this article shall be effective throughout the state in every county. Any protective protection order issued by any other state territory or possession of the United States, Puerto Rico, the District of Columbia or Indian tribe of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States or any Indian tribe or band that has jurisdiction to issue protection orders shall be accorded full faith and credit and enforced as if it were an order of this state whether or not such relief is available in this state. A protective order from another jurisdiction is presumed to be valid if the order appears authentic on its face and shall be enforced in this state. If the validity of the order is contested, the court or law enforcement to which the order is presented shall, prior to the final hearing, determine the existence, validity and terms of such order in the issuing jurisdiction. A protective order from another jurisdiction may be enforced even if the order is not entered into the state law-enforcement information system described by 27-802 in accordance with the provisions of section five, article twenty-eight of this chapter.
§48-27-802. Maintenance of registry by state police.
(a) The West Virginia state police shall maintain a registry in which it shall enter certified copies of protective orders entered by courts from every county in this state pursuant to the provisions of this article or from other jurisdictions and of protection orders issued by another jurisdiction pursuant to their laws its law: Provided, That the provisions of this subsection are not effective until a central automated record state law-enforcement information system is developed.
(b) A petitioner who obtains a protective order pursuant to this article, or a protection order from another jurisdiction pursuant to its law, may register that order in any county within this state where the petitioner believes enforcement may be necessary.
(c) A protective order may be registered by the petitioner in a county other than the issuing county by obtaining a copy of the order of the issuing court, certified by the clerk of that court, and presenting that certified order to the local office of the West Virginia state police where the order is to be registered.
(d) Upon receipt of a certified order for registration, the local office of the West Virginia state police shall provide certified copies to any law-enforcement agency within its jurisdiction, including the city any municipal police office and the county sheriff's office of the sheriff.
(e) Nothing in this section precludes the enforcement of an order in a county other than the county or jurisdiction in which the order was issued if the petitioner has not registered the order in the county in which an alleged violation of the order occurs.
§48-27-903. Misdemeanor offenses for violation of protective order, repeat offenses, penalties.
(a) A respondent who abuses the petitioner or minor children or who is physically present at any location in knowing and willful violation of the terms of an : (1) An emergency or final protective order issued under the provisions of this article; or (2) an order for relief pending a divorce action issued pursuant to section 5-509 five hundred nine, article five of this chapter; granting the relief pursuant to the provisions of this article (3) a condition of bail pursuant to the provisions of section seventeen-c, article one-c, chapter sixty-two of this code, or (4) a condition of parole or probation which restricts contact between the parolee or probationer and a member of the parolee's or probationer's family pursuant to the provisions of subsection four, section nine or subsection four, section seventeen of article twelve, chapter sixty-two of this code or any arrest or conviction related to violence against a family member or arrest or conviction related to the crime of stalking as defined in section nine-a, article 2, chapter sixty-one of this code is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred fifty dollars nor more than two thousand dollars.
(b) When a A respondent previously convicted of the offense described in who is convicted of a second or subsequent offense under subsection (a) of this section or who abuses the petitioner or minor children or is physically present at any location in knowing and willful violation of the terms of a temporary or final protective order issued under the provisions of this article, the respondent is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars. or both
ARTICLE 28. UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE PROTECTION ORDERS ACT.

§48-28-1. Title.
This article may be cited as the 'Uniform Interstate Enforcement of Domestic Violence Protection Orders Act'.
§48-28-2. Definitions.
In this article:
(1) 'Court' means a circuit court, family court or magistrate court which has jurisdiction over domestic violence proceedings pursuant to article twenty-seven of this chapter.
(2) 'Foreign protection order' means a protection order issued by a tribunal of another state.
(3) 'Issuing state' means the state whose tribunal issues a protection order.
(4) 'Mutual foreign protection order' means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent.
(5) 'Protected individual' means an individual protected by a protection order.
(6) 'Protection order' means an injunction or other order, issued by a tribunal under the domestic violence, family violence or antistalking laws of the issuing state, to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to, another individual.
(7) 'Protective order' means an order issued pursuant to article twenty-seven of this chapter or to section five hundred nine, article five of this chapter.
(8) 'Respondent' means the individual against whom enforcement of a protection order is sought.
(9) 'State' means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders.
(10) 'Tribunal' means a court, agency or other entity authorized by law to issue or modify a protection order.
§48-28-3. Judicial enforcement of order.
(a) A person authorized by the law of this state to seek enforcement of a protective order may seek enforcement of a valid foreign protection order in a court of this state. The court shall enforce the terms of the order, including terms that provide relief that a court of this state would lack power to provide but for this section. The court shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it is an order issued in response to a complaint, petition or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the court shall follow the procedures of this state for the enforcement of protective orders.
(b) A court of this state may not enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.
(c) A court of this state shall enforce the provisions of a valid foreign protection order which govern custody and visitation if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state or under federal law and with the requirements set out in subsection (d) of this section.
(d) A foreign protection order is valid if it:
(1) Identifies the protected individual and the respondent;
(2) Is currently in effect;
(3) Was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and
(4) Was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and has had or will have an opportunity to be heard within a reasonable time after the order was issued, in a manner consistent with the respondent's rights to due process of law.
(e) A foreign protection order which appears authentic on its face is presumed to be valid.
(f) Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.
(g) A court of this state may enforce provisions of a mutual foreign protection order which favor a respondent only if:
(1) The respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and
(2) The tribunal of the issuing state made specific findings in favor of the respondent.
§48-28-4. Nonjudicial enforcement of order.
(a) A law-enforcement officer of this state, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were a protective order of a court of this state. Presentation of a foreign protective order that identifies both the protected individual and the respondent and that appears, on its face, to be authentic and currently in effect constitutes probable cause to believe that a valid foreign protection order exists. For the purposes of this section, the protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protection order is not required for enforcement.
(b) If a foreign protection order is not presented, a law-enforcement officer of this state may consider other credible information in determining whether there is probable cause to believe that a valid foreign protection order exists.
(c) If a law-enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
(d) Registration or filing of an order in this state is not required for the enforcement of a valid foreign protection order pursuant to this article.
§48-28-5. Registration of order.
(a) Any individual may register a foreign protection order in this state by:
(1) Presenting a certified copy of the order to a local office of the West Virginia state police for registration in accordance with the provisions of section eight hundred two, article twenty-seven of this chapter; or
(2) Presenting a certified copy of the order to the clerk of the court in which enforcement may be sought and request that the order be forwarded to the West Virginia state police for registration in accordance with the provisions of section eight hundred two, article twenty-seven of this chapter.
(b) An individual registering a foreign protection order shall file an affidavit by the protected individual stating that, to the best of the protected individual's knowledge, the order is currently in effect.
(c) Upon receipt of a foreign protection order for registration, the local office of the West Virginia state police shall:
(1) Provide certified copies of the order to any law-enforcement agency within its jurisdiction, including any municipal police office and the office of the sheriff;
(2) Register the order in accordance with the provisions of this section and of section eight hundred two, article twenty-seven of this chapter;
(3) Furnish to the individual registering the order a certified copy of the registered order.
(d) A registered foreign protection order that is shown to be inaccurate or not currently in effect must be corrected or removed from the registry.
(e) A foreign protection order registered under this article may be entered in any existing state or federal registry of protection orders in accordance with applicable law.
(f) A fee may not be charged for the registration of a foreign protection order.
§48-28-6. Immunity.
This state or a local governmental agency, or a law-enforcement officer, prosecuting attorney, clerk of court or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission was done in good faith in an effort to comply with this article.
§48-28-7. Criminal offenses and penalties.
(a) A respondent who abuses, as that term is defined in section two hundred two, article twenty-seven of this chapter, a protected individual or who is physically present at any location in knowing and willful violation of the terms of: (1) a valid foreign protection order; (2) a protective order entered in any pending foreign divorce action which enjoins the offending party from molesting or interfering with another party, or interfering with the custodial or visitation rights of the other person; or (3) a condition of bail, parole or probation imposed in any state with regard to cases of crimes against family or household members or in regard to the crime of stalking, when such condition restricts contact between the offender and the victim or between the offender and members of the victim's family or the offender's family is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred fifty dollars nor more than two thousand dollars.
(b) A respondent who is convicted of a second or subsequent offense under subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars.
§48-28-8. Other remedies.
A protected individual who pursues remedies under this article is not precluded from pursuing other legal or equitable remedies against the respondent.
§48-28-9. Uniformity of application and construction.
In applying and construing this act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§48-28-10. Transitional provision.
This article applies to:
(a) Foreign protection orders issued before the effective date of this article; and
(b) Continuing actions for enforcement of foreign protection orders commenced before the effective date of this article. A request for enforcement, made on or after the effective date of this article, of a foreign protective order based on violations which occurred before the effective date of this article is governed by this article."
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:
S. B. 356, Relating to insurance company holding systems and federal Gramm-Leach-Bliley Act,
S. B. 358, Relating to re-domestication of domestic insurance companies
Com. Sub. for S. B. 364, Strengthening multi-disciplinary treatment team process for children involved in court system,
Com. Sub. for S. B. 412, Eliminating landlord liability for tenant's delinquent utility accounts; security deposits,
Com. Sub. for S. B. 432, Deleting provision requiring magistrates to set payment plans in certain cases,
Com. Sub. for S. B. 453, Establishing domestic violence fatality review team,
And,
S. B. 484, Providing for rate regulation of title insurers.
The Clerk announced that, pursuant to House Rule 70a, Delegate Trump had requested S. B. 484 be removed from the Consent Calendar and be placed upon the House Calendar.
S. B. 485, Authorizing insurance commissioner to enter into certain agreements and compromises; 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 language:
"ARTICLE 43. INSURANCE TAX PROCEDURES ACT.
§33-43-4a. Agreements and compromises.
(a) Prior to commencing any civil action, the commissioner may compromise any claim relating to the liability of a person with respect to any tax, including any surcharge, interest, additional tax, fee, fine or penalty, administered by the commissioner under this chapter for any taxable period. The following conditions apply to any agreement entered into under this subsection:
(1) The agreement must be in writing;
(2) In the absence of a showing of fraud, malfeasance or misrepresentation of a material fact, then:
(A) The agreement shall be final and conclusive;
(B) The agreement and the matters so agreed upon shall not be reopened or the agreement modified by any officer, employee or agent of this state; and,
(C) In any civil action or administrative proceeding, the compromise agreement or any determination, assessment, collection, payment, abatement, refund or credit made in accordance therewith may not be annulled, modified, set aside or disregarded.
(b) The commissioner may compromise all or part of any civil case arising under the provisions of this article. The following conditions apply to any agreement entered into under this subsection:
(1) Any liability for tax, including any surcharge, interest, additional tax, fee, fine or penalty, may be compromised upon consideration of the terms and conditions of the compromise agreement in light of any or all of the following:
(A) Doubt as to liability;
(B) Doubt as to the ability to collect;
(C) Strength of the taxpayer's defenses to the assessment of the tax, surcharge, interest, additional tax, fee, fine or penalty;
(D) Age of the dispute;
(E) The anticipated time and resources which will be required to develop the civil action for adjudication; and
(F) Any other factors relevant to the determination of whether citizens of the state of West Virginia are best served by entering into a compromise agreement.
(2) In all matters involving issues in respect of a tax liability in controversy of fifteen thousand dollars or more for one or all of the years involved in claim or case, the commissioner shall seek the written recommendation of the attorney general before entering into the compromise agreement. The written recommendation of the attorney general shall be placed in the commissioner's file.
(c) Whenever a compromise agreement is made by the commissioner under subsection (a) or (b) of this section, there shall be placed on file in the commissioner's office an opinion from the commissioner's legal counsel. The opinion must include the following:
(1) The amount of tax, surcharge, additional tax, fee and interest assessed;
(2) The anticipated fine or penalty imposed by law on the person against whom the tax, surcharge, additional tax, fee and interest was assessed; and
(3) The amount actually paid in accordance with the terms of the compromise agreement;
(4) The reasons underlying the decision to enter into a compromise agreement: Provided, That the requirements of this subsection do not apply with respect to any agreement in which the amount of the tax assessed, including any surcharge, interest, additional tax, fee, fine or penalty, is less than one thousand dollars.
(d) Report to Legislature. -- The commissioner shall submit to the speaker of the House of Delegates, the president of the Senate and the legislative auditor a quarterly report summarizing the issues and amounts of liabilities contained in the agreements and compromises into which he or she has entered pursuant to this section. The report shall be in a form which preserves the confidentiality of the identity of the taxpayers involved in the agreements and compromises. Notwithstanding any other provision of law to the contrary, the agreements and compromises entered into pursuant to this section shall be subject to audit, in their entirety, by the legislative auditor."
The bill was then ordered to third reading.
S. B. 488, Establishing minimum surplus for farmers' mutual fire insurance companies; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 494, Regulating fees between cemeteries, certain companies and veterans for setting grave markers; 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 one, line eleven, by striking out the words "to be" and inserting in lieu thereof the word "as".
On page three, section two, line twelve, by striking out the words "regional perpetual care fees" and inserting in lieu thereof the words "permanent endowment care fund".
On page three, section two, line thirteen, following the first word "the", by striking out the word "initial" and inserting in lieu thereof the word "perpetual".
And,
On page three, section two, line sixteen, following the word "the", by inserting the word "veteran".
The bill was then ordered to third reading.
Com. Sub. for S. B. 628, Requiring farmers' mutual fire insurance companies to write certain percentage in under-served areas; penalty; on second reading, coming up in regular order, was read a second time.
The Clerk announced that, pursuant to House Rule 70a, Delegate Frich had requested Com. Sub. for S. B. 628 be removed from the Consent Calendar and be placed upon the House Calendar.
S. B. 654, Extending supervision for certain sex offenders; 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 twenty-five, line six, following the word "chapter", by striking out the word "shall" and inserting in lieu thereof the word "may".
Delegate Faircloth then moved to amend the bill on page six, section twenty-five, line eighty- two, following the period by inserting a new subsection, designated subsection (g) to read as follows:
"(g) The court shall further direct the probation officer to notify the family law judge and the family law judge shall give consideration as it relates to the protection of a child or children when a defendant is a petitioner or respondent in matters relating to the issue of visitation or custody. The family law judge may, in his or her discretion, limit or terminate parental custody or visitation when there is a risk of harm to the child."
On the adoption of the amendment, Delegate Faircloth demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 520), and there were--yeas 34, nays 65, absent and not voting 1, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Cann, Canterbury, Carmichael, Duke, Ellem, Evans, Faircloth, Fragale, Frich, Hall, Hartman, Hatfield, Howard, Leggett, Louisos, Manuel, Schadler, Sobonya, Spencer, Susman, Talbott, Trump, Wakim, Walters, Webb, G. White and Yost.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.
The bill was then ordered to third reading.
The House then proceeded to further consideration of Com. Sub. for S. B. 178, relating to subject matter jurisdiction in family courts, having been read a second time in earlier proceedings and postponed until this 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:
"CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 25. CHANGE OF NAME.
§48-25-101. Petition to circuit court or family court for change of name; contents thereof; notice of application.

(a) Any person desiring a change of his or her own name, or that of his or her child or ward, may apply therefor to the circuit court or any other court of record having jurisdiction family court of the county in which he or she resides, or the judge thereof in vacation, by petition setting forth:
(1) that That he or she has been a bona fide resident of such the county for at least one year prior to the filing of the petition,;
(2) the The cause for which the change of name is sought,; and
(3) the The new name desired;. and
(b) previous Previous to the filing of such the petition such the person shall cause to be published a notice of the time and place that such the application will be made, which notice shall to be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code,. and the The publication area for such the publication shall be is the county.
CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 2A. FAMILY COURTS.
§51-2A-2. Family court jurisdiction; exceptions; limitations.
(a) The family court shall exercise jurisdiction over the following matters:
(1) All actions for divorce, annulment or separate maintenance brought under the provisions of article three, four or five, chapter forty-eight of this code except as provided in subsections (b) and (c) of this section;
(2) All actions to obtain orders of child support brought under the provisions of part one, article fourteen, chapter forty-eight of this code articles eleven, twelve and fourteen, chapter forty- eight of this code;
(3) All actions to establish paternity brought under the provisions of article twenty-four, chapter forty-eight of this code and any dependent claims related to such actions regarding child support, parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child;
(4) All actions for grandparent visitation brought under the provisions of article ten, chapter forty-eight of this code;
(5) All actions for the interstate enforcement of family support brought under article sixteen, chapter forty-eight of this code and for the interstate enforcement of child custody brought under the provisions of article twenty, chapter forty-eight of this code;
(6) All actions for the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, including actions brought under the uniform child custody jurisdiction and enforcement act, as provided in article twenty, chapter forty- eight of this code;
(7) All petitions for writs of habeas corpus wherein the issue contested is custodial responsibility for a child;
(8) All motions for temporary relief affecting parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child, child support, spousal support or domestic violence;
(9) All motions for modification of an order providing for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child or for child support or spousal support;
(10) All actions brought, including civil contempt proceedings, to enforce an order of spousal or child support or to enforce an order for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child;
(11) All actions brought by an obligor to contest the enforcement of an order of support through the withholding from income of amounts payable as support or to contest an affidavit of accrued support, filed with the circuit clerk, which seeks to collect an arrearage; and
(12) All final hearings in domestic violence proceedings;
(13) Petitions for a change of name, exercising concurrent jurisdiction with the circuit court;
(14) All proceedings for payment of attorney fees if the family court judge has jurisdiction of the underlying action;
(15) All proceedings for property distribution brought under article seven, chapter forty-eight of this code; and
(16) All proceedings to obtain spousal support brought under article eight, chapter forty-eight of this code.
(b) If an action for divorce, annulment or separate maintenance does not require the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child and does not require an award or any payment of child support, the circuit court has concurrent jurisdiction with the family court over the action if, at the time of the filing of the action, the parties also file a written property settlement agreement executed by both parties.
(c) If an action for divorce, annulment or separate maintenance is pending and a petition is filed pursuant to the provisions of article six, chapter forty-nine of this code alleging abuse or neglect of a child by either of the parties to the divorce, annulment or separate maintenance action, the orders of the circuit court in which the abuse or neglect petition is filed shall supercede and take precedence over an order of the family court respecting the allocation of custodial and decision- making responsibility for the child between the parents. If no order for the allocation of custodial and decision-making responsibility for the child between the parents has been entered by the family court in the pending action for divorce, annulment or separate maintenance, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility for the child between the parents and defer to the orders of the circuit court in the abuse or neglect proceedings.
(d) A family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction of the family court is specifically authorized in this section and in chapter forty-eight of this code. A family court may not exercise the powers given courts of record in section one, article five, chapter fifty-one of this code or exercise any other powers provided for courts of record in this code unless specifically authorized by the Legislature. A family court judge is not a 'judge of any court of record' or a 'judge of a court of record' as the terms are defined and used in article nine of this chapter."
The bill was then ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bills on Second Reading, Consent Calendar, to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 521-534), 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, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
S. B. 95, Com. Sub. for S. B. 178, S. B. 341, S. B. 356, S. B. 358, Com. Sub. for S. B. 364, Com. Sub. for S. B. 412, Com. Sub. for S. B. 432, Com. Sub. for S. B. 453, S. B. 485, S. B. 488, Com. Sub. for S. B. 494 and S. B. 654, now on third reading, coming up in regular order, were each read a third time and put upon their passage.
On the passage of the bills, the yeas and nays were taken (Roll Nos. 535-548), 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 bills (S. B. 95, Com. Sub. for S. B. 178, S. B. 341, S. B. 356, S. B. 358, Com. Sub. for S. B. 364, Com. Sub. for S. B. 412, Com. Sub. for S. B. 432, Com. Sub. for S. B. 453, S. B. 485, S. B. 488, Com. Sub. for S. B. 494, and S. B. 654) passed.
An amendment to the title of S. B. 95, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 95 - "A Bill to amend and reenact sections two, three and four, article seventeen, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the size, weight and load of vehicles; increasing the maximum length and width of certain vehicles; increasing the maximum length of the combination of certain vehicles coupled together; allowing commissioner to increase combination vehicle length; and mandating that the commissioner annually publish a map designating state highways and various maximum vehicle lengths pertinent thereto."
On motion of Delegate Amores, the title of S. B. 485 was amended to read as follows:
S. B. 485 - "A Bill to amend article forty-three, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section four-a, relating to the granting of authority to the insurance commissioner to enter into agreements and compromises relating to taxes, interest, penalties and other charges; and imposing conditions upon such authority."
Delegate Staton moved that Com. Sub. for S. B. 364 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 549), 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 Fleischauer.
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. 364) 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 on those bills requiring the same.
At 12:20 p.m., on motion of Delegate Staton, the House of Delegates recessed until 12:35 p.m., and reconvened at that time.
* * * * * * * * * *

Special Calendar

Unfinished Business

S. C. R. 34, Requesting Joint Committee on Government and Finance study administration of estates; 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.
S. C. R. 42, Requesting Joint Committee on Government and Finance study retirement programs for certain employees; 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. 50, Naming the bridge crossing the West Fork River at Enterprise in Harrison County, West Virginia, the "Corporal Jerry Lee Halpenny and PFC Michael Alonzo Wells 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. 62, Studying if working cooperatively with providers of HUD housing would decrease the unnecessary institutionalization of elderly individuals; 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.
Com. Sub. for H. C. R. 81, Requesting a study of the cost and effectiveness of the medicaid program preferred drug list; 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.
Third Reading

Com. Sub. for S. B. 206, Authorizing aides to supervise students in in-school suspensions; limitation; on third reading, coming up out of regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 550), and there were--yeas 94, nays 1, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Hrutkay.
Absent And Not Voting: Coleman, Ferrell, Perry, Shelton and Talbott.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 206) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 206 - "A Bill to amend and reenact section one, article eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to compulsory school attendance; technical amendments; home school exemption; amending requirements to qualify for home school exemption; amending assessment requirements of home school exemption; and eliminating exemption relating to residence more than two miles from school or school bus route."
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. 340, Permitting county commissions to establish different building requirements in flood-plain for insurance purposes; on third reading, was taken up out of regular order and reported by the Clerk.
Delegate Beane asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading.
Delegates Doyle and Beane moved to amend the bill on page two, line three, following the word "annexation" by striking out the period and inserting in lieu thereof a colon and the words:
"Provided, That this requirement does not apply when the area to be annexed is exclusively residential."
On the adoption of the amendment, Delegate Poling demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 551), and there were--yeas 80, nays 19, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Browning, Butcher, Duke, Frederick, Hamilton, Iaquinta, Kuhn, Leggett, Martin, Perdue, Poling, Romine, Spencer, R. Thompson, Tucker, Walters, Webb and Yeager.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.
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. 552), and there were--yeas 90, nays 8, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Caruth, Duke, Evans, Frederick, Manuel, Schadler, Tucker and Yeager.
Absent And Not Voting: Coleman and Pino.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 340) passed.
An amendment to the title of the bill, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 340 - "A Bill to amend and reenact sections three-i and three-v, article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the authority of county commissions; providing for public hearings; requiring approval of annexation plans before election may be held; and permitting county commissions to adopt building codes, develop flood-plain management plans and take other protective measures to reduce flood insurance rates."
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. 440, Establishing Contractors Notice and Opportunity to Cure Act; on third reading, was taken up out of regular order and reported by the Clerk.
At the request of Delegate Amores, and by unanimous consent, further consideration of the bill was then postponed until the completion of all items remaining on the Special Calendar, third reading.
S. B. 547, Relating to judges and justices and judicial retirement; on third reading, coming up out of regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 553), and there were--yeas 78, nays 21, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Blair, Border, Brown, Calvert, Canterbury, Caputo, Carmichael, Evans, Frich, Hall, Hamilton, Leggett, Overington, Schadler, Schoen, Smirl, Sobonya and Sumner.
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. 547) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 547 - "A Bill to amend and reenact section four, article nine, chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to clarifying that for judicial retirement purposes, prosecutorial service includes certain time served as an elected or appointed prosecuting attorney or assistant prosecuting attorney."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 554), and there were--yeas 90, nays 9, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Calvert, Canterbury, Caputo, Evans, Hamilton, Louisos, Overington, Smirl and 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 (S. B. 547) 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.
Delegate Perry announced that he was absent when the vote was taken on Roll No. 550, and that had he been present, he would have voted "Yea" thereon.
Com. Sub. for S. B. 558, Establishing County and Municipal Economic Opportunity Development District Acts; on third reading, coming up out of regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 555), and there were--yeas 93, nays 6, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Carmichael, Caruth, Duke, Ellem, Frich and Louisos.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 558) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows as follows:
Com. Sub. for S. B. 558 - "A Bill to amend chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twenty-two; to amend chapter eight of said code by adding thereto a new article, designated article thirty-eight; to amend and reenact section eleven-a, article ten, chapter eleven of said code; and to amend and reenact section nine-f, article fifteen of said chapter, all relating generally to economic development for public purposes; authorizing counties and certain municipalities to create economic opportunity development districts and to use as special district excise tax to finance economic development within the districts; describing purposes for expenditures; providing for notice and hearing; providing for approval by council for community and economic development; establishing a special revenue account; providing for the Legislature's authorization to levy a special district excise tax; describing order or ordinance required to establish district; creating a district board to administer district; authorizing imposition of special district excise tax by order or ordinance; modifying district boundaries; procedures for abolition and dissolution of district; authorizing issuance of bonds or notes to finance development expenditures; providing for administration of special district excise tax by tax commissioner; and exempting certain sales and services in district from consumers sales and service tax."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 556), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Coleman and Leach.
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. 558) 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. 634, Defining crow as game-bird; on third reading, coming up out of regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 557), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Blair and Faircloth.
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. 634) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 558), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Blair and Faircloth.
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 (S. B. 634) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Carmichael asked and obtained unanimous consent that the remarks of Delegate Frederick regarding gambling addiction be printed in the Appendix to the Journal.
Delegate Faircloth asked and obtained unanimous consent that his remarks regarding S. B. 654, Extending supervision for certain sex offenders, and third party bad faith claims, be printed in the Appendix to the Journal.
At 1:15 p.m., on motion of Delegate Staton, the House of Delegates recessed until 4:00 p.m., and reconvened at that time.
* * * * * * * * * *

Afternoon Session

* * * * * * * * * *

Reordering of the Calendar

Delegate Staton announced that the Committee on Rules had transferred Com. Sub. for S. B. 594, on third reading, House Calendar, to the Special Calendar; S. B. 636, on second reading, House Calendar, to the Special Calendar; and Com. Sub. for S. B. 433, on third reading, Special Calendar, to the House Calendar.
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

Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules had has under consideration:
S. C. R. 52, Amending Joint Rule No. 5 of the Joint Rules of the Senate and House of Delegates, relating to bill processing data,
And reports the same back with the recommendation that it be adopted.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules had has under consideration:
H. C. R. 64, Requesting the Joint Committee on Government and Finance to study the feasibility of developing and maintaining a central abuse registry,
And,
H. C. R. 65, Requesting the Joint Committee on Government and Finance to study the state's vital statistics system,
And reports the same back with the recommendation that they each be adopted.
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. 371, Increasing penalty for obtaining money, property and services by false pretenses from persons over certain age,
And reports the same back, 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. 371) was taken up for immediate consideration, read a first time and then ordered to second reading.
(Speaker Pro Tempore Pino in the Chair)

Special Calendar

Third Reading

S. B. 52, Eliminating certain bond on out-of-state defendants in automobile accident cases; 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. 559), 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: Coleman, Varner, Webster and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 52) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 560), 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 Varner.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 52) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 384, Repealing section relating to location of offices of alcohol beverage control administration; 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. 561), and there were--yeas 88, nays 10, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Calvert, Carmichael, Hamilton, Louisos, Sobonya, Wakim, Walters and Webb.
Absent And Not Voting: Coleman and Varner.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 384) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 400, Allowing insurance commissioner to disclose confidential information in certain cases; 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. 562), 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 Varner.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 400) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
(Mr. Speaker, Mr. Kiss, in the Chair)

Com. Sub. for S. B. 404, Establishing blue and gray inter-modal highway authority; 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. 563), 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 (Com. Sub. for S. B. 404) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 405, Changing personal care homes to assisted living residences; extending board; 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. 564), 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 (Com. Sub. for S. B. 405) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 565), 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 Ennis.
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. 405) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 423, Allowing board of examiners of land surveyors set certain fees by legislative rule; 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. 566), 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 (Com. Sub. for S. B. 423) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 443, Establishing economic and infrastructure projects under development office guidelines; 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. 567), and there were--yeas 93, nays 6, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley, Blair, Evans, Leggett, Louisos and Schoen.
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. 443) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 505, Providing municipal fire chiefs retain rank in certain cases; 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. 568), 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 (Com. Sub. for S. B. 505) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 507, Modifying and updating auctioneer licensing requirements; fees; on third reading, coming up in regular order, was reported by the Clerk.
Delegate Beach asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading.
On motion of Delegate Beach, the bill was amended by striking out the committee amendment in its entirety, as adopted on yesterday, thereby restoring the Senate language of the bill.
On motion of Delegate DeLong, the bill was then amended on page two, by amending the enaction section to read as follows:
"That sections one, 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; and that said article be further amended by adding thereto three new sections, designated section five-b, six-d and nine-a, all to read as follows" followed by a colon.
And,
On page two, following the article heading, by inserting the following:
"§19-2C-1. Definitions.
For the purposes of this article:
(a) The term 'auctioneer' means and includes a person who sells goods or real estate at public auction for another on commission or for other compensation. The term 'auctioneer' does not include: (1) Persons conducting sales at auctions conducted by or under the direction of any public authority or pursuant to any judicial order or direction or to any sale required by law to be at auction; (2) the owner of any real or personal property when personally sold at auction by such owner and such owner has not personally conducted an auction within the previous twelve-month period; (3) persons conducting sales pursuant to a deed of trust or other security agreement; (4) fiduciaries of estates when selling real or personal property of such estate; (5) persons conducting sales on behalf of charitable, religious, fraternal or other nonprofit organizations; and (6) persons properly licensed pursuant to the provisions of article twelve forty, chapter forty-seven thirty of this code when conducting an auction, any portion of which contains any leasehold or any estate in land whether corporeal or incorporeal, freehold or non-freehold, when such person is retained to conduct an auction by a receiver or trustee in bankruptcy, a fiduciary acting under the authority of a deed of trust or will, or a fiduciary of a decedent's estate: Provided, That nothing contained in this article exempts persons conducting sales at public markets from the provisions of article two-a of this chapter, where the sale is confined solely to livestock, poultry and other agriculture and horticulture products.
(b) The term 'public auction' means any public sale of real or personal property when offers or bids are made by prospective purchasers and the property sold to the highest bidder.
(c) The term 'commissioner' means the commissioner of agriculture of West Virginia.
(d) The term 'department' means the West Virginia department of agriculture."
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. 569), 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 present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 507) passed.
On motion of Delegate DeLong, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 507 - "A Bill to amend and reenact 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; to further amend said article by adding thereto three new sections, designated sections five-b, six-d and nine-a; and to amend and reenact section five, article forty, chapter thirty of said code, all relating to auctioneers; license requirements; fees; requiring notice of change of address; apprentice sponsorship requirements; reciprocity between states; continuing education requirements; penalties for violating statutory provisions; license revocation; contract requirements; and exemption from real estate license act when conducting auctions of real estate."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 531, Exempting certain lodging franchise assessed fees from consumers sales and service tax; on third reading, coming up in regular order, was reported by the Clerk.
Delegate Louisos asked unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading, which consent was not given, Delegate Michael objecting.
Delegate Louisos then so moved.
The Speaker then put the question, and less than two thirds of the members present not having voted in the affirmative, the motion did not prevail.
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. 570), 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 present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 531) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S.B. 531 - "A Bill to amend and reenact sections two and nine, article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the consumers sales and service tax; clarifying that payments received by a vendor of tangible personal property as an incentive to sell a greater volume of such tangible personal property under a manufacturer, distributor or other third-party marketing support program, sales incentive program, cooperative advertising agreement or similar type of program or agreement are excepted from the tax; providing an expansion of the current exemption for casual and occasional sales by volunteer fire departments and volunteer school support groups from six to eighteen sales per year; and providing an exemption for certain lodging franchise assessed fees from the consumers sales and service tax."
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. 535, Providing mandatory carding for all purchasers of nonintoxicating beer, wine and liquor; liability protection; 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. 571), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos and Webb.
Absent And Not Voting: Cann and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 535) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 553, Prohibiting killing bears weighing less than certain amount; 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. 572), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Evans and Sobonya.
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. 553) passed.
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. 594, Increasing membership on public employees insurance agency finance board; on third reading, coming up in regular order, was reported by the Clerk.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then temporarily passed over.
S. B. 655, Creating public utilities tax loss restoration fund; 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. 573), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Frich, Hall and Schoen.
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. 655) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 574), 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, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 655) 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. 658, Making supplementary appropriation to department of health and human resources, division of human services, James "Tiger" Morton Catastrophic Illness Fund; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 575), 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 (S. B. 658) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 576), 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, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 658) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 659, Making supplementary appropriation to state board of examiners for licensed practical nurses; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 577), 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 Manchin.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 659) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 578), 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, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 659) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 660, Supplementing, amending, reducing and increasing items from state road fund to department of transportation, division of highways; on third reading, coming up in regular order, was read a third time.
Delegate Browning requested to be excused from voting on the passage of the bill under the provisions of House Rule 49, stating that his employer was funded by this account.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
On the passage of the bill, the yeas and nays were taken (Roll No. 579), 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 (S. B. 660) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 580), 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 Hatfield.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 660) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
(Speaker Pro Tempore Pino in the Chair)

H. B. 3211, Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 581), 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 (H. B. 3211) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 582), 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, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3211) 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.
H. B. 3212, Expiring funds to the department of military affairs and public safety -West Virginia state police - surplus real property process fund; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 583), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Duke.
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 (H. B. 3212) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 584), 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, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3212) 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.
The House then took up Com. Sub. for S. B. 440, Establishing Contractors Notice and Opportunity to Cure Act, having been reported in earlier proceedings and postponed until this time.
Delegate Amores asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading.
On motion of Delegate Amores, the bill was amended on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended, by adding thereto a new article, designated article eleven-a, to read as follows:
ARTICLE 11A. NOTICE AND OPPORTUNITY TO CURE CONSTRUCTION DEFECTS.
§21-11A-1. Purpose.
This article is intended to establish procedures for the negotiation of a claim of a construction defect asserted by a claimant against a contractor. The parties to a contract are encouraged to resolve any disagreement concerning the contract short of litigation.
§21-11A-2. Applicability of article.
This article does not apply to an action:
(1) Against a contractor for which a claimant, as a consumer, is entitled to a specific remedy pursuant to chapter forty-six-a of this code;
(2) Against a contractor who is not licensed under the provisions of article eleven of this chapter;
(3) Demanding damages of five thousand dollars or less;
(4) Alleging a construction defect that poses an imminent threat of injury to person or property;
(5) Alleging a construction defect that causes property not to be habitable;
(6) Against a contractor who failed to provide the notice required by section five or six of this article;
(7) Against a contractor if the parties to the contract agreed to submit claims to mediation, arbitration or another type of alternative dispute resolution; or
(8) Alleging claims for personal injury or death.
§21-11A-3. Suit by contractor, perfecting mechanic's lien.
(a) If a contractor, subcontractor, supplier or design professional files suit against a property owner upon whose property they provided goods or services, this article is not applicable, and a claimant alleging a construction defect may counterclaim or file an independent action, as appropriate.
(b) Nothing in this article precludes a contractor, subcontractor, supplier or design professional from perfecting a lien in accordance with the provisions of article two, chapter thirty- eight of this code.
§21-11A-4. Applicability of definitions; definitions.
For the purposes of this article, the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them in this article. These definitions are applicable unless a different meaning clearly appears from the context.
(1) 'Action' means any civil action, or any alternative dispute resolution proceeding other than the negotiation required under this article, for damages, asserting a claim for injury or loss to real or personal property caused by an alleged defect arising out of or related to residential improvements.
(2) 'Claim' means a demand for damages by a claimant based upon an alleged construction defect in residential improvements.
(3) 'Claimant' means a homeowner, including a subsequent purchaser, who asserts a claim against a contractor concerning an alleged construction defect in residential improvements.
(4) 'Construction defect' means a deficiency in, or a deficiency arising out of, the design, specifications, planning, supervision or construction of residential improvements that results from any of the following:
(A) Defective material, products, or components used in the construction of residential improvements;
(B) Violation of the applicable codes in effect at the time of construction of residential improvements;
(C) Failure in the design of residential improvements to meet the applicable professional standards of care;
(D) Failure to complete residential improvements in accordance with accepted trade standards for good and workmanlike construction: Provided, That compliance with the applicable codes in effect at the time of construction is prima facie evidence of construction in accordance with accepted trade standards for good and workmanlike construction, with respect to all matters specified in those codes; or
(E) Failure to properly oversee, supervise and inspect services or goods provided by the contractor's subcontractor, officer, employee, agent or other person furnishing goods or services.
(5) 'Contract' means a written contract between a contractor and a claimant by the terms of which the contractor agrees to provide goods or services, by sale or lease, to or for a claimant.
(6) 'Contractor' means a contractor, licensed under the provisions of article eleven of this chapter, who has entered into a contract directly with a claimant. The term does not include the contractor's subcontractor, officer, employee, agent or other person furnishing goods or services to a claimant.
(7) 'Day' means a calendar day. If an act is required to occur on a day falling on a Saturday, Sunday, or holiday, the first working day which is not one of these days should be counted as the required day for purposes of this article.
(8) 'Goods' means supplies, materials or equipment.
(9) 'Parties' means (A) the claimant, and (B) any contractor, subcontractor, agent or other person furnishing goods or services, and upon whom a claim of an alleged construction defect has been served under this article.
(10) 'Residential improvements' means: (A) The construction of a residential dwelling or appurtenant facility or utility; (B) an addition to, or alteration, modification or rehabilitation of an existing dwelling or appurtenant facility or utility; or (C) repairs made to an existing dwelling or appurtenant facility or utility. In addition to actual construction or renovation, residential improvements actually added to residential real property include the design, specifications, surveying, planning, goods, services and the supervision of a contractor's subcontractor, officer, employee, agent or other person furnishing goods or services to a claimant.
(11) 'Services' means the furnishing of skilled or unskilled labor or consulting or professional work, or a combination thereof.
(12) 'Subcontractor' means a contractor who performs work on behalf of another contractor on residential improvements.
(13) 'Supplier' means a person who provides goods for residential improvements.
§21-11A-5. Contract for residential improvements; notice.
(a) Upon entering into a contract for residential improvements, the contractor shall provide notice to the owner of the real property of the right of the contractor, or any subcontractor, supplier, or design professional to offer to cure construction defects before a claimant may commence litigation against the contractor, or a subcontractor, supplier, or design professional. Such notice shall be conspicuous and may be included as part of the underlying contract.
(b) The notice required by subsection (a) of this section shall be in substantially the following form:
WEST VIRGINIA STATE LAW, AS SET FORTH IN CHAPTER 21, ARTICLE 11A OF THE WEST VIRGINIA CODE, CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST THE CONTRACTOR WHO MADE RESIDENTIAL IMPROVEMENTS TO YOUR PROPERTY. AT LEAST NINETY DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO THE CONTRACTOR A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR AND ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS THE OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE CONTRACTOR OR ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS. THERE ARE DEADLINES AND PROCEDURES UNDER STATE LAW, AND FAILURE TO FOLLOW THEM MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT.
§21-11A-6. Contractor notification requirements for a new residential dwelling constructed for sale.

(a) A contractor who constructs a new residential dwelling shall, at or before the closing of the sale, provide in writing to the initial purchaser of the residence:
(1) The name, license number, business address, and telephone number of each subcontractor, supplier or design professional who provided goods or services related to the design or construction of the dwelling; and
(2) A brief description of the goods or services provided by each subcontractor, supplier or design professional identified pursuant to this section.
(b) At or before the closing of the sale, a notice shall be given to the purchaser that is in substantially the same form as set forth in subsection (b), section five of this article.
§21-11A-7. Prerequisites to commencing an action.
(a) The procedures contained in this article are exclusive and required prerequisites to commencing a civil action under the West Virginia rules of civil procedure.
(b) If a claimant files a civil action alleging a construction defect without first complying with the provisions of this article, then on application by a party to the action, the court shall dismiss the action, without prejudice, and the action may not be
refiled until the claimant has complied with the requirements of this article.
§21-11A-8. Notice of claim of construction defect.
(a) A claimant asserting a claim of a construction defect under this article shall file notice of the claim as provided by this section.
(b) The notice of claim shall:
(1) Be in writing and signed by the claimant or the claimant's authorized representative;
(2) Be delivered by hand, certified mail return receipt requested, or other verifiable delivery service, to the person designated in the contract to receive a notice of claim of a construction defect; if no person is designated in the contract, the notice shall be delivered to the contractor's chief administrative officer; and
(3) State in detail:
(A) The nature of the alleged construction defect and a description of the results of the defect;
(B) A description of damages caused by the alleged construction defect, including the amount and method used to calculate those damages; and
(C) The legal theory of recovery, i.e., a construction defect, including the causal relationship between the alleged construction defect and the damages claimed.
(c) In addition to the mandatory contents of the notice of claim as required by subsection (b) of this section, the claimant may submit supporting documentation or other tangible evidence to facilitate the contractor's evaluation of the claimant's claim.
(d) The notice of claim shall be delivered no later than ninety days prior to filing an action.
§21-11A-9. Service on additional parties.
Within fourteen days after the initial service of the notice of claim required in subsection (a) of this section, the contractor shall forward a copy of the notice to each subcontractor, supplier, and design professional who the contractor reasonably believes is responsible for a defect specified in the notice and include with the notice a description of the specific defect for which the contractor believes the subcontractor, supplier, or design professional is responsible.
§21-11A-10. Request for Voluntary Disclosure of Additional Information.
(a) Upon the filing of a claim, parties may request to review and copy relevant information in the possession or custody or subject to the control of the other party that pertains to the alleged construction defect, including, without limitation:
(1) Reports of outside consultants or experts; or
(2) Photographs and videotapes.
(b) Subsection (a) of this section applies to all information in the parties' possession regardless of the manner in which it is recorded, including, without limitation, paper and electronic media.
(c) The claimant and the contractor may seek additional information directly from third parties.
(d) Nothing in this section requires any party to disclose the requested information or any matter that is privileged under West Virginia law.
Within thirty days after service of the notice of claim by the claimant, each contractor, subcontractor, supplier, or design professional that has received a notice of claim shall serve a written response on the claimant, delivered by hand, certified mail return receipt requested, or other verifiable delivery service, directed to the claimant or representative of the claimant who signed the notice of claim of a construction defect. The written response shall:
(1) Offer to compromise and settle the claim by monetary payment without inspection;
(2) Propose to inspect the residential improvement that is the subject of the claim; or
(3) State that the contractor, subcontractor, supplier, or design professional disputes the claim and will neither remedy the alleged construction defect nor compromise and settle the claim.
(e) If the contractor, subcontractor, supplier, or design professional disputes the claim pursuant to subdivision (3), subsection (d) of this section, and will neither remedy the alleged construction defect nor compromise and settle the claim, or does not respond to the claimant's notice of claim within the time stated in said subsection (d) of this section, the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the notice of claim, without further notice.
(f) If the claimant rejects the inspection proposal or the settlement offer made by the contractor, subcontractor, supplier, or design professional pursuant to subsection (d) of this section, the claimant shall serve written notice of the claimant's rejection on the contractor, subcontractor, supplier, or design professional. The notice shall include the basis for the claimant's rejection of the contractor, subcontractor, supplier, or design professional's proposal or offer.
(g) After service of the rejection required by subsection (f) of this section, the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the initial notice of claim without further notice.
(h) If the claimant elects to allow the contractor, subcontractor, supplier, or design professional to inspect the residential improvement in accordance with the contractor, subcontractor, supplier, or design professional's proposal pursuant to subdivision (2), subsection (d) of this section, the claimant shall provide the contractor, subcontractor, supplier, or design professional and its contractors or other agents reasonable access to the claimant's residence during normal working hours to inspect the premises and the claimed defect to determine the nature and cause of the alleged defects and the nature and extent of any repairs or replacements necessary to remedy the alleged defects.
(i) Within fourteen days following completion of the inspection, the contractor, subcontractor, supplier, or design professional shall serve on the claimant:
(1) A written offer to remedy the construction defect at no cost to the claimant, including a report of the scope of the inspection, the findings and results of the inspection, a description of the additional labor and materials necessary to remedy the defect described in the claim, and a timetable for the completion of such construction;
(2) A written offer to compromise and settle the claim by monetary payment; or
(3) A written statement that the contractor, subcontractor, supplier, or design professional will not proceed further to remedy the defect.
(j) If a claimant accepts a contractor, subcontractor, supplier, or design professional's offer made pursuant to subdivisions (1) or (2), subsection (i) of this section, and the contractor, subcontractor, supplier, or design professional does not proceed to make the monetary payment or remedy the construction defect within the agreed timetable, the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the initial notice of claim without further notice.
(k) If a claimant receives a written statement that the contractor, subcontractor, supplier, or design professional will not proceed further to remedy the defect, the claimant may bring an action against the contractor, subcontractor, supplier, or design profession for the claim described in the initial notice of claim without further notice.
(l) If the claimant rejects the offer made by the contractor, subcontractor, supplier, or design professional to either remedy the construction defect or to compromise and settle the claim by monetary payment, the claimant shall serve written notice of the claimant's rejection on the contractor, subcontractor, supplier, or design professional. The notice shall include the basis for the claimant's rejection of the contractor, subcontractor, supplier, or design professional's offer. After service of the rejection the claimant may bring an action against contractor, subcontractor, supplier, or design professional for the claim described in the notice of claim without further notice.
(m) Any claimant accepting the offer of the contractor, subcontractor, supplier, or design professional to remedy the construction defects shall do so by serving the contractor, subcontractor, supplier, or design professional with a written notice of acceptance within a reasonable period of time after receipt of the offer but no later than thirty days after receipt of the offer.
(n) If a claimant accepts a contractor, subcontractor, supplier, or design professional's offer to repair a defect described in an initial notice of claim, the claimant shall provide the contractor, subcontractor, supplier, or design professional and its contractors or other agents reasonable access to the claimant's residence during normal working hours to perform and complete the construction by the timetable stated in the offer.
(o) During negotiations under this article, if the running of the applicable statute of limitations would otherwise become a bar to a civil action, service of a claimant's written notice of claim pursuant to this article tolls the applicable statute of limitations until six months after the termination of negotiations under this article.
§21-11A-11. Duty to Negotiate.
The parties shall negotiate in accordance with the times set forth in section twelve of this article (relating to Timetable) to attempt to resolve all claims. No party is obligated to settle with the other party as a result of the negotiation.
§21-11A-12. Timetable.
(a) Following receipt of a claimant's notice of claim, the contractor or other designated representative shall review the claimant's claim and initiate negotiations with the claimant to attempt to resolve the claim.
(b) Subject to subsection (c) of this section, the parties shall begin negotiations within a reasonable period of time, not to exceed thirty days following the date the contractor receives the claimant's notice of claim.
(c) The parties may conduct negotiations according to an agreed schedule, but must begin negotiations no later than the deadline set forth in subsection (b) of this section.
(d) Subject to subsection (e) of this section, the parties shall complete the negotiations that are required by this article within ninety days after the contractor receives the claimant's notice of claim.
(e) The parties may agree in writing to extend the time for negotiations, on or before the ninetieth day after the contractor receives the claimant's notice of claim. The agreement shall be signed by representatives of the parties with authority to bind each respective party and shall provide for the extension of the statutory negotiation period until a date certain. The parties may enter into a series of written extension agreements that comply with the requirements of this section.
§21-11A-13. Conduct of Negotiation.
Negotiation is a consensual bargaining process in which the parties attempt to resolve the claim. A negotiation under this article may be conducted by any method, technique, or procedure authorized under the contract or agreed upon by the parties, including, without limitation, negotiation in person, by telephone, by correspondence, by video conference, or by any other method that permits the parties to identify their respective positions, discuss their respective differences, confer with their respective advisers, exchange offers of settlement, and settle.
§21-12A-14. Settlement Agreement.
(a) A settlement agreement may resolve an entire claim or any designated and severable portion of a claim.
(b) To be enforceable, a settlement agreement must be in writing and signed by representatives of the claimant and the contractor who have authority to bind each respective party.
(c) A partial settlement does not waive a parties' rights as to the parts of the claims that are not resolved.
§21-12A-15. Costs of Negotiation.
Unless the parties agree otherwise, each party shall be responsible for its own costs incurred in connection with a negotiation, including, without limitation, the costs of attorney's fees, consultant's fees and expert's fees.
§21-12A-16. Commencement of action.
If a claim for a construction defect is not resolved in its entirety through negotiation in accordance with this article on or before the ninetieth day after the contractor receives the notice of claim, or after the expiration of any extension agreed to by the parties, the claimant may commence an action.
§21-11A-17. Additional construction defects; additional notice of claim.
A construction defect which is discovered after a claimant has provided a contractor with the original notice of claim is subject to the notice requirements and timetable of this article."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 585), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Caputo.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 440) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Second Reading

Com. Sub. for S. B. 151, Relating to reorganizing executive branch of government; 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, on page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
"That articles one-b and one-c, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that sections nine, ten and eleven, article seven, chapter five-a of said code be repealed; that article three, chapter five-f of said code be repealed; that sections one and two, article one, chapter five-a of said code be amended and reenacted; that said article be further amended by adding thereto three new sections, designated sections two-a, three-a and three-b; that sections one, two, three, four, five, six, seven and eight of article seven of said chapter be amended and reenacted; that section two, article one, chapter five-f of said code be amended and reenacted; and that section two-a, article seven, chapter six of said code be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF FINANCE AND ADMINISTRATION.

ARTICLE 1. DEPARTMENT OF FINANCE AND ADMINISTRATION.
§5A-1-1. Definitions.
For the purpose of this chapter:
(a) 'Commodities' means supplies, material, equipment, contractual services and any other articles or things used by or furnished to a department, agency or institution of state government.
(b) 'Contractual services' shall include telephone, telegraph, electric light and power, water and similar services.
(c) 'Director' means the director of the division referred to in the heading of the article in which the word appears.
(d) 'Expendable commodities' means those commodities which, when used in the ordinary course of business, will become consumed or of no market value within the period of one year or less.
(e) 'Nonprofit workshops' means an establishment: (a) (1) Where any manufacture or handiwork is carried on; (b) (2) which is operated either by a public agency or by a cooperative or by a nonprofit private corporation or nonprofit association, in which no part of the net earnings thereof inures, or may lawfully inure, to the benefit of any private shareholder or individual; (c) (3) which is operated for the primary purpose of providing remunerative employment to blind or severely disabled persons who cannot be absorbed into the competitive labor market; and (d) (4) which shall be approved, as evidenced by a certificate of approval, by the state board of vocational education, division of vocational rehabilitation.
(f) 'Printing' means printing, binding, ruling, lithographing, engraving and other similar services.
(g) 'Removable property' means any personal property not permanently affixed to or forming a part of real estate.
(h) 'Secretary' means the secretary of finance and administration. as used in article two of this chapter, the director of the budget All references to the secretary of administration or the secretary of tax and revenue as used in this code shall be construed to mean the secretary of finance and administration.
(i) 'Spending officer' means the executive head of a spending unit or a person designated by him.
(j) 'Spending unit' means a department, agency or institution of the state government for which an appropriation is requested or to which an appropriation is made by the Legislature.
§5A-1-2. Department of finance and administration and office of secretary; transfers of funds; transition; savings provision; office of technology.

(a) There is hereby created within the executive branch of state government a department of finance and administration and the office of secretary of the department of finance and administration, effective the first day of July, two thousand and three. The secretary is the chief executive officer of the department and director of the budget and shall be appointed by the governor, with the advice and consent of the Senate, and serves at the will and pleasure of the governor.
(b) The department of administration, the office of the secretary of the department of administration, the department of tax and revenue and the office of secretary of the department and tax and revenue are abolished effective the first day of July, two thousand three.
(c) All duties of the secretary of the department of administration and the secretary of the department of tax and revenue are hereby vested in the secretary of the department of finance and administration. All records, responsibilities, obligations, assets and property, of whatever kind and character, of the department of tax and revenue and the department of administration are transferred to the department of finance and administration. The balances of all funds of the department of administration and the department of tax and revenue are transferred to the department of finance and administration. The department of finance and administration is hereby authorized to receive federal funds.
(d) On the effective date of this section, the secretary of the department of administration and the secretary of the department of tax and revenue are authorized to undertake any actions as are reasonably required for an orderly transition. Upon the transfer of the functions of the department of administration and the department of tax and revenue to the department of finance and administration, the secretary of the department of finance and administration is empowered to authorize transfers of program funds as are necessary to facilitate an orderly transfer of functions. Authority to make transfers pursuant to this subsection expires on the thirtieth day of June, two thousand four.
(e) All orders, determinations, rules, permits, grants, contracts, certificates, licenses, waivers, bonds, authorizations and privileges which have been issued, made, granted or allowed to become effective by the governor, any state department or agency or official thereof, or by a court of competent jurisdiction, in the performance of functions which have been transferred to the secretary or to the department, and were in effect on the date the transfer occurred continue in effect, for the benefit of the department, according to their terms until modified, terminated, superseded, set aside, or revoked in accordance with the law by the governor, the secretary, or other authorized official, a court of competent jurisdiction, or by operation of law.
(f) Any proceedings, including notices of proposed rulemaking, or any application for any license, permit, certificate, or financial assistance pending before any department, division or other office, functions of which were transferred to the department of finance and administration are not affected by the transfer. Orders issued in any proceedings continue in effect until modified, terminated, superseded, or revoked by the governor, the secretary, by a court of competent jurisdiction, or by operation of law. Nothing in this subsection prohibits the discontinuance or modification of any proceeding under the same terms and conditions and to the same extent that proceeding could have been discontinued or modified if the department had not been created or if functions or offices had not been transferred to the department. The creation of the department of finance and administration and the subsequent transfer of functions do not affect suits commenced prior to the effective date of the creation by or against any department, division, office or officer and in all such suits, proceedings shall be had, appeals taken and judgments rendered in the same manner and with like effect as if the creation or transfer had not occurred, except that the secretary of the department of finance and administration or other officer may, in an appropriate case, be substituted or added as a party.
(g) Beginning with the legislative interim meetings in May, two thousand three, and continuing throughout the interim period ending in January two thousand four, the secretary shall present a monthly report to the joint committee on government operations, setting forth the progress of the reorganization, including the elimination of positions, the restructuring of duties, the cost and terms of employment of consultants, the creation of management positions and the associated salaries, and the overall cost savings to the state, and setting forth any recommendations for further reorganization requiring legislative action, together with drafts of any recommended legislation. On or before Wednesday of the week immediately preceding each monthly legislative interim meeting, the secretary shall deliver the report in writing to the joint committee on government operations and to the joint committee on government and finance.
§5A-1-2a. Continuation of department.
The department of finance and administration shall continue to exist, pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand five, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
§5A-1-3a. Working capital fund.
(a) The department of finance and administration shall have a working capital fund, which is hereby created in the state treasury. Amounts in this fund are available for expenses of operating and maintaining common administrative services of the department that the secretary decides may be carried out more advantageously and more economically as central services.
(b) Amounts in the fund remain available until expended. Amounts may be appropriated to the fund.
(c) The fund consists of:
(1) Amounts appropriated to the fund;
(2) To the extent transferred to the fund by the secretary, the reasonable value of supply inventories, equipment and other assets and inventories on order for providing services out of amounts in the fund, less related liabilities and unpaid obligations;
(3) Amounts received from the sale or exchange of property;
(4) Payments received for loss or damage of property of the fund.
(d) The fund shall be reimbursed, or credited with advance payments from amounts available to the department or from other sources, for supplies and services at rates that will equal the expenses of operation, including the depreciation of plant and equipment. Amounts the secretary decides are in excess of the needs of the fund shall be deposited at the end of each fiscal year in the general revenue funds as miscellaneous receipts.
§5A-1-3b. Confidentiality of information.
(a) Information provided to secretary under expectation of confidentiality. -- Information that would be confidential under the laws of this state when provided to a division, agency, board, commission or office within the department of finance and administration shall be confidential when that information is provided to the secretary of the department of finance and administration, or to an employee in the office of the secretary. Thereafter, the confidential information may be disclosed only: (1) To the applicable division, agency, board or commission of the department to which the information relates; or (2) in the manner authorized by provisions of this code applicable to that division, agency, board or commission. This confidentiality rule is a specific exemption from disclosure under article one, chapter twenty-nine-b of this code;
(b) Interdepartment communication of confidential information. -- Notwithstanding any provision of this code to the contrary, information that by statute is confidential in the possession of any division, agency, board, commission or office of the department of finance and administration may be disclosed to the secretary, or an employee in the office of the secretary, who must safeguard the information and may not further disclose the information except under the same conditions, restrictions and limitations applicable to the administrator of the division, agency, board, commission or office of the department in whose hands the information is confidential: Provided, That nothing contained in this section shall be construed to require the disclosure to the secretary or to an employee in the office of the secretary of individually identifiable health care or other information that, under federal law, may not be disclosed by the administration without subjecting the administrator or the agency, board or commission to sanctions or other penalties by the United States or any agency thereof. This confidentiality rule is a specific exemption from disclosure under article one, chapter twenty-nine-b of this code.
ARTICLE 7. OFFICE OF TECHNOLOGY.
§5A-7-1. Findings and purposes.
The Legislature finds and declares that a unified information technology system is essential to the efficient and effective operation of state government and that the management goals and purposes of government are furthered by the development of compatible, integrated, linked information systems across state government. Therefore, it is the purpose of this article to create the technology office within the department of finance and administration with the authority to set, direct and approve all information technology policies, standards, structure and expenditures for all state spending units on their information systems and information technology equipment in the various state agencies, to promulgate standards in the utilization of information technology equipment and related services and to promote quality service and cost effective and efficient operation of all branches of state government.
§5A-7-2. Office created; chief information officer; qualifications; use of facilities; rules.
There is hereby created the office of technology within the department of finance and administration. The chief information officer shall be appointed by and serve at the will and pleasure of the governor. The chief information officer shall report to the secretary of finance and administration. The chief information officer shall have knowledge in the field of information technology, experience in the design and management of information systems and an understanding of the special demands upon government with respect to budgetary constraints, the protection of privacy interests and federal and state standards of accountability. The information services and communications division of the department of administration, heretofore created, is hereby transferred to and incorporated within the office of technology within the department of finance and administration. The facilities and resources of the office shall be available, subject to rules established by the secretary, to the legislative, executive and judicial branches of state government. The rules shall be promulgated in accordance with the provisions of article three, chapter twenty- nine-a of this code.
§5A-7-3. Definitions.
As used in this article:

(a) 'Chief information officer' means the person holding the position created in section two of this article and vested with authority to set, direct and approve all information technology policies standards, structure and expenditures and also to establish, develop, improve, set and approve information technology equipment functions for all state spending units on their information systems that provide cost effectiveness and efficiency to the individual state spending units and further the overall management goals and purposes of government;
(b) 'Director of operations' means the director of the operations section of the office of technology providing mainframe, computing and internet application development and maintenance, the network and application hosting, data hosting, maintenance and recovery, networking and infrastructure and training center services and any other services created or deleted at the discretion of the chief information officer within the office of technology;
(c) 'Director of policy oversight' means the director of the policy oversight section of the office of technology providing strategic planning, security, compliance and disaster recovery services and any other services created or deleted at the discretion of the chief information officer within the office of technology;
(d) 'Director of process oversight' means the director of the process oversight section of the office of technology providing budgeting, project oversight, performance measurement and business process reengineering services and any other services created or deleted at the discretion of the chief information officer within the office of technology;
(e) 'Information systems means computer-based information equipment and related services designed for the automated transmission, storage, manipulation and retrieval of data by electronic or mechanical means;
(f) 'Information technology' means data processing and telecommunications hardware, software, services, supplies, personnel, maintenance and training and includes the programs and routines used to employ and control the capabilities of data processing hardware;
(g) 'Information technology equipment' means any equipment, interconnected systems or subsystems of equipment the principal function of which is the automatic acquisition, storage, manipulation, processing, interchange, transmission or reception of data or information, including all computers with a human interface; computer peripherals which will not operate unless connected to a computer or network; voice, video and data networks; and ancillary software, hardware and related resources;
(h) 'Related services' include feasibility studies, systems design, software development and time-sharing services whether provided by state employees or others;
(i) 'Office' means the office of technology within the department of finance and administration and headed by the chief information officer as established in section two hereof;
(j) 'Secretary' means the secretary of the department of finance and administration;
(k) 'Telecommunications' means any transmission, emission or reception of signs, signals, audio, writings, data, images, video voice or sounds of intelligence of any nature by wire, radio or other electromagnetic or optical systems. The term includes all facilities and equipment performing those functions that are owned, leased or used by the executive agencies of state government; and
(l) 'Experimental program to stimulate competitive research' (EPSCoR) means the West Virginia component of the national EPSCoR program which is designed to improve the competitive research and development position of selected states through investments in academic research laboratories and laboratory equipment. The recognized West Virginia EPSCoR, which is part of the department of finance and administration's office of technology, is the responsible organization for the coordination and submission of proposals to all federal agencies participating in the EPSCoR program.
§5A-7-4. Powers and duties; telecommunications service; professional staff.
(a) With respect to all state spending units, the office of technology, at the direction of the chief information officer, shall:
(1) Develop an organized approach to statewide information resource management, including, but not limited to, information systems, information technology and information technology equipment;
(2) Direct the director of operations to provide technical assistance to the administrators of the various state spending units in the design and management of information systems;
(3) Direct the director of operations, the director of policy oversight and director of process oversight to continually evaluate the economic justification, system design and suitability of information technology equipment and related services and review and make recommendations to the chief information officer whether to approve or deny the purchase, lease or acquisition of information equipment and contracts for related services by the state spending units;
(4) Approve all expenditures for information systems, information technology and information technology equipment.;
(5) Develop a mechanism for identifying those instances where systems of paper forms should be replaced by direct use of information technology equipment and those instances where applicable state or federal standards of accountability demand retention of some paper processes and implementing programs to further these goals;
(6) Develop a mechanism for identifying those instances where information systems should be linked, integrated and information shared, while also providing appropriate limitations on access and the security of information and implementing programs to further these goals;
(7) Develop, research and implement new technologies to be used in state government, convene and organize conferences and work with other state agencies to develop incentive packages encouraging the utilization of technology;
(8) Provide technical services and assistance to the various state spending units with respect to developing and improving data processing and telecommunications functions. The office shall provide training and direct data processing services to the various state agencies;
(9) Assess each state spending unit for the cost of any evaluation performed by the operations, policy oversight and process oversight sections of the division and any and all services, training, data processing services and technical assistance performed and provided by the office under the provisions of this section, including, but not limited to, the economic justification, system design and the suitability of equipment and systems used by the state spending unit;
(10) Award grants, from funds available for that purpose, to businesses that are exempt from income tax under section 501(c)(3) or (4) of the United States Internal Revenue Code of 1986, as amended, to further the purposes of this article; and
(11) Engage in any other activities as directed by the secretary of finance and administration or by the governor.
(b) With respect to executive agencies and, where indicated, to nonexecutive agencies, the chief information officer shall:
(1) Develop a unified and integrated structure for information systems for all executive agencies and nonexecutive agencies;
(2) Establish, based on need and opportunity, priorities and time lines for addressing the information systems and technology requirements of the various executive agencies of state government;
(3) Exercise authority inherent to the chief executive of the state as the governor may, by executive order, delegate to overrule and supersede decisions made by the administrators of the various executive agencies of government with respect to the design and management of information systems and approval of the purchase, lease or acquisition of information systems, information technology or information technology equipment and contracts for related services;
(4) Draw upon staff of other executive agencies for advice and assistance in the formulation and implementation of administrative and operational plans and policies; and
(5) Recommend to the governor transfers of information technology equipment, ownership of hardware, contracts, software licenses and human resources from any executive or nonexecutive agency and the most cost-effective and efficient uses of the fiscal resources of executive agencies, to consolidate or centralize information-processing operations.
(c) The chief information officer may employ:
(1) A director of operations;
(2) A director of policy oversight;
(3) A director of process oversight; and
(4) All other personnel necessary to carry out the work of the office and may approve reimbursement of costs incurred by employees to obtain education and training.
(d) All fees collected by the chief information officer shall be deposited in a special account in the state treasury to be known as the "Office of Technology Fund". Expenditures from the fund shall be made by the chief information officer 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 the fulfillment of the provisions set forth in article two of this chapter. 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.
(e) The chief information officer shall report quarterly to the joint committee on government and finance on all assessments made pursuant to subsection (b) of this section.
(f) The chief information officer shall oversee the state's unified telecommunications network and all telecommunications service to the state and maintain the accounting system for such system.
(g) On or before the first day of November, two thousand three, the chief information officer shall develop a plan related to the West Virginia network for educational telecomputing's (WVNET) connection and relationship to the office.
§5A-7-5. Notice of procurements by state spending units required to make purchases through the state purchasing division.

Any state spending unit that is required to submit a request to the state purchasing division prior to purchasing goods or services shall notify the chief information officer, in writing, at the same time it submits its request for proposal to the state purchasing division, of any proposed purchase of goods or services related to its information systems and telecommunication systems. The notice shall contain a brief description of the goods and services to be purchased.
§5A-7-6. Notice of procurements by state spending units exempted from submitting purchases to the state purchasing division.

(a) Any state spending unit that is not required to submit a request for proposal to the state purchasing division prior to purchasing goods or services shall notify the chief information officer, in writing, of any proposed purchase of goods or services related to its information or telecommunication systems. The notice shall contain a detailed description of the goods and services to be purchased. The state spending unit shall provide the notice to the chief information officer a minimum of twenty days prior to the time it requests bids on the provision of the goods or services.
(b) If the chief information officer evaluates the suitability of the information technology and telecommunication equipment and related services under the provisions of section four of this article and determines that the goods or services to be purchased are not suitable, he or she shall, within ten days of receiving the notice from the state spending unit, notify the state spending unit, in writing, of any recommendations he or she has regarding the proposed purchase of the goods or services. If the state spending unit receives a written notice from the chief information officer within the time period required by this section, the state spending unit shall not put the goods or services out for bid less than thirty days following receipt of the notice from the chief information officer.
§5A-7-7. Biannual report.
The chief information officer shall report biannually to the legislative joint committee on government and finance on the activities of the office of technology within the department of finance and administration.
§5A-7-8. Exemptions.
The provisions of this article do not apply to the Legislature or the judiciary.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH

OF STATE GOVERNMENT.

ARTICLE 1. GENERAL PROVISIONS.

§5F-1-2. Executive departments created; offices of secretary created.

(a) There are created and continued, within the executive branch of the state government, the following departments:
(1) Department of finance and administration;
(2) Department of education and the arts;
(3) Department of environmental protection;
(4) Department of health and human resources;
(5) Department of military affairs and public safety; and
(6) Department of tax and revenue; and
(7) (6)Department of transportation.
(b) Each department will be headed by a secretary appointed by the governor with the advice and consent of the Senate. Each secretary serves at the will and pleasure of the governor.
(c) Effective the first day of July, two thousand two, the department of tax and revenue and the agencies, offices, boards and commissions within the department and the department of administration and the agencies, offices, boards and commissions within the department are transferred to the department of finance and administration, pursuant to section two, article one, chapter five-a of this code.
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.

ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers; appointment; qualifications; powers and salaries of such officers.

(a) Each of the following appointive state officers named in this subsection shall be appointed by the governor, by and with the advice and consent of the Senate. Each of the appointive state officers serves at the will and pleasure of the governor for the term for which the governor was elected and until the respective state officers' successors have been appointed and qualified. Each of the appointive state officers are subject to the existing qualifications for holding each respective office and each has and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by virtue of existing law respecting each office.
Prior to the first day of July, two thousand one, each such named appointive state officer shall continue to receive the annual salaries they were receiving as of the effective date of the enactment of this section in two thousand one, and thereafter, notwithstanding any other provision of this code to the contrary, the annual salary of each named appointive state officer shall be as follows:
Administrator, division of highways, ninety thousand dollars; administrator, state tax division, sixty-five thousand dollars; administrator, division of corrections, seventy-five thousand dollars; administrator, division of natural resources, seventy thousand dollars; superintendent, state police, seventy-five thousand dollars; administrator, lottery division, seventy-five thousand dollars; director, public employees insurance agency, seventy-five thousand dollars; administrator, division of banking, sixty seventy-five thousand dollars; administrator, division of insurance, sixty seventy- five thousand dollars; administrator, division of culture and history, fifty-five thousand dollars; administrator, alcohol beverage control commission, seventy thousand dollars; administrator, division of motor vehicles, seventy thousand dollars; director, division of personnel, fifty-five thousand dollars; adjutant general, seventy-five thousand dollars; chairman, health care authority, seventy thousand dollars; members, health care authority, sixty thousand dollars; director, human rights commission, forty-five thousand dollars; administrator, division of labor, sixty thousand dollars; administrator, division of veterans' affairs, forty-five thousand dollars; administrator, division of emergency services, forty-five thousand dollars; members, board of parole, forty-five thousand dollars; members, employment security review board, seventeen thousand dollars; members, workers' compensation appeal board, seventeen thousand eight hundred dollars; administrator, bureau of employment programs, seventy thousand dollars; administrator, bureau of commerce, seventy thousand dollars; administrator, bureau of environment, seventy thousand dollars; and director, office of miner's health, safety and training, sixty-five thousand dollars. Secretaries of the departments shall be paid an annual salary as follows: Health and human resources, ninety thousand dollars; transportation, seventy-five thousand dollars; tax and revenue, seventy-five thousand dollars; military affairs and public safety, seventy-five thousand dollars; administration, seventy-five thousand dollars; education and the arts, seventy-five thousand dollars; and environmental protection, seventy-five thousand dollars.
(b) Each of the state officers named in this subsection shall continue to be appointed in the manner prescribed in this code and, prior to the first day of July, two thousand two, each of the state officers named in this subsection shall continue to receive the annual salaries he or she was receiving as of the effective date of the enactment of this section in two thousand two and shall thereafter, notwithstanding any other provision of this code to the contrary, be paid an annual salary as follows:
Administrator, division of risk and insurance management, fifty-five thousand dollars; director, division of rehabilitation services, sixty thousand dollars; executive director, educational broadcasting authority, sixty thousand dollars; secretary, library commission, sixty-seven thousand dollars; director, geological and economic survey, fifty-two thousand five hundred dollars; executive director, prosecuting attorneys institute, sixty thousand dollars; executive director, public defender services, sixty thousand dollars; commissioner, bureau of senior services, seventy thousand dollars; director, state rail authority, fifty-five thousand dollars; executive secretary, women's commission, thirty-one thousand dollars; director, hospital finance authority, twenty-six thousand dollars; member, racing commission, twelve thousand dollars; chairman, public service commission, seventy thousand dollars; and members, public service commission, seventy thousand dollars.
(c) Beginning the first day of July, two thousand three, the secretary of the department of finance and administration, who is the successor to the secretary of administration and the secretary of tax and revenue, which positions cease to exist on the first day of July, two thousand three, shall be paid an annual salary of ninety thousand dollars.
(c)(d) No increase in the salary of any appointive state officer pursuant to this section shall be paid until and unless the appointive state officer has first filed with the state auditor and the legislative auditor a sworn statement, on a form to be prescribed by the attorney general, certifying that his or her spending unit is in compliance with any general law providing for a salary increase for his or her employees. The attorney general shall prepare and distribute the form to the affected spending units.
(e) The amendment and reenactment of this section in the year two thousand three shall become effective the first day of July, 2003."
On motion of Delegate Michael, the amendment was amended on page six, section two, line fourteen, following the word "in" by striking out the word "May" and inserting in lieu thereof the word "July".
And,
On page twenty-one, section two, line nineteen, following the word "thousand" by striking out the word "two" and inserting in lieu thereof the word "three".
Delegate Tucker requested that he be shown as voting "Nay" on the adoption of the amendment to the amendment.
The question being on the adoption of the committee amendment, as amended, the same was put and prevailed.
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.
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. 586), and there were--yeas 69, nays 30, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Azinger, Blair, Border, Calvert, Canterbury, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Frich, Hall, Hamilton, Howard, Leggett, Louisos, Overington, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Trump, Wakim, Walters and Webb.
Absent And Not Voting: Coleman.
So, four fifths of the members present not having voted in the affirmative, the constitutional rule was not dispensed with.
S. B. 352, Reenacting jobs 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, on page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 1C. WEST VIRGINIA JOBS ACT.
§21-1C-2. Definitions.
As used in this article:
(1) The term 'construction project' means any construction, reconstruction, improvement, enlargement, painting, decorating or repair of any public improvement let to contract in an amount equal to or greater than five hundred thousand one million dollars. The term 'construction project' does not include temporary or emergency repairs;
(2) (A) The term 'employee' means any person hired or permitted to perform hourly work for wages by a person, firm or corporation in the construction industry;
(B) The term 'employee' does not include:
(i) Bona fide employees of a public authority or individuals engaged in making temporary or emergency repairs;
(ii) Bona fide independent contractors; or
(iii) Salaried supervisory personnel necessary to assure efficient execution of the employee's work;
(3) The term 'employer' means any person, firm or corporation employing one or more employees on any public improvement and includes all contractors and subcontractors;
(4) The term 'local labor market' means every county in West Virginia and all counties bordering West Virginia that fall within seventy-five miles of the border of West Virginia;
(5) The term 'public authority' means any officer, board, commission or agency of the state of West Virginia and its subdivisions, excluding including counties and municipalities. Further, the economic grant committee, economic development authority, infrastructure and jobs development council and school building authority shall be required to comply with the provisions of this article for loans, grants or bonds provided for public improvement construction projects; Provided, That any project initiated by a county or local economic development authority and which is under the effective management of the county or local economic development authority shall not be included in this requirement
(6) The term 'public improvement' includes the construction of all buildings, roads, highways, bridges, streets, alleys, sewers, ditches, sewage disposal plants, waterworks, airports and all other structures that may be let to contract by a public authority, excluding improvements funded, in whole or in part, by federal funds.
§21-1C-3. Legislative findings; statement of policy.
The Legislature finds that the rate of unemployment in this state is significantly higher than that of most other states and that a majority of West Virginia counties are designated as labor surplus areas by the United States department of labor.
The Legislature finds that the employment of persons from outside the local labor market on public improvement construction projects contracted for and subsidized by the taxpayers of the state contributes significantly to the rate of unemployment and the low per capita income among qualified state residents who would otherwise be hired for these jobs.
Therefore, the Legislature declares that residents of local labor markets should be employed and given preference in hiring for the construction of public improvement projects which depend, in whole or in part, on state directly utilize taxpayer funding, in whole or in part.
§21-1C-4. Local labor market utilization on public improvement construction projects; waiver certificates.

(a) Employers shall hire at least seventy-five percent of employees for public improvement construction projects from the local labor market, to be rounded off, with at least two employees from outside the local labor market permissible for each employer per project. Employees shall have resided in the local labor market for at least six months prior to their application for employment.
(b) Any employer unable to employ the minimum number of employees from the local labor market shall inform the nearest office of the bureau of employment programs' division of employment services of the number of qualified employees needed and provide a job description of the positions to be filled.
(c) If, within three business days following the placing of a job order, the division is unable to refer any qualified job applicants to the employer or refers less qualified job applicants than the number requested, then the division shall issue a waiver to the employer stating the unavailability of applicant and shall permit the employer to fill any positions covered by the waiver from outside the local labor market. The waiver shall be either oral or in writing and shall be issued within the prescribed three days. A waiver certificate shall be sent to both the employer for its permanent project records and to the public authority.
§21-1C-5. Applicability and scope of article; reporting requirements.
(a) This article applies to expenditures for construction projects by any public authority for public improvements as defined by this article.
(b) For public improvement projects let pursuant to this article, the public authority shall file, or require an employer as defined in section two of this article to file, with the division of labor copies of the waiver certificates and certified payrolls, pursuant to article five-a of this chapter, or other comparable documents that include the number of employees, the county and state wherein the employees reside and their occupation.
(c) The division of labor shall compile the information required by this section and submit it to the joint committee on government and finance by the fifteenth day of October, two thousand two five, for a legislative audit to be prepared for the December, two thousand two five, interim session. Beginning with the legislative interim meetings in May, two thousand three, and continuing through the interim period ending in November, two thousand five, the division of labor shall provide quarterly reports to the joint committee on government and finance on the information compiled pursuant to this article. The joint committee may forward these reports to the legislative auditor to review and make comments regarding the usefulness of the information collected and to suggest changes to the division's method of reporting to ensure the information collected will prove useful in evaluating the effectiveness of the provisions of this article.
(d) Each public authority has the duty to implement the reporting requirements of this article. Every public improvement contract or subcontract let by a public authority shall contain provisions conforming to the requirements of this article.
(e) The division of labor is authorized to establish procedures for the efficient collection of data, collection of civil penalties prescribed in section six and transmittal of data to the joint committee on government and finance.
§21-1C-7. Effective date.
This article is effective from passage through the fifteenth day of March, two thousand six."
Delegate Overington moved to amend the amendment on page five, section seven, line twenty-two, by striking out all of section seven and inserting in lieu thereof the following:
"§21-1C-7. Jobs impact statements upon proposed legislation; legislative findings; persons empowered to request jobs impact statement; preparation by West Virginia development offices; time limitations.

(a) The Legislature finds that, in order to maintain and create an economic climate which will sustain and promote the creation and retention of jobs in the state of West Virginia and provide for employment opportunities for as many citizens as possible, it is important to understand the jobs impact of acts of the Legislature. The Legislature further finds that without appropriate information it may enact legislation that would adversely affect employment in the state.
(b) Upon written request by the governor or the presiding officer of either house of the Legislature, proposed legislation which has an impact on the state's economy shall be reviewed by the West Virginia development office, which shall prepare a jobs impact statement. The request shall be accompanied by ten copies of the proposed legislation. In preparing a jobs impact statement, the director of the West Virginia development office may seek assistance or data from, or contract with, any organization or state agency which may facilitate the compilation of the jobs impact statement. Any state agency shall provide requested information within ten days from the date of the request.
(c) The West Virginia development office shall return a jobs impact statement to the requesting party within twenty days of the date of the original request.
§21-1C-8. Contents of the jobs impact statement; explanations required for omissions.
(a) General rule. -- The jobs impact statement, using generally accepted methodology, shall detail both short-term and long-term job effects of the proposed legislation and shall include, but is not limited to, the following information:
(1) A determination of the probable result of the legislation in terms of the number of West Virginia jobs which will be created, retained or eliminated;
(2) A statement of the probable net impact of the legislation on employment levels and employment patterns in West Virginia; and
(3) A determination of the relative impact on the number of West Virginia jobs by broad industrial sector (two-digit standard industrial classification).
(b) Omission. -- A jobs impact statement that omits any information required by subsection (a) of this section shall specifically note its omission, the reason for its omission, the importance of any relevant information so omitted to a complete and realistic assessment of the economic impact of the legislation and the additional time and effort required to obtain any information needed for the assessment.
§21-1C-9. Lack of jobs impact statement not to affect consideration or validity of legislation.
If, in the opinion of the director of the West Virginia development office, a jobs impact statement cannot be prepared within the statutory time frame, the unavailability of a jobs impact statement may not affect the validity of legislation which is enacted nor shall the unavailability restrict consideration of pending legislation. No provision of this article shall be determined to alter, amend or invalidate any rule of the Senate, rule of the House of Delegates or joint rule of the Senate and House of Delegates.
§21-1C-10. Availability of copies of jobs impact statements.
One copy of a jobs impact statement requested under section seven of this article shall be made available to the governor and the presiding officers of both houses of the Legislature, who shall distribute the statement to all members of each respective house. Copies of the statement shall be made available to the public at the offices of the clerk of the respective houses of the Legislature.
§21-1C-11. Effective date.
This article is effective from passage through the fifteenth day of march, two thousand six."
And,
By amending the enacting section to read as follows:
"That sections two, three, four, five and seven, article one-c, chapter twenty-one 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 four new sections, designated sections eight, nine, ten and eleven, all to read as follows" followed by a colon.
Delegate Staton arose to a point of order as to the germaneness of the amendment.
To the point of order the Speaker Pro Tempore replied, stating that the fundamental purpose of the amendment was not germane to the fundamental purpose of the bill to which it was offered.
The question being on the adoption of the amendment recommended by the Committee on Finance, the same was put and prevailed.
The bill was then ordered to third reading.
Messages from the Senate

On motion of Delegate Staton, the House of Delegates requested the return of Com. Sub. for H B. 2126, Strengthening penalties relating to violations of fire laws and rules, having been passed in earlier proceedings and communicated to the Senate.
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 amendment, to take effect from passage, a bill of the House of Delegates as follows:
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 motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof provisions of Com. Sub. for S. B. 75.
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendment and requested the Senate to recede therefrom.
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, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 2224, Relating to higher education reorganization.
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 section two, article eight, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section one, article five, chapter five of said code be amended and reenacted; that section two, article one, chapter eighteen-b of said code be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections eight and ten; that section three, article one-a of said chapter be amended and reenacted; that section six, article one-b of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section ten; that sections three, four and eight, article three-c of said chapter be amended and reenacted; that sections three, four, five, six and seven, article five of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section nine; that article six of said chapter be amended by adding thereto a new section, designated section four-b; that sections four and six, article seven of said chapter be amended and reenacted; that section three, article eight of said chapter be amended and reenacted; that sections five and ten, article nine of said chapter be amended and reenacted; that sections one and fourteen, article ten of said chapter be amended and reenacted; and that article fourteen of said chapter be amended by adding thereto a new section, designated section eleven, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-1. Definitions.
For the purposes of this article:
(1) (a) 'Eligible employee' means either of the following:
(1) Any regular full-time employee of the state or any spending unit thereof of the state who is eligible for membership in any state retirement system of the state of West Virginia or other retirement plan authorized by the state: Provided, That the mandatory salary increase required by this article shall not apply to any faculty employee at public state institutions of higher learning education, or any employee of the state whose compensation is fixed by statute or by statutory schedule other than employees described in this section. (except that the Clerks, deputy clerks and magistrate assistants of magistrate courts shall be are eligible for the incremental salary increases provided in this article and with such the increases to be allowable in addition to the maximum salaries and compensation for such the employee offices under the magistrate court system statutes of article one, chapter fifty of the code.), nor shall This article may not be construed to mandate an increase in the salary of any elected or appointed officer of the state; or
(2) Any classified employee as defined in section two, article nine, chapter eighteen-b of this code who is an employee of a state institution of higher education or of the higher education policy commission;
(2) (b) 'Years of service' means full years of totaled service as an employee of the state of West Virginia; and
(3) (c) 'Spending unit' means any state office, department, agency, board, commission, institution, bureau or other designated body authorized to hire employees.
CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 1. GOVERNANCE
§18B-1-2. Definitions.
The following words when used in this chapter and chapter eighteen-c of this code have the meaning hereinafter ascribed to them unless the context clearly indicates a different meaning:
(a) For the transition year beginning on the first day of July, two thousand, and ending on the thirtieth day of June, two thousand one, only, 'governing board' or 'board' means the higher education interim governing board created pursuant to article one-c of this chapter; and, beginning on the first day of July, two thousand one, 'governing board' or 'board' means the institutional board of governors of West Virginia university, Marshall university, the West Virginia school of osteopathic medicine, Bluefield state college, Concord college, eastern West Virginia community and technical college, Fairmont state college, Glenville state college, Shepherd college, southern West Virginia community and technical college, West Liberty state college, West Virginia northern community and technical college and West Virginia state college, whichever is applicable within the context of the institution or institutions referred to in this chapter or in other provisions of law;
(a) Effective the first day of July, two thousand five, 'regional campus' means West Virginia university at Parkersburg, and West Virginia university institute of technology.
(b) Beginning on the first day of July, two thousand one, 'Governing boards' or 'boards' means the institutional boards of governors created pursuant to subsection (b), section one, article two-a of this chapter;
(c) 'Freestanding community and technical colleges' means southern West Virginia community and technical college, West Virginia northern community and technical college, eastern West Virginia community and technical college, which shall not be operated as branches or off-campus locations of any other state institution of higher education;
(d) 'Community college' or 'community colleges' means community and technical college or colleges as those terms are defined in this section;
(e) 'Community and technical college', in the singular or plural, means the freestanding community and technical colleges and other state institutions of higher education which have defined community and technical college responsibility districts and programs in accordance with the provisions of sections four and six, article three-c of this chapter;
(f) 'Community and technical college education' means the programs, faculty, administration and funding associated with the mission of community and technical colleges as provided in article three-c of this chapter;
(g) 'Essential conditions' means those conditions which shall be met by community and technical colleges as provided in section three, article three-c of this chapter;
(h) 'Higher education institution' means any institution as defined by Sections 401(f), (g) and (h) of the federal Higher Education Facilities Act of 1963, as amended;
(i) 'Higher education policy commission', or 'policy commission' or 'commission' means the commission created pursuant to section one, article one-b of this chapter;
(j) 'Chancellor' means the chief executive officer of the higher education policy commission employed pursuant to section five, article one-b of this chapter;
(k) 'Institutional operating budget' or 'operating budget' for any fiscal year means an institution's total unrestricted education and general funding from all sources in a prior fiscal year, including, but not limited to, tuition and fees and legislative appropriation, and any adjustments to that funding as approved by the commission based on comparisons with peer institutions or to reflect consistent components of peer operating budgets;
(l) 'Post-secondary vocational education programs' means any college-level course or program beyond the high school level provided through an institution of higher education under the jurisdiction of a governing board which results in or may result in the awarding of a two-year associate degree;
(m) 'Rule' or 'rules' means a regulation, standard, policy or interpretation of general application and future effect;
(n) For the purposes of this chapter and chapter eighteen-c of this code, 'senior administrator' means the vice chancellor for administration employed by the chancellor in accordance with section two, article four of this chapter. The vice chancellor for administration shall assume all the powers and duties that are assigned by law to the senior administrator;
(o) 'State college' means Bluefield state college, Concord college, Fairmont state college, Glenville state college, Shepherd college, West Liberty state college or West Virginia state college;
(p) 'State institution of higher education' means any university, college or community and technical college under the direct or indirect jurisdiction of a governing board as that term is defined in this section;
(q) 'Regional campus' means West Virginia university at Parkersburg, Potomac state college of West Virginia university, and West Virginia university institute of technology; Each regional campus shall adopt separate strategic plans required by section one-c of this article;
(r) The advisory board previously appointed for the West Virginia graduate college shall be known as the 'board of visitors' and shall provide guidance to the Marshall university graduate college;
(s) 'Institutional compact' means a compact between a state institution of higher education and the commission, as described in section two, article one-a of this chapter;
(t) 'Peer institutions', 'peer group' or 'peers' means public institutions of higher education used for comparison purposes and selected by the commission pursuant to section three, article one- a of this chapter;
(u) 'Administratively linked community and technical college' means a community and technical college created pursuant to section eight, article three-c of this chapter;
(v) 'Sponsoring institution' means the state institution of higher education that maintains an administrative link to a community and technical college pursuant to section eight, article three-c of this chapter;
(w) 'Collaboration' means entering into an agreement with one or more providers of education services in order to enhance the scope, quality, or efficiency of education services;
(x) 'Broker' or the act of 'brokering' means serving as an agent on behalf of students, employers, communities or responsibility areas to obtain education services not offered by a sponsoring institution. These services include courses, degree programs or other services contracted through an agreement with a provider of education services either in-state or out-of-state; and
(y) 'Joint commission for vocational-technical-occupational education' or 'joint commission' means the commission established pursuant to article three-a of this chapter.
§18B-1-8. Student rights when institutions merge or become administratively linked.
(a) Commencing with the effective date of this section, when a conflict exists between academic program requirements at an institution to be consolidated, merged or administratively linked to another state institution of higher education, the requirements of the institution at which the student initially enrolled prevail. A student may not be required to earn additional credits toward the degree pursued, or to take additional courses, that were not included in the program of study at the time the student declared that major at the enrolling institution.
(b) A student enrolled in an institution to be consolidated, merged or administratively linked to another state institution of higher education shall continue to receive any state-funded student financial aid for which he or she would otherwise be eligible.
§18B-1-10. Potomac branch of West Virginia university.
(a) Notwithstanding any other provision of this code to the contrary, by the first day of July, two thousand five, Potomac state college shall merge and consolidate with West Virginia university, and become a fully integrated division of the university. All administrative and academic units shall be consolidated with primary responsibility for direction and support assigned to West Virginia university. The advisory board previously appointed for Potomac state college shall be known as the board of visitors and shall provide guidance to the division in carrying out its mission.
(b) Operational costs for the Potomac campus may not exceed by more than ten percent the average cost per full-time equivalent student for freestanding community and technical colleges or the southern regional education board average expenditures for two-year institutions. West Virginia University shall reduce these costs to the mandated level within four years.
(c) Auxiliary enterprises shall be incorporated into the West Virginia university auxiliary enterprise system. The West Virginia university board of governors shall determine if operations at the Potomac campus can be operated on a self-sufficient basis when establishing rates for auxiliary services and products.
(d) Potomac state college has a strong reputation in agriculture and forestry instruction, pre- professional programs in business, computer science and education, and basic liberal arts instruction. These programs shall be further cultivated and emphasized as the sustaining mission of the Potomac campus over the next decade, except that the higher education policy commission may change the mission of the Potomac campus at any time the commission determines appropriate. In order to focus its resources on these programs, the campus shall contract through eastern West Virginia community and technical college to provide work force development training, literacy education and technical education programs which are most efficiently offered within a flexible community and technical college curriculum. This collaborative relationship shall serve to strengthen both institutions and generate a model relationship between traditional and community and technical college education for institutions throughout the state.
(e) Beginning the first day of November, two thousand three, and annually thereafter, Potomac state college and eastern West Virginia community and technical college shall report to the higher education policy commission on plans, accomplishments and recommendations in implementing the cooperative relationship authorized in subsection (d) of this section. The commission shall report to the legislative oversight commission on education accountability on the cooperative activities, results and recommendations for changes by the fifteenth day of December, two thousand three, and annually thereafter.
ARTICLE 1A. COMPACT WITH HIGHER EDUCATION FOR THE FUTURE OF WEST VIRGINIA.
§18B-1A-3. Peer institutions.
(a) The commission shall select not fewer than ten peer institutions for each state institution of higher education in West Virginia, including, but not limited to, independently accredited community and technical colleges.
(b) The peer institutions shall be selected from among institutions throughout the United States and not solely from the states that are members of the southern regional education board.
(c) The peer institutions, as selected by the commission, shall be used as benchmarks for comparison purposes only and are not intended to reflect funding goals for West Virginia institutions of higher education. Such a use is inappropriate since institutions selected as peers for a state institution may be located in an area of high per capita income or have their funding subject to other factors that make its use unrealistic for setting funding goals in West Virginia. The peer institutions shall be used for comparison in the following areas:
(1) To determine adjustments to base operating budgets as described in section five of this article;
(2) To determine comparable levels of tuition;
(3) To determine comparable faculty and staff teaching requirements and other workloads; and
(4) For such other purposes as the law may require or the commission may find useful or necessary.
(d) The commission shall contract with a national, independent education consulting firm to assist in the unbiased selection of peer institutions for each West Virginia institution. The commission shall select peer institutions for each institution through an open, deliberative, objective process and in consultation with the institutional boards of governors, intended to achieve broad understanding of the basis for this selection in the higher education community and the Legislature. Final peer selection is subject to the review approval of the legislative oversight commission on education accountability. In selecting peer institutions, the commission shall use criteria such as, but not limited to:
(1) Institutional mission;
(2) Institutional size related to full-time equivalent students;
(3) The proportions of full-time and part-time students;
(4) The level of academic programs, including, but not limited to, number of degrees granted at the associate, baccalaureate, masters, doctoral and first-professional level;
(5) The characteristics of academic programs such as health sciences, professional, technical or liberal arts and sciences; and
(6) The level of research funding from federal competitive funding sources.
(e) Subject to the review approval of the legislative oversight commission on education accountability, the commission shall review and make necessary adjustments to peer institutions at least every six years or as necessary based on changes in institutional missions as approved in institutional compacts or in changes at peer institutions.
(f) Nothing herein shall may be construed to prevent the commission from using the same peers or peer groups for more than one institution of higher education.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-6. Appointment of institutional presidents, provosts; evaluation.
(a) Appointment of institutional presidents. -- Effective on the first day of July, two thousand, Appointment of presidents of the public institutions of higher education shall be made as follows:
(1) Subject to the approval of the commission, the appropriate governing board of the institution shall appoint a president for Bluefield state college, Concord college, eastern West Virginia community and technical college, Fairmont state college, Glenville state college, Marshall university, Shepherd college, southern West Virginia community and technical college, West Liberty state college, West Virginia northern community and technical college, West Virginia school of osteopathic medicine, West Virginia state college and West Virginia university;
(2) Subject to the approval of the appropriate governing board and to the provisions of article three-c of this chapter, the president of the appropriate institution shall appoint the president of the regional campuses of West Virginia university and of the community and technical colleges which remain linked administratively to a sponsoring institution. The presidents of such regional campuses and community and technical colleges shall serve at the will and pleasure of the institutional president. The president of the sponsoring institution shall appoint a president for the administratively linked community and technical college at the appropriate time as outlined in the institutional compact and approved by the commission.
(3) Subject to the approval of the commission and to the provisions of articles article three-c and three-f of this chapter, the president of the appropriate institution shall appoint the provost in those cases where the community and technical college remains as a component of another institution. The provost shall serve at the will and pleasure of the president of the employing institution.
(b) Incumbent heads of institutions. -- Any president of a public institution of higher education in office on the first day of July, two thousand, shall continue in office subject to state law: Provided, That the provost of an administratively linked community and technical college in office on the thirtieth day of June, two thousand one, may become the president of that community and technical college on the first day of July, two thousand one, with the approval of the governing board of the institution and subject to the consent of the commission. The presidents shall continue in office subject to state law and subject to the will and pleasure of the appropriate governing board or employing institution.
(b) Other appointments. -- Appointments of administrative heads of state institutions of higher education shall be made in accordance with the provisions of subsection (a) of this section except in the following instances:
(1) Effective the first day of July, two thousand three, the institutional president shall appoint a provost to be the administrative head of New River community and technical college; and
(2) Effective the first day of July, two thousand five, the institutional president shall appoint a provost to be the administrative head of the Potomac campus of West Virginia university.
(c) Evaluation of institutional presidents administrative heads. -- The governing boards shall conduct written performance evaluations of each institution's president: Provided, That except the presidents of regional campuses shall be evaluated by the president of West Virginia university. and The presidents provosts of administratively linked community and technical colleges and other consolidated, merged or administratively linked units shall be evaluated by the president of the employing institution. Evaluations shall be done in every fourth year of employment as president administrative head, recognizing unique characteristics of the institution and utilizing institutional personnel, institutional boards of advisors as appropriate, staff of the appropriate governing board and persons knowledgeable in higher education matters who are not otherwise employed by a governing board. A part of the evaluation shall be a determination of the success of the institution in meeting the requirements of its institutional compact.
§18B-1B-10. Goals of efficiency and effectiveness; findings; reports to commission and legislative oversight commission on education accountability.

(a) The Legislature finds that it is in the best interests of the citizens of West Virginia for state institutions of higher education to work diligently toward achieving the goals and objectives set forth in section one-a, article one of this chapter and in the institutional compacts. One way these goals may be achieved is through collaborative agreements between or among two or more institutions to enhance the scope, quality, or efficiency of education services.
(b) To further these goals of cooperation and coordination, to avoid unnecessary duplication of program development and delivery, and to ensure that programs and services address the public policy agenda established by the Legislature and the commission, compact elements and goals for post-secondary education, by the first day of September, two thousand three, Concord college and Bluefield state college jointly shall complete a comprehensive study of the degree to which these institutions are making progress toward meeting the goals for post-secondary education, their institutional compacts and the public policy agenda and shall report their finding to the commission. The report shall address specific examples of collaboration, cooperation or brokering in academic programs, administrative services or any joint efforts which aim to avoid unnecessary duplication and to ensure delivery of high quality education services.
(c) The commission shall analyze the report prepared by Concord college and Bluefield state college, together with any other relevant data, and report to the legislative oversight commission on education accountability by the first day of November, two thousand three. The report shall contain findings and recommendations to address at least the following areas relevant to the two institutions:
(1) The fiscal status;
(2) The progress in meeting the goals for post-secondary education, the institutional compact, and the public policy agenda;
(3) Possible academic and fiscal advantages that might be derived from an administrative link between the two institutions; and
(4) Any changes to the programs or services of either institution required by the commission based on their findings or those of the institutions.
(d) If the commission determines that either institution has made insufficient progress toward the goals established in this chapter, in the institutional compacts, in the public policy agenda established by the commission, or has not complied with the changes required by the commission pursuant to subsection (c) of this section, the commission immediately shall take any action necessary to further the goals and requirements of this section.
(e) The commission shall continue to monitor and review each institution's compliance with this section.
ARTICLE 3C. COMMUNITY AND TECHNICAL COLLEGE SYSTEM.
§18B-3C-3. Essential conditions for community and technical college programs and services.
The Legislature hereby establishes the following essential conditions for community and technical college programs and services:
(a) Independent accreditation by the commission on institutions of higher education of the north central association of colleges and schools (NCA) reflecting external validation that academic programs, services, faculty, governance, financing and other policies are aligned with the community and technical college mission of the institution;
(b) A full range of community and technical college services offered as specified in section six of this article;
(c) Programmatic approval consistent with the provisions of section nine of this article;
(d) A fee structure competitive with its peer institutions;
(e) Basic services, some of which may be obtained under contract with existing institutions in the region. These basic services shall include, but are not limited to, the following:
(1) Student services, including, but not limited to, advising, academic counseling, financial aid and provision of the first line of academic mentoring and mediation;
(2) Instructional support services;
(3) Access to information and library services;
(4) Physical space in which courses can be offered;
(5) Access to necessary technology for students, faculty and mentors;
(6) Monitoring and assessment; and
(7) Administrative services, including, but not limited to, registration, fee collection and bookstore and other services for the distribution of learning materials;
(f) A president provost who is the chief academic and administrative officer of the community and technical college appointed and serving pursuant to the terms of section six, article one-b of this chapter. The provost shall report directly to the president of the institution and shall have appropriate direct contact with the institutional board of governors. It is the responsibility of the board of governors to provide sufficient time on its agenda for each provost of a component community and technical college to discuss issues relevant to the mission of the component;
(g) An institutional board of governors or an institutional board of advisors appointed and serving as required by law;
(h) A full-time core faculty, complemented by persons engaged through contract or other arrangements, including college and university faculty, to teach community college courses and qualified business, industry and labor persons engaged as adjunct faculty in technical areas;
(i) A faculty personnel policy, formally established to be separate and distinct from that of other institutions, which includes, but is not limited to, appointment, promotion, workload and, if appropriate, tenure pursuant to section nine of this article. These policies shall be appropriate for the community and technical college mission and may not be linked to the policies of any other institution;
(j) Community and technical colleges designed and operating as open-provider centers with the authority and flexibility to draw on the resources of the best and most appropriate provider to ensure that community and technical college services are available and delivered in the region in a highly responsive manner. A community and technical college may contract with other institutions and providers as necessary to obtain the academic programs and resources to complement those available through a sponsoring college, where applicable, in order to meet the region's needs;
(k) Separately identified state funding allocations for each of the community and technical colleges. The president provost of the community and technical college has full budgetary authority for the entity, subject to accountability to its governing board, including authority to retain all tuition and fees generated by the community and technical college for use to carry out its mission.
§18B-3C-4. Responsibility districts.
(a) Each community and technical college is hereby assigned a responsibility district within which it is responsible for providing the full array of community and technical college programs and services as defined in section six of this article. The programs and services shall address the public policy agenda, compact elements and goals for post-secondary education established in section one- a, article one of this chapter as they relate to community and technical colleges, and other goals which may be established by the commission. The responsibility districts shall be comprised of contiguous areas of the state which have similar economic, industrial, educational, community and employment characteristics to facilitate specialization in mission and programming. For the purposes of initial implementation and organization, the districts shall be comprised as follows and assigned to the designated community and technical colleges:
(1) West Virginia northern community and technical college - Ohio, Brooke, Hancock, Marshall, Tyler and Wetzel counties;
(2) West Virginia university at Parkersburg - Wood, Jackson, Pleasants, Ritchie, Roane, Tyler and Wirt counties;
(3) Southern West Virginia community and technical college - Logan, Boone, Lincoln, McDowell, Mingo, Raleigh and Wyoming counties;
(4) Bluefield state community and technical college - Mercer, Greenbrier, McDowell, Monroe, Pocahontas, Raleigh and Summers counties;
(5) Glenville state community and technical college - Gilmer, Barbour, Braxton, Calhoun, Clay, Lewis, Nicholas, Roane, Upshur and Webster counties;
(6) Fairmont state community and technical college - Marion, Doddridge, Harrison, Monongalia, Preston, Randolph, Taylor and Barbour counties;
(7) Shepherd community and technical college - Jefferson, Berkeley Grant and Morgan counties;
(8) Eastern West Virginia community and technical college - Mineral, Grant, Hampshire, Hardy, Tucker and Pendleton counties;
(9) West Virginia state community and technical college - Kanawha, Putnam and Clay counties;
(10) West Virginia university institute of technology community and technical college - Fayette, Clay, Kanawha, Raleigh and Nicholas counties; and
(11) Marshall university community and technical college - Cabell, Kanawha, Mason, Putnam and Wayne counties; and
(12) Effective the first day of July, two thousand three, the following changes are made to the responsibility districts:
(A)The responsibility districts of the components known as Glenville state community and technical college and Bluefield state community and technical college are abolished and the counties formerly within those responsibility districts are reassigned as provided in this subsection.
(B) New River community and technical college of Bluefield state college - Clay, Fayette, Greenbrier, Mercer, McDowell, Monroe, Nicholas, Pocahontas, Raleigh, Summers and Webster counties; and
(C) Fairmont state community and technical college - Barbour, Braxton, Calhoun, Doddridge, Gilmer, Harrison, Lewis, Marion, Monongalia, Preston, Randolph, Taylor and Upshur counties.
(b) It is the intent of the Legislature that, where counties are listed in more than one district, the county shall be the joint responsibility of each community and technical college assigned that county or shall be divided as determined by the commission. The boundaries of the districts may be modified from time to time by the commission to serve better the needs within the districts. Such modifications are not required to follow county boundaries.
(c) Prior to the first day of July, two thousand three, Glenville state college, Fairmont state college and Bluefield state college shall agree as to the transfer of ownership of or title to any property, materials, equipment or supplies of the former Glenville state community and technical college; the transfer of any valid agreement, obligation or claim entered into or incurred by the Glenville state community and technical college; and the transfer, if any, of faculty and staff employed by Glenville state college for the benefit of its community and technical college. Any disagreement regarding these transfers shall be submitted to the higher education policy commission for resolution.
§18B-3C-8. Process for achieving independently-accredited community and technical colleges.
(a) Over a six-year period beginning the first day of July, two thousand one, West Virginia shall move from having 'component' community and technical colleges to having a statewide network of independently-accredited community and technical colleges serving every region of the state. This section does not apply to the freestanding community and technical colleges, West Virginia university at Parkersburg and Potomac state college of West Virginia university: Provided, That Potomac state college of West Virginia university shall serve as a comprehensive two-year institution for the delivery of transfer education, may offer career programs in the area of agriculture, and may offer nontraditional outreach and work force development programs as a collaborative effort in a region with the local community and technical college whose mission and charge encompasses outreach and work force development programs.
(b) To be eligible for funds appropriated to develop independently accredited community and technical colleges, a state institution of higher education shall demonstrate the following:
(1) That it has as a part of its institutional compact approved by the council and the commission a step-by-step plan with measurable benchmarks for developing an independently accredited community and technical college that meets the essential conditions set forth in section three of this article;, except as limited in subdivisions (1), (2) and (4), subsection (c) of this section;
(2) That it is able to offer evidence annually to the satisfaction of the council and the commission that it is making progress toward accomplishing the benchmarks established in its institutional compact for developing an independently accredited community and technical college; and
(3) That it has submitted an expenditure schedule approved by the council and the commission which sets forth a proposed plan of expenditures for funds allocated to it from the fund.
(c) The following are recommended strategies for moving from the current arrangement of 'component' community and technical colleges to the legislatively mandated statewide network of independently accredited community and technical colleges serving every region of the state. The Legislature recognizes that there may be other means to achieve this ultimate objective; however, it is the intent of the Legislature that the move from the current arrangement of 'component' community and technical colleges to the legislatively-mandated statewide network of independently- accredited community and technical colleges serving every region of the state shall be accomplished. The following recommendations are designed to reflect significant variations among regions and the potential impacts on the sponsoring institutions.
(1) Bluefield state community and technical college. -- Bluefield state community and technical college, including the Lewisburg center, should retain its relationship as a component of Bluefield state college. The president and the board of governors of Bluefield state college are accountable to the commission for ensuring that the full range of community and technical college services is available throughout the region and that the community and technical college adheres, as nearly as possible, to the essential conditions pursuant to section three of this article with the possible exception of independent accreditation.
(2) Center for higher education and work force development at Beckley. -- The president of Bluefield state college and the institutional board of advisors are responsible, according to a plan approved by the commission, for the step-by-step implementation of a new independently accredited community and technical college administratively linked to Bluefield state college, known as the center for higher education and work force development, which adheres to the essential conditions pursuant to section three of this article. As an independently accredited community and technical college, the center also shall serve as higher education center for its region by brokering with other colleges, universities and other providers, in-state and out-of-state, both public and private, to ensure the coordinated access of students, employers, and other clients to needed programs and services. The new community and technical college shall serve Raleigh, Summers and Fayette counties and be headquartered in Beckley. The commission shall appoint an institutional board of advisors for the center at Beckley which is separate from the institutional board of advisors of Bluefield state college but may have some overlap in membership to facilitate coordination. In addition, the president of the center shall appoint a district consortium committee to advise the president on a comprehensive assessment of the needs in the region, on coordinating efforts with regional labor market information systems, and on other areas as provided for in section seven of this article relating to the duties of district consortia committees. The center shall facilitate the planning and development of a unified effort involving multiple providers and facilities, including, but not limited to, Concord college, the college of West Virginia, Marshall university, West Virginia university, West Virginia university institute of technology and other entities to meet the documented work force development needs in the region: Provided, That nothing in this subdivision prohibits or limits any existing, or the continuation of any existing, affiliation between the college of West Virginia, West Virginia university institute of technology and West Virginia university. The center for higher education and work force development at Beckley also shall provide the facilities and support services for other public and private institutions delivering courses, programs and services in Beckley. The objective would be to assure students and employers in the area that there would be coordination and efficient use of resources among the separate programs and facilities, existing and planned, in the Beckley area. If, at a future time, the commission believes it appropriate, it may recommend to the Legislature that the Beckley institution be created as a freestanding institution. New River community and technical college of Bluefield state college. --
(A) Bluefield state shall retain its existing mission but place greater emphasis and priority on its community and technical college role and serving the citizens of its expanded service district. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to Bluefield state college. Nothing herein may be construed to require Bluefield state college to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
(B) Effective the first day of July, two thousand three, the component formerly known as Bluefield state community and technical college shall become a multi-campus entity known as New River community and technical college, administratively linked to Bluefield state college. The multi-campus community and technical college shall serve Raleigh, Summers, Fayette, Greenbrier, Clay, Mercer, McDowell, Monroe, Nicholas, Pocahontas, and Webster counties and be headquartered in Beckley. The West Virginia council for community and technical college education shall appoint an institutional board of advisors, pursuant to section one, article six of this chapter, for New River community and technical college which is separate from the institutional board of governors of Bluefield state college.
(C) Bluefield state college shall take immediate steps to seek independent accreditation of New River community and technical college including all sites within its revised service district. The president and the board of governors are responsible for obtaining independent accreditation of the community and technical college by the thirty-first day of December, two thousand four. If the multi-campus entity known as New River community and technical college has not obtained independent accreditation by this date, the commission shall choose one of the following options:
(i) Create New River as a freestanding community and technical college; or
(ii) Assign the responsibility for obtaining independent accreditation to another state institution of higher education.
(D) The president and the board of governors of Bluefield state college also are accountable to the commission for ensuring that the full range of community and technical college services is available throughout the region and that New River community and technical college adheres to the essential conditions pursuant to section three of this article.
(E) As an independently accredited community and technical college, New River also shall serve as a higher education center for its region by brokering with other colleges, universities and other providers, in-state and out-of-state, both public and private, to ensure the coordinated access of students, employers, and other clients to needed programs and services.
(F) New River community and technical college shall facilitate the planning and development of a unified effort involving multiple providers and facilities, including, but not limited to, Concord college, the college of West Virginia, Marshall university, West Virginia university, West Virginia university institute of technology and other entities to meet the documented work force development needs in the region. Nothing in this subdivision prohibits or limits any existing, or the continuation of any existing, affiliation between the college of West Virginia, West Virginia university institute of technology and West Virginia university. New River community and technical college also shall provide the facilities and support services for other public and private institutions delivering courses, programs and services in Beckley. The objective is to assure students and employers in the area that there is coordination and efficient use of resources among the separate programs and facilities, existing and planned, in the Beckley area.
(3) Glenville state community and technical college. -- Glenville state community and technical college, including the centers in Nicholas, Lewis and Roane counties, should retain its relationship as a component of Glenville state college. The president of Glenville state college and the governing board are accountable to the commission for ensuring that the full range of community and technical college services is available throughout the region and that the community and technical college adheres as nearly as possible to the essential conditions pursuant to section three of this article, with the possible exception of independent accreditation.
(4) (2) Fairmont state community and technical college. -- Fairmont state community and technical college shall be an independently accredited community and technical college serving Marion, Doddridge, Barbour, Harrison, Monongalia, Preston, Randolph and Taylor, Braxton, Calhoun, Gilmer, Lewis, and Upshur counties. The community and technical college is developed on the base of the existing component community and technical college of Fairmont state college. Subject to the provisions of this section, the president and the governing board of Fairmont state college are responsible, according to a plan approved by the commission, for step-by-step implementation of the independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to Fairmont state college. Nothing herein shall may be construed to require Fairmont state college to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
(5) (3) Marshall university community and technical college. -- Senate Bill 653 created an implementation board charged with the responsibility to develop a plan, to be recommended to the commission, for the most effective and efficient method to deliver comprehensive community and technical college education to the citizens and employers of the responsibility areas of Marshall university, West Virginia state college and West Virginia university institute of technology. Pursuant to the recommendation of the implementation board and of the commission, Marshall university community and technical college shall become an independently accredited community and technical college. It should shall serve Cabell, Kanawha, Mason, Putnam and Wayne counties. The new community and technical college is developed on the base of the existing component community and technical college of Marshall university. Subject to the provisions of this section, the president and the governing board of Marshall university are responsible, according to a plan approved by the commission, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to Marshall university. Nothing herein shall may be construed to require Marshall university to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
(6) (4) Shepherd community and technical college. -- Shepherd community and technical college shall become an independently accredited community and technical college. It should shall serve Jefferson, Berkeley and Morgan counties. The new community and technical college is developed on the base of the existing component community and technical college of Shepherd college. Subject to the provisions of this section, the president and the governing board of Shepherd college are responsible, according to a plan approved by the commission, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to Shepherd college. Nothing herein shall may be construed to require Shepherd college to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
(7) (5) West Virginia state community and technical college. -- Senate Bill 653 created an implementation board charged with the responsibility to develop a plan, to be recommended to the commission, for the most effective and efficient method to deliver comprehensive community and technical college education to the citizens and employers of the responsibility areas of Marshall university, West Virginia state college and West Virginia university institute of technology. Pursuant to the recommendation of the implementation board and of the commission, West Virginia state community and technical college shall become an independently accredited community and technical college. It should shall serve Kanawha, Putnam and Clay counties. The new community and technical college is developed on the base of the existing component community and technical college of West Virginia state college. Subject to the provisions of this section, the president and the governing board of West Virginia state college are responsible, according to a plan approved by the commission, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to West Virginia state college. Nothing herein shall may be construed to require West Virginia state college to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
(8) (6) West Virginia university institute of technology. -- Senate Bill 653 created an implementation board charged with the responsibility to develop a plan, to be recommended to the commission, for the most effective and efficient method to deliver comprehensive community and technical college education to the citizens and employers of the responsibility areas of Marshall university, West Virginia state college and West Virginia university institute of technology. Pursuant to the recommendation of the implementation board and of the commission, West Virginia university institute of technology community and technical college shall become an independently accredited community and technical college. It should shall serve Fayette, Clay, Kanawha, Raleigh and Nicholas counties. The new community and technical college is developed on the base of the existing component community and technical college of West Virginia university institute of technology. Subject to the provisions of this section, the president and the governing board of West Virginia university institute of technology are responsible, according to a plan approved by the commission, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to West Virginia university institute of technology. Nothing herein shall may be construed to require West Virginia university institute of technology to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-3. Authority to contract for programs, services and facilities.
The governing boards and the commission are authorized and empowered to enter into contracts and expend funds for programs, services and facilities provided by public and private education institutions, associations, boards, agencies, consortia, corporations, partnerships, individuals and local, state and federal governmental bodies within and outside of West Virginia in order that maximum higher education opportunities of high quality may be provided to the citizens of the state in the most economical manner.: Provided, That In no event may a contract for such services and facilities be entered into unless the commission or the governing boards have determined that such services and facilities are necessary and that such services and facilities would be at a savings to the state.
Notwithstanding the provisions of this section, nothing herein contained shall supersede the responsibility and respective duties of the secretary of administration and the director of the purchasing division of such department for the execution and approval of the contracts entered into under this article and such contracts shall be in complete conformity with the provisions of articles three and five, chapter five-a of this code.
§18B-5-4. Purchase or acquisition of materials, supplies, equipment, services and printing.
(a) The commission and each governing board, through the vice chancellor for administration, shall purchase or acquire all materials, supplies, equipment, services and printing required for that governing board or the commission, as appropriate, and the state institutions of higher education under their jurisdiction. The commission shall adopt rules governing and controlling acquisitions and purchases in accordance with the provisions of this section. Such The rules shall assure that the commission and the governing boards:
(1) Do not preclude any person from participating and making sales thereof to the governing board or to the commission except as otherwise provided in section five of this article.: Provided, That the providing Provision of consultant services such as strategic planning services will not preclude or inhibit the governing boards or the commission from considering any qualified bid or response for delivery of a product or a commodity because of the rendering of those consultant services;
(2) Shall Establish and prescribe specifications, in all proper cases, for materials, supplies, equipment, services and printing to be purchased; and
(3) Shall Adopt and prescribe such purchase order, requisition or other forms as may be required;
(4) Shall Negotiate for and make purchases and acquisitions in such quantities, at such times and under contract, in the open market or through other accepted methods of governmental purchasing as may be practicable in accordance with general law;
(5) Shall Advertise for bids on all purchases exceeding twenty-five thousand dollars, to purchase by means of sealed bids and competitive bidding or to effect advantageous purchases through other accepted governmental methods and practices;: Provided, That for printing services, bids shall be advertised by written notification of such bids to any print shop, affiliated with an institution of higher education and operated by classified employees, on all purchases exceeding five thousand dollars;
(6) Shall Post notices of all acquisitions and purchases for which competitive bids are being solicited in the purchasing office of the specified institution involved in the purchase, at least two weeks prior to making such purchases and ensure that the notice is available to the public during business hours;
(7) Shall Provide for purchasing in the open market;
(8) Shall Make provision for vendor notification of bid solicitation and emergency purchasing; and
(9) Shall Provide that competitive bids are not required for purchases of five thousand dollars or less.
(b) The commission or each governing board, through the vice chancellor for administration, may issue a check in advance to a company supplying postage meters for postage used by that board, the commission and by the state institutions of higher education under their jurisdiction.
(c) When a purchase is to be made by bid, any or all bids may be rejected. However, all purchases based on advertised bid requests shall be awarded to the lowest responsible bidder taking into consideration the qualities of the articles to be supplied, their conformity with specifications, their suitability to the requirements of the governing boards, the commission and delivery terms.: Provided, That The preference for resident vendors as provided in section thirty-seven, article three, chapter five-a of this code shall apply to the competitive bids made pursuant to this section.
(d) The governing boards and the commission shall maintain a purchase file, which shall be a public record and open for public inspection. After the award of the order or contract, the governing boards and the commission shall indicate upon the successful bid that it was the successful bid and shall further indicate why bids are rejected and, if the mathematical low vendor is not awarded the order or contract, the reason therefor. No records in the purchase file shall may be destroyed without the written consent of the legislative auditor. Those files in which the original documentation has been held for at least one year and in which the original documents have been reproduced and archived on microfilm or other equivalent method of duplication may be destroyed without the written consent of the legislative auditor. All files, no matter the storage method, shall be open for inspection by the legislative auditor upon request.
(e) The commission also shall adopt rules to prescribe qualifications to be met by any person who is to be employed as a buyer pursuant to this section. These rules shall require that no person may be employed as a buyer unless that person, at the time of employment, either is:
(1) A graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any unit of government or for any business, commercial or industrial enterprise.
(f) Any person making purchases and acquisitions pursuant to this section shall execute a bond in the penalty of fifty thousand dollars, payable to the state of West Virginia, with a corporate bonding or surety company authorized to do business in this state as surety thereon, in form prescribed by the attorney general and conditioned upon the faithful performance of all duties in accordance with sections four through eight of this article and the rules of the interim governing board and the commission. In lieu of separate bonds for such buyers, a blanket surety bond may be obtained. Any such bond or bonds shall be filed with the secretary of state. The cost of any such bond or bonds shall be paid from funds appropriated to the applicable governing board or commission.
(g) All purchases and acquisitions shall be made in consideration and within limits of available appropriations and funds and in accordance with applicable provisions of article two, chapter five-a of this code, relating to expenditure schedules and quarterly allotments of funds.
(h) The governing boards and the commission may make requisitions upon the auditor for a sum to be known as an advance allowance account, in no case to exceed five percent of the total of the appropriations for the governing board or the commission, and the auditor shall draw a warrant upon the treasurer for such accounts.; and all such All advance allowance accounts shall be accounted for by the applicable governing board or commission once every thirty days or more often if required by the state auditor.
(i) Contracts entered into pursuant to this section shall be signed by the applicable governing board or the commission in the name of the state and shall be approved as to form by the attorney general.: Provided, That A contract in which requires approval as to form by the attorney general the total does not exceed five thousand dollars and for which the attorney general has not responded within fifteen days of presentation of the contract, the contract shall be deemed considered approved.: Provided, however, That A contract or a change order for that contract and notwithstanding any other provision of this code to the contrary, associated documents such as performance and labor/material payments, bonds and certificates of insurance which in total does not exceed fifty thousand dollars and which uses use terms and conditions or standardized forms previously approved by the attorney general and does do not make substantive changes in the terms and conditions of the contract does do not require approval by the attorney general.: Provided further, That The attorney general shall make a list of those changes which he or she deems to be substantive and the list, and any changes thereto, shall be published in the state register. A contract that exceeds fifteen thousand dollars shall be filed with the state auditor.: And provided further, That upon request If requested to do so, the governing boards or the commission shall make all contracts available for inspection by the state auditor. The governing board or the commission, as appropriate, shall prescribe the amount of deposit or bond to be submitted with a bid or contract, if any, and the amount of deposit or bond to be given for the faithful performance of a contract.
(j) If the governing board or the commission purchases or contracts for materials, supplies, equipment, services and printing contrary to the provisions of sections four through seven of this article or the rules pursuant thereto, such purchase or contract shall be void and of no effect.
(k) Any governing board or the commission, as appropriate, may request the director of purchases to make available, from time to time, the facilities and services of that department to the governing boards or the commission in the purchase and acquisition of materials, supplies, equipment, services and printing and the director of purchases shall cooperate with that governing board or the commission, as appropriate, in all such purchases and acquisitions upon such request.
(l) Each governing board or the commission, as appropriate, shall permit private institutions of higher education to join as purchasers on purchase contracts for materials, supplies, services and equipment entered into by that governing board or the commission. Any private school desiring to join as purchasers on such purchase contracts shall file with that governing board or the commission an affidavit signed by the president of the institution of higher education or a designee requesting that it be authorized to join as purchaser on purchase contracts of that governing board or the commission, as appropriate., and agreeing that it will be The private school shall agree that it is bound by such terms and conditions as that governing board or the commission may prescribe and that it will be responsible for payment directly to the vendor under each purchase contract.
(m) Notwithstanding any other provision of this code to the contrary, the governing boards and the commission, as appropriate, may make purchases from cooperative buying groups, consortia, the federal government or from federal government contracts if the materials, supplies, services, equipment or printing to be purchased is available from cooperative buying groups, consortia, the federal government or from a federal contract and purchasing from the cooperative buying groups, consortia, federal government or from a federal government contract would be the most financially advantageous manner of making the purchase.
(n) An independent performance audit of all purchasing functions and duties which are performed at any institution of higher education shall be performed each fiscal year. The joint committee on government and finance shall conduct the performance audit and the governing boards and the commission, as appropriate, shall be responsible for paying the cost of the audit from funds appropriated to the governing boards or the commission.
(o) The governing boards shall require each institution under their respective jurisdictions to notify and inform every vendor doing business with that institution of the provisions of section fifty-four, article three, chapter five-a of this code, also known as the 'prompt pay act of 1990'.
(p) Consultant services, such as strategic planning services, may not preclude or inhibit the governing boards or the commission from considering any qualified bid or response for delivery of a product or a commodity because of the rendering of those consultant services.
(q) After the commission has granted approval for lease-purchase arrangements by the governing boards, a governing board may enter into lease-purchase arrangements for capital improvements, including equipment. Any lease-purchase arrangement so entered shall constitute a special obligation of the state of West Virginia. The obligation under a lease-purchase arrangement so entered may be from any funds legally available to the institution and must be cancelable at the option of the governing board or institution at the end of any fiscal year. The obligation, any assignment or securitization thereof, shall never constitute an indebtedness of the state of West Virginia or any department, agency or political subdivision thereof, within the meaning of any constitutional provision or statutory limitation, and shall may not be a charge against the general credit or taxing powers of the state or any political subdivision thereof; and such facts shall be plainly stated in any lease-purchase agreement. Further, the lease-purchase agreement shall prohibit assignment or securitization without consent of the lessee and the approval of the attorney general of West Virginia. Proposals for any arrangement must be requested in accordance with the requirements of this section and any rules or guidelines of the commission. In addition, any lease- purchase agreement which exceeds one hundred thousand dollars total must shall be approved by the attorney general of West Virginia. The interest component of any lease-purchase obligation shall be exempt from all taxation of the state of West Virginia, except inheritance, estate and transfer taxes. It is the intent of the Legislature that if the requirements set forth in the internal revenue code of one thousand nine hundred eighty-six, as amended, and any regulations promulgated pursuant thereto are met, the interest component of any lease-purchase obligation also shall be exempt from the gross income of the recipient for purposes of federal income taxation and may be designated by the governing board or the president of the institution as a bank-qualified obligation.
(r) Notwithstanding any other provision of this code to the contrary, the commission and the governing boards have the authority, in the name of the state, to lease, or offer to lease, as lessee, any grounds, buildings, office or other space in accordance with this paragraph and as provided below:
 (1) The commission and the governing boards have sole authority to select and to acquire by contract or lease all grounds, buildings, office space or other space, the rental of which is necessarily required by the commission or governing boards for the institutions under their jurisdiction. The chief executive officer of the commission or an institution shall certify the following:
(A) That the grounds, buildings, office space or other space requested is necessarily required for the proper function of the commission or institution;
(B) That the commission or institution will be responsible for all rent and other necessary payments in connection with the contract or lease; and
(C) That satisfactory grounds, buildings, office space or other space is not available on grounds and in buildings now owned or leased by the commission or the institution.
Before executing any rental contract or lease, the commission or a governing board shall determine the fair rental value for the rental of the requested grounds, buildings, office space or other space, in the condition in which they exist, and shall contract for or lease the premises at a price not to exceed the fair rental value.
(2) The commission and the governing boards are authorized to enter into long-term agreements for buildings, land and space for periods longer than one fiscal year, but not to exceed forty years. Any purchases of real estate, any lease-purchase agreement and any construction of new buildings or other acquisition of buildings, office space or grounds resulting therefrom, pursuant to the provisions of this subsection shall be presented by the policy commission to the joint committee on government and finance for prior review. Any such lease shall contain, in substance, all the following provisions:
(A) That the commission or the governing board, as lessee, have the right to cancel the lease without further obligation on the part of the lessee upon giving thirty days' written notice to the lessor at least thirty days prior to the last day of the succeeding month;
(B) That the lease shall be considered canceled without further obligation on the part of the lessee if the Legislature or the federal government fails to appropriate sufficient funds therefor or otherwise acts to impair the lease or cause it to be canceled; and
(C) That the lease shall be considered renewed for each ensuing fiscal year during the term of the lease unless it is canceled by the commission or the governing board before the end of the then-current fiscal year.
(3) The commission or an institution which is granted any grounds, buildings, office space or other space leased in accordance with this section may not order or make permanent changes of any type thereto, unless the commission or the governing board, as appropriate, has first determined that the change is necessary for the proper, efficient and economically sound operation of the institution. For purposes of this section, a 'permanent change' means any addition, alteration, improvement, remodeling, repair or other change involving the expenditure of state funds for the installation of any tangible thing which cannot be economically removed from the grounds, buildings, office space or other space when vacated by the institution.
(4) Leases and other instruments for grounds, buildings, office or other space, once approved by the commission or governing board, may be signed by the chief executive officer of the commission or the institution. Any lease or instrument exceeding one hundred thousand dollars annually shall be approved as to form by the attorney general. A lease or other instrument for grounds, buildings, office or other space that contains a term, including any options, of more than six months for its fulfillment shall be filed with the state auditor.
(5) The commission may promulgate rules it considers necessary to carry out the provisions of this section.
§18B-5-5. Prequalification disclosure by vendors; register of vendors; exceptions; suspension of vendors.

(a) Every person, firm or corporation selling or offering to sell to the commission or the governing boards, upon competitive bids or otherwise, any materials, equipment, services or supplies in excess of fifteen twenty-five thousand dollars:
(1) Shall comply with all of the provisions of section twelve, article three, chapter five-a of this code; and
(2) Shall file with the director of the purchasing division of the state of West Virginia the affidavit required herein; and Provided, That every such person, firm or corporation who is (3) If presently in compliance with said section may not be required to requalify thereunder to be able to transact business with the commission or the governing boards.
(b) Any person, firm or corporation failing or refusing to comply with said statute as herein required shall be ineligible to sell or offer to sell commodities materials, supplies, equipment, services or printing to the commission or the governing boards as hereinafter set forth.: Provided, That Any person suspended under the provisions of section thirty-nine thirty-two, article three, chapter five-a of this code shall is not be eligible to sell or offer to sell commodities materials, supplies, equipment, services or printing to the commission or the governing boards.: Provided, however, That The commission or the governing boards shall have the power and authority to may suspend, for a period not to exceed one year, the right and privilege of a person to bid on purchases of the commission or the governing boards when there is reason to believe that such person has violated any of the provisions in sections four through seven of this article or the rules of the governing boards pursuant thereto. Every Any person whose right to bid has been so suspended shall be notified thereof by a letter posted by registered mail containing the reason for such the suspension and shall have has the right to have the appropriate action of the commission or the governing board's board, as applicable, action reviewed in accordance with section forty thirty- three, article three, chapter five-a of this code.: Provided further, That A vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, article three, chapter five-a of this code, may not bid on or be awarded a contract under this section.
§18B-5-6. Other code provisions relating to purchasing not controlling; exceptions; criminal provisions and penalties; financial interest of governing boards, etc.; receiving anything of value from interested party and penalties therefor; application of bribery statute.

The provisions of article three, chapter five-a of this code shall do not control or govern the purchase, acquisition or other disposition of any equipment, materials, supplies, services or printing by the commission or the governing boards, except as provided in sections four through seven of this article.: Provided, That Sections twenty-nine, thirty and thirty-one, article three, chapter five-a of this code shall apply to all purchasing activities of the commission and the governing boards.
Neither the commission, the governing boards, nor any employee of the commission or governing boards, shall may be financially interested, or have any beneficial personal interest, directly or indirectly, in the purchase of any equipment, materials, supplies, services or printing, nor in any firm, partnership, corporation or association furnishing them, except as may be authorized by the provisions of chapter six-b of this code. Neither the commission, the governing boards nor any employee of said the commission or governing boards shall may accept or receive directly or indirectly from any person, firm or corporation, known by the commission, governing boards or such employee to be interested in any bid, contract or purchase, by rebate, gift or otherwise, any money or other thing of value whatsoever or any promise, obligation or contract for future reward or compensation, except as may be authorized by the provisions of chapter six-b of this code.
A person who violates any of the provisions of this section shall be is guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in jail not less than three months nor more than one year, or fined not less than fifty nor more than one thousand dollars, or both imprisoned and fined, in the discretion of the court.: Provided, That Any person who violates any of such provisions of this section by receiving money or other thing of value under circumstances constituting the crime of bribery under the provisions of section three, article five-a, chapter sixty-one of this code, shall, upon conviction of bribery, be punished as provided in section nine of said article.
§18B-5-7. Disposition of obsolete and unusable equipment, surplus supplies and other unneeded materials.

(a) The commission and the governing boards shall dispose of obsolete and unusable equipment, surplus supplies and other unneeded materials, either by transfer to other governmental agencies or institutions, by exchange or trade, or by sale as junk or otherwise. The commission and each governing boards board shall adopt rules governing and controlling the disposition of all such equipment, supplies and materials. At least ten days prior to the disposition, the commission or the governing boards, as applicable, shall advertise, by newspaper publication as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, in the county in which the equipment, supplies and materials are located the availability or sales of such disposable equipment, supplies and materials. and The commission or governing boards, as applicable, may sell the disposable equipment, supplies and materials, in whole or in part, at public auction or by sealed bid, or may transfer, exchange or trade the same to other governmental agencies or institutions (if by transfer, exchange or trade, then without advertising), in whole or in part, as sound business practices may warrant under existing circumstances and conditions.
(b) The commission or governing board, as appropriate, shall report semiannually to the legislative auditor, all sales of commodities made during the preceding six months. The report shall include a description of the commodities sold, the name of the buyer to whom each commodity was sold, and the price paid by the buyer.
(c) The proceeds of sales or transfers shall be deposited in the state treasury to the credit on a pro rata basis of the fund or funds from which the purchase of the particular commodities or expendable commodities was made. The commission or governing board, as appropriate, may charge and assess fees reasonably related to the costs of care and handling with respect to the transfer, warehousing, sale and distribution of state property that is disposed of or sold pursuant to the provisions of this section.
§18B-5-9. Higher education fiscal responsibility.
(a) The commission shall ensure the fiscal integrity of any electronic process conducted at its offices or at any institution using best business and management practices.
(b) The commission shall implement a process whereby, to the maximum extent practicable, employees of the commission and any state institution of higher education receive their wages via electronic transfer or direct deposit.
(c) Notwithstanding the provisions of section ten-a, article three, chapter twelve of this code, the amount of any purchase made with a purchasing card used by the commission or an institution may not exceed five thousand dollars. Subject to approval of the purchasing division of the department of administration, any routine, regularly-scheduled payment, including, but not limited to, utility payments and real property rental fees may exceed this amount limit. The commission or an institution may use a purchasing card for travel expenses directly related to the job duties of the traveling employee. Traveling expenses may include registration fees and airline and other transportation reservations, if approved by the administrative head of the institution, but may not include fuel. The commission and each institution shall maintain one purchase card for use only in and for situations declared an emergency by the president of the institution and approved by the chancellor. Such emergencies may include, but are not limited to, partial or total destruction of a campus facility; loss of a critical component of utility infrastructure; heating, ventilation, or air conditioning failure in an essential academic building; loss of campus road, parking lot or campus entrance; or a local, regional, or national emergency situation that has a direct impact on the campus.
(d) Notwithstanding the provisions of section ten-f, article three, chapter twelve of this code, by the thirtieth day of June, two thousand four, the auditor shall accept any receiving report submitted in a format utilizing electronic media.
(e) The Legislature finds that an emergency exists, and, therefore, by the first day of July, two thousand three, the commission shall file an emergency legislative rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code. The rule shall provide for institutions individually or cooperatively to maximize their use of any of the following purchasing practices that are determined to provide a financial advantage:
(1) Bulk purchasing;
(2) Reverse bidding;
(3) Electronic marketplaces; and
(4) Electronic remitting.
(f) Each institution shall establish a consortium with at least one other institution in the most cost-efficient manner feasible, to consolidate the following operations and student services:
(1) Payroll operations;
(2) Human resources operations;
(3) Warehousing operations;
(4) Financial transactions;
(5) Student financial aid application, processing and disbursement;
(6) Standard and bulk purchasing; and
(7) Any other operation or service appropriate for consolidation as determined by the commission.
(g) An institution may charge a fee to each institution for which it provides a service or performs an operation. The fee rate shall be in the best interest of both the institution being served and the providing institution, as approved by the commission.
(h) Any community and technical college, college and university may provide the services authorized by this section for the benefit of any governmental body or public or private institution.
(i) Commencing with the two thousand four fall academic term, each institution shall reduce its number of low-enrollment sections of introductory courses. To the maximum extent practicable, institutions shall use distance learning to consolidate the course sections. The commission shall report the progress of the reduction to the legislative oversight commission on education accountability by the first day of December, two thousand four.
(j) An institution shall use its natural resources and alternative fuel resources to the maximum extent feasible. The institution may supply the resources for its own use and for use by any other institution. The institution may supply the resources to the general public at fair market value. An institution shall maximize all federal or grant funds available for research regarding alternative energy sources, and may develop research parks to further the purpose of this section and to expand the economic development opportunities in the state.
(k) Any cost-savings realized or fee procured or retained by an institution pursuant to implementation of the provisions of this section shall be retained by the institution.
(l) In assuring the fiscal integrity of processes implemented under this section, at a minimum, the commission has the following responsibilities:
(1) To conduct a performance audit of the policies, procedures and results of the procurement of goods and services by the state institutions of higher education;
(2) To make progress reports on the implementation of this section to the legislative oversight commission on education accountability throughout the two thousand three interim meetings period;
(3) To make a comprehensive report to the legislative oversight commission on education accountability by the first day of December, two thousand three, on the results of the performance audit, together with any recommendations for additional actions that might be taken to improve the efficiency, effectiveness and economy of the administrative operations of the state institutions of higher education and the commission.
(m) The commission shall report annually to the legislative oversight commission on education accountability regarding any savings achieved by implementing the provisions of this section.
ARTICLE 6. ADVISORY COUNCILS.

§18B-6-4b. Institutional classified employee council.
(a) For the purposes of this section the following words have the specified meanings unless the context clearly indicates a different meaning:
(1) 'Council' or 'staff council' means the advisory group of classified employees formed on each campus of state institutions of higher education pursuant to subsections (b) and (c) of this section; and
(2) 'State institutions of higher education' means all institutions as defined in section two, article one of this chapter and, additionally, Potomac state college of West Virginia university, West Virginia university at Parkersburg, West Virginia university institute of technology, Robert C. Byrd health sciences Charleston division of West Virginia university, the Marshall university graduate college, New River community and technical college, the higher education policy commission and the West Virginia network for educational telecomputing.
(b) Effective the first day of April, two thousand three, there is established at each state institution of higher education an institutional classified employees advisory council to be known as the staff council. Current members of staff councils and their officers who have been duly elected shall continue to serve with all the rights, privileges and responsibilities prescribed by this section until the time that members elected as set forth in subsection (c) of this section assume office.
(1) During the month of April of each odd-numbered year, beginning in the year two thousand three, each president or other administrative head of a state institution of higher education, at the direction of the council, and in accordance with procedures established by the council, shall convene a meeting or otherwise institute a balloting process to elect members of the staff council as follows:
(A) Two classified employees from the administrative/managerial sector;
(B) Two classified employees from the professional/non-teaching sector;
(C) Two classified employees from the paraprofessional sector;
(D) Two classified employees from the secretarial/clerical sector;
(E) Two classified employees from the physical plant/maintenance sector; and
(F) The member who is elected to serve on the advisory council of classified employees pursuant to section four-a of this article. This person shall serve as an ex officio, voting member of the staff council and shall report to the council on meetings of the advisory council and the board of governors.
(2) Classified employees at Marshall university and West Virginia university may elect five classified employees from each of the five sectors to serve on the staff council.
(3) Members shall serve a term of two years which term shall begin on the first day of July of each odd-numbered year. Members of the council are eligible to succeed themselves.
(4) Classified employees shall select one of their members to serve as chair. All classified employees at the institution are eligible to vote for the chair by any method approved by a majority of their members. The chair is eligible to succeed himself or herself.
(5) The staff council shall meet at least monthly or at the call of the chair. With appropriate notification to the institutional president, the chair may convene staff council meetings for the purpose of sharing information and discussing issues affecting the classified employees or the efficient and effective operations of the institution.
(6) The president of the institution shall meet at least quarterly with the staff council to discuss matters affecting classified employees.
(7) The governing board shall meet at least annually with the staff council to discuss matters affecting classified employees and the effective and efficient management of the institution.
ARTICLE 7. PERSONNEL GENERALLY.
§18B-7-4. Notice to probationary faculty members of retention or nonretention; hearing.
(a) The president or other administrative head of each state institution of higher education shall give written notice to probationary faculty members concerning their retention or nonretention for the ensuing academic year: (1) Not later than the first day of March for those probationary faculty members who are in their first academic year of service; (2) not later than the fifteenth day of December for those probationary faculty members who are in their second academic year of service; and (3) at least one year before the expiration of an appointment for those probationary faculty members who have been employed two or more years with the institution. Such notice to those probationary faculty members not being retained shall be by certified mail, return receipt requested.
(b) For any probationary faculty member employed after the effective date of this section, the president or other administrative head of each institution shall give written notice concerning retention or nonretention for the ensuing academic year not later than the first day of March.
(b) (c) Upon request of If a request is made by the probationary faculty member not retained, the president or other administrative head of the institution shall within ten days, and by certified mail, inform the probationary faculty member by certified mail within ten days of the reasons for nonretention. Any probationary faculty member who desires to appeal the decision shall utilize use the grievance procedure established in article six-a, chapter twenty-nine of this code. If it is concluded that the reasons for nonretention are arbitrary or capricious or without a factual basis, the faculty member shall be retained for the ensuing academic year.
(c) (d) The term 'probationary faculty member' shall be defined according to rules promulgated by the governing boards. The rights herein provided to probationary faculty members by this section are in addition to, and not in lieu of, other rights afforded them by other rules and other provisions of law.
§18B-7-6. Adjunct faculty; part-time and temporary classified employees.
(a) Before the first day of January, one thousand nine hundred ninety-four Each governing board, with the advice and assistance of the faculty senates senate, shall establish a policy pursuant to the provisions of article three-a, chapter twenty-nine-a of this code regarding the role of adjunct faculty at state institutions of higher education and define an appropriate balance between full-time and adjunct faculty members.
(b) Before the first day of January, one thousand nine hundred ninety-four Each governing board, with the advice and assistance of the staff councils council and other groups representing classified employees, shall establish a policy pursuant to the provisions of article three-a, chapter twenty-nine-a of this code regarding the role of part-time classified employees. at state institutions of higher education. Such policy shall discourage the hiring of part-time employees solely to avoid the payment of benefits or in lieu of full-time employees and shall provide all qualified classified employees with nine-month or ten-month contracts with the opportunity to accept part-time or full- time summer employment before new persons are hired for the part-time or full-time employment.
(c) Each governing board shall establish the policies required by this section by the first day of July, two thousand three. The commission shall report to the legislative oversight commission on education accountability by the first day of December, two thousand three, regarding the development and implementation of these policies, including the number of adjunct faculty and part- time employees at each institution and the level of compliance with the policies. In making determinations regarding the development, implementation and compliance with the policies required by this section, the commission shall take into account the special flexibility needs of community and technical colleges and shall allow greater discretion for these institutions to make decisions regarding employing adjunct faculty.
ARTICLE 8. HIGHER EDUCATION FULL-TIME FACULTY SALARIES.
§18B-8-3. Faculty salary policies; reductions in salary prohibited; salary increase upon promotion in rank.

(a) On or before the first day of July of each year, each faculty member then employed shall be given notice by the appropriate governing board of the placement on the minimum salary schedule which is appropriate to such faculty member's years of experience and to which such individual has been assigned, notwithstanding the actual salary paid under the provisions of this article.
(b) Each full-time faculty member employed as of the effective date of this section shall receive for full-time employment at the same academic rank during the academic year one thousand nine hundred ninety-three--ninety-four, and thereafter, a salary which is no less than the salary being paid such faculty member for the academic year one thousand nine hundred ninety-two--ninety- three. No full-time faculty member shall receive a salary which is less than the salary for zero years of experience for the appropriate academic rank as set forth in section two of this article.
(c) Effective the first day of July, one thousand nine hundred ninety-three, Subject to appropriation by the Legislature therefor, each full-time faculty member shall receive an annual salary increase of two thousand dollars. The Legislature may by general appropriation, or the secretary of the department of education and the arts may allocate through authority set forth under the provisions of chapter five-f of this code, funds to be distributed for the purpose of accommodating market and equity conditions within the system. Any remaining funds shall be applied in accordance with the provisions of subsection (d) of this section.
(d) Funds remaining after meeting the salary of each full-time faculty member in accordance with subsections (b) and (c) of this section shall be used to pay that amount that is the difference between such salary and the appropriate salary for each full-time faculty member's appropriate placement on the schedule. Provided, That such The amount may be reduced proportionately based upon the amount of funds available for such purpose.
(a) Each governing board shall establish and maintain a faculty salary policy that is competitive and which furthers the goals of attracting, retaining and rewarding high quality faculty.
(e) (b) The salary of any full-time faculty member shall may not be reduced by the provisions of this article.
(f) (c) Upon promotion in rank, placement on the minimum salary schedule each faculty member shall be such as to provide a receive a salary increase of at least up to ten percent, as determined by the salary policy adopted by the governing board. and shall be at least the amount prescribed for the appropriate academic rank to which promoted at zero years of experience.
ARTICLE 9. CLASSIFIED EMPLOYEE SALARY SCHEDULE AND CLASSIFICATION SYSTEM.

§18B-9-5. Classified employee salary.
(a) Commencing with the fiscal year beginning on the first day of July, one thousand nine hundred ninety-eight, and each fiscal year thereafter, each classified employee with three or more years of experience shall receive an annual salary increase equal to fifty dollars times the employee's years of experience. Provided, That the annual salary increase may not exceed the amount granted for the maximum of twenty years of experience These incremental increases are in lieu of any salary increase received pursuant to section two, article five, chapter five of this code; are in addition to any across-the-board, cost-of-living or percentage salary increases which may be granted in any fiscal year by the Legislature; and shall be paid in like manner as the annual payment to eligible state employees of the incremental salary increases based on years of service under the provisions of section two, article five, chapter five of this code.
(b) (a) Any classified employee may receive merit increases and salary adjustments in accordance with policies established by the board of governors: Provided, That merit raises may be granted only pursuant to a rule adopted by the board of governors, and approved by the chancellor, which provides a fair and equitable basis for granting merit raises pursuant to regular evaluations based upon reasonable performance standards.
(c) (b) The current annual salary of any classified employee may not be reduced by the provisions of this article nor by any other action inconsistent with the provisions of this article, and nothing in this article may be construed to prohibit promotion of any classified employee to a job title carrying a higher pay grade if the promotion is in accordance with the provisions of this article and the personnel classification system established by the appropriate governing board.
§18B-9-10. Higher education employees' catastrophic leave bank and leave transfer.
(a) For the purposes of this section, 'employee' means:
(1) A classified or nonclassified employee who is employed by the a higher education governing board or by the central office policy commission; or
(2) A faculty member, as defined in section one, article eight of this chapter, who is eligible to accrue sick leave.
(a) (b) An employee may donate sick and annual leave to a leave bank established and operated in accordance with the provisions of subsection (c) (d) of this section or directly to another employee in accordance with the provisions of subsection (d) (e) of this section. No employee shall may be compelled to donate sick or annual leave. Any leave donated by an employee pursuant to this section shall be used only for the purpose of catastrophic illness or injury as defined in subsection (b) (c) of this section and shall reduce, to the extent of such donation, the number of days of annual or sick leave to which the employee is entitled.
(b) (c) For the purpose of this section, a catastrophic illness or injury means an illness or injury which is one that is expected to incapacitate the employee and which creates create a financial hardship because the employee has exhausted all sick and annual leave and other paid time off. Catastrophic illness or injury shall also include includes an incapacitated immediate family member as defined by the appropriate a governing board or the policy commission, as appropriate, if this results in the employee being required to take time off from work for an extended period of time to care for the family member and if the employee has exhausted all sick and annual leave and other paid time off.
(c) (d) A leave bank or banks may be established at each state institution of higher education and the central office policy commission to which employees may donate either sick or annual leave. The bank or banks may be established jointly by the central office policy commission and both the governing boards or may be established for the central office policy commission and each of the governing boards, or may be established for the central office and each institution of higher education under either governing board. Sick or annual leave may be deposited in the leave bank, and such deposit shall be reflected as a day-for-day deduction from the sick or annual leave balance of the depositing employee.
Such deposited Donated leave may be withdrawn by any employee experiencing a catastrophic illness or injury as those terms are defined in subsection (b) (c) of this section when the following conditions are met:
(1) upon appropriate verification The president of the institution or the chancellor of the policy commission, as appropriate, verifies that the employee is unable to work due to the catastrophic illness or injury as determined by the president of the institution or senior administrator; and
(2) approval of the withdrawal by The president of the institution or senior administrator the chancellor, as appropriate, approves the withdrawal and provides written notice to the personnel office.
The withdrawal shall be reflected as a day-for-day addition to the leave balance of the withdrawing employee.
(d) (e) Sick or annual leave may be donated to any employee experiencing a catastrophic illness or injury as those terms are defined in subsection (b) (c) of this section. Such leave shall be donated at the request of the employee upon after appropriate verification that the employee is unable to work due to the catastrophic illness or injury as determined by the president of the institution or senior administrator the chancellor. Upon approval of the When transfer of sick or annual leave is approved by the president of the institution or senior administrator the chancellor, any employee may, upon written notice to the personnel office, donate sick or annual leave in one-day increments by providing written notice to the personnel office. Donations shall be reflected as a day-for-day deduction from the sick or annual leave balance of the donating employee. An employee receiving the transfer of donated sick or annual leave shall have any time which is donated credited to such employee's his or her account in one-day increments and reflected as a day-for-day addition to the leave balance of the receiving employee.
(e) (f) Use of donated credits may not exceed a maximum of twelve continuous calendar months for any one catastrophic illness or injury. The total amount of sick or annual leave withdrawn or received may not exceed an amount sufficient to ensure the continuance of regular compensation and shall may not be used to extend insurance coverage pursuant to section thirteen, article sixteen, chapter five of this code. An employee withdrawing or receiving donations of sick or annual leave pursuant to this section shall use any leave personally accrued on a monthly basis prior to receiving additional donated sick or annual leave.
(f) (g) Transfer of Donated sick or annual leave deposited in an institutional leave bank or transferred under subsection (c) (d) of this section may be inter-institutional in accordance with the policies of the appropriate governing board. Each institution and the central office shall be policy commission is responsible for the administration of the sick or annual leave deposits, withdrawals and transfers of its employees. Rules implementing the provisions of this section may be adopted jointly or separately by the governing boards and the policy commission in accordance with article three-a, chapter twenty-nine-a of this code.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.

§18B-10-1. Enrollment, tuition and other fees at education institutions; refund of fees.
(a) Each governing board shall fix tuition and other fees for each school term for the different classes or categories of students enrolling at each state institution of higher education under its jurisdiction and may include among such fees any one or more of the following:
(1) Health service fees;
(2) Infirmary fees;
(3) Student activities, recreational, athletic and extracurricular fees, which fees may be used to finance a students' attorney to perform legal services for students in civil matters at such institutions. Provided, That Such legal services shall be limited only to are limited to only those types of cases, programs or services approved by the administrative head of such the institution where such the legal services are to be performed; and
(4) Graduate center fees and branch college fees, or either, if the establishment and operations of graduate centers or branch colleges are otherwise authorized by law.
(b) All fees collected at any graduate center or at any branch college shall be paid into special funds and shall be used solely for the maintenance and operation of the graduate center or branch college at which they were collected: Provided, That The commission shall set tuition and fee goals for residents at each institution after examining tuition and fees at the institutions' peers.: Provided, however, That, effective the first day of July, two thousand one, Tuition and fees for nonresident, undergraduate students shall, at a minimum, cover actual instructional costs as determined in accordance with commission policy.: Provided further, That Students enrolled in undergraduate courses offered at off-campus locations shall pay an off-campus instruction fee and shall not may not be required to pay the athletic fee and the student activity fee.
(c) The off-campus instruction fee shall be used solely for the support of off-campus courses offered by the institution. Off-campus locations for each institution shall be defined by the appropriate governing board. The schedule of all fees, and any changes therein, shall be entered in the minutes of the meeting of the appropriate governing board, and the board shall file with the legislative auditor a certified copy of such schedule and changes.
(d) In addition to the fees mentioned in the preceding paragraph, each governing board may impose and collect a student union building fee. All such building fees collected at an institution shall be paid into a special student union building fund for such institution, which is hereby created in the state treasury., and Pursuant to the provisions of section ten of this article, the fees shall be used only for the following purposes:
(1) The construction, operation and maintenance of a student union building or a combination student union and dining hall building; or for
(2) The payment of the principal of and interest on any bond issued to finance part or all of the construction of a student union building or a combination student union and dining hall building; or
(3) The renovation of an existing structure for use as a student union building or a combination student union and dining hall building, all as more fully provided in section ten of this article.
Any moneys in such funds not needed immediately for such purposes may be invested in any such bonds or other securities as are now or hereafter authorized as proper investments for state funds.
(e) The boards shall establish the rates to be charged full-time students enrolled during a regular academic term.
(1) For fee purposes, a full-time undergraduate student is one enrolled for twelve or more credit hours in a regular term, and a full-time graduate student is one enrolled for nine or more credit hours in a regular term.
(2) Undergraduate students taking fewer than twelve credit hours in a regular term shall have their fees reduced pro rata based upon one twelfth of the full-time rate per credit hour, and graduate students taking fewer than nine credit hours in a regular term shall have their fees reduced pro rata based upon one ninth of the full-time rate per credit hour.
(3) Fees for students enrolled in summer terms or other nontraditional time periods shall be prorated based upon the number of credit hours for which the student enrolls in accordance with the above provisions.
(f) All fees are due and payable by the student upon enrollment and registration for classes except as provided for in this subsection:
(1) The governing boards shall permit fee payments to be made in up to three installments over the course of the academic term. Provided, That all fees must All fees shall be paid prior to the awarding of course credit at the end of the academic term.
(2) The governing boards also shall authorize the acceptance of credit cards or other payment methods which may be generally available to students for the payment of fees. Provided, That The governing boards may charge the students for the reasonable and customary charges incurred in accepting credit cards and other methods of payment.
(3) If a governing board determines that the finances of any student were a student's finances are affected adversely by a legal work stoppage, that commenced on or after the first day of January, one thousand nine hundred ninety-three it may allow the student an additional six months to pay the fees for any academic term. Provided, That The governing board shall determine on a case-by-case basis if the finances of a student were are affected adversely.
(g) On or before the first day of July, two thousand one, the chancellor for higher education shall review policy series twenty-two of the governing boards, related to assessment, payment and refund of fees and determine whether a new rule should be adopted regarding the refund of any fees upon the voluntary or involuntary withdrawal from classes of any student. The rules The rule related to assessment, payment and refund of fees including refund of fees upon voluntary or involuntary withdrawal from classes, shall comply with all applicable state and federal laws and shall be uniformly applied throughout the system.
(h) In addition to the other fees mentioned in the preceding subsections provided in this section, each governing board may impose, collect and distribute a fee to be used to finance a nonprofit, student-controlled public interest research group Provided, That if the students at such the institution demonstrate support for the increased fee in a manner and method established by that institution's elected student government. Provided, however, That such fees shall The fee may not be used to finance litigation against the institution.
(i) Any proposed fee increase which would become effective during the transition year beginning on the first day of July, two thousand, and ending on the thirtieth day of June, two thousand one, and which has been approved by the governing board, shall then be submitted by the governing board to the secretary for education and the arts for approval. Such approval shall be granted only upon the certification that such institution requesting a fee increase is in compliance with the strategic plans required to be submitted, pursuant to section one-b, article one of this chapter. Notice, in the form of a report, shall be provided by the chancellor to the legislative oversight commission on education accountability describing such fee increases and showing how such increases compare with the average tuition and fees charged at comparable peer institutions in member states of the southern regional education board.
(j) Effective the first day of July, two thousand one, tuition and fees rates shall be determined in accordance with subsections (k), (l) and (m) of this section.
(k) Effective the first day of July, two thousand one, Institutions shall retain tuition and fee revenues not pledged for bonded indebtedness or other purposes in accordance with a revised tuition policy adopted by the respective governing boards and approved by the commission. The revised tuition policy shall:
(1) Provide a basis for establishing nonresident tuition and fees;
(2) Allow institutions to charge different tuition and fees for different programs; and.
(3) Provide that a board of governors may propose to the commission a mandatory auxiliary fee under the following conditions:
(A) The fee shall be approved by the commission and either the students at the institution or the Legislature before becoming effective;
(B) Increases may not exceed previous state subsidies by more than ten percent;
(C) The fee may be used only to replace existing state funds subsidizing auxiliary services such as athletics or bookstores;
(D) If the fee is approved, the amount of the state subsidy shall be reduced annually by the amount of money generated for the institution by the fees and that amount shall be returned to general revenue. All state subsidies for the auxiliary services shall cease five years from the date the mandatory auxiliary fee was implemented;
(E) The commission shall certify to the Legislature by the first day of October in the fiscal year following implementation of the fee, and annually thereafter, the amount of fees collected for each of the five years.
(3) (4) Establish methodology, where applicable, to ensure that, within the appropriate time period under the compact, community and technical college tuition rates for community and technical college students in all independently accredited community and technical colleges will be commensurate with the tuition and fees charged by their peer institutions.
(l) No penalty shall (j) A penalty may not be imposed by the commission upon any institution based upon the number of nonresidents who attend the institution unless the commission determines that admission of nonresidents to any institution or program of study within the institution is impeding unreasonably the ability of the resident students to attend the institution or participate in the programs of the institution. The institutions shall report annually to the commission on the numbers of out-of-state residents nonresidents and such other enrollment information as the commission may request.
(m) (k) Tuition and fee increases of the governing boards are subject to rules adopted by the commission pursuant to subsection (a), section four, article one-b of this chapter.
(1) A governing board may propose tuition and fee increases of up to nine and one-half percent for undergraduate resident students for any fiscal year except that proposed tuition and fees increases for community and technical colleges may be up to four and three quarters percent. Any proposed increase shall be approved by the commission. The commission shall examine individually each request from a governing board for an increase. Approval for any increase shall be based on a determination by the commission that the institution has met the following conditions:
(A) Has maximized resources available through nonresident tuition and fee charges to the satisfaction of the commission;
(B) Is consistently achieving the benchmarks established in the compact of the institution pursuant to the provisions of article one-a of this chapter;
(C) Is continuously pursuing the statewide goals for post-secondary education and the statewide compact established in articles one and one-a of this chapter;
(D) Is implementing the efficiency measures required by section nine, article five of this chapter;
(E) Has demonstrated to the satisfaction of the commission that an increase will be used to maintain high-quality programs at the institution;
(F) Has demonstrated to the satisfaction of the commission that the institution is making adequate progress toward achieving the goals for education established by the southern regional education board; and
(G) To the extent authorized, will increase by up to five percent the available tuition and fee waivers provided by the institution. The increased waivers may not be used for athletics.
(2) In making a determination on tuition and fee proposals, the commission also may take into consideration whether the per capita income in an institution's service region exceeds the state per capita income. For the purposes of this subdivision only:
(A) Service region is the county in which the main campus of the institution is located and the contiguous West Virginia counties; and
(B) Per capita income for the service region shall be computed using the most current annual, county-level per capita income data published by the United States department of commerce, bureau of economic analysis, weighted by the compatible year population estimates published by the United States census bureau.
(3) This section may not be construed to require equal increases among institutions or to require any level of increase at an institution.
(4) The commission shall report to the legislative oversight commission on education accountability regarding the basis for each approval or denial as determined using the criteria established in subdivision (1) of this subsection.
§18B-10-14. Bookstores.
The appropriate governing board of each state institution of higher education shall have the authority to establish and operate a bookstore at the institution. The bookstore shall be operated for the use of the institution itself, including each of its schools and departments, in making purchases of books, stationery and other school and office supplies generally carried in college stores, and for the benefit of students and faculty members in purchasing such products for their own use, but no sales shall be made to the general public. The prices to be charged the institution, the students and the faculty for such products shall be fixed by the governing board, shall not be less than the prices fixed by any fair trade agreements, and shall in all cases include in addition to the purchase price paid by the bookstore a sufficient handling charge to cover all expenses incurred for personal and other services, supplies and equipment, storage, and other operating expenses, to the end that the prices charged shall be commensurate with the total cost to the state of operating the bookstore.
Each governing board shall also ensure that bookstores operated at institutions under its jurisdiction meet the additional objective of minimizing the costs to students of purchasing textbooks by adopting policies which may require the repurchase and resale of textbooks on an institutional or a statewide basis and provide for the use of certain basic textbooks for a reasonable number of years.
All moneys derived from the operation of the store shall be paid into a special revenue fund as provided in section two, article two, chapter twelve of this code. Each governing board shall, subject to the approval of the governor, fix, and, from time to time, change the amount of the revolving fund necessary for the proper and efficient operation of each bookstore.
Moneys derived from the operation of the bookstore shall be used first to replenish the stock of goods and to pay the costs of operating and maintaining the store. From any balance in the Marshall university bookstore fund not needed for operation and maintenance and replenishing the stock of goods, the governing board of that institution shall have authority to expend a sum not to exceed two hundred thousand dollars for the construction of quarters to house the bookstore in the university center at Marshall university. Until such quarters for housing the bookstore are completed, the governing board of Marshall university and the governor shall take this authorization into account in fixing the amount of the revolving fund for the Marshall university bookstore. Notwithstanding any other provision of this section, any institution that has contracted with a private entity for bookstore operation shall deposit into an appropriate account all revenue generated by the operation and enuring to the benefit of the institution. The institution shall use the funds for non- athletic scholarships.
ARTICLE 14. MISCELLANEOUS.
§18B-14-11. Health insurance coverage option study.
(a) Together, the commission and the public employees insurance agency shall submit to the legislative oversight commission on education accountability by the first day of December, two thousand three, draft legislation regarding benefits offered by the agency.
(b) The draft legislation shall provide:
(1) Incentives for employees insured by the agency to decline benefits from the agency. Incentives may include:
(A) Optional purchase of supplemental benefits;
(B) Payment of a percentage of the savings realized by the employer due to cancellation of insurance coverage for the employee; and
(C) Any other incentive determined appropriate by the agency and commission;
(2) A requirement that a public employee may decline benefits from the agency only if that employee verifies that he or she has health insurance coverage by an alternate provider;
(3) A procedure for verifying the alternate coverage required by subdivision (2) of this subsection at least annually; and
(4) A procedure whereby an employee who has declined coverage pursuant to this section will be reinstated automatically in the agency's program immediately following loss of the alternate coverage."
And,
By amending the title of the bill to read as follows:
H. B. 2224 - "A Bill to repeal section two, article eight, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section one, article five, chapter five of said code; to amend and reenact section two, article one, chapter eighteen-b of said code; to further amend said article by adding thereto two new sections, designated sections eight and ten; to amend and reenact section three, article one-a of said chapter; to amend and reenact section six, article one-b of said chapter; to further amend said article by adding thereto a new section, designated section ten; to amend and reenact sections three, four, and eight, article three-c of said chapter; to amend article six of said chapter by adding thereto a new section, designated section four-b; to amend and reenact sections four and six, article seven of said chapter; to amend and reenact section three, article eight of said chapter; to amend and reenact sections five and ten, article nine of said chapter; to amend and reenact sections one and fourteen, article ten of said chapter; and to amend article fourteen of said chapter by adding thereto a new section, designated section eleven, all relating to public higher education; administrative and programmatic efficiencies; removing the twenty-year cap on the annual experience increment for classified employees; definitions; clarifying student rights in cases of institutional mergers or administrative linkages; providing that Potomac state college become a fully-integrated division of West Virginia university by the first day of July, two thousand five; abolishing advisory board and providing for board of visitors; setting limits on operational costs; incorporating auxiliary enterprises into West Virginia university and authorizing board of governors to set rates for auxiliary services and products; providing for areas of academic emphasis at the Potomac campus; authorizing the policy commission to change the mission of the Potomac campus; providing for contracting with eastern West Virginia community and technical college for certain programs and services; requiring Potomac state college and eastern West Virginia community and technical college to report to the policy commission on plans, accomplishments and recommendations in implementing the cooperative relationship, and requiring the policy commission to report to the legislative oversight commission education accountability on the cooperative activities and results; requiring the policy commission to obtain approval from the legislative oversight commission on education accountability before changing institutional peers; providing for appointment of provosts; providing procedure for evaluating administrative heads of institutions; directing Concord college and Bluefield state college to make a joint study on progress toward meeting goals; requiring report to policy commission by the first day of September, two thousand three; directing policy commission to report to the legislative oversight commission on education accountability on results of study and recommendations by the first day of November, two thousand three; requiring policy commission to act to implement necessary changes and to monitor institutional progress toward meeting goals; changing name of administrative head of component community and technical colleges from "president" to "provost", clarifying reporting relationships of provosts; abolishing responsibility districts for Bluefield state community and technical college and Glenville state community and technical college; requiring Glenville state college, Bluefield state college and Fairmont state college to agree by date certain on transfer of certain property, obligations and staff; adding counties to the responsibility district of Fairmont state college and requiring the policy commission to resolve any disagreement; removing a county from the responsibility district of Shepherd community and technical college; creating a responsibility district for New River community and technical college; deleting references to Bluefield community and technical college and the center for higher education and work force development at Beckley; creating New River community and technical college of Bluefield state college from existing components and entities; providing that Bluefield state college may retain certain associate degree programs; providing findings and intent; providing for governance and program offerings; authorizing certain expenditures; authorizing contractual arrangements; establishing staff council at each public higher education campus; providing for election of members and chair; providing for meetings; requiring institutions to give notice to probationary faculty of retention or nonretention by date certain; requiring governing boards to establish required policies by date certain; directing policy commission to report to legislative oversight commission on education accountability on policies including number of adjunct faculty and part-time employees at each institution; directing policy commission to consider need for flexibility at community and technical colleges when reviewing institutional policies; deleting obsolete language referencing faculty salary schedule; providing increase in salary up to ten percent for faculty when promoted in rank as determined by the governing board; directing each governing board to establish and maintain a competitive faculty salary schedule; removing obsolete references to annual experience increment; permitting certain faculty members to participate in catastrophic leave banks; authorizing governing boards to propose mandatory auxiliary fee increases; requiring approval by policy commission and either the students of the proposing institution or the Legislature; purposes for which fee may be used; providing for reducing state subsidies to zero over five years and returning money to general revenue; requiring policy commission to certify amount generated by the fee for each institution annually; limiting undergraduate tuition and fee increases for residents to no more than four and three-quarters percent for community and technical colleges and no more than nine and one-half percent for all other institutions in any fiscal year; requiring that tuition and fee increases be approved by the policy commission based upon certain conditions; requiring the policy commission to report to the legislative oversight commission on education accountability on the basis used to determine approval or disapproval of an institutional request for tuition and fee increases; authorizing policy commission to consider per capita income in an institution's service area when making determinations on granting tuition and fee increases; providing for calculating per capita income; requiring certain institutions to deposit bookstore revenue, enuring to the benefit of the institution, into an appropriate account to use for non-athletic scholarships; and requiring the policy commission and the public employees insurance agency to submit to the legislative oversight commission on education accountability by date certain draft legislation providing employee incentives, additional options to purchase supplemental benefits, option to decline insurance, procedure for verifying alternate coverage, and procedure to restore coverage under certain circumstances."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
On page one of the Senate amendment, by amending the enacting section to read as follows:
"That section two, article eight, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section one, article five, chapter five of said code be amended and reenacted; that section two, article one, chapter eighteen-b of said code be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections eight and ten; that section three, article one-a of said chapter be amended and reenacted; that section six, article one-b of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section ten; that sections three, four and eight, article three-c of said chapter be amended and reenacted; that sections three, four, five, six and seven, article five of said chapter be amended and reenacted; the said article be further amended by adding thereto a new section, designated section nine; that article six of said chapter be amended by adding thereto a new section, designated section four-b; that sections four and six, article seven of said chapter be amended and reenacted; that section three, article eight of said chapter be amended and reenacted; that sections five and ten, article nine of said chapter be amended and reenacted; that sections one and fourteen, article ten of said chapter be amended and reenacted; and that article fourteen of said chapter be further amended by adding thereto a new section, designated section eleven, all to read as follows" followed by a colon.
On page forty-six of the Senate amendment, section five, line twenty-one, following the period, by inserting a new subsection (c), to read as follows:
"(c) The cost of providing any salary increase pursuant to the provisions of section two, article five, chapter five of this code, shall be borne by the commission or institution from its existing budget. The commission or institution may not increase tuition and fee charges, increase auxiliary fee charges, or receive additional general revenue funds to recover the costs of the increase. Notwithstanding any other provision of this code or law to the contrary, if insufficient funding is available to an institution or the commission to implement the provisions of said section two, funding may be derived from reducing employee positions to any level, in the discretion of the institution or commission, that is sufficient to provide adequate funds, and without regard to seniority."
On page fifty-seven of the amendment, section nine, line nine, following the word "institution", by striking the comma and inserting in lieu thereof a period.
On page fifty-seven of the amendment, section nine, line nine, following the word "institution" by striking out the words "but may not include fuel", and inserting in lieu thereof the words "Traveling expenses may not include fuel or food purchases".
On page fifty-seven of the amendment, section nine, line twenty, following the words "this code" and a comma, by inserting the words "or any other provision of this code or law to the contrary" and a comma.
On page fifty-seven of the amendment, section nine, line twenty-two, following the word "media", by inserting a comma and the words "and from the effective date of this section shall conduct any audit or investigation of the commission or any institution at its own expense and at no cost to the commission or institution".
And,
By amending the title of the bill to read as follows:
H. B. 2224 - "A Bill to repeal section two, article eight, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section one, article five, chapter five of said code; to amend and reenact section two, article one, chapter eighteen-b of said code; to further amend said article by adding thereto two new sections, designated sections eight and ten; to amend and reenact section three, article one-a of said chapter; to amend and reenact section six, article one-b of said chapter; to further amend said article by adding thereto a new section, designated section ten; to amend and reenact sections three, four, and eight, article three-c of said chapter; to amend and reenact sections three, four, five, six, and seven, article five of said chapter; to further amend said article by adding thereto a new section, designated section nine; to amend article six of said chapter by adding thereto a new section, designated section four-b; to amend and reenact sections four and six, article seven of said chapter; to amend and reenact section three, article eight of said chapter; to amend and reenact sections five and ten, article nine of said chapter; to amend and reenact sections one and fourteen, article ten of said chapter; and to amend article fourteen of said chapter by adding thereto a new section, designated section eleven, all relating to higher education; higher education policy commission; governing, advisory and visitor boards; administrative heads; faculty; staff; students; administrative and programmatic efficiencies; definitions; clarifying certain student rights; providing for Potomac state college to become a fully- integrated division of West Virginia university; limiting certain operational costs; incorporation of certain auxiliary enterprises; auxiliary service and product rates; establishing areas of academic emphasis at the Potomac campus; institutional missions; program and service contracts and collaboration; reports to the policy commission, legislative oversight commission on education accountability and Legislature; draft legislation submission requirements; peers; peer approval; appointment and evaluation of administrative heads; directing Concord college and Bluefield state college to make a joint study on progress toward meeting goals; altering sponsoring institutions for certain community and technical college components; implementation of certain institutional changes; monitoring institutional progress toward meeting goals; clarifying reporting relationships of certain provosts; establishing and redesignating certain community and technical college responsibility districts; transfer of certain property, obligations and staff; deleting references to Bluefield community and technical college and the center for higher education and work force development at Beckley; creating New River community and technical college of Bluefield state college from existing components and entities; transfer and retention of certain academic programs; findings and intent; governance and program offerings; expenditures; contractual arrangements; responsibilities and duties of certain executive agencies and officials; expanding certain purchasing authority; eliminating bid preference for institutional print shops; modifying attorney general lease purchase agreement and contract approval; authorizing certain leasing authority for the policy commission and the governing boards; requiring prior review of lease agreements; lease cancellation and renewal; authorized signatures on approved leases; requirements and authorizations for promulgating policies, rules and emergency rules; adjusting purchasing threshold for requiring vendor registration; vendor eligibility; clarifying provisions relating to purchasing; disposal of obsolete or unusable equipment, surplus supplies; application of proceeds; ensuring the fiscal integrity of certain institutional procedures; providing for expanded electronic transfers; expanding purchasing authority on purchase cards; authorizing certain emergency expenditures; consolidating certain financial and administrative operations; authorizing fee charges for services provided; limiting certain fee charges; authorizing certain services to be provided by higher education institutions; reduction of low-enrollment sections of certain courses; directing utilization of certain natural resources and alternative fuel resources; retention of cost savings; establishing staff councils; election of members and chair; meetings; notice to probationary faculty of retention status; consideration of need for flexibility at community and technical colleges when reviewing institutional policies; deleting obsolete language referencing faculty salary schedule; modifying certain salary provisions; competitive faculty salary schedule requirement; removing obsolete references to annual experience increment; providing means for funding certain salary increases; participation in catastrophic leave banks; authorizing certain mandatory auxiliary fee increases; limiting certain tuition and fee increases; increase approval; use of fees; reduction of certain state subsidies; return of funds to general revenue; certification of fee revenues; expanding use of bookstore revenues; and public employees insurance agency benefit option expansion study."
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. 587), and there were--yeas 89, nays 10, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley, Boggs, Border, Caruth, Leggett, Romine, Schadler, Stalnaker, Stemple and 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 (H. B. 2224) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 589), and there were--yeas 88, nays 9, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Ashley, Blair, Boggs, Border, Leggett, Louisos, Sobonya, Stalnaker and Stemple.
Absent And Not Voting: Coleman, Hamilton and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2224) 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.
Delegate Hamilton requested that the Clerk record him as voting "Yea" on Roll No. 587.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 60 - "Suspending Joint Rule 3b as to time limit on filing on conference committee reports."
Resolved by the Legislature of West Virginia, two thirds of the members present agreeing thereto:
That the time limit established by Joint Rule 3b is hereby suspended for the sixtieth day of this regular session of the seventy-sixth Legislature, and for this day, conference committees may file their reports with the Clerk of each house, said reports to be announced during session, until 9 o'clock, p. m., with a thirty-minute examination period.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (S. C. R. 60) to a committee was dispensed with, and it was taken up for immediate consideration.
The question now being on the adoption of the resolution, the yeas and nays were taken (Roll No. 588), and there were--yeas 84, nays 15, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Ashley, Blair, Border, Carmichael, Duke, Evans, Leggett, Louisos, Schoen, Sobonya, Sumner, Trump, Wakim and Walters.
Absent And Not Voting: Coleman.
So, two thirds of the members present and voting having voted in the affirmative, the Speaker declared the resolution (S. C. R. 60) adopted.
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. 2363, Authorizing the tax commissioner to suspend a business registration certificate if any business neglects to pay real property taxes thirty days after the delinquent tax list is published.
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. 2414, Relating to thoroughbred breeders association.
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 ten, thirteen and thirteen-b, article twenty-three, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 23. HORSE AND DOG RACING.
PART VII. TAXATION OF HORSE AND DOG RACING AND PARI-MUTUEL

WAGERING; DISPOSITION OF REVENUES.

§19-23-10. Daily license tax; pari-mutuel pools tax; how taxes paid; alternate tax; credits.
(a) Any racing association conducting thoroughbred racing at any horse racetrack in this state shall pay each day upon which horse races are run a daily license tax of two hundred fifty dollars. Any racing association conducting harness racing at any horse racetrack in this state shall pay each day upon which horse races are run a daily license tax of one hundred fifty dollars. Any racing association conducting dog races shall pay each day upon which dog races are run a daily license tax of one hundred fifty dollars. In the event thoroughbred racing, harness racing, dog racing, or any combination of the foregoing are conducted on the same day at the same racetrack by the same racing association, only one daily license tax in the amount of two hundred fifty dollars shall be paid for that day. Any daily license tax shall not apply to any local, county or state fair, horse show or agricultural or livestock exposition at which horse racing is conducted for not more than six days.
(b) Any racing association licensed by the racing commission to conduct thoroughbred racing and permitting and conducting pari-mutuel wagering under the provisions of this article shall, in addition to the daily license tax set forth in subsection (a) of this section, pay to the racing commission, from the commission deducted each day by the licensee from the pari-mutuel pools on thoroughbred racing a tax calculated on the total daily contribution of all pari-mutuel pools conducted or made at any and every thoroughbred race meeting of the licensee licensed under the provisions of this article. The tax, on the pari-mutuel pools conducted or made each day during the months of January, February, March, October, November and December, shall from the effective date of this section and for fiscal year one thousand nine hundred eighty-five be calculated at two and six-tenths percent; for fiscal year one thousand nine hundred eighty-six, be calculated at two and three-tenths percent; for fiscal year one thousand nine hundred eighty-seven, be calculated at two percent of the pool; for fiscal year one thousand nine hundred eighty-eight, be calculated at one and one-half percent; for fiscal year one thousand nine hundred eighty-nine, be calculated at one percent of the pool; for fiscal year one thousand nine hundred ninety, seven tenths of one percent, and for fiscal year one thousand nine hundred ninety-one and each fiscal year thereafter be calculated at four tenths of one percent of the pool; and, on the pari-mutuel pools conducted or made each day during all other months, shall from the effective date of this section and for fiscal year one thousand nine hundred eighty-five, be calculated at three and six-tenths percent; for fiscal year one thousand nine hundred eighty-six, be calculated at three and three-tenths percent; for fiscal year one thousand nine hundred eighty-seven, be calculated at three percent of the pool; for fiscal year one thousand nine hundred eighty-eight, be calculated at two and one-half percent; for fiscal year one thousand nine hundred eighty-nine, be calculated at two percent of the pool; for fiscal year one thousand nine hundred ninety, be calculated at one and seven-tenths percent of the pool; and for fiscal year one thousand nine hundred ninety-one and each fiscal year thereafter, be calculated at one and four- tenths percent of the pool: Provided, That out of the amount realized from the three tenths of one percent decrease in the tax effective for fiscal year one thousand nine hundred ninety-one and thereafter, which decrease correspondingly increases the amount of commission retained by the licensee, the licensee shall annually expend or dedicate: (i) One half of the realized amount for capital improvements in its barn area at the track, subject to the racing commission's prior approval of the plans for the improvements; and (ii) the remaining one half of the realized amount for capital improvements as the licensee may determine appropriate at the track. The term 'capital improvement' shall be as defined by the Internal Revenue Code: Provided, however, That any racing association operating a horse racetrack in this state having an average daily pari-mutuel pool on horse racing of two hundred eighty thousand dollars or less per day for the race meetings of the preceding calendar year shall, in lieu of payment of the pari-mutuel pool tax, calculated as in this subsection, be permitted to conduct pari-mutuel wagering at the horse racetrack on the basis of a daily pari-mutuel pool tax fixed as follows: On the daily pari-mutuel pool not exceeding three hundred thousand dollars the daily pari-mutuel pool tax shall be one thousand dollars plus the otherwise applicable percentage rate imposed by this subsection of the daily pari-mutuel pool, if any, in excess of three hundred thousand dollars: Provided further, That upon the effective date of the reduction of the daily pari-mutuel pool tax to one thousand dollars from the former two thousand dollars, the association or licensee shall daily deposit five hundred dollars into the special fund for regular purses established by subdivision (1), subsection (b), section nine of this article: And provided further, That if an association or licensee qualifying for the foregoing alternate tax conducts more than one racing performance, each consisting of up to ten thirteen races in a calendar day, the association or licensee shall pay both the daily license tax imposed in subsection (a) of this section and the alternate tax in this subsection for each performance: And provided further, That a licensee qualifying for the foregoing alternate tax is excluded from participation in the fund established by section thirteen-b of this article: And provided further, That this exclusion shall not apply to any thoroughbred racetrack at which the licensee has participated in the West Virginia thoroughbred development fund for more than four consecutive years prior to the thirty-first day of December, one thousand nine hundred ninety-two.
(c) Any racing association licensed by the racing commission to conduct harness racing and permitting and conducting pari-mutuel wagering under the provisions of this article shall, in addition to the daily license tax required under subsection (a) of this section, pay to the racing commission, from the commission deducted each day by the licensee from the pari-mutuel pools on harness racing, as a tax, three percent of the first one hundred thousand dollars wagered, or any part thereof; four percent of the next one hundred fifty thousand dollars; and five and three-fourths percent of all over that amount wagered each day in all pari-mutuel pools conducted or made at any and every harness race meeting of the licensee licensed under the provisions of this article.
(d) Any racing association licensed by the racing commission to conduct dog racing and permitting and conducting pari-mutuel wagering under the provisions of this article shall, in addition to the daily license tax required under subsection (a) of this section, pay to the racing commission, from the commission deducted each day by the licensee from the pari-mutuel pools on dog racing, as a tax, four percent of the first fifty thousand dollars or any part thereof of the pari-mutuel pools, five percent of the next fifty thousand dollars of the pari-mutuel pools, six percent of the next one hundred thousand dollars of the pari-mutuel pools, seven percent of the next one hundred fifty thousand dollars of the pari-mutuel pools, and eight percent of all over three hundred fifty thousand dollars wagered each day: Provided, That the licensee shall deduct daily from the pari-mutuel tax an amount equal to one tenth of one percent of the daily pari-mutuel pools in dog racing in fiscal year one thousand nine hundred ninety; fifteen hundredths of one percent in fiscal year one thousand nine hundred ninety-one; two tenths of one percent in fiscal year one thousand nine hundred ninety- two; one quarter of one percent in fiscal year one thousand nine hundred ninety-three; and three tenths of one percent in fiscal year one thousand nine hundred ninety-four and every fiscal year thereafter. The amounts deducted shall be paid to the racing commission to be deposited by the racing commission in a banking institution of its choice in a special account to be known as "West Virginia Racing Commission-Special Account-West Virginia Greyhound Breeding Development Fund". The purpose of the fund is to promote better breeding and racing of greyhounds in the state through awards and purses to bonafide resident owners of accredited West Virginia whelped greyhounds. In order to be eligible to receive an award or purse through the fund, the owner of the accredited West Virginia whelped greyhound must be a bonafide resident of this state. To qualify as a bona fide resident of West Virginia, an owner may not claim residency in any other state. An owner must prove bona fide residency by providing to the commission personal income tax returns filed in the state of West Virginia for the most recent tax year and the three previous tax years, has real or personal property in this state on which the owner has paid real or personal property taxes during the most recent tax year and the previous three tax years and an affidavit stating that the owner claims no other state of residency. The racing commission and the West Virginia greyhound owners and breeders association shall maintain a registry for West Virginia bred greyhounds. The moneys shall be expended by the racing commission for purses for stake races, supplemental purse awards, administration, promotion and educational programs involving West Virginia whelped dogs, owned by residents of this state under rules and regulations promulgated by the racing commission. The racing commission shall pay out of the greyhound breeding development fund to each of the licensed dog racing tracks the sum of seventy-five thousand dollars for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-four. The licensee shall deposit the sum into the special fund for regular purses established under the provisions of section nine of this article. The funds shall be expended solely for the purpose of supplementing regular purses under rules and regulations promulgated by the racing commission.
Supplemental purse awards will be distributed as follows: Supplemental purses shall be paid directly to the owner of an accredited greyhound or, if the greyhound is leased, the owner may choose to designate a percentage of the purse earned directly to the lessor as agreed to via a written purse distribution form on file with the racing commission.
The owner of accredited West Virginia whelped greyhounds that earn a purse at any West Virginia meet will receive a bonus award calculated at the end of each month as a percentage of the fund dedicated to the owners as purse supplements, which shall be a minimum of fifty percent of the total moneys deposited into the West Virginia greyhound breeding development fund monthly: Provided, That to be considered an accredited West Virginia whelped greyhound, a dog must be domiciled in the state of West Virginia at least twelve months from the whelping date.
The total amount of the fund available for the owners' awards shall be distributed according to the ratio of purses earned by an accredited greyhound to the total amount earned in races by all accredited West Virginia whelped greyhounds for that month as a percentage of the funds dedicated to the owners' purse supplements.
The owner of an accredited West Virginia whelped greyhound shall file a purse distribution form with the racing commission for a percentage of his or her dog's earnings to be paid directly to the lessor registered owner or owners of the greyhound. Distribution shall be made on the fifteenth day of each month for the preceding month's achievements.
In no event shall purses earned at a meet held at a track which did not make contributions to the West Virginia greyhound breeder's development fund out of the daily pool on the day the meet was held qualify or count toward eligibility for supplemental purse awards.
Any balance in the purse supplement funds after all distributions have been made for the year revert to the general account of the fund for distribution in the following year.
In an effort to further promote the breeding of quality West Virginia whelped greyhounds, a bonus purse supplement shall be established in the amount of fifty thousand dollars per annum, to be paid in equal quarterly installments of twelve thousand five hundred dollars per quarter using the same method to calculate and distribute these funds as the regular supplemental purse awards. This bonus purse supplement is for three years only, commencing on the first day of July, one thousand nine hundred ninety-three, and ending the thirtieth day of June, one thousand nine hundred ninety-six. This money would come from the current existing balance in the greyhound development fund.
Each pari-mutuel greyhound track shall provide stakes races for accredited West Virginia whelped greyhounds: Provided, That each pari-mutuel track shall have one juvenile and one open stake race annually. The racing commission shall oversee and approve racing schedules and purse amounts.
Ten percent of the deposits into the greyhound breeding development fund beginning the first day of July, one thousand nine hundred ninety-three and continuing each year thereafter, shall be withheld by the racing commission and placed in a special revenue account hereby created in the state treasury called the 'administration, promotion and educational account'. The racing commission is authorized to expend the moneys deposited in the administration, promotion and educational account at such times and in such amounts as the commission determines to be necessary for purposes of administering and promoting the greyhound development program: Provided, That beginning with fiscal year one thousand nine hundred ninety-five and in each fiscal year thereafter in which the commission anticipates spending any money from the account, the commission shall submit to the executive department during the budget preparation period prior to the Legislature convening before that fiscal year for inclusion in the executive budget document and budget bill, the recommended expenditures, as well as requests of appropriations for the purpose of administration, promotion and education. The commission shall make an annual report to the Legislature on the status of the administration, promotion and education account, including the previous year's expenditures and projected expenditures for the next year.
The racing commission, for the fiscal year one thousand nine hundred ninety-four only, may expend up to thirty-five thousand dollars from the West Virginia greyhound breeding development fund to accomplish the purposes of this section without strictly following the requirements in the previous paragraph.
(e) All daily license and pari-mutuel pools tax payments required under the provisions of this section shall be made to the racing commission or its agent after the last race of each day of each horse or dog race meeting, and the pari-mutuel pools tax payments shall be made from all contributions to all pari-mutuel pools to each and every race of the day.
(f) Every association or licensee subject to the provisions of this article, including the changed provisions of sections nine and ten of this article, shall annually submit to the racing commission and the Legislature financial statements, including a balance sheet, income statement, statement of change in financial position and an audit of any electronic data system used for pari- mutuel tickets and betting, prepared in accordance with generally accepted auditing standards, as certified by an experienced public accountant or a certified public accountant.
§19-23-13. Disposition of funds for payment of outstanding and unredeemed pari-mutuel tickets; publication of notice; irredeemable tickets; stake races for dog tracks.

(a) All moneys held by any licensee for the payment of outstanding and unredeemed pari- mutuel tickets, if not claimed within ninety days after the close of a horse or dog race meeting or the televised racing day, as the case may be, in connection with which the tickets were issued, shall be turned over by the licensee to the racing commission within fifteen days after the expiration of the ninety-day period, and the licensee shall give any information required by the racing commission concerning the outstanding and unredeemed tickets. The moneys shall be deposited by the racing commission in a banking institution of its choice in a special account to be known as 'West Virginia Racing Commission Special Account - Unredeemed Pari-Mutuel Tickets.' Notice of the amount, date and place of each deposit shall be given by the racing commission, in writing, to the state treasurer. The racing commission shall then cause to be published a notice to the holders of the outstanding and unredeemed pari-mutuel tickets, notifying them to present their unredeemed tickets for payment at the principal office of the racing commission within ninety days from the date of the publication of the notice. The notice shall be published within fifteen days following the receipt of the outstanding and unredeemed pari-mutuel ticket moneys by the commission from the licensee as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication shall be the county in which the horse or dog race meeting was held and the county in which the televised racing day wagering was conducted in this state.
(b) Any outstanding and unredeemed pari-mutuel tickets that are not presented for payment within ninety days from the date of the publication of the notice are thereafter irredeemable, and the moneys theretofore held for the redemption of the pari-mutuel tickets shall become the property of the racing commission and shall be expended as provided in this subsection. The racing commission shall maintain separate accounts for each licensee and shall record in each separate account the moneys turned over by the licensee and the amount expended at the licensee's track for the purposes set forth in this subsection. The moneys in the West Virginia racing commission special account - unredeemed pari-mutuel tickets shall be expended as follows:
(1) To the owner of the winning horse in any horse race at a horse race meeting held or conducted by any licensee: Provided, That the owner of the horse is at the time of the horse race a bona fide resident of this state, a sum equal to ten percent of the purse won by the horse at that race. The commission may require proof that the owner was, at the time of the race, a bona fide resident of this state. Upon proof by the owner that he or she filed a personal income tax return in this state for the previous two years and that he or she owned real or personal property in this state and paid taxes in this state on real or personal property for the previous two years, he or she shall be presumed to be a bona fide resident of this state; and
(2) To the breeder (that is, the owner of the mare) of the winning horse in any horse race at a horse race meeting held or conducted by any licensee: Provided, That the mare foaled in this state, a sum equal to ten percent of the purse won by the horse; and
(3) To the owner of the stallion which sired the winning horse in any horse race at a horse race meeting held or conducted by any licensee: Provided, That the mare which foaled the winning horse was served by a stallion standing and registered in this state, a sum equal to ten percent of the purse won by the horse; and
(4) To those horse racing licensees not participating in the thoroughbred development fund authorized in section thirteen-b of this article, the unexpended balance of the licensee's account not expended as provided in subdivisions (1), (2) and (3) of this subsection: Provided, That all moneys distributed under this subdivision shall be expended solely for capital improvements at the licensee's track: Provided, however, That the capital improvements must be approved, in writing, by the West Virginia racing commission before funds are expended by the licensee for that capital improvement; and
(5) When the moneys in the special account, known as the West Virginia racing commission special account - unredeemed pari-mutuel tickets will more than satisfy the requirements of subdivisions (1), (2), (3) and (4) of this subsection, the West Virginia racing commission shall have the authority to expend the excess moneys from unredeemed horse racing pari-mutuel tickets as purse money in any race conditioned exclusively for West Virginia bred or sired horses, and to expend the excess moneys from unredeemed dog racing pari-mutuel tickets in supplementing purses and establishing stake races and dog racing handicaps at the dog tracks: Provided, That subject to the availability of funds, the commission shall, after the requirements of subdivisions (1), (2), (3) and (4) of this subsection have been satisfied:
(A) Transfer annually two hundred thousand dollars to the West Virginia racing commission special account - West Virginia greyhound breeding development fund; and
(B) Transfer annually two hundred thousand dollars into a separate account to be used for stakes races for West Virginia bred greyhounds at dog racetracks; and
(C) Transfer annually two hundred thousand dollars to a trust maintained and administered by the organization which is recognized by the West Virginia racing commission, pursuant to a legislative rule proposed for promulgation by the commission and authorized by the Legislature, as the representative of the majority of the active jockeys in West Virginia, for the purpose of providing health and disability benefits to eligible active or disabled West Virginia jockeys and their dependents in accordance with eligibility criteria established by said organization. For purposes of this section in determining health benefits, an eligible active jockey is one who rides at least one hundred mounts per calendar year of which fifty-one must be in the state of West Virginia: Provided, That a jockey is not eligible for health benefits if he or she receives health benefits from any other state; and
(D) After all payments to satisfy the requirements of (A), (B) and (C) of this proviso have been satisfied, the commission shall have authority to transfer one hundred fifty thousand dollars left from all uncashed pari-mutuel tickets to the trust maintained and administered by the organization which is recognized by the West Virginia racing commission, pursuant to legislative rule proposed for promulgation by the commission and authorized by the Legislature as the representative of the majority of the active jockeys in West Virginia.
(c) The commission shall submit to the legislative auditor a quarterly report and accounting of the income, expenditures and unobligated balance in the special account created by this section known as the West Virginia racing commission special account - unredeemed pari-mutuel tickets.
(d) Nothing contained in this article shall prohibit one person from qualifying for all or more than one of the aforesaid awards or for awards under section thirteen-b of this article.
(e) The cost of publication of the notice provided for in this section shall be paid from the funds in the hands of the state treasurer collected from the pari-mutuel pools' tax provided for in section ten of this article, when not otherwise provided in the budget; but no such costs shall be paid unless an itemized account thereof, under oath, be first filed with the state auditor.
§19-23-13b. West Virginia thoroughbred development fund; distribution; restricted races; nonrestricted purse supplements; preference for West Virginia accredited thoroughbreds.

(a) The racing commission shall deposit moneys required to be withheld by an association or licensee in subsection (b), section nine of this article in a banking institution of its choice in a special account to be known as 'West Virginia racing commission special account -- West Virginia thoroughbred development fund.' Notice of the amount, date and place of the deposit shall be given by the racing commission, in writing, to the state treasurer. The purpose of the fund is to promote better breeding and racing of thoroughbred horses in the state through awards and purses for accredited breeders/raisers, sire owners and thoroughbred race horse owners. A further objective of the fund is to aid in the rejuvenation and development of the present horse tracks now operating in West Virginia for capital improvements, operations or increased purses: Provided, That five percent of the deposits required to be withheld by an association or licensee in subsection (b), section nine of this article shall be placed in a special revenue account hereby created in the state treasury called the 'administration and promotion account'.
(b) The racing commission is authorized to expend the moneys deposited in the administration and promotion account at times and in amounts as the commission determines to be necessary for purposes of administering and promoting the thoroughbred development program: Provided, That during any fiscal year in which the commission anticipates spending any money from the account, the commission shall submit to the executive department during the budget preparation period prior to the Legislature convening before that fiscal year for inclusion in the executive budget document and budget bill the recommended expenditures, as well as requests of appropriations for the purpose of administration and promotion of the program. The commission shall make an annual report to the Legislature on the status of the administration and promotion account, including the previous year's expenditures and projected expenditures for the next year.
(c) The fund and the account established in subsection (a) of this section shall operate on an annual basis.
(d) Funds in the thoroughbred development fund shall be expended for awards and purses except as otherwise provided in this section. Annually, the first three hundred thousand dollars of the fund shall be available for distribution for stakes races. One of the stakes races shall be the West Virginia futurity and the second shall be the Frank Gall memorial stakes. The remaining races may be chosen by the committee set forth in subsection (g) of this section.
(e) Awards and purses shall be distributed as follows:
(1) The breeders/raisers of accredited thoroughbred horses that earn a purse at any West Virginia meet shall receive a bonus award calculated at the end of the year as a percentage of the fund dedicated to the breeders/raisers, which shall be sixty percent of the fund available for distribution in any one year. The total amount available for the breeders'/raisers' awards shall be distributed according to the ratio of purses earned by an accredited race horse to the total amount earned in the races by all accredited race horses for that year as a percentage of the fund dedicated to the breeders/raisers. However, no breeder/raiser may receive from the fund dedicated to breeders'/raisers' awards an amount in excess of the earnings of the accredited horse at West Virginia meets. In addition, should a horse's breeder and raiser qualify for the same award on the same horse, they will each be awarded one half of the proceeds. The bonus referred to in this subdivision (1) may only be paid on the first one hundred thousand dollars of any purse, and not on any amounts in excess of the first one hundred thousand dollars.
(2) The owner of a West Virginia sire of an accredited thoroughbred horse that earns a purse in any race at a West Virginia meet shall receive a bonus award calculated at the end of the year as a percentage of the fund dedicated to sire owners, which shall be fifteen percent of the fund available for distribution in any one year. The total amount available for the sire owners' awards shall be distributed according to the ratio of purses earned by the progeny of accredited West Virginia stallions in the races for a particular stallion to the total purses earned by the progeny of all accredited West Virginia stallions in the races. However, no sire owner may receive from the fund dedicated to sire owners an amount in excess of thirty-five percent of the accredited earnings for each sire. The bonus referred to in this subdivision (2) shall only be paid on the first one hundred thousand dollars of any purse, and not on any amounts in excess of the first one hundred thousand dollars.
(3) The owner of an accredited thoroughbred horse that earns a purse in any race at a West Virginia meet shall receive a restricted purse supplement award calculated at the end of the year, which shall be twenty-five percent of the fund available for distribution in any one year, based on the ratio of the earnings in the races of a particular race horse to the total amount earned by all accredited race horses in the races during that year as a percentage of the fund dedicated to purse supplements. However, the owners may not receive from the fund dedicated to purse supplements an amount in excess of thirty-five percent of the total accredited earnings for each accredited race horse. The bonus referred to in this subdivision shall only be paid on the first one hundred thousand dollars of any purse, and not on any amounts in excess of the first one hundred thousand dollars.
(4) In no event may purses earned at a meet held at a track which did not make a contribution to the thoroughbred development fund out of the daily pool on the day the meet was held qualify or count toward eligibility for an award under this subsection.
(5) Any balance in the breeders/raisers, sire owners and purse supplement funds after yearly distributions shall first be used to fund the races established in subsection (g) of this section. Any amount not so used shall revert back into the general account of the thoroughbred development fund for distribution in the next year.
Distribution shall be made on the fifteenth day of each February for the preceding year's achievements.
(f) The remainder, if any, of the thoroughbred development fund that is not available for distribution in the program provided for in subsection (e) of this section in any one year is reserved for regular purses, marketing expenses and for capital improvements in the amounts and under the conditions provided in this subsection (f).
(1) Fifty percent of the remainder shall be reserved for payments into the regular purse fund established in subsection (b), section nine of this article.
(2) Up to five hundred thousand dollars per year shall be available for:
(A) Capital improvements at the eligible licensed horse racing tracks in the state; and
(B) Marketing and advertising programs above and beyond two hundred fifty thousand dollars for the eligible licensed horse racing tracks in the state: Provided, That moneys shall be expended for capital improvements or marketing and advertising purposes as described in this subsection only in accordance with a plan filed with and receiving the prior approval of the racing commission, and on a basis of fifty percent participation by the licensee and fifty percent participation by moneys from the fund, in the total cost of approved projects: Provided, however, That funds approved for one track may not be used at another track unless the first track ceases to operate or is viewed by the commission as unworthy of additional investment due to financial or ethical reasons.
(g) (1) Each pari-mutuel thoroughbred horse track shall provide at least one restricted race per two racing days.: Provided, That, if there are sufficient additional funds available under the provisions of subdivision (4) of this subsection, each pari-mutuel thoroughbred horse track may provide one restricted race per race day.
(2) The restricted races established in this subsection shall be administered by a three- member committee consisting of:
(A) The racing secretary;
(B) A member appointed by the authorized representative of a majority of the owners and trainers at the thoroughbred track; and
(C) A member appointed by a majority of the thoroughbred breeders.
(3) The purses for the restricted races established in this subsection shall be twenty percent larger than the purses for similar type races at each track.
(4) Restricted races shall be funded by each racing association from:
(A) Moneys placed in the general purse fund up to a maximum of three hundred fifty thousand dollars per year.
(B) Moneys as provided in subdivision (5), subsection (e) of this section, which shall be placed in a special fund called the 'West Virginia accredited race fund.'
(5) The racing schedules, purse amounts and types of races are subject to the approval of the West Virginia racing commission.
(h) As used in this section, 'West Virginia bred-foal' means a horse that was born in the state of West Virginia.
(i) To qualify for the West Virginia accredited race fund, the breeder must qualify under one of the following:
(1) The breeder of the West Virginia bred-foal is a West Virginia resident;
(2) The breeder of the West Virginia bred-foal is not a West Virginia resident, but keeps his or her breeding stock in West Virginia year round; or
(3) The breeder of the West Virginia bred-foal is not a West Virginia resident and does not qualify under subdivision (2) of this subsection, but either the sire of the West Virginia bred-foal is a West Virginia stallion, or the mare is covered that year exclusively by a West Virginia stallion following the birth of that West Virginia bred-foal.
(j) No association or licensee qualifying for the alternate tax provision of subsection (b), section ten of this article is eligible for participation in any of the provisions of this section: Provided, That the provisions of this subsection do not apply to a thoroughbred race track at which the licensee has participated in the West Virginia thoroughbred development fund for a period of more than four consecutive calendar years prior to the thirty-first day of December, one thousand nine hundred ninety-two.
(k) From the first day of July, two thousand one, West Virginia accredited thoroughbred horses have preference for entry in all accredited races at a thoroughbred race track at which the licensee has participated in the West Virginia thoroughbred development fund for a period of more than four consecutive calendar years prior to the thirty-first day of December, one thousand nine hundred ninety-two."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2414 - "A Bill to amend and reenact sections ten, thirteen and thirteen- b, article twenty-three, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to horse and dog racing generally; increasing from ten to thirteen the number of racing performances during a calendar day by an association or licensee before the payment of both the daily license tax and the alternative tax imposed by section ten; creating bona fide resident of West Virginia for participation in the greyhound dog whelping fund; defining proof of bona fide residency; deleting provisions related to payment to lessors; deleting provisions relating to contributions to the jockey fund from the uncashed pari-mutuel ticket fund; and increasing the amount of restricted thoroughbred horse races in certain circumstances."
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. 590), and there were--yeas 83, nays 16, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Border, Calvert, Frich, Louisos, Schoen, Smirl, Sobonya, Sumner, Susman, Wakim, Walters and Webb.
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. 2414) 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. 2477, Permitting residents of nursing homes and similar facilities to retain the homestead exemption and Class II property designation.
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 4. ASSESSMENT OF REAL PROPERTY.
§11-4-3. Definitions.
For the purpose of giving effect to the 'Tax Limitations Amendment,' this chapter shall be interpreted in accordance with the following definitions, unless the context clearly requires a different meaning:
'Owner' means the person, as defined in section ten, article two, chapter two of this code, who is possessed of the freehold, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust securing a debt or liability is considered the owner until the mortgagee or trustee takes possession, after which the mortgagee or trustee shall be considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title is also considered the owner.
'Used and occupied by the owner thereof exclusively for residential purpose' means actual habitation by the owner or the owner's spouse of all or a portion of a parcel of real property as a primary place of abode to the exclusion of any commercial use: Provided, That if the parcel of real property was unoccupied at the time of assessment and either: (a) Was used and occupied by the owner thereof exclusively for residential purposes on the first day of July of the previous year assessment date; or (b) was unimproved on the first of July of the previous year but a building improvement for residential purposes was subsequently constructed thereon between that date and the time of assessment; or (c) is retained by the property owner for noncommercial purposes and was most recently used and occupied by the owner or the owner's spouse as a residence, and the owner, as a result of illness, accident or infirmity, is residing with a family member or is a resident in a nursing home, personal care home, rehabilitation center or similar facility, then the property shall be considered 'used and occupied by the owner thereof exclusively for residential purpose': Provided, however, That nothing herein contained shall permit an unoccupied or unimproved property to be considered 'used and occupied by the owner thereof exclusively for residential purposes' for more than one year unless the owner, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility. If a license is required for an activity on the premises or if an activity is conducted thereon which involves the use of equipment of a character not commonly employed solely for domestic as distinguished from commercial purposes, the use may not be considered to be exclusively residential.
'Family member' means a person who is related by common ancestry, adoption or marriage including, but not limited to, persons related by lineal and collateral consanguinity.
'Farm' means a tract or contiguous tracts of land used for agriculture, horticulture or grazing and includes all real property designated as "wetlands" by the United States army corps of engineers or the United States fish and wildlife service.
'Occupied and cultivated' means subjected as a unit to farm purposes, whether used for habitation or not, and although parts may be lying fallow, in timber or in wastelands.
ARTICLE 6B. HOMESTEAD PROPERTY TAX EXEMPTION.

§11-6B-2. Definitions.

For purposes of this article, the term:
(1) 'Assessed value' means the value of property as determined under article three of this chapter.
(2) 'Claimant' means a person who is age sixty-five or older or who is certified as being permanently and totally disabled, and who owns a homestead that is used and occupied by the owner thereof exclusively for residential purposes: Provided, That: (1) If the property was most recently used and occupied by the owner or the owner's spouse thereof exclusively for residential purposes; (2) the owner, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility; and (3) the property is retained by the owner for noncommercial purposes, then the owner of that property may continue to claim a homestead property tax exemption on the property.
(3) 'Family member' means a person who is related by common ancestry, adoption or marriage including, but not limited to, persons related by lineal and collateral consanguinity.
(3) (4) 'Homestead' means a single family residential house, including a mobile or manufactured or modular home, and the land surrounding such structure; or a mobile or manufactured or modular home regardless of whether the land upon which such mobile or manufactured or modular home is situated is owned or leased.
(4) (5) 'Owner' means the person who is possessed of the homestead, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust shall be deemed considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title shall also be deemed considered the owner. Personal property mortgaged or pledged shall, for the purpose of taxation, be deemed considered the property of the party in possession.
(5) (6) 'Permanently and totally disabled' means a person who is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental condition which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.
(6) (7) 'Sixty-five years of age or older' includes a person who attains the age of sixty-five on or before the thirtieth day of June following the July first assessment day.
(7) (8) 'Used and occupied exclusively for residential purposes' means that the property is used as an abode, dwelling or habitat for more than six consecutive months of the calendar year prior to the date of application by the owner thereof; and that the property is used only as an abode, dwelling or habitat to the exclusion of any commercial use: Provided, That failure to satisfy this six-month period shall not prevent allowance of a homestead exemption to a former resident in accordance with section three of this article.
(8) (9) 'Tax year' means the calendar year following the July first assessment day.
(9) (10) 'Resident of this state' means an individual who is domiciled in this state for more than six months of the calendar year.
§11-6B-4. Claim for exemption; renewals; waiver of exemption.

(a) General. -- No exemption shall be allowed under this article unless a claim of exemption is filed with the assessor of the county in which the homestead is located, on or before the first day of October December following the July first assessment day. In the case of sickness, absence or other disability of the claimant, the claim may be filed by the claimant or his or her duly authorized agent.
(b) Claims for disability exemption. -- Each claim for exemption based on the owner being permanently and totally disabled shall include one of the following forms of documentation in support of said claim: (1) A written certification by a doctor of medicine or doctor of osteopathy licensed to practice their particular profession in this state that the claimant is permanently and totally disabled; (2) a written certification by the social security administration that the claimant is currently receiving benefits for permanent and total disability; (3) a copy of the letter from the social security administration originally awarding benefits to the claimant for permanent and total disability and a copy of a current check for such benefits, marked void; (4) a current social security health insurance (medicare) card in the name of the claimant and a copy of a current check to the claimant, marked void, for benefits from the social security administration for permanent and total disability; (5) a written certification signed by the veterans administration certifying that a person is totally and permanently disabled; (6) any lawfully recognized workers' compensation documentation certifying that a person is totally and permanently disabled; (7) any lawfully recognized pneumoconiosis documentation certifying that a person is totally and permanently disabled; or (8) any other lawfully recognized documentation certifying that a person is totally and permanently disabled.
(c) Renewals. --
(1) Senior citizens. -- If the claimant is age sixty-five or older, then after the claimant has filed for the exemption once with his or her assessor, there shall be no need for that claimant to refile unless the claimant moves to a new homestead.
(2) Disabled. -- If the claimant is permanently and totally disabled, then after the claimant has filed for the exemption once with his or her assessor, and signed a statement certifying that he or she will notify the assessor if he or she is no longer eligible for an exemption on the basis of being permanently and totally disabled and that the claimant will notify the assessor within thirty days of the discontinuance of the receipt of benefits for permanent and total disability, if the claimant originally claimed receipt of said benefits to document his or her claim for exemption, there shall be no need for that claimant to refile, unless the claimant moves to a new homestead.
(3) Waiver of exemption. -- Any person not filing his or her claim for exemption on or before the first day of October December shall be determined to have waived his or her right to exemption for the next tax year.
(4) Residential care exception. -- For purposes of this section, an otherwise qualified claimant who, as a result of illness, accident or infirmity, resides with a family member or is a resident at a nursing home, personal care home, rehabilitation center or similar facility is not considered to have moved to a new homestead.
§11-6B-5. Determination; notice of denial of claim or exemption.
(a) The assessor shall, as soon as practicable after a claim for exemption is filed, review that claim and either approve or deny it. If the exemption is denied, the assessor shall promptly, but not later than the first day of November January, serve the claimant with written notice explaining why the exemption was denied and furnish a form for filing with the county commission should the claimant desire to take an appeal. The notice required or authorized by this section shall be served on the claimant or his or her authorized representative either by personal service or by certified mail.
(b) In the event that the assessor shall have information sufficient to form a reasonable belief that a claimant, after having been originally granted an exemption, is not eligible for said exemption, he or she shall deny the exemption on the next assessment date and shall promptly, but no later than the first day of November January, serve the claimant with written notice explaining the reasons for the denial and furnish a form for filing with the county commission should the claimant desire to take an appeal.
§11-6B-6. Appeals procedure.

(a) Notice of appeal; thirty days. -- Any claimant aggrieved by the denial of his or her claim for exemption or the subsequent denial of his or her exemption may appeal to the county commission within thirty days after receipt of written notice explaining why the exemption was denied.
(b) Review; determination; appeal. -- The county commission shall complete its review and issue its determination within sixty days after receipt of the notice of appeal from the claimant as soon as practicable after receipt of the notice of appeal, but in no event later than the twenty-eighth day of February of the tax year for which the exemption is first applied. In conducting its review, the county commission may hold a hearing on the claim. The assessor or the claimant may apply to the circuit court of the county for review of the determination of the county commission in the same manner as is provided for appeals from the county commission in section twenty-five, article three of this chapter."
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. 591), 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. 2477) 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. 2528, Establishing a flood prevention task force by law.
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 section and inserting in lieu thereof the following:
"ARTICLE 21A.  CONSERVATION DISTRICTS.
§19-21A-15. West Virginia flood protection task force; continuation.

(a) The West Virginia flood protection task force is created. The task force is a governmental instrumentality of the state. The exercise by the task force of the powers conferred by, and the carrying out of its purpose and duties of, this section are essential governmental functions for a public purpose.
(b) The task force shall consist of thirteen members, as follows:
(1) The director of the state conservation agency or his or her designee from within the agency, who shall chair the task force;
(2) The director of the state office of emergency services or his or her designee from within the agency, who shall serve as vice-chair of the task force;
(3) The secretary of the department of environmental protection, or his or her designee from within the agency;
(4) The commissioner of the division of highways, or his or her designee from within the agency;
(5) The director of the division of natural resources, or his or her designee from within the agency;
(6) The director of the division of forestry, or his or her designee from within the agency;
(7) The director of the housing development fund, or his or her designee from within the agency;
(8) One county commissioner who shall be appointed by the governor from a list of three names submitted by the county commissioners association of West Virginia;
(9) One member representing municipalities who shall be appointed by the governor from a list of three names submitted by the municipal league;
(10) One member representing forestors who shall be appointed by the governor from a list of three names submitted by the executive director of the forestry association; and
(11) Three citizen members who shall be appointed by the governor, one of whom shall be an engineer.
(c) No more than three of the members, appointed by the governor to the task force, may be from the same congressional district. The members first appointed shall serve staggered terms as follows: The first citizen member appointed shall be appointed for a term of one year; the second citizen member appointed shall be appointed for a term of two years; the third citizen member appointed shall be appointed for a term of three years; the first member representing forestors shall serve a term of one year; the first member representing municipal governments shall serve a term of two years; the first member representing county governments shall serve a term of three years. Thereafter the appointed members shall serve a term of three years. An appointed member may be reappointed for one additional term.
(d) There shall also be appointed a panel of advisory members to the task force. The advisory members shall include:
(1) Two members of the West Virginia Senate, appointed by the president of the Senate;
(2) Two members of the West Virginia House of Delegates appointed by the speaker of the House of Delegates;
(3) The director of the division of labor or his or her designee from within the agency;
(4) The director of the West Virginia University cooperative extension service or his or her designee from within the agency;
(5) The director of the GIS technical center or his or her designee from within the agency;
(6) The director of the board of examiners of land surveyors or his or her designee from within the agency; and
(7) The director of the geological and economic survey or his or her designee from within the agency.
(e) No more than three members of the Legislature appointed by the governor as advisory members may be from the same political party. All advisory members are ex officio, nonvoting members of the task force.
(f) The chair of the task force shall designate a secretary who need not be a member of the task force and who shall keep records of its proceedings.
(g) A majority of the task force members shall constitute a quorum and the affirmative vote of at least the majority of those members present is necessary for any action taken by vote of the task force. A vacancy in the membership of the task force will not affect an action taken if there is a quorum of members present and voting on the issue.
(h) No member of the task force shall receive any compensation for serving as a member.
(i) The task force shall meet at least quarterly or on the call of the chair.
(j) The duties of the task force are to:
(1) Make recommendations to the state office of emergency services for the coordination of federal, state and local governmental response to flooding;
(2) Review the status of flood mapping;
(3) Examine and improve flood prevention initiatives;
(4) Request federal funding assistance; and
(5) Carry out other related responsibilities.
(k) The state conservation agency shall provide office space for the task force. Each governmental agency represented on the task force shall provide staff support for the task force in the manner determined by the task force.
(l) The task force shall keep minutes of its meetings and shall invite one or more representatives of the United States federal emergency management agency, the United States army corps of engineers and any other individual or organization necessary to effectuate the purposes of this article, to all of its meetings.
(m) The West Virginia flood protection task force shall terminate on the first day of July, two thousand five, pursuant to the provisions of article ten, chapter four of this code."
And,
By amending the title of the bill to read as follows:
H. B. 2528 - "A Bill to amend article twenty-one-a, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fifteen, relating generally to the creation of a thirteen-member flood prevention task force; designating members; appointment of certain members by the governor; advisory members; secretary; meetings; duties of task force; office space and staff support; and termination of task force."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
By amending the title of the bill to read as follows:
H. B. 2528 - "A Bill to amend article twenty-one-a, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fifteen, relating generally to the creation of a thirteen-member flood protection task force; designating members; providing for appointment of certain members by the governor; providing for appointment of advisory members; providing for the designation of a secretary; requiring meetings; setting forth duties of task force; providing for office space and staff support; and providing for termination of task force."
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. 592), 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 (H. B. 2528) 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, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2592, Authorizing the department of administration 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 ten, section two, following line seventeen, by adding a new subsection, designated subsection (c), to read as follows:
"(c) The legislative rule filed in the state register on the twenty-fourth day of July, two thousand two, authorized under the authority of section two, article four-b, chapter twelve, of this code, relating to the auditor (state auditor's computer and technology donation program, 155 CSR 5), is authorized."
On page eleven, section three, line six, following the word "authorized" by striking out the period and inserting the following: "with the amendment set forth below" followed by a colon.
On page two, section nine, by striking out the period and inserting in lieu thereof a colon and the following: "Provided, That beginning on the first day of July, two thousand three, each participating public employer shall contribute ten and five-tenths percent (10.5%) of each compensation payment of all its employees who are members of the Public Employees Retirement System."
On page eleven, section three, line fifteen, following the word "authorized" by striking out the period and inserting the following: "with the amendment set forth below" followed by a colon.
On page one, section 2.1, following the words "the Board shall" by inserting a comma and the words "as part of its initial review,".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2592 - "A Bill to amend and reenact section one, article one, chapter sixty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact article two of said chapter, relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; continuing rules previously promulgated by state agencies and boards; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the state register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule-making review committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain legislative rules with amendments; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule- making review committee and as amended by the Legislature; authorizing the department of administration to promulgate a legislative rule relating to the general administration of records management and preservation; authorizing the department of administration to promulgate a legislative rule relating to records retention and disposal scheduling; authorizing the department of administration to promulgate a legislative rule relating to the management of records maintained by the records center; authorizing the department of administration to promulgate a legislative rule relating to technology access for the visually impaired; authorizing the department of administration to promulgate a legislative rule relating to parking; authorizing the department of administration to promulgate a legislative rule relating to qualifications for participation; authorizing the auditor to promulgate a legislative rule relating to the standards for requisitions for payment issued by state officers on the auditor; authorizing the auditor to promulgate a legislative rule relating to the transaction fee and rate structure; authorizing the auditor to promulgate a legislative rule relating to the state auditor's computer and technology donation program; authorizing the consolidated public retirement board to promulgate a legislative rule relating to the public employees retirement system; authorizing the consolidated public retirement board to promulgate a legislative rule relating to benefit determination and appeal; authorizing the consolidated public retirement board to promulgate a legislative rule relating to the teachers defined benefit plan; authorizing the consolidated public retirement board to promulgate a legislative rule relating to the West Virginia state police disability determination and appeal process; authorizing the ethics commission to promulgate a legislative rule relating to lobbying; and authorizing the division of personnel to promulgate a legislative rule relating to the division."
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. 593), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Coleman, Faircloth and Tabb.
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. 2592) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 594), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Coleman and Mezzatesta.
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. 2592) 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, with amendments, a bill of the House of Delegates as follows:
H. B. 2700, Adding health maintenance organization review committee to the definition of "review organizations".
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 section and inserting in lieu thereof the following:
"ARTICLE 3C. HEALTH CARE PEER REVIEW ORGANIZATION PROTECTION.
§30-3C-1. Definitions.
As used in this article:
'Health care professionals' means individuals who are licensed to practice in any health care field under the laws of this state;
'Peer review' means the procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, and claims review;
'Professional society' includes medical, psychological, nursing, dental, optometric, pharmaceutical, chiropractic and podiatric organizations having as members at least a majority of the eligible licentiates in the area or health care facility or agency served by the particular organization; and
'Review organization' means any committee or organization engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a medical audit committee, a health insurance review committee, a health maintenance organization review committee, hospital, medical, dental and health service corporation review committee, a hospital plan corporation review committee, a professional health service plan review committee or organization, a dental review committee, a physicians' advisory committee, a podiatry advisory committee, a nursing advisory committee, any committee or organization established pursuant to a medical assistance program, and any committee established by one or more state or local professional societies or institutes, to gather and review information relating to the care and treatment of patients for the purposes of: (i) Evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board committee or organization reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto, and any professional standards review organizations established or required under state or federal statutes or regulations."
And,
By amending the title of the bill to read as follows:
H. B. 2700 - "A Bill to amend and reenact section one, article three-c, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to peer review organization protection and adding to the definition of 'review organization' a health maintenance organization review committee and a hospital, medical, dental and health service corporation review committee."
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. 595), 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 Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2700) 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. 2702, Eliminating the examination assessment fee on risk retention groups.
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 32. RISK RETENTION ACT.
§33-32-5. Tax on Premiums Collected.
(a) Each risk retention group shall pay to the commissioner, annually on the first day of March of each year, a tax at the rate of two percent of the taxable premiums on policies or contracts of insurance covering property or risks in this state and on risk and property situated elsewhere upon which no premium tax is otherwise paid during the previous year. Each risk retention group shall is also be subject to the additional premium taxes levied by sections fourteen-a and fourteen-d, article three of this chapter. and the examination assessment fee levied by section nine [§ 33-2-9] of article two of this chapter.
(b) The taxes provided for in this section shall constitute all taxes collectible under the laws of this state from any risk retention group, and no other premium tax or other taxes shall be levied or collected from any risk retention group by the state or any county, city or municipality within this state, except ad valorem taxes. Each risk retention group shall be subject to the same interests, additions, fines and penalties for nonpayment as are generally applicable to insurers.
(c) To the extent that a risk retention group utilizes uses insurance agents, each agent shall keep a complete and separate record of all policies procured from each risk retention group. which The record shall be open to examination by the commissioner, as provided in section nine, article two of this chapter. These records shall, for each policy and each kind of insurance provided thereunder under the policy, include the following:
(1) The limit of liability;
(2) The time period covered;
(3) The effective date;
(4) The name of the risk retention group which issued the
policy;
(5) The gross premium charged; and
(6) The amount of return premiums, if any."
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. 596), 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 Mezzatesta.
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. 2702) 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. 2753, Prohibiting participation in animal fighting ventures and making violations a felony.
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 section and inserting in lieu thereof the following:
"ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-19a. Animal fighting ventures prohibited.
(a) It is unlawful for any person to engage in, be employed at, or to purchase or sell an admission to any animal fighting venture.
(b) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars and not more than one thousand dollars, or confined in the county jail not exceeding one year, or both so fined and confined, and may be divested of ownership and control of such animals, and be liable for all costs for their care and maintenance: Provided, That if the animal is a wild animal, game animal or fur- bearing animal, as defined in section two, article one, chapter twenty of this code, or wildlife not indigenous to West Virginia, or of a canine, feline, porcine, bovine, or equine species whether wild or domesticated, the person who violates the provisions of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than one thousand dollars and not more than five thousand dollars, and imprisoned in a state correctional facility for not less than one nor more than five years, or both fined and imprisoned.
61-8-19b. Attendance at animal fighting ventures prohibited; penalty.
(a) It is unlawful for any person to knowingly attend an animal fighting venture involving animals as provided in subsections (a) and (b), section nineteen-a, article eight of this chapter.
(b) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars and not more than one thousand dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
Delegate Perdue requested that the Clerk record him as voting "Nay" on the motion to concur in 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. 597), and there were--yeas 92, nays 6, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Browning, Hall, Kominar, Walters, H. White and Yeager.
Absent And Not Voting: Coleman and Mezzatesta.
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. 2753) 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. 2764, Defining the content of subpoenas that may be issued by the insurance commissioner.
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 section and inserting in lieu thereof the following:
"ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-4. Authority to take depositions, subpoena witnesses, etc.
The commissioner, or any person conducting a hearing or investigation by his authority, shall have power to take depositions, subpoena witnesses and compel their attendance, administer oaths, examine any person under oath, compel any person to subscribe to his testimony after it has been correctly reduced to writing and require the production of any books, papers, records, correspondence or other documents which he deems relevant to the inquiry.
(a) For the purpose of any investigation or proceeding under this chapter, the commissioner or any officer designated by him or her may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence and require the production of any books, papers, correspondences, memoranda, agreements or other documents or records which the commissioner considers relevant or material to the inquiry. The commissioner's authority to subpoena witnesses and documents outside the state shall exist to the maximum extent permissible under federal constitutional law.
(b) Subpoenas may be issued to any person and may require that person, among other things, to:
(1) Testify under oath;
(2) Answer written interrogatories under oath;
(3) Produce documents and tangible things; and
(4) Permit inspection and copying of documents.
(c) Content of subpoena. A subpoena shall:
(1) Describe generally the nature of the investigation;
(2) If the subpoena requires testimony under oath, specify the date, time and place for the taking of testimony;
(3) If the subpoena requires answers to written interrogatories, contain a copy of the written interrogatories;
(4) If the subpoena requires the production of tangible things or documents:
(A) Describe the things and documents to be produced with reasonable specificity; and
(B) Specify a date, time, and place at which the things and documents are to be produced;
(5) Notify the person to whom the subpoena is directed of the obligation to supplement responses;
(6) Advise the person to whom the subpoena is directed that the person may be represented by counsel; and
(7) Identify a member of the office of the insurance commissioner who may be contacted in reference to the subpoena.
(d) For subpoenas to corporations and other entities, the following apply:
(1) A subpoena directed to a corporation, partnership or other business entity that requires testimony under oath shall describe with reasonable particularity the subject matter of the testimony;
(2) An entity that receives a subpoena to answer written interrogatories or to testify under oath shall designate one or more of its officers, agents, employees or other authorized persons familiar with the subject matter specified in the subpoena to respond to the subpoena on its behalf;
(3) The persons designated by an entity to respond to a subpoena on its behalf shall answer the interrogatories or testify as to all matters known or reasonably available to the entity; and
(4) A subpoena directed to an entity that requires testimony under oath or answers to written interrogatories shall advise the entity of its obligations under this section.
(e) Effect of other proceedings. The institution or pendency of administrative or judicial proceedings against a person by the commissioner does not relieve the person of his or her obligation to respond to a subpoena issued under this section.
(f) Subpoenas for interrogatories and answers and requests for production of documents or tangible things and answers propounded and obtained under this section pursuant to an investigation are exempted from disclosure under the provisions of article one, chapter twenty-nine-b of this code, and are not open to public inspection. The commissioner may not disclose facts or information obtained from the investigation except as the official duty of the commissioner requires.
(g) Nothing in this section prohibits the commissioner from providing information or receiving information from any local, state, federal or international law-enforcement authorities, including any prosecuting authority; from complying with subpoenas or other lawful process in criminal proceedings or other action by the state; or from taking action as may otherwise be provided in this article."
And,
By amending the title of the bill to read as follows:
H. B. 2764 - "A Bill to amend and reenact section four, article two, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the subpoena power of the insurance commissioner; setting forth requirements for contents of subpoena; providing for subpoenas to be issued to persons and to corporations; providing that pendency of another action does not relieve a person's duty to respond to subpoena of the commissioner; and providing that evidence produced in response to subpoena and interrogatories are exempt from the disclosure requirements of the freedom of information act."
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. 598), 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 Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2764) 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:
Com. Sub. for H. B. 2799, Relating to the West Virginia state police and the re-employment of recently retired troopers.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section fifty-one, line twenty, following the word "superintendent" by inserting the words "and subject to executive order of the governor specifying circumstances warranting such re-employment and establishing beginning and end dates for such re-employment,".
And,
On page seven, section fifty-one, following line one hundred one, by adding a new subsection, designated subsection (m), to read as follows:
"(m) The provisions of this section shall terminate on the first day of April, two thousand four."
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. 599), 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 Mezzatesta.
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. 2799) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 600), 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 Mezzatesta.
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. 2799) 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, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 2975, Providing a window for persons who were members of PERS and who left state employment withdrawing their PERS moneys to buy back their time with interest.
On 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 eighteen, line eighteen, by striking out all of subsection (b) and relettering the remaining subsections.
On page three, section eighteen, lines thirty through thirty-two, by striking out the words "on or before the first day of July, one thousand nine hundred ninety-seven, and continuing thereafter";
On page four, section eighteen, line fifty-seven, by striking out the word "ten" and inserting in lieu thereof the word "four".
And,
On page four, section eighteen, line fifty-nine, by striking out the word "such" and inserting in lieu thereof the word "the".
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. 601), 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 Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2975) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 602), 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 Mezzatesta.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2975) 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, with amendments, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 3011, Relating to authority of the state fire commission to promulgate legislative and emergency 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 one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-9. Powers, duties and authority of state fire commission and state fire marshal.
(a) The state fire commission may employ personnel, fix their compensation and, within funds available to do so, incur expenses as necessary in the performance of the duties of its office.
(b) The state fire commission is responsible for fire programs within this state, including the state fire marshal's office, training, uniform standards and certification, finance and planning and fire prevention.
(c) All state and area training and education in fire service shall be coordinated by the state fire commission. The state fire marshal shall ensure that these programs are operated throughout the state at a level consistent with needs identified by the commissioner.
(d) The state fire commission shall develop minimum training levels for firefighters, minimum levels of equipment needed to protect life and property within fire service areas, minimum performance standards the departments must meet in response times, communications, minimum levels of water flow and pressure and other performance measures as considered necessary to meet the overall goals of improved fire prevention and control. The state fire commission may make recommendations to the state insurance commissioner regarding town classifications for fire insurance rates.
(e) The formation of any new fire department, including volunteer fire departments, requires the concurrence of the state fire commission. The state fire commission shall develop a method of certification which can be applied to all fire departments and volunteer fire departments.
(f) The state fire commission shall develop a plan for fire prevention and control which shall include, but not be limited to, the following areas: Manpower needs; location of training centers; location of fire prevention and control units; communications; fire-fighting facilities; water sources; vehicular needs; public education and information; public participation; standardization in record keeping; evaluation of personnel; reporting of fire hazards; programs on mutual aid; location of public safety agencies; outline of fire prevention programs; and accessibility of fire prevention information.
(g) The state fire commission shall establish fire protection areas and at such times as funds are available shall establish field offices for inspection, planning and certification.
(h) The state fire marshal may accept, on behalf of the state fire commission, gifts, grants, court ordered civil forfeiture proceedings and bequests of funds or property from individuals, foundations, corporations, the federal government, governmental agencies and other organizations or institutions. The state fire marshal, acting on behalf of the state fire commission, may enter into, sign and execute any agreements and do and perform any acts that may be necessary, useful, desirable or convenient to effectuate the purposes of this article. Moneys from gifts, grants, civil forfeiture proceedings and bequests received by the state fire marshal shall be deposited into the special account set forth in subsection (c), section twelve-b of this article, and the state fire marshal, with the approval of the state fire commission, has the authority to make expenditures of, or use of any tangible property, in order to effectuate the purposes of this article.
(h) The state fire commission shall establish standards and procedures by policy to implement the provisions of this section with regard to the following:
(1) fire prevention and control;
(2) uniform standards of performance, equipment and training;
(3) certification;
(4) training and education in fire service; and
(5) the organization creation, operation and responsibilities of fire departments throughout the state."
And,
By amending the title of the bill to read as follows:
H. B. 3011 - "A Bill to amend and reenact section nine, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to authorizing the state fire commission to establish standards and procedures to implement the provisions of the section."
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. 603), 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 Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3011) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 604), 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 Mezzatesta.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3011) 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, with amendments, a bill of the House of Delegates as follows:
H. B. 3027, Authorizing the tax commissioner to waive tax, interest and penalties in specified circumstances which are otherwise imposed on uncompensated members of the governing board or board of directors of certain tax exempt organizations.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section five-v, line twenty-two, by striking out the word "or".
On page three, section five-v, line twenty-four, by striking out the word "or".
And,
On page four, section five-v, line forty-four, following the word "owed" by striking out the word "or".
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. 605), 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 Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3027) 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. 3203, Relating to amusement ride safety.
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 two, twelve-a, fourteen and seventeen, article ten, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section nineteen, all to read as follows:
ARTICLE 10. AMUSEMENT RIDES AND AMUSEMENT ATTRACTIONS SAFETY ACT.

§21-10-2. Definitions.
As used in this article:
(a) 'Amusement ride' means a mechanical device which carries or conveys passengers along, around or over a fixed or restricted route or course for the purpose of giving its passengers amusement, pleasure, thrills or excitement. The term includes carnival rides and fair rides of a temporary or portable nature which are assembled and reassembled or rides which are relocated from place to place. 'Amusement ride' may not be construed to mean any mechanical device which is coin operated and does not include the operation of a ski lift, the operation of tramways at state parks, the operation of vehicles of husbandry incidental to any agricultural operations or the operation of amusement devices of a permanent nature which are subject to building regulations issued by cities or counties and existing applicable safety orders;
(b) 'Amusement attraction' means any building or structure around, over or through which people may move or walk without the aid of any moving device integral to the building or structure that provides amusement, pleasure, thrills or excitement, including those of a temporary or portable nature which are assembled and reassembled or which are relocated from place to place. The term does not include any enterprise principally devoted to the exhibition of products of agriculture, industry, education, science, religion or the arts and shall not be construed to include any concession stand or booth for the selling of food or drink or souvenirs;
(c) 'Kiddie ride' means an amusement ride or amusement attraction that is expressly designed for or offered to: (1) Children age twelve or less; (2) persons who are forty-two inches in height or less; or (3) persons who are ninety pounds in weight or less;
(c)(d) 'Intoxicated' means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant or any combination of alcohol, controlled substances and intoxicants;
(d) (e) 'Mobile amusement ride or mobile amusement attraction' means an amusement ride or amusement attraction which is erected in a single physical location for a period of less than twelve consecutive months;
(e)(f) 'Operator' means the person having direct control of the starting, stopping and speed of an amusement ride or attraction;
(f)(g) 'Owner' means any person, corporation, partnership, or association who owns an amusement ride or attraction or, in the event that the amusement ride or attraction is leased, the lessee;
(g)(h) 'Stationary amusement ride or stationary amusement attraction' means an amusement ride or amusement attraction that is erected in a single physical location for a period of more than twelve consecutive months.
§21-10-12a. Minimum age for operating amusement ride.
No individual under the age of eighteen sixteen may be the operator of an a kiddie ride or if under the age of eighteen be an operator of any other amusement ride or attraction: Provided, That the individual is not otherwise prohibited from being an operator pursuant to other state or federal law.
§21-10-14. Criminal penalty for violation.
Any operator or owner who knowingly permits the operation of an amusement ride or amusement attraction in violation of the provisions of sections six, seven, eight, nine, eleven, twelve or twelve-a of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty dollars nor more than one thousand dollars, confined in the county or regional jail not more than twelve months, or both fined and confined. Each day that a violation continues shall be considered a separate violation.
§21-10-17. Civil penalties for violations.
(a) If an individual is convicted of, or enters a guilty plea or a plea of nolo contendere to, a violation of subsection (a), section fifteen of this article, and the individual was not the owner of the ride being operated or assembled, the commissioner may impose a civil penalty not to exceed five thousand dollars on the owner of the ride being operated or assembled: Provided, That the owner knew or should have known that the individual was acting in violation of subsection (a), section fifteen of this article.
(b) All civil penalties collected by the commissioner shall be deposited into the amusement rides and amusement attractions safety fund created in section four of this article.
§21-10-19. Patron responsibility.
The owner or operator of an amusement ride or attraction may refuse any member of the public admission to a ride if his or her bearing or conduct could endanger himself or herself or others. These reasons include, but are not limited to: (1) Intoxication; (2) refusal to obey posted rules; (3) unacceptable or unsafe behavior as determined by the operator or the ride; and (4) violation of any age, height or weight restrictions as posted."
And,
By amending the title of the bill to read as follows:
H. B. 3203 - "A Bill to amend and reenact sections two, twelve-a, fourteen and seventeen, article ten, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section nineteen, all relating to amusement ride safety; defining terms; allowing certain children to operate kiddie rides; limiting civil penalties; allowing owners and operators to refuse admission to certain patrons; and providing criminal penalties."
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. 606), 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 Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3203) 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 concur in the amendment of the House of Delegates and requested the House to recede from its amendment as to
S. B. 76, Increasing amount from consolidated fund as loan to economic development authority.
On motion of Delegate Staton, the House of Delegates insisted on its amendments to the bill.
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 concurrence by the Senate in the amendment of the House of Delegates with amendment, and the passage, as amended, to take effect from passage, of
Com. Sub. for S. B. 180, Providing for school construction on cash basis.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House amendments were reported by the Clerk:
On page seventeen of the House amendment, section fifteen, subsection (d), by striking out the word "twenty-five" and inserting in lieu thereof the word "five".
On page seventeen, section fifteen, subsection (d), by striking out the word "shall" and inserting in lieu thereof the word "may".
On page twenty-one, section fifteen, subsection (g), following the word "distribution" and the period, by inserting the following: "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."
On page twenty-five, section fifteen, subsection (n), subdivision (2), by striking out the word "giver" and inserting in lieu thereof the word "given".
On page twenty-five, section fifteen, subsection (n), subdivision (3), by striking out the words "reserve designation date" and inserting in lieu thereof the words "date the funding is set aside by the authority".
On page twenty-seven, section sixteen, subsection (b), by striking out the following: "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."
On page thirty-six, section nineteen, by striking out all of subsection (f) and inserting in lieu thereof a new subsection (f), to read as follows:
"(f) Notwithstanding any other provisions of this section to the contrary, the county board in which there is an existing comprehensive vocational center, may eliminate any vocational offering from a new comprehensive high school if the county board:
(1) Completes a comprehensive vocational curriculum study, as required by the authority, including an evaluation of both the programmatic and physical facilities of the existing center and coordinates the county's vocational curriculum; and
(2) Submits the plan to the authority for review and obtains the authority's approval."
And,
By amending the title of the bill to read as follows:
Com. Sub. for S. B. 180 - "A Bill to amend and reenact 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; and to amend and reenact section six, article ten-h of said chapter, all relating to public education; authorizing school building authority to require flood insurance for certain facilities; authorizing authority to accept gift, grant, contribution, bequest or endowment for authority or projects, including equipment; authorizing authority to encourage work-based learning opportunities for students on funded projects and outlining conditions; authorizing use of certain authority funds to finance construction and improvements on a cash basis when certain conditions are met; allowing authority to reserve certain funds for priority use for certain multi-use vocational- technical educational facilities; authorizing use of reserved funds for equipment and updates; specifying bodies that may propose projects; authorizing reserve of certain project funds for certain period to complete budget; requiring approved comprehensive educational facility plan as prior condition for distribution of funds; prohibiting distribution of funds to county not prepared to commence expenditure during fiscal year; requiring up-to-date enrollment projections in facility plans and updates; authorizing inclusion of facilities for community and technical college education in plans to construct comprehensive vocational facilities at existing high schools; providing that counties served by a multi-county vocational technical facility are not required to include the construction of a comprehensive vocational facility in the plan for construction of a new high school; requiring board to include multi-county vocational technical facility director and board in planning programs; prohibiting programs at the vocational facility from replacing the programs at the multi-county vocational technical facility without the consent of the center board; authorizes a county served by a comprehensive vocational center to eliminate any vocational offering from a new comprehensive high school under certain circumstances; and including introductory vocational- technical courses in middle school grades as part of effective schools for vocational-technical education."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments to the House amendments.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 607), 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 Mezzatesta.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 180) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 608), 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 Mezzatesta.
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. 180) 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 concurrence by the Senate in the amendment of the House of Delegates with amendment, and the passage, as amended, to take effect from passage, of
S. B. 375, Allowing transfer of contractor's license to new business entity in certain cases.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House amendments were reported by the Clerk: On page one of the House amendment, by striking out everything following the article heading and inserting in lieu thereof the following:
"§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 or corporate officer: Provided further, That a license holder may hold a license on behalf of only one business entity during a given time period. The board may transfer the license issued pursuant to this subsection to the new business entity without requiring examination of the license holder.
§21-11-9. Unlawful use, assignment, transfer of license; revocation.
No license may be used for any purpose by any person other than the person to whom the license is issued. No license may be assigned, transferred or otherwise disposed of so as to permit the unauthorized use thereof. No license issued pursuant to the provisions of subsection b, section seven of this article may be assigned, transferred or otherwise disposed of except as provided in said subsection. Any person who violates this section is subject to the penalties imposed in section thirteen of this article."
On page one, by amending the enacting section to read as follows:
"That sections seven and nine, article eleven, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows" followed by a colon.
And,
By amending the title of the bill to read as follows:
S. B. 375 - "A Bill to amend and reenact sections seven and nine, article eleven, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to contractor licensing generally; and allowing the transfer of a license to a new business entity in which the license holder is the principal owner, partner or officer."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments to the House amendments.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 609), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Mezzatesta and Walters.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 375) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 610), 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 Mezzatesta.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 375) 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 concurrence by the Senate in the amendment of the House of Delegates with amendment, and the passage, as amended, of
Com. Sub. for S. B. 496, Creating Motor Fuels Excise Tax 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 one hundred forty-two, section forty-seven, by striking out all of subsection (b).
And by relettering the remaining subsection.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment to the House amendment.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 611), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Mezzatesta and Perdue.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 496) 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. 2092, Creating a sentencing commission and providing for the appointment, terms and qualifications of members.
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 article nine, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section four, to read as follows:
ARTICLE 9. GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION.

§15-9-4. Criminal sentencing research.
 The governor's committee on crime, delinquency and correction shall conduct comprehensive research on the state's criminal sanctioning process for adult offenders. The purpose of the research is to promote a fuller understanding of this state's criminal justice system, and shall include the review of issues of sentence length imposed, actual sentence length served, parole eligibility, parole revocation, determinate or indeterminate sentences, availability of alternatives to incarceration for certain offenses, and the respective roles that each of these and other criminal sanction issues may play in the increased demand for prison bed space. The committee shall report to the governor and the Legislature on or before the first day of January, two thousand four, and at its discretion thereafter, the findings of its research."
And
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2092 - "A Bill to amend article nine, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section four, relating to establishing within the governor's committee on crime, delinquency and correction a research component relating to criminal sentencing; and requiring reports."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
On page two of the Senate amendment, section four, line two, following the word "research" by inserting the words "and make any recommendations for modifications of criminal sentencing laws or procedures provided that no such recommendations or modifications shall become effective without further action of the Legislature".
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. 612), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Fleischauer and Mezzatesta.
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. 2092) 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, bills of the House of Delegates as follows:
H. B. 2285, Requiring hunting and fishing licensees to carry proof of identity and other applicable documents,
Com. Sub. for H. B. 2480, Increasing the amount of penalties the commissioner of banking may obtain and allowing the commissioner to expend funds to promote consumer awareness of issues related to residential mortgage lending,
H. B. 2486, Continuing the public employees insurance agency,
H. B. 2554, Continuing the marketing and development division of the department of agriculture,
H. B. 2555, Continuing the West Virginia's membership in the southern regional education compact,
H. B. 2750, Continuing the office of health facility licensure and certification,
H. B. 2751, Continuing the department of health and human resources,
H. B. 2752, Continuing the bureau for senior services,
H. B. 2779, Continuing the personal assistance services program,
H. B. 2802, Providing for a legal description in deeds creating an easement right-of-way,
Com. Sub. for H. B. 2814, Increasing the misdemeanor penalties for failure to yield the right-of-way,
H. B. 2829, Continuing the division of culture and history,
H. B. 2830, Continuing the division of natural resources,
H. B. 2831, Continuing the records management and preservation board,
Com. Sub. for S. B. 2835, Creating a special revenue fund for receipt of gifts, donations, etc. to support the operation of veterans facilities created by statute,
H. B. 2840, Increasing the number of members on the Greater Huntington Park and making other changes in the act,
H. B. 2864, Continuing the office of explosives and blasting,
H. B. 2879, Continuing the West Virginia commission on holocaust education,
Com. Sub for H. B. 2881, Striking the provision requiring that post mining water discharges have to be better to or equal to pre-mining water discharge,
H. B. 2882, Limiting requirements for stays for appeals under the surface coal mining and reclamation act for unjust hardship,
H. B. 2888, Continuing the board of osteopathy,
H. B. 2889, Continuing the board of examiners of psychologists,
H. B. 2916, Continuing the state geological and economic survey,
Com. Sub. for H. B. 3056, Providing for the regulation of intrastate driving hours of for-hire carriers,
H. B. 3062, Authorizing stockholders of closely held corporations to file suit for partition of real estate owned by the corporation when the real estate is the only substantial asset of the corporation,
Com. Sub. for H. B. 3070, Providing that a mass convention of a political party, to elect delegates to the state convention, be held in the county instead of the various magisterial districts,
H. B. 3093, Requiring county commissions to follow geographic physical features recognized by the United States Census Bureau when determining precinct boundaries,
And,
Com. Sub. for H. B. 3155, Maintaining the security and confidentiality of business processes.
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. 2705, Relating to the supervision of adult offenders and authorizing a compact for the supervision of adult offenders.
Special Calendar

Second Reading

Com. Sub. for S. B. 386, Increasing parole supervision fee; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 395, Granting temporary grandparent visitation during divorce action; technical corrections; 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 on page two, section five hundred one, beginning on line one, by striking out all of section five hundred one, and inserting in lieu thereof the following:
"At the time of the filing of the complaint or at any time after the commencement of an action for divorce under the provisions of this article and upon motion for temporary relief, notice of hearing and hearing, the court may (1) order all or any portion of the following temporary relief described in this part to govern the marital rights and obligations of the parties during the pendency of the action, and (2) may, upon proper motion or petition, order temporary grandparent visitation for the period during which the action is pending and under the same terms and conditions as provided for in article ten of this chapter."
On motion of Delegate Amores, the amendment was amended on page ten, following section 1101, by inserting the following:
"ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48-13-501. Extended shared parenting adjustment.
Child support for cases with extended shared parenting is calculated using Worksheet B. The following method is used only for extended shared parenting: That is, in cases where each parent has the child for more than one hundred twenty-seven days per year (thirty-five percent).: Provided, That visitation ordered for grandparents or other third parties shall have no effect on the calculation of child support.
(1) The basic child support obligation is multiplied by 1.5 to arrive at a shared parenting basic child support obligation. The shared parenting basic child support obligation is apportioned to each parent according to his or her income. In turn, a child support obligation is computed for each parent by multiplying that parent's portion of the shared parenting child support obligation by the percentage of time the child spends with the other parent. The respective basic child support obligations are then offset, with the parent owing more basic child support paying the difference between the two amounts. The transfer for the basic obligation for the parent owing less basic child support shall be set at zero dollars.
(2) Adjustments for each parent's additional direct expenses on the child are made by apportioning the sum of the parent's direct expenditures on the child's share of any unreimbursed
child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or ordered by the court less any extraordinary credits agreed to by the parents or ordered by the court to each parent according to their income share. In turn each parent's net share of additional direct expenses is determined by subtracting the parent's actual direct expenses on the child's share of any unreimbursed child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or by the court less any extraordinary credits agreed to by the parents or ordered by the court from their share. The parent with a positive net share of additional direct expenses owes the other parent the amount of his or her net share of additional direct expenses. The parent with zero or a negative net share of additional direct expenses owes zero dollars for additional direct expenses.
(3) The final amount of the child support order is determined by summing what each parent owes for the basic support obligation and additional direct expenses as defined in subdivisions (1) and (2) of this section. The respective sums are then offset, with the parent owing more paying the other parent the difference between the two amounts."
The question then being on the adoption of the amendment, as amended, the same was put and prevailed.
The bill was then ordered to third reading.
S. B. 449, Authorizing transfer of surplus net profits between lottery fund and excess lottery fund; 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 as follows on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 22. STATE LOTTERY ACT.
§29-22-18c. Transfer of surplus net profits.
(a) In the fiscal year two thousand three and to the extent that an unappropriated surplus is realized in the state lottery fund created by section eighteen of this article, the secretary of the department in which the state lottery commission is located shall authorize the transfer of an amount of the surplus net profit from the state lottery fund to the state excess lottery revenue fund created in section eighteen-a of this article that will offset a real or anticipated deficit in the state excess lottery fund for that fiscal year.
(b) In the fiscal year two thousand three and when an unappropriated surplus is realized in the state excess lottery revenue fund created by section eighteen-a of this article, the secretary of the department in which the state lottery commission is located shall authorize the transfer of an amount of the surplus net profit from the state excess lottery revenue fund to the state lottery fund created in section eighteen of this article that will offset a real or anticipated deficit in the state lottery fund for that fiscal year before transferring any money from the state excess lottery revenue fund to the separate account in the state lottery fund pursuant to subsection (f), section eighteen-a of this article.
(c) No transfer authorized by this section may exceed the real or anticipated deficit it is intended to offset.
(d) Prior to any transfer authorized by the provisions of this section, the secretary of the department in which the state lottery commission is located shall notify the joint committee on government and finance of the real or anticipated deficit and the amount of the transfer.
(e) Construction. -- In the event of any conflict between language in this section and language in any other section of this code, the language of this section is controlling."
The bill was then ordered to third reading.
S. B. 503, Providing penalty for unauthorized access to government computers or computer networks; 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 clause, by striking out the remainder of the bill and inserting in lieu thereof, the following:
"That article three-c, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section four-a; and to amend and reenact sections seven and fourteen-a of said article, all to read as follows:
ARTICLE 3C. WEST VIRGINIA COMPUTER CRIME AND ABUSE ACT.
§61-3C-4a. Unauthorized access to government computer.
Any person who, knowingly, willfully and without authorization, directly or indirectly, accesses or causes to be accessed, any computer or computer network intended for the exclusive use of any state, county or municipal government agency is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, confined in the county or regional jail for not more than one year, or both.
§61-3C-7. Alteration, destruction, etc., of computer equipment.
(a) Misdemeanor offenses. -- Any person who knowingly, willfully and without authorization, directly or indirectly, tampers with, deletes, alters, damages or destroys or attempts to tamper with, delete, alter, damage or destroy any computer, computer network, computer software, computer resources, computer program or computer data or who knowingly introduces, directly or indirectly, a computer contaminant into any computer, computer program or computer network which results in a loss of value of property or computer services up to one thousand dollars, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail not more than six months, or both.
(b) Felony offenses. -- Any person who knowingly, willfully and without authorization, directly or indirectly, damages or destroys or attempts to damage or destroy any computer, computer network, computer software, computer resources, computer program or computer data by knowingly introducing, directly or indirectly, a computer contaminant into any computer, computer program or computer network which results in a loss of value of property or computer services more than of one thousand dollars or more is guilty of a felony and, upon conviction thereof, shall be fined not less than two hundred dollars and not more than ten thousand dollars or confined in a state correctional facility not more than ten years, or both, or, in the discretion of the court, be fined not less than two hundred nor more than one thousand dollars and confined in the county or regional jail not more than one year.
§61-3C-14a. Obscene, anonymous, harassing and threatening communications by computer; penalty.

(a) It is unlawful for any person, with the intent to harass or abuse another person, to use a computer to:
(1) Make contact with another without disclosing his or her identity; with the intent to harass or abuse
(2) Make contact with a person after being requested by the person to desist from contacting them;
(3) Threaten to commit a crime; against any person or property or
(4) Cause obscene material to be delivered or transmitted to a specific person after being requested to desist from sending such material.
For purposes of this section, 'obscene material' means material that:
(A) An average person, applying contemporary adult community standards, would find, taken as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest or is pandered to a prurient interest;
(B) An average person, applying contemporary adult community standards, would find, depicts or describes, in a patently offensive way, sexually explicit conduct consisting of an ultimate sexual act, normal or perverted, actual or simulated, an excretory function, masturbation, lewd exhibition of the genitals, or sadomasochistic sexual abuse; and
(C) A reasonable person would find, taken as a whole, lacks literary, artistic, political or scientific value.
(b) It is unlawful for any person to knowingly permit a computer under his or her control to be used for any purpose prohibited by this section.
(c) Any offense committed under this section may be determined to have occurred at the place at which the contact originated or the place at which the contact was received or intended to be received.
(d) Any person who violates a provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or confined in a county or regional jail not more than six months, or both. For a second or subsequent offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in a county or regional jail for not more than one year, or both."
The bill was then ordered to third.
S. B. 527, Relating to property owner's liability for costs associated with waste tires; 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 five, section seven, line seventy-seven, following the word "pile", by changing the colon to a period.
And,
On page five, section seven, line seventy-eight, by striking out the words "Provided, That any", and inserting in lieu thereof a new subsection designation "(j) and the word "Any".
The bill was then ordered to third reading.
S. B. 636, Exempting competitive bidding requirement for commodities and services by nonprofit workshops; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 647, Establishing and maintaining self-insurance account by investment management board; 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, four, 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.
§12-6-4. Management and control of fund; officers; staff; fiduciary or surety bonds for trustees; liability of trustees.
(a) The management and control of the board shall be vested solely in the trustees in accordance with the provisions of this article.
(b) The governor shall be the chairman of the board and the trustees shall elect a vice chairman who may not be a constitutional officer or his or her designee to serve for a term of two years. Effective with any vacancy in the vice chairmanship, the board shall elect a vice chairman to a new two-year term. The vice chairman shall preside at all meetings in the absence of the chairman. Annually, the trustees shall elect a secretary, who need not be a member of the board, to keep a record of the proceedings of the board.
(c) The trustees shall appoint a chief executive officer of the board and shall fix his or her duties and compensation. The chief executive officer shall have five years' experience in investment management with public or private funds within the ten years next preceding the date of appointment. The chief executive officer additionally shall have academic degrees, professional designations and other investment management or investment oversight or institutional investment experience in a combination the trustees consider necessary to carry out the responsibilities of the chief executive officer position as defined by the trustees.
(d) The trustees shall retain an internal auditor to report directly to the trustees and shall fix his or her compensation. The internal auditor shall be a certified public accountant with at least three years experience as an auditor. The internal auditor shall develop an internal audit plan, with board approval, for the testing of procedures and the security of transactions.
(e)(1) Each trustee shall give a separate fiduciary or surety bond from a surety company qualified to do business within this state in a penalty amount of one million dollars for the faithful performance of his or her duties as a trustee. The board shall purchase a blanket bond for the faithful performance of its duties in the amount of fifty million dollars or in an amount equivalent to one percent of the assets under management, whichever is greater. The amount of the blanket bond is in addition to the one million dollar individual bond required of each trustee by the provisions of this section. The board shall maintain in effect commercially customary property, liability, crime and other insurance to cover risks of loss from its operations which are not insured under the faithful performance bonds of the trustees. The types and amount of the insurance coverages shall be determined by the board of risk and insurance management created under section three, article twelve, chapter twenty nine of this code, in its reasonable discretion, with reference to the types and amounts of insurance carried by public agencies performing functions similar to those performed by the investment management board.
(2) In the procurement of the commercially customary property, liability, crime and other insurance and fiduciary or surety bonds, the investment management board shall not pay out any state money for the purpose of insurance against loss, damage or liability to any such state property or on account of any such state activity or responsibility or incur any obligation or indebtedness against the state for such insurance, except (A) upon the board of risk and insurance management's prior approval and placement of such insurance coverage, and (B) the board of risk and insurance management's subsequent approval of invoices and charges therefor.
(3) The board of risk and insurance management may require a fiduciary or surety bond from a surety company qualified to do business in this state for any person who has charge of, or access to, any securities, funds or other moneys held by the board and the amount of the fiduciary or surety bond shall be fixed by the board shall fix the amount of the fiduciary or surety bond. The premiums payable on all fiduciary or surety bonds shall be an expense of the investment management board.
(f) The trustees and employees of the board are not liable personally, either jointly or severally, for any debt or obligation created by the board: Provided, That the trustees and employees of the board are liable for acts of misfeasance or gross negligence.
(g) The board is exempt from the provisions of sections seven and eleven, article three of this chapter and article three, chapter five-a of this code: Provided, That the trustees and employees of the board are subject to purchasing policies and procedures which shall be promulgated by the board. The purchasing policies and procedures may be promulgated as emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
(h) Any employee of the West Virginia trust fund who previously was an employee of another state agency may return to the public employees retirement system pursuant to section eighteen, article ten, chapter five of this code and may elect to either: (1) Transfer to the public employees retirement system his or her employee contributions with accrued interest and, if vested, his or her employer contributions with accrued interest and retain as credited state service all time served as an employee of the West Virginia trust fund; or (2) retain all employee contributions with accrued interest and, if vested, his or her employer contributions with interest and forfeit all service credit for the time served as an employee of the West Virginia trust fund.
§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.
S. B. 650, Defining waters of state; 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 as follows on page two, beginning on line one, by striking out the remainder of the bill, and inserting in lieu thereof the following:
"ARTICLE 15. WATER RESOURCES OF THE STATE.
§20-15-1. Protection of water resources.
(a) Water is a vital natural resource of the state. A sufficient quantity of water is essential to maintain, preserve and promote the quality of life and the economic vitality of the state.
(b) The state's power to own, manage and control waters within the state in the public interest shall extend to the limits allowed under the common law existing on the effective date of this section, applicable federal and state statutes and the constitutions of West Virginia and the United States: Provided, That the state's ownership, management and control is subject to private rights or ownership in property as recognized by the common law existing on the effective date of this section, applicable federal and state statutes and the constitutions of West Virginia and the United States existing on the effective date of this section, including, but not limited to, private rights or ownership in flowing waters, in springs, and in surface and subterranean waters.
(c) The state of West Virginia may not impose a fee for the use of waters within the state or impose a tax for the use thereof, other than those fees by a governmental body or regulatory agency imposed pursuant to legislative enactment."
The bill was then ordered to third reading.
S. B. 661, Making supplementary appropriation of federal funds to department of health and human resources, division of health, maternal and child health; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 662 , Expiring funds to unappropriated balance in general revenue from division of banking, assessment and examination fund; on second reading, coming up in regular order, was read a second time and ordered to third reading.
H. B. 3213 , Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 3214, Expiring funds to the secretary of state - state election fund; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 3215, Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 3216, Supplementing, amending, reducing and increasing items of the existing appropriations from the state fund, general revenue, to the secretary of state; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 3217, Establishing a fund and making a supplementary appropriation of federal funds out of the treasury from the balance of federal moneys remaining unappropriated; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 3218, Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 3219, Expiring funds to the balance of the division of highways - highway tax fund; on second reading, coming up in regular order, was, on motion of Delegate Staton, laid over one day.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had acceded to the request of the House for the return of
Com. Sub. for H. B. 2126, Strengthening penalties relating to violations of fire laws and rules.
At the request of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for H. B. 2126) was taken up for immediate consideration.
On motion of Delegate Staton, the House of Delegates reconsidered a previously adopted title amendment to the bill, and the same was subsequently withdrawn.
On motion of Delegate Amores, the title of the bill was then amended to read as follows:
Com. Sub. for H. B. 2126 - "A Bill to amend and reenact sections twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section four, article three-a of said chapter; and to amend article three, chapter sixty-one of said code by adding thereto a new section, designated section five-a, all relating to violations of fire laws and rules; increasing the criminal offense for a false fire alarm to a felony when it is done with intent to cause injury to persons or property to divert attention from another offense; providing for increased criminal penalties; creating an offense of fifth degree arson in certain circumstances for persons involved in setting fires; and providing criminal penalty under certain circumstances for persons involved in setting fires to the property of others."
On the passage of the bill, the yeas and nays were taken (Roll No. 613), 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 Doyle.
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. 2126) 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 requested the return of
H. B. 2363, Authorizing the tax commissioner to suspend a business registration certificate if any business neglects to pay real property taxes thirty days after the delinquent tax list is published.
On motion of Delegate Staton, the House acceded to the request of the Senate for the return of the bill.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At 6:25 p.m., on motion of Delegate Staton, the House of Delegates recessed until 8:30 p.m., and reconvened at that time.
* * * * * * * * * *

Evening Session

* * * * * * * * * *
Reordering of the Calendar

Delegate Staton announced that the Committee on Rules had transferred S. C. R. 11, S. C. R. 12, S. C. R. 20, Com. Sub. for H. C. R. 34, S. C. R. 35, S. C. R. 45, S. C. R. 46, S. C. R. 52, H. C. R. 60, H. C. R. 64, H. C. R. 65, H. C. R. 80, H. C. R. 84, H. C. R. 85, H. C. R. 87, H. C. R. 88, H. C. R. 90, H. C. R. 93, H. C. R. 95 and Com Sub. for H. C. R. 98 on Unfinished Business, House Calendar, to the Special Calendar; Com. Sub. for S. B. 109, Com. Sub. for S. B. 162, S. B. 186, Com. Sub. for S. B. 467 and Com. Sub. for S. B. 628, on third reading, House Calendar, to the Special Calendar; Com. Sub. for S. B. 651, Com. Sub. for S. B. 371 and Com. Sub. for S. B. 475, on second reading, Special Calendar, to the House Calendar.
Messages from the Senate

At the request of Delegate Staton, the House then proceeded to further consideration of Com. Sub. for H. B. 2121, Establishing the "All-Terrain Vehicle Safety Act" and the reasons therefor, having been reported in earlier proceedings and postponed until this time.
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 the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new chapter, designated chapter seventeen-f, to read as follows:
CHAPTER 17F. ALL-TERRAIN VEHICLES.

ARTICLE 1. REGULATION OF ALL-TERRAIN VEHICLES.
§17F-1-1. Definitions.
As used in this chapter:
(1) 'All-terrain vehicle' or 'ATV' means a three-wheeled or four-wheeled motor vehicle, generally characterized by large low-pressure tires, a seat designed to be straddled and handlebars for steering, which is intended for off-road use usually on various types of non-paved terrain other than an unpaved race track;
(2) 'Commissioner' means the commissioner of the division of motor vehicles.
§17F-1-2. Acts prohibited by operator.

(a) No all-terrain vehicle may be operated in this state:

(1) On any interstate highway except by public safety personnel responding to emergencies;
(2) On any road or highway with a center line or more than two lanes and a speed limit of sixty-five miles per hour or less except for the purpose of crossing the road, street or highway, if:
(A) The crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
(B) The vehicle is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
(C) The operator yields his or her right of way to all oncoming traffic that constitutes an immediate potential hazard; and
(D) Both the headlight and taillight are illuminated when the crossing is made if the vehicle is so equipped.
(3) On any road, trail or any other lands within boundaries of any state park, state forest or wildlife management area except as may be authorized by the director of the division of natural resources by rule promulgated pursuant to the provisions of article three, chapter twenty-nine-a of this code;
(4) On any road, trail or any other lands within the boundaries of the Hatfield-McCoy Recreation Area, except as may be authorized by rule promulgated pursuant to the provisions of article three, chapter twenty-nine-a of this code by the Hatfield-McCoy Recreation Area Authority;
(5) On any road, trail or any other lands under the jurisdiction of the state rail authority except as may be authorized by the authority by rule promulgated pursuant to the provisions of article three, chapter twenty-nine-a of this code;
(6) On any road, trail or any other lands within the boundaries of land owned by a non-profit or not-for-profit entity used for public recreational purposes except as authorized by the governing board of such entity;
(7) Within the boundaries of any municipal or county owned or operated recreational area except as may be authorized by the county commission of said county;
(8) Unless operators and passengers, if any, under the age of eighteen are wearing protective helmets that meet the current performance specification established by the American National Standards Institute Standard, Z 90.1, the United States Department of Transportation Federal Motor Vehicle Safety Standard No. 218 and any passenger under the age of eighteen riding with an operator under the age of eighteen rides astraddle the vehicle with both feet, where applicable, on the vehicle's running boards;
(9) With a passenger unless the operator is at least seventeen years of age;
(10) Anytime from sunset to sunrise without an illuminated headlight or lights and tail lights;
(11) Without United States Forest Service qualified spark arrester and a manufacturer- installed or equivalent muffler in proper working order and properly connected to the vehicle's exhaust system;
(12) Unless operating in compliance with the provisions of section three of this article; or
(13) In a careless or reckless manner so as to endanger or cause injury or damage to any person or property.
(b) Any person not exempted by the provisions of this article who violates the provisions of subdivisions (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12) or (13), subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars.
(c) No provision of this section may be construed to prohibit a municipal, county or state law-enforcement officer from entering upon private lands while in active pursuit of an operator of an all-terrain vehicle who has violated a provision of this section if occurred in the officer's presence.
(d) Notwithstanding any provision of this chapter to the contrary, an all-terrain vehicle may, for the sole purpose of getting from one trail, field or area of operation to another, be operated upon the shoulder or as close as possible to the edge of a road, street or highway, other than an interstate highway for a reasonable distance, if:
(1) The vehicle is operated at speeds of twenty-five miles per hour or less; and
(2) If operated at any time from sunset to sunrise, the all-terrain vehicle must be equipped with headlights and taillights which must be illuminated.
(e) For purposes of subsection (d) of this section, the reasonable distance which may be traveled for the sole purpose of getting from one trail, field or area of operator to another upon the shoulder or as close as possible to the edge of a road, street or highway, other than an interstate highway, shall not exceed that distance as established for farm use vehicles and shall be set by the commissioner by rule.
(f) Notwithstanding the provisions of this chapter to the contrary, a municipality, county or other political subdivision of the state may authorize the operation of all-terrain vehicles on certain paved roads, streets or highways which are marked with centerline pavement markings, other than interstate highways, to allow participation in parades, exhibitions and other special events, or for specified purposes, or in emergencies.
§17F-1-3. Safety training.
(a) On and after the first day of July, two thousand three, the commissioner of the division of motor vehicles shall offer a free all-terrain vehicle rider safety training course, and may approve other free all-terrain vehicle rider safety training courses, to meet the reasonably anticipated needs of the public. The commissioner shall offer free safety training course materials free of charge to authorized dealers of all-terrain vehicles, the materials and courses to be provided by the authorized dealers free of charge to purchasers and potential purchasers.
(b) The commissioner shall issue certificates of completion to persons who satisfactorily complete the requirements of an approved course. The commissioner may authorize a dealer of all- terrain vehicles to issue the certificates of completion so long as the dealer has provided a free rider safety training course free of charge, as authorized and approved by the division.
(c) On and after the first day of July, two thousand three, a person under the age of eighteen may operate an all-terrain vehicle only by obtaining a certificate of completion of a vehicle rider training course as offered or approved by the commissioner; or a person aged eighteen or over may operate an all-terrain vehicle by possessing a valid driver's license.
(d) The commissioner shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to facilitate the implementation of this article.
§17F-1-4. Local government authority to regulate.
(a) Notwithstanding any provision of this code to the contrary, a municipality may regulate in any manner not inconsistent with the provisions of this chapter or prohibit, by lawfully enacted ordinance, the operation of all-terrain vehicles upon any street, road or avenue within the municipal corporate limits not regulated by the provisions of subdivision (3), (4), (5), (6) or (7) , subsection (a), section two of this article.
(b) Notwithstanding any provision of this code to the contrary, the county commission of each county may regulate in any manner not inconsistent with the provisions of this chapter or prohibit, by lawfully enacted ordinance, the operation of all-terrain vehicles upon any street, road or avenue within the county but not within a municipality's corporate limits or regulated by the provisions of subdivision (3), (4), (5), (6) or (7), subsection (a), section two of this article.
§17F-1-5. All-terrain vehicle rental dealers required to provide safety equipment.

Any person or entity renting or leasing all-terrain vehicles for recreational purposes must provide protective helmets as defined by the provisions of section forty-four, article fifteen, chapter seventeen-c of this code to all persons using such vehicles who are under the age of eighteen and offer protective helmets to all persons eighteen and older using the rented or leased vehicles: Provided, That for the provisions of this section to be applicable, the users of the all-terrain vehicle must be known to the person or entity providing the rented or leased vehicle.
§17F-1-6. Exemption for farm and commercial use.
No entity, governmental or private, authorized by the provisions of this chapter to prohibit all-terrain vehicle use on lands under its authority may by rule, regulation, ordinance or other enactment preclude the use or operation of all-terrain vehicles used for lawful agricultural purposes consistent with the provisions of section two, article three, chapter seventeen-a of this code or all- terrain vehicles being used for lawful commercial purposes."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B 2121 - "A Bill to amend the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new chapter, designated chapter seventeen-f, relating to regulation of all-terrain vehicles generally; definitions; establishing prohibited acts by the operator or rider of all-terrain vehicles; requiring spark arresters and mufflers on all-terrain vehicles; exception for farm or commercial use; requiring commissioner of division of motor vehicles to offer safety training to adults and minors; requiring minors to complete safety training to operate all-terrain vehicles after a date certain; establishing effective dates clarifying that adults must possess a valid driver's license to operate all-terrain vehicles; granting authority over all-terrain vehicle use in certain areas to governing or operating bodies thereof; giving municipalities and counties authority to regulate use of all-terrain vehicles within their boundaries; exceptions; requiring helmets be worn by minors; requiring all-terrain vehicle rental dealers to provide or offer helmets; offenses; and penalties."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
On page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"CHAPTER 17F. ALL-TERRAIN VEHICLES.

ARTICLE 1. THE ALL-TERRAIN VEHICLE SAFETY ACT.
§17F-1-1. Acts prohibited by operator.
(a) No all-terrain vehicle may be operated in this state:
(1) Unless riders under the age of eighteen are wearing protective helmets that meet the current performance specifications established by the American National Standards Institute Standard, Z 90.1, the United States Department of Transportation Federal Motor Vehicle Safety Standard No. 218 or Snell Safety Standards for Protective Headgear for Vehicle Users;
(2) Anytime from sunset to sunrise without an illuminated headlight or lights and tail lights; or
(3) Without a manufacturer-installed or equivalent spark arrester and a manufacturer- installed or equivalent muffler in proper working order and properly connected to the vehicle's exhaust system.
(b) Any person who violates the provisions of subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars.
§17F-1-2. Safety training.
(a) On and after the first day of July, two thousand three, the commissioner of motor vehicles shall offer a free all-terrain vehicle rider safety training course, and may approve other free all- terrain vehicle rider safety training courses, to meet the reasonably anticipated needs of the public. The commissioner shall offer free safety training course materials to authorized dealers of all-terrain vehicles, for use by purchasers and potential purchasers free of charge.
(b) The commissioner shall issue certificates of completion to persons who satisfactorily complete the requirements of an approved course. The commissioner may authorize a dealer of all- terrain vehicles to issue the certificates of completion.
(c) On and after the first day of July, two thousand three, no person under the age of eighteen may operate an all-terrain vehicle without a certificate of completion of a vehicle rider training course as offered or approved by the commissioner.
§17F-1-3. All-terrain vehicle rental dealers required to provide safety equipment.

Any person or entity renting or leasing all-terrain vehicles for recreational purposes must provide protective helmets as defined by the provisions of subdivision three, subsection a, section one of this article, to all persons using such vehicles who are under the age of eighteen and offer protective helmets to all persons eighteen and older using the rented or leased vehicles: Provided, That for the provisions of this section to be applicable, the age and identity of the users of the all- terrain vehicle must be disclosed to the person or entity providing the rented or leased vehicle.
§17F-1-4. Local government authority to regulate.
(a) A municipality may regulate in any manner, by lawfully enacted ordinance, the operation of all-terrain vehicles upon any street, road or avenue within the municipal corporate limits.
(b) Homeowner associations may petition the county commission of the county in which the area regulated by the homeowner association is located for an ordinance to regulate or prohibit the operation of all-terrain vehicles upon any street, road or avenue within the area regulated by the homeowner association. County commissions are hereby authorized, upon receipt of a petition authorized by the provisions of this section, to enact an ordinance regulating or prohibiting the operation of all-terrain vehicles.
§17F-1-5. Private property exemption.
The provisions of this article do not apply if the all-terrain vehicle is operated exclusively on lands owned or leased by the vehicle owner or on private lands of others with permission." 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. 614), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Azinger, Coleman and Shelton.
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. 2121) passed.
On motion of Delegate Staton, the title of the bill was amended to read as follows:
Com. Sub. for H. B. 2121 - "A Bill to amend the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new chapter, designated chapter seventeen-f, relating to the regulation of all-terrain vehicles; prohibiting riders under the age of eighteen without a helmet; prohibiting operation without certain equipment; providing for criminal penalties for violations; requiring safety training; requiring rental dealers to provide safety equipment; providing for regulation by local government authority; and providing for private property exemption."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 615), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Azinger, Coleman and Shelton.
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. 2121) takes effect from its passage.
Conference Committee Reports

Delegate Cann was recognized and explained the report of the Committee of Conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 2120, Relating to workers' compensation generally.
In accordance with the practice of the House, the Conference Report was then formally submitted as follows:
Your Committee of Conference on the disagreeing votes of the two houses on the amendment of the Senate to Com. Sub. for H. B. 2120, having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the Senate, striking out everything after the enacting clause and inserting new language, and agree to the same as follows:
That sections one, two, three, four, five, six and seven, article three, chapter twenty-one-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section five-b, article two, chapter twenty-three of said code be repealed; that section seven, article four-a of said chapter be repealed; that section fourteen, article five of said chapter be repealed; that section thirty-three-d, article three, chapter five-a of said code be amended and reenacted; that sections four and five, article three, chapter five-b of said code be amended and reenacted; that section one, article two, chapter five-f of said code be amended and reenacted; that section seven, article twelve, chapter eleven of said code be amended and reenacted; that section four, article one-a, chapter twelve of said code be amended and reenacted; that section six, article six of said chapter be amended and reenacted; that section ten, article two, chapter fifteen of said code be amended and reenacted; that section fifteen, article one, chapter sixteen of said code be amended and reenacted; that section three, article twenty-nine-d of said chapter be amended and reenacted; that section three, article thirty-six of said chapter be amended and reenacted; that section twenty-six, article nine-a, chapter eighteen of said code be amended and reenacted; that section twelve-a, article ten-a of said chapter be amended and reenacted; that section two, article ten-k of said chapter be amended and reenacted; that section three, article three-a, chapter twenty-one of said code be amended and reenacted; that section four, article one, chapter twenty-one-a of said code be amended and reenacted; that sections six, six-c and thirteen, article two of said chapter be amended and reenacted; that section eleven, article ten of said chapter be amended and reenacted; that section eight, article three, chapter twenty-two of said code be amended and reenacted; that sections one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, seventeen and eighteen, article one, chapter twenty-three of said code be amended and reenacted; that said article be further amended by adding thereto seven new sections, designated sections one-a, one-b, one-c, one-d, one- e, one-f and four-a; that sections one, one-c, one-d, two, three, four, five, five-a, five-c, five-d, six, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen and seventeen, article two of said chapter be amended and reenacted; that section one, article two-a of said chapter be amended and reenacted; that sections one, two and three, article two-b of said chapter be amended and reenacted; that sections one, one-a, two, three and five, article three of said chapter be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections one-b and six; that sections one, one-a, one-b, one-c, one-d, one-e, two, three, three-b, three-c, four, six, six-a, six-b, six-d, seven, seven-a, seven-b, eight, eight-a, eight-b, eight-c, nine, nine-b, ten, eleven, twelve, fourteen, fifteen, fifteen-a, fifteen-b, sixteen, sixteen-a, seventeen, eighteen, twenty, twenty-two, twenty-three, twenty-four and twenty-five, article four of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section one-g; that sections one, three, five, six and eight, article four-a of said chapter be amended and reenacted; that sections two, five, six, and seven, article four-b of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section eight-b; that sections two, three, four and five, article four-c of said chapter be amended and reenacted; that sections one, two, three, four, five, six, seven, eight, nine, seventeen and eighteen, article five of said chapter be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections ten-a and fifteen-a; that section two, article eight, chapter twenty-six of said code be amended and reenacted; that sections one hundred twenty-five and one hundred thirty-one, article eighteen, chapter forty-eight of said code be amended and reenacted; that chapter fifty-one be amended by adding thereto a new article, designated article one-b; and that section twenty-four-g, article three, chapter sixty-one of said code be amended and reenacted, all to read as follows:

CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

ARTICLE 3. PURCHASING DIVISION.
§5A-3-33d. Grounds for debarment.
Grounds for debarment are:
(a)(1) Conviction of an offense involving fraud or a felony offense in connection with obtaining or attempting to obtain a public contract or subcontract;
(b) (2) Conviction of any federal or state antitrust statute relating to the submission of offers;
(c) (3) Conviction of an offense involving embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property in connection with the performance of a contract;
(d) (4) Conviction of a felony offense demonstrating a lack of business integrity or business honesty that affects the present responsibility of the vendor or subcontractor;
(e) (5) Default on obligations owed to the state, including, but not limited to, obligations under the West Virginia workers' compensation act, the West Virginia unemployment compensation act and West Virginia state tax and revenue laws. For purposes of this subsection, a vendor is in default when, after due notice, the vendor fails to submit a required payment, interest thereon or penalty, and has not entered into a repayment agreement with the appropriate agency of the state or has entered into a repayment agreement but does not remain in compliance with its obligations under the repayment agreement. In the case of a vendor granted protection by order of a federal bankruptcy court or a vendor granted an exemption under any rule of the bureau of employment programs or the workers' compensation commission, the director may waive debarment under section thirty-three-f of this article: Provided, That in no event may debarment be waived with respect to any vendor who has not paid all current state obligations for at least the four most recent calendar quarters, excluding the current calendar quarter, or with respect to any vendor who is in default on a repayment agreement with an agency of the state;
(f) (6) The vendor is not in good standing with a licensing board, in that the vendor is not licensed when licensure is required by the law of this state, or the vendor has been found to be in violation of an applicable licensing law after notice, opportunity to be heard and other due process required by law; and
(g) (7) Violation of the terms of a public contract or subcontract for:
(1) (A) Willful failure to substantially perform in accordance with the terms of one or more public contracts;
(2) (B) Performance in violation of standards established by law or generally accepted standards of the trade or profession amounting to intentionally deficient or grossly negligent performance on one or more public contracts;
(3) (C) Use of substandard materials on one or more public contracts or defects in construction in one or more public construction projects amounting to intentionally deficient or grossly negligent performance, even if discovery of the defect is subsequent to acceptance of a construction project and expiration of any warranty thereunder;
(4) (D) A repeated pattern or practice of failure to perform so serious and compelling as to justify debarment; or
(5) (E) Any other cause of a serious and compelling nature amounting to knowing and willful misconduct of the vendor that demonstrates a wanton indifference to the interests of the public and that caused, or that had a substantial likelihood of causing, serious harm to the public.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION SHARED.
§5B-3-4. Commission review of procedural rules, interpretive rules and existing legislative rules.
(a) The joint commission on economic development may review any procedural rules rule, interpretive rules rule or existing legislative rules rule and make recommendations concerning such the rules to the Legislature.
(b) The development office and the tourism commission established pursuant to article two of this chapter, the economic development authority established pursuant to article fifteen, chapter thirty-one of this code, the bureau of employment programs established pursuant to article four, chapter twenty-one-a of this code, the workers' compensation commission established pursuant to article one, chapter twenty-three of this code, the workforce investment commission established pursuant to article two-c of this chapter, West Virginia jobs investment trust, regional planning and development councils, West Virginia rural development council, governor's office of technology and West Virginia clearinghouse for workforce education shall each file a copy of its legislative rules with the commission as provided for herein in this section. Each agency that proposes legislative rules in accordance to the provisions of article three, three-a or three-b, chapter twenty- nine-a of this code relating to economic development or workforce development shall file the rules with the joint commission at the time the rules are filed with the secretary of state prior to the public comment period or public hearing required in said chapter.
§5B-3-5. Joint commission on economic development studies.
(a) The joint commission on economic development shall study the following:
(1) The feasibility of establishing common regional configurations for such purposes as local workforce investment areas, regional educational service agencies and for all other purposes the commission considers feasible. The study should review the existing levels of cooperation between state and local economic developers; complete an analysis of possible regional configurations and outline examples of other successful regional systems or networks found throughout the world. If the study determines that the common regional configurations are feasible, the commission shall recommend legislation establishing common regional designations for all purposes the commission considers feasible. In making the designation of regional areas, the study shall take into consideration, but not be limited to, the following:
(A) Geographic areas served by local educational agencies and intermediate educational agencies;
(B) Geographic areas served by post-secondary educational institutions and area vocational education schools;
(C) The extent to which such the local areas are consistent with labor market areas;
(D) The distance that individuals will need to travel to receive services provided in such the local areas; and
(E) The resources of such the local areas that are available to effectively administer the activities or programs;
(2) The effectiveness and fiscal impact of incentives for attracting and growing businesses, especially technology-intensive companies; and
(3) A comprehensive review of West Virginia's existing economic and community development resources and the recommendation of an organizational structure, including, but not limited to, the reorganization of the bureau of commerce and the development office that would allow the state to successfully compete in the new global economy.
(b) In order to effectuate in the most cost-effective and efficient manner the studies required in this article, it is necessary for the joint commission to assemble and compile a tremendous amount of information. The development office will assist the joint commission in the collection and analysis of this information. The tourism commission established pursuant to article two of this chapter, the economic development authority established pursuant to article fifteen, chapter thirty-one of this code, the bureau of employment programs established pursuant to article four, chapter twenty-one-a of this code, the workers' compensation commission established pursuant to article one, chapter twenty-three of this code, the workforce investment commission established pursuant to article two-c of this chapter, West Virginia jobs investment trust, regional planning and development councils, West Virginia rural development council, governor's office of technology and West Virginia clearinghouse for workforce education all shall provide a copy of the agency's annual report as submitted to the governor in accordance with the requirements set forth in section twenty, article one, chapter five of this code to the West Virginia development office. The development office shall review, analyze and summarize the data contained in the reports, including its own annual report, and annually submit its findings to the joint commission on or before the thirty-first day of December.
(c) The legislative auditor shall provide to the joint commission a copy of any and all reports on agencies listed in subsection (b) of this section, which are required under article ten, chapter four of this code.
(d) The joint commission shall complete the studies set forth in this section and any other studies it the joint commission determines to undertake prior to the first day of December of each year and may make recommendations, including recommended legislation for introduction during the regular session of the Legislature.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT.

ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of administration:
(1) Building commission provided for in article six, chapter five of this code;
(2) Public employees insurance agency and public employees insurance agency advisory board provided for in article sixteen, chapter five of this code;
(3) Governor's mansion advisory committee provided for in article five, chapter five-a of this code;
(4) Commission on uniform state laws provided for in article one-a, chapter twenty-nine of this code;
(5) Education and state employees grievance board provided for in article twenty-nine, chapter eighteen of this code and article six-a, chapter twenty-nine of this code;
(6) Board of risk and insurance management provided for in article twelve, chapter twenty- nine of this code;
(7) Boundary commission provided for in article twenty-three, chapter twenty-nine of this code;
(8) Public defender services provided for in article twenty-one, chapter twenty-nine of this code;
(9) Division of personnel provided for in article six, chapter twenty-nine of this code;
(10) The West Virginia ethics commission provided for in article two, chapter six-b of this code; and
(11) Consolidated public retirement board provided for in article ten-d, chapter five of this code.
(b) The department of commerce, labor and environmental resources and the office of secretary of the department of commerce, labor and environmental resources are abolished. For purposes of administrative support and liaison with the office of the governor, the following agencies and boards, including all allied, advisory and affiliated entities, are grouped under two bureaus and one commission as follows:
(1) Bureau of commerce;
(A) Division of labor provided for in article one, chapter twenty-one of this code, which includes:
(i) Occupational safety and health review commission provided for in article three-a, chapter twenty-one of this code; and
(ii) Board of manufactured housing construction and safety provided for in article nine, chapter twenty-one of this code;
(B) Office of miners' health, safety and training provided for in article one, chapter twenty- two-a of this code. The following boards are transferred to the office of miners' health, safety and training for purposes of administrative support and liaison with the office of the governor:
(i) Board of coal mine health and safety and coal mine safety and technical review committee provided for in article six, chapter twenty-two-a of this code;
(ii) Board of miner training, education and certification provided for in article seven, chapter twenty-two-a of this code; and
(iii) Mine inspectors' examining board provided for in article nine, chapter twenty-two-a of this code;
(C) The West Virginia development office provided for in article two, chapter five-b of this code, which includes:
(i) Economic development authority provided for in article fifteen, chapter thirty-one of this code; and
(ii) Tourism commission provided for in article two, chapter five-b of this code and the office of the tourism commissioner;
(D) Division of natural resources and natural resources commission provided for in article one, chapter twenty of this code. The Blennerhassett historical state park provided for in article eight, chapter twenty-nine of this code is under the division of natural resources;
(E) Division of forestry provided for in article one-a, chapter nineteen of this code;
(F) Geological and economic survey provided for in article two, chapter twenty-nine of this code;
(G) Water development authority and board provided for in article one, chapter twenty-two-c of this code;
(2) Bureau of employment programs provided for in article one, chapter twenty-one-a of this code; and
(3) Workers' compensation commission provided for in article one, chapter twenty-three of this code.
(c) Bureau of environment is abolished and the following agencies and boards, including all allied, advisory and affiliated entities, are transferred to the department of environmental protection for purposes of administrative support and liaison with the office of the governor:
(1) Air quality board provided for in article two, chapter twenty-two-b of this code;
(2) Solid waste management board provided for in article three, chapter twenty-two-c of this code;
(3) Environmental quality board, or its successor board, provided for in article three, chapter twenty-two-b of this code;
(4) Surface mine board provided for in article four, chapter twenty-two-b of this code;
(5) Oil and gas inspectors' examining board provided for in article seven, chapter twenty- two-c of this code;
(6) Shallow gas well review board provided for in article eight, chapter twenty-two-c of this code; and
(7) Oil and gas conservation commission provided for in article nine, chapter twenty-two-c of this code.
(d) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of education and the arts:
(1) Library commission provided for in article one, chapter ten of this code;
(2) Educational broadcasting authority provided for in article five, chapter ten of this code;
(3) Joint commission for vocational-technical-occupational education provided for in article three-a, chapter eighteen-b of this code;
(4) Division of culture and history provided for in article one, chapter twenty-nine of this code; and
(5) Division of rehabilitation services provided for in section two, article ten-a, chapter eighteen of this code.
(e) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of health and human resources:
(1) Human rights commission provided for in article eleven, chapter five of this code;
(2) Division of human services provided for in article two, chapter nine of this code;
(3) Bureau for public health provided for in article one, chapter sixteen of this code;
(4) Office of emergency medical services and advisory council thereto provided for in article four-c, chapter sixteen of this code;
(5) Health care cost review authority provided for in article twenty-nine-b, chapter sixteen of this code;
(6) Commission on mental retardation provided for in article fifteen, chapter twenty-nine of this code;
(7) Women's commission provided for in article twenty, chapter twenty-nine of this code; and
(8) The child support enforcement division provided for in chapter forty-eight of this code.
(f) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of military affairs and public safety:
(1) Adjutant general's department provided for in article one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter fifteen of this code;
(3) Military awards board provided for in article one-g, chapter fifteen of this code;
(4) West Virginia state police provided for in article two, chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board provided for in article five, chapter fifteen of this code and emergency response commission provided for in article five-a of said chapter;
(6) Sheriffs' bureau provided for in article eight, chapter fifteen of this code;
(7) Division of corrections provided for in chapter twenty-five of this code;
(8) Fire commission provided for in article three, chapter twenty-nine of this code;
(9) Regional jail and correctional facility authority provided for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council provided for in article one, chapter nine-a of this code.
(g) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven of this code;
(2) Racing commission provided for in article twenty-three, chapter nineteen of this code;
(3) Lottery commission and position of lottery director provided for in article twenty-two, chapter twenty-nine of this code;
(4) Agency of insurance commissioner provided for in article two, chapter thirty-three of this code;
(5) Office of alcohol beverage control commissioner provided for in article sixteen, chapter eleven of this code and article two, chapter sixty of this code;
(6) Board of banking and financial institutions provided for in article three, chapter thirty- one-a of this code;
(7) Lending and credit rate board provided for in chapter forty-seven-a of this code; and
(8) Division of banking provided for in article two, chapter thirty-one-a of this code.
(h) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of transportation:
(1) Division of highways provided for in article two-a, chapter seventeen of this code;
(2) Parkways, economic development and tourism authority provided for in article sixteen-a, chapter seventeen of this code;
(3) Division of motor vehicles provided for in article two, chapter seventeen-a of this code;
(4) Driver's licensing advisory board provided for in article two, chapter seventeen-b of this code;
(5) Aeronautics commission provided for in article two-a, chapter twenty-nine of this code;
(6) State rail authority provided for in article eighteen, chapter twenty-nine of this code; and
(7) Port authority provided for in article sixteen-b, chapter seventeen of this code.
(i) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence of the position of administrator and of the agency and the powers, authority and duties of each administrator and agency are not affected by the enactment of this chapter.
(j) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence, powers, authority and duties of boards and the membership, terms and qualifications of members of such the boards are not affected by the enactment of this chapter and all boards which are appellate bodies or were otherwise established to be independent decisionmakers will not have their appellate or independent decision-making status affected by the enactment of this chapter.
(k) Any department previously transferred to and incorporated in a department created in section two, article one of this chapter by prior enactment of this section in chapter three, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-nine, and subsequent amendments, means a division of the appropriate department. Wherever reference is made to any department transferred to and incorporated in a department created in section two, article one of this chapter, the reference means a division of the appropriate department, and any reference to a division of a department so transferred and incorporated means a section of the appropriate division of the department.
(l) When an agency, board or commission is transferred under a bureau or agency other than a department headed by a secretary pursuant to this section, that transfer is solely for purposes of administrative support and liaison with the office of the governor, a department secretary or a bureau. The bureaus created by the Legislature upon the abolishment of the department of commerce, labor and environmental resources in the year one thousand nine hundred ninety-four will be headed by a commissioner or other statutory officer of an agency within that bureau. Nothing in this section extends the powers of department secretaries under section two of this article to any person other than a department secretary and nothing limits or abridges the statutory powers and duties of statutory commissioners or officers pursuant to this code.
CHAPTER 11. TAXATION.

ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-7. Display of registration certificate; injunction; public information, reciprocal exchange of information.
Any person to whom a certificate of registration shall be has been issued under the provisions of section four of this article shall keep such the certificate posted in a conspicuous position in the place where the privilege of such the business is exercised. Such The certificate of registration shall be produced for inspection whenever required by the tax commissioner or by any law-enforcement officers of this state, county or municipality wherein in which the privileges to conduct business are exercised.
No injunction shall issue from any court in the state enjoining the collection of any business registration certificate tax required herein in this section; and any person claiming that any business certificate is not due, for any reason, shall pay the same tax under protest and petition the tax commissioner for a refund in accordance with the provisions of section fourteen, article ten of this chapter.
If any person engaging in or prosecuting any business, or trade, contrary to any other provisions of this article, whether without obtaining a business certificate therefor before commencing the same, or by continuing the same after the termination of the effective period of any such the business certificate, the circuit court, or the judge thereof in vacation, of the county in which such the violation occurred shall, upon proper application in the name of the state, and after ten days' written notice thereof to such person, grant an injunction prohibiting such that person from continuing such the business, activity or trade until he or she has fully complied with the provisions of this article. The remedy provided in this section shall be is in addition to all other penalties and remedies provided by law.
The tax commissioner shall make available, when requested, information as to whether a person is registered to do business in the state of West Virginia.
The tax commissioner shall deliver to the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission the information contained in the business franchise registration certificate when this information is used to implement and administer a single point of registration program for persons engaging in any business activity in the state of West Virginia. The single point of registration program shall provide that, once an individual has received a business franchise registration certificate, the tax commissioner shall notify the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission of the names, addresses and other identifying information of that individual or entity. Upon receiving this information the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission shall contact all businesses receiving a business franchise registration certificate and provide all necessary forms and paperwork to register a business within the bureau and commission; pursuant to subsection (b), section six-b, article two, chapter twenty-one-a of this code and subsection (c), section two, article two, chapter twenty-three of this code.
Notwithstanding the provisions of section five, article ten of this chapter, the tax commissioner may enter into a reciprocal agreement with the governor's office of community and industrial development and other departments or agencies of this state for the exchange of information contained in the application for a business franchise registration certificate filed under section four of this article when the purpose for the exchange is to implement and administer a single-point of registration program for persons engaging in business in this state. Such The other departments and agencies shall have authority to may enter into a reciprocal exchange agreement for this purpose notwithstanding any provision of this code to the contrary.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.

ARTICLE 1A. WEST VIRGINIA SMALL BUSINESS LINKED DEPOSIT PROGRAM.
§12-1A-4. Applications for loan priority; loan package; counseling.
(a) An eligible lending institution that desires to participate in the linked deposit program shall accept and review loan applications from eligible small businesses that have been prepared with the advice of the small business development center. The lending institution shall apply all usual lending standards to determine the credit worthiness of each eligible small business and whether the loan application meets the criteria established in this article.
(b) An eligible small business shall certify on its loan application that: (1) The small business is in good standing with the state tax division, the workers' compensation commission and the bureau of employment programs as of the date of the application; (2) the linked deposit loan will be used to create new jobs or preserve existing jobs and employment opportunities; and (3) the linked deposit loan shall not be used to refinance an existing debt.
(c) In considering which eligible small businesses should receive linked deposit loans, the eligible lending institution shall give priority to the economic needs of the area in which the business is located, the number of jobs to be created and preserved by the receipt of the loan, the reasonable ability of the small business to repay the loan and other factors considered appropriate by the eligible financial institution.
(d) A small business receiving a linked deposit loan shall receive supervision and counseling provided by the small business development center when applying for the loan. The services available from the small business development center include eligibility certification, business planning, quarterly financial statement review and loan application assistance. The state tax division and the bureau of employment programs and worker's compensation commission shall provide the small business development center with information as to the standing of each small business loan applicant. The small business development center shall include these certifications with the loan application.
(e) The eligible financial institution shall forward to the treasurer a linked deposit loan package in the form and manner prescribed by the treasurer. The treasurer shall forward notice of approval of the loan to the small business development center at the same time it is furnished to the eligible financial institution.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§12-6-6. Annual audits; reports and information to constitutional and legislative officers, council of finance and administration, consolidated public retirement board, workers' compensation fund and coal-workers' pneumoconiosis fund; statements and reports open for inspection.
(a) The board shall cause an annual financial and compliance audit of the assets managed by the board to be 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. The financial and compliance audit shall be made of the board's books, accounts and records with respect to its receipts, disbursements, investments, contracts and all other matters relating to its financial operations. Copies of the audit report shall be furnished to the governor, state treasurer, state auditor, president of the Senate, speaker of the House of Delegates, council of finance and administration and consolidated public retirement board.
(b) The board shall produce monthly financial statements for the assets managed by the board and cause them to be delivered to each member of the board and the executive secretary of the consolidated public retirement board as established in sections one and two, article ten-d, chapter five of this code and to the commissioner of the bureau of employment programs executive director of the workers' compensation commission as administrator of the workers' compensation fund and coal-workers' pneumoconiosis fund as established in section one one-b, article one, chapter twenty-three of this code and section one, article three of said chapter and section seven, article four- b of said chapter.
(c) The board shall deliver in each quarter to the council of finance and administration and the consolidated public retirement board a report detailing the investment performance of the 401(a) plans.
(d) The board shall cause an annual audit of the reported returns of the assets managed by the board to be made by an investment consulting or a certified public accounting firm meeting the criteria set out in subsection (a) of this section. The board shall furnish copies of the audit report to the governor, state treasurer, state auditor, president of the Senate, speaker of the House of Delegates, council of finance and administration and consolidated public retirement board.
(e) The board shall provide any other information requested in writing by the council of finance and administration.
(f) All statements and reports with respect to participant plans required in this section shall be available for inspection by the members and beneficiaries and designated representatives of the participant plans.
CHAPTER 15. PUBLIC SAFETY.

ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-10. Uniforms; authorized equipment, weapons and supplies; local headquarters; quarters for members; life insurance; medical and hospital fees for injuries and illnesses of members incurred in line of duty.
(a) The standard uniform to be used by the West Virginia state police after the effective date of this article shall be as follows: Forestry green blouse with West Virginia state police emblem on sleeve; black shoulder strap, one-inch black stripe around sleeve, four inches from end of sleeve; forestry green breeches with one-inch black stripe down the side; trousers (slacks) with one-inch black stripe down the side for officers and clerks regularly enlisted in the state police; forestry green shirts with West Virginia state police emblem on sleeve; black shoulder straps; forestry green mackinaw with West Virginia state police emblem on sleeve; black shoulder straps; one-inch black stripe around sleeve four inches from end of sleeve; campaign hat of olive drab color; black Sam Browne belt with holster; black leggings and shoes; the officer's uniform will have one and one-quarter inch black stripe around the sleeve of blouse and mackinaw four inches from end of sleeve circumposed with one-half inch gold braid, also black collars on blouse, with two silver shoulder bars for captains, one silver shoulder bar for first lieutenant, one gold shoulder bar for second lieutenant. For noncommissioned officers the uniform blouse and shirt will have thereon black chevrons of the appropriate rank.
(b) The superintendent shall establish the weapons and enforcement equipment which shall be are authorized for use by members of the state police and shall provide for periodic inspection of such the weapons and equipment. He or she shall provide for the discipline of members using other than authorized weapons and enforcement equipment.
(c) The superintendent shall provide the members of the state police with suitable arms and weapons and, when he deems or she considers it necessary, with suitably equipped automobiles, motorcycles, watercraft, airplanes and other means of conveyance to be used by the West Virginia state police, the governor, and other officers and executives in the discretion of the governor, in times of flood, disaster and other emergencies, for traffic study and control, criminal and safety work, and in other matters of official business. He or she shall also provide the standard uniforms for all members of the state police, for officers, noncommissioned officers and troopers herein provided for in this section. All uniforms and all arms, weapons and other property furnished the members of the state police by the state of West Virginia shall be are and remain the property of the state.
(d) The superintendent is authorized to may purchase and maintain on behalf of members group life insurance not to exceed the amount of five thousand dollars on behalf of each member.
(e) The superintendent is authorized to may contract and furnish at state police expense medical and hospital services for treatment of illness or injury of a member which shall be determined by the superintendent to have been incurred by such the member while engaged in the performance of duty and from causes beyond control of such the members. Notwithstanding any other provision of this code, the superintendent shall have has the right of subrogation in any civil action or settlement brought by or on behalf of a member in relation to any act by another which results in the illness, injury or death of a member. To this end, the superintendent is hereby authorized to may initiate such an action on behalf of the state police in order to recover the costs incurred in providing medical and hospital services for the treatment of a member resulting from injury or illness originating in the performance of official duties. This subsection shall not affect the power of a court to apply ordinary equitable defenses to the right of subrogation.
The superintendent is further empowered to may also consult with the commissioner of the bureau of employment programs executive director of the workers' compensation commission in an effort to defray the cost of medical and hospital services. In no case will the compensation rendered to health care providers for medical and hospital services exceed the then current rate schedule in use by the bureau of employment programs, workers' compensation division workers' compensation commission.
Third-party reimbursements received by the superintendent after the expiration of the fiscal year in which the injury, illness or death occurred will be deposited to a nonexpiring special revenue account. Funds deposited to this account may be used solely for defraying the costs of medical or hospital services rendered to any sworn members as a direct result of an illness, injury or death resulting from the performance of official duties.
(f) The superintendent shall establish and maintain local headquarters at such those places in West Virginia as that are in his or her judgment suitable and proper to render the West Virginia state police most efficient for the purpose of preserving the peace, protecting property, preventing crime, apprehending criminals and carrying into effect all other provisions of this article. The superintendent shall provide, by acquisition, lease or otherwise, for local headquarters, for housing and quarters for the accommodation of the members of the West Virginia state police, and for any other facilities necessary or useful for the effective operation of the West Virginia state police and shall provide all equipment and supplies necessary for the members of the West Virginia state police to perform their duties.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-15. Investigations and hearings; power to administer oaths, subpoena witnesses, etc.; use of information and material acquired.
(a) The secretary, the commissioner, any officer or employee of the department designated by the secretary, or any other individual designated by the secretary may hold investigations, inquiries and hearings concerning matters covered by the laws of this state pertaining to public health and within the authority and the rules and orders of the secretary. Hearings shall be open to the public and shall be held upon any call or notice considered advisable by the secretary.
(b) Each individual designated to hold any inquiry, investigation or hearing shall have the power to may administer oaths and affirmations, certify to all official acts, issue subpoenas and order the attendance and testimony of witnesses in the production of papers, books and documents. In case of the failure of any person to comply with any subpoena or order issued under the authority of this section, the secretary or his or her authorized representative may invoke the aid of any circuit court of this state. The court may thereupon order that person to comply with the requirements of the subpoena order or to give evidence as to the matter in question. Failure to obey the order of the court may be punished by the court as a contempt of court.
(c) Subject to the provisions of subsections (a) and (b) of this section, the secretary may in his or her discretion make available to appropriate federal, state and municipal agencies information and material developed in the course of its investigation and hearings: Provided, That information obtained from studies or from any investigation made or hearing held pursuant to the provisions of this article may not be admissible in evidence in any action at law to recover damages for personal injury or in any action under the workers' compensation act, but the information, if available, shall be furnished upon request to the commissioner of the bureau of employment programs executive director of the workers' compensation commission for the sole purpose of adjusting claims presented to the commissioner commission.
ARTICLE 29D. STATE HEALTH CARE.

§16-29D-3. Agencies to cooperate and to provide plan; contents of plan; reports to Legislature; late payments by state agencies and interest thereon.
(a) All departments and divisions of the state, including, but not limited to, the bureau of employment programs, the division of health and the division of human services within the department of health and human resources; the public employees insurance agency within the department of administration; the division of rehabilitation services; the workers' compensation commission; or such the other department or division as shall supervise or provide rehabilitation; and the university of West Virginia board of trustees, as the governing board for the state's medical schools, are authorized and directed to cooperate in order, among other things, to ensure the quality of the health care services delivered to the beneficiaries of such the departments and divisions and to ensure the containment of costs in the payment for such services.
(b) It is expressly recognized that no other entity may interfere with the discretion and judgment given to the single state agency which administers the state's medicaid program. Thus, it is the intention of the Legislature that nothing contained in this article shall be interpreted, construed or applied to interfere with the powers and actions of the single state agency which, in keeping with applicable federal law, shall administer the state's medicaid program as it perceives to be in the best interest of that program and its beneficiaries.
(c) Such The departments and divisions shall develop a plan or plans to ensure that a reasonable and appropriate level of health care is provided to the beneficiaries of the various programs including the public employees insurance agency and the workers' compensation fund, the division of rehabilitation services and, to the extent permissible, the state medicaid program. The plan or plans may include, among other things, and the departments and divisions are hereby authorized to may enter into:
(1) Utilization review and quality assurance programs;
(2) The establishment of a schedule or schedules of the maximum reasonable amounts to be paid to health care providers for the delivery of health care services covered by the plan or plans. Such a The schedule or schedules may be either prospective in nature or cost reimbursement in nature, or a mixture of both: Provided, That any payment methods or schedules for institutions which provide inpatient care shall be institution-specific and shall, at a minimum, take into account a disproportionate share of medicaid, charity care and medical education: Provided, however, That in no event may any rate set in this article for an institutional health care provider be greater than such the institution's current rate established and approved by the health care cost review authority pursuant to article twenty-nine-b of this chapter;
(3) Provisions for making payments in advance of the receipt of health care services by a beneficiary, or in advance of the receipt of specific charges for such the services, or both;
(4) Provisions for the receipt or payment of charges by electronic transfers;
(5) Arrangements, including contracts, with preferred provider organizations; and
(6) Arrangements, including contracts, with particular health care providers to deliver health care services to the beneficiaries of the programs of the departments and divisions at agreed-upon rates in exchange for controlled access to the beneficiary populations.
(d) The director of the public employees insurance agency shall contract with an independent actuarial company for a review every four years of the claims experience of all governmental entities whose employees participate in the public employees insurance agency program, including, but not limited to, all branches of state government, all state departments or agencies (including those receiving funds from the federal government or a federal agency), all county and municipal governments or any other similar entities for the purpose of determining the cost of providing coverage under the program, including administrative cost, to each such governmental entity.
(e) Nothing in this section shall be construed to give or reserve to the Legislature any further or greater power or jurisdiction over the operations or programs of the various departments and divisions affected by this article than that already possessed by the Legislature in the absence of this article.
(f) For the purchase of health care or health care services by a health care provider participating in a plan under this section on or after the first day of September, one thousand nine hundred eighty-nine, by the public employees insurance agency, the division of rehabilitation services and the division of workers' compensation workers' compensation commission, a state check shall be issued in payment thereof within sixty-five days after a legitimate uncontested invoice is actually received by such the division, commission or agency. Any state check issued after sixty-five days shall include interest at the current rate, as determined by the state tax commissioner under the provisions of section seventeen-a, article ten, chapter eleven of this code., which The interest shall be calculated from the sixty-sixth day after such the invoice was actually received by the division
commission or agency until the date on which the state check is mailed to the vendor.
ARTICLE 36. NEEDLESTICK INJURY PREVENTION.
§16-36-3. Needlestick injury prevention advisory committee.
(a) There is established a needlestick injury prevention advisory committee to advise the director in the development of rules required under this article.
(b) The committee shall meet at least four times a year for the initial two years after the effective date of this article and on the call of the director thereafter. The director shall serve as the chair and shall appoint thirteen members, one representing each of the following groups:
(1) A representative of the health insurance industry;
(2) The commissioner of the bureau of employment programs executive director of the workers' compensation commission, or his or her designee from the division of workers' compensation;
(3) Five nurses who work primarily providing direct patient care in a hospital or nursing home, at least one of which is employed in a state-operated facility;
(4) A phlebotomist employed in a hospital or nursing home;
(5) Two administrators of different hospitals operating within the state;
(6) A director of nursing employed in a nursing home within the state;
(7) A licensed physician practicing in the state; and
(8) An administrator of a nursing home operating within the state.
(c) Members of the committee serve without compensation. Each member shall 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.
(d) A majority of all members constitutes a quorum for the transaction of all business. Members serve for two-year terms and may not serve for more than two consecutive terms.
CHAPTER 18. EDUCATION.

ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-26. Allowance for workers' compensation for unpaid student work-based learning.
(a) The workers' compensation division commission shall create a classification and calculate a base premium tax rate for students participating in an unpaid work-based learning experience off school premises as a part of the school curriculum with employers other than the county board of education. The workers' compensation division commission shall report to the state department of education:
(1) The amount of the base premium tax rate for the class; and
(2) The amount of wages per student to be used to provide the minimum weekly benefits required by section six, article four, chapter twenty-three of this code.
(b) The state department of education shall communicate the amount of the premium to the governor and Legislature by the first day of December of each year, beginning the first day of December, one thousand nine hundred ninety-nine.
(c) The base premium tax rate reported to the state department of education shall be that which was published by the workers' compensation division commission prior to the first day of the immediately preceding July. That premium tax rate, however, shall not be implemented by the workers' compensation division until the first day of January and shall remain in effect through the last day of the next December. The workers' compensation division commission shall make no merit rate adjustment, as otherwise provided for in paragraph (A), subdivision (1), subsection (a), section four, article two, chapter twenty-three of this code, for the members of the class required to be created by subsection (a) of this section.
(d) Notwithstanding anything to the contrary in any rules adopted to implement the provisions of section four, article two, chapter twenty-three of this code and for the sole purposes of this section, the workers' compensation division commission shall permit any county board of education affected by this section to be classified in accordance with this section and to be also classified as otherwise required by any rules adopted to implement the provisions of section four, article two, chapter twenty-three of this code.
(e) Subject to an appropriation by the Legislature, funds shall be provided to the department of education to distribute to the county boards. If the appropriation is less than the total premium calculated, the county boards, individually, shall either reduce the number of students participating in work-based learning experiences off school premises or the county boards shall pay the difference between the amount of the premium calculated by the workers' compensation division commission and the amount allocated to the county board by the department of education.
ARTICLE 10A. REHABILITATION SERVICES.
§18-10A-12a. Workers' compensation for clients participating in unpaid work-based training programs.
(a) The workers' compensation division commission shall create a classification and calculate a base premium tax rate for clients of the division of rehabilitation services participating in unpaid work-based training programs within integrated community-based settings. The workers' compensation division commission shall report to the division of rehabilitation services:
(1) The amount of the base premium tax rate for the class; and
(2) The hourly wages per client to be used to provide the minimum weekly benefits required by section six, article four, chapter twenty-three of this code.
(b) The base premium tax rate reported annually to the division of rehabilitation services by the workers' compensation division commission shall not be effective until the first day of July and shall remain in effect through the last day of the next June.
(c) The division of rehabilitation services and the participating entity shall be considered the joint employers of record of the clients while the clients are participating in unpaid work-based training programs in integrated community-based settings: Provided, That the participating entity shall not be held responsible for any liability due the workers' compensation division commission. Such The clients shall be considered to be paid the amount of wages sufficient to provide the minimum workers' compensation weekly benefits required by section six, article four, chapter twenty-three of this code.
ARTICLE 10K. WEST VIRGINIA TRAUMATIC BRAIN AND SPINAL CORD INJURY REHABILITATION FUND ACT.
§18-10K-2. Board created, membership, terms, officers and staff.
(a) There is hereby established the West Virginia traumatic brain and spinal cord injury rehabilitation fund board.
(b) The board shall consist of twenty-three members. The members shall include:
(1) The secretary of the department of education and the arts, ex officio, or his or her designee;
(2) The secretary of health and human resources, ex officio, or his or her designee;
(3) The state superintendent of schools, ex officio, or his or her designee;
(4) The secretary of the department of military affairs and public safety, ex officio, or his or her designee;
(5) The director of the bureau of behavioral health within the department of health and human resources, ex officio, or his or her designee;
(6) The director of the division of rehabilitation services, ex officio, or his or her designee;
(7) The director of the bureau of medical services, ex officio, or his or her designee;
(8) The director of the office of emergency services, ex officio, or his or her designee;
(9) The commissioner of the bureau of employment programs executive director of the workers' compensation commission, ex officio, or his or her designee;
(10) Seven members appointed by the governor to represent public and private health organizations or other disability coalitions or advisory groups; and
(11) Seven members appointed by the governor who are either survivors of traumatic brain or spinal cord injury or family members of persons with traumatic brain or spinal cord injury.
(c) The citizen members shall be appointed by the governor for terms of three years, except that of the members first appointed, two of the representatives of public and nonprofit private health organizations, disability coalitions or advisory groups and two of the representatives of survivors or family members of persons with traumatic brain or spinal cord injuries shall serve for terms of one year, two of the representatives of each of those respective groups shall serve for terms of two years, and the remaining three representatives of each of those respective groups shall serve for terms of three years. All subsequent appointments shall be for three years. Members shall serve until the expiration of the term for which they have been appointed or until their successors have been appointed and qualified. In the event of a vacancy, the governor shall appoint a qualified person to serve for the unexpired term. No member may serve more than two consecutive three-year terms. State officers or employees may be appointed to the board unless otherwise prohibited by law.
(d) In the event a board member fails to attend more than twenty-five percent of the scheduled meetings in a twelve-month period, the board may, after written notification to that member and the secretary of education and the arts, request in writing that the governor remove the member and appoint a new member to serve his or her unexpired term.
(e) The board shall elect from its membership a chairperson, treasurer and secretary as well as any other officer as appropriate. The term of the chairperson is for two years in duration and he or she cannot serve more than two consecutive terms.
CHAPTER 21. LABOR.

ARTICLE 3A. OCCUPATIONAL SAFETY AND HEALTH ACT.
§21-3A-3. Division of occupational safety and health; coordination of activities with workers' compensation commissioner.
(a) There is hereby created continued in the labor department a division of occupational safety and health comprised of a subdivision for safety, a subdivision for health and such the other subdivisions as the commissioner considers necessary. This division shall administer all matters pertaining to occupational safety and occupational health.
(b) The labor commissioner may require the assistance of other state agencies and may enter into agreements with other state agencies and political subdivisions of the state for the administration of this chapter.
(c) The labor commissioner shall provide for coordination between the division of occupational safety and health and the workers' compensation commissioner commission including, but not limited to, the establishment of standardized procedures and reportings.
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.

ARTICLE 1. UNEMPLOYMENT COMPENSATION.
§21A-1-4. Bureau of employment programs created; division; "bureau" defined.
There is created continued an agency designated as the bureau of employment programs, composed of a division of unemployment compensation, a division of employment service, a division of job training programs a division of workers' compensation, and such any other divisions or units as that the commissioner determines to be are necessary.
Wherever within this chapter, or in chapter twenty-three of this code, the term "department", "bureau" or "fund" or "workers' compensation fund" is used, it shall be taken to mean bureau of employment programs unless otherwise indicated.
Notwithstanding the provisions of subdivisions (11) and (12), subsection (d), section one, article two, chapter five-f of this code, the division of employment security and the division of workers' compensation programs are hereby consolidated in an agency is designated as the bureau of employment programs. which the The bureau shall be administered as part of the department of commerce, labor and environmental resources created pursuant to subsection (b)of said section.
ARTICLE 2. THE COMMISSIONER OF THE BUREAU OF EMPLOYMENT PROGRAMS.
§21A-2-6. Powers and duties generally.
The commissioner is the executive and administrative head of the bureau and has the power and duty to:
(1) Exercise general supervision of for the governance of the bureau and make propose rules for the government of the bureau promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the requirements of this chapter;
(2) Prescribe uniform rules pertaining to investigations, departmental hearings and promulgate rules;
(3) Supervise fiscal affairs and responsibilities of the bureau;
(4) Prescribe the qualifications of, appoint, remove and fix the compensation of the officers and employees of the bureau, subject to the provisions of section ten, article four of this chapter, relating to the board of review;
(5) Organize and administer the bureau so as to comply with the requirements of this chapter and chapter twenty-three of this code and to satisfy any conditions established in applicable federal legislation law or regulation;
(6) Make reports in such the form and containing such information as required by the United States department of labor may, from time to time, require and comply with such provisions as any requirements that the United States department of labor may, from time to time, find finds necessary to assure the correctness and verification of such the reports;
(7) Make available to any agency of the United States charged with the administration of public works or assistance through public employment, upon its request, the name, address, ordinary occupation and employment status of each recipient of unemployment compensation, and a statement of the recipient's rights to further compensation under this chapter;
(8) Keep an accurate and complete record of all bureau proceedings, record and file all bonds and contracts and assume responsibility for the custody and preservation of all papers and documents of the bureau;
(9) Sign and execute in the name of the state, by "The Bureau of Employment Programs", any contract or agreement with the federal government, its agencies, other states, their subdivisions or private persons;
(10) Prescribe a salary scale to govern compensation of appointees and employees of the bureau;
(11) Make the original determination of right in claims for benefits;
(12) Make recommendations and an annual report to the governor concerning the condition, operation and functioning of the bureau;
(13) Invoke any legal or special remedy for the enforcement of orders or the provisions of this chapter and chapter twenty-three of this code;
(14) Exercise any other power necessary to standardize administration, expedite bureau business, assure the establishment of fair rules and promote the efficiency of the service;
(15) Keep an accurate and complete record and prepare a monthly report of the number of persons employed and unemployed in the state. which The report shall be made available upon request to members of the public and press;
(16) Provide at bureau expense a program of continuing professional, technical and specialized instruction for the personnel of the bureau;
(17) In addition to the authority granted to the commissioner by section eighteen of this article and notwithstanding anything to the contrary elsewhere in this code, utilize any attorney regularly employed by the bureau or the office of the attorney general to represent the commissioner, the bureau or any of its divisions in any matter. In addition, the commissioner, with the approval of the compensation programs performance council, is authorized to retain counsel for any purpose in the administration of this chapter or in the administration of chapter twenty-three of this code relating to the collection of any amounts due from employers to the bureau or any of its divisions. The compensation programs performance council shall solicit proposals from counsel who are interested in representing the commissioner, the bureau or any of its divisions under the terms of this subdivision. Thereafter, the compensation programs performance council shall select such attorneys as it determines necessary to pursue the collection objectives of this subdivision.
(A) Payment to any such retained counsel may either be by hourly or other fixed fee, or as determined by the court or administrative law judge as provided for below. A contingency fee payable from the amount recovered by judgment or settlement for the commissioner, the bureau or any of its divisions is only permitted, to the extent not prohibited by federal law, when the assets of a defendant or respondent are depleted so that a full recovery plus attorneys' fees is not possible.
(B) In the event that any collections action, other than a collections action against a claimant, initiated either by retained counsel or other counsel on behalf of the commissioner, the bureau or any of its divisions results in a judgment or settlement in favor of the commissioner, the bureau or any of its divisions, then the court or, if there was no judicial component to the action, the administrative law judge, shall determine the amount of attorneys' fees that shall be paid by the defendants or respondents to the retained or other counsel representing the commissioner, the bureau or any of its divisions. If the court is to determine the amount of attorneys' fees, it shall include in its determination the amount of fee that should be paid for the representation of the commissioner, the bureau or its divisions in pursuing the administrative component, if any, of the action. The amount so paid shall be fixed by the court or the administrative law judge in an amount no less than twenty percent of its recovery. Any additional amount of attorneys' fees shall be determined by use of the following factors:
(i) The counsel's normal hourly rate or, if the counsel is an employee of the bureau or is an employee of the office of the attorney general, such hourly rate as the court or the administrative law judge shall determine to be customary based upon the attorney's experience and skill level;
(ii) The number of hours actually expended on the action;
(iii) The complexity of the issues involved in the action;
(iv) The degree of risk involved in the case with regard to the probability of success or failure;
(v) The overhead costs incurred by counsel with regard to the use of paralegals and other office staff, experts, and investigators; and
(vi) The public purpose served or public objective achieved by the attorney in obtaining the judgment or settlement on behalf of the commissioner, the bureau or any of its divisions.
(C) Notwithstanding the provisions of paragraph (B) of this subdivision, if the commissioner, bureau or any of its divisions and the defendants or respondents to any administrative or judicial action settle the action, then the parties may negotiate a separate settlement of attorneys' fees to be paid by the defendants or respondents above and beyond the amount recovered by the commissioner, the bureau or any its divisions. In the event that such a settlement of attorneys' fees is made, it must be submitted to the court or administrative law judge for approval.
(D) Any attorney regularly employed by the bureau or by the office of the attorney general may not receive any remuneration for his or her services other than such attorney's regular salary. Any attorneys' fees awarded for such an employed attorney shall be payable to the commissioner;
(18) (17) With the approval of the compensation programs performance council created pursuant to section one, article three of this chapter, to promulgate Promulgate rules under which agencies of this state shall not grant, issue or renew any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit whose account is in default with the commissioner with regard to the administration of this chapter and with regard to the administration of chapter twenty-three of this code. The term "agency" includes any unit of state government such as officers, agencies, divisions, departments, boards, commissions, authorities or public corporations. An employing unit is not in default if it has entered into a repayment agreements agreement with the appropriate divisions unemployment compensation division of the bureau and remains in compliance with its obligations under the repayment agreements agreement.
The rules shall provide that, before granting, issuing or renewing any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit, the designated agencies shall review a list or lists provided by the appropriate divisions of the bureau of employers that are in default. If the employing unit's name is not on the list, the agency, unless it has actual knowledge that the employing unit is in default with a division of the bureau may grant, issue or renew the contract, license, permit, certificate or other authority to conduct a trade, profession or business. The list may be provided to the agency in the form of a computerized database or databases that the agency can access. Any objections to such the refusal to issue or renew shall be reviewed under the appropriate provisions of this chapter or of chapter twenty-three of this code, or both, whichever is applicable. The rules provided for by this subdivision shall be promulgated pursuant to the provisions of subdivisions (b) and (c), section seven, article three of this chapter as if they were rules being promulgated for the purposes of chapter twenty-three of this code article three, chapter twenty-nine-a of this code. The prohibition against granting, issuing or renewing any contract, license, permit, certificate or other authority under this subdivision are not operative shall continue in full force and effect until the revised rules are promulgated and are in effect, except as provided in subdivision (6), section eight, article three, chapter twenty-two or otherwise by law.
The rules may be promulgated or implemented in phases so that specific agencies or specific types of contracts, licenses, permits, certificates or other authority to conduct trades, professions or businesses will be subject to the rules beginning on different dates. The presumptions of ownership or control contained in the division of environmental protection's surface mining reclamation regulations promulgated under the provisions of article three, chapter twenty-two of this code are not applicable or controlling in determining the identity of employing units who are in default for the purposes of this subdivision. The rules shall also provide a procedure allowing any agency or interested person, after being covered under the rules for at least one year, to petition the council bureau of employment programs to be exempt from the provisions of the rules. Rules subjecting all applicable agencies and contracts, licenses, permits, certificates or other authority to conduct trades, professions or businesses to the requirements of this subdivision shall be that were promulgated no later than prior to the first day of January July, two thousand three, shall be revised and submitted for legislative review no later than the first day of January, two thousand four, to reflect the removal of the workers' compensation division from the bureau of employment programs and its replacement by the workers' compensation commission; and
(19) (18) Deposit to the credit of the appropriate special revenue account or fund, notwithstanding any other provision of this code and to the extent allowed by federal law, all amounts of delinquent payments or overpayments, interest and penalties thereon, and attorneys' fees and costs collected under the provisions of this chapter and chapter twenty-three of this code. The amounts collected shall not be treated by the auditor or treasurer as part of the general revenue of the state; and
(19) Enter into interagency agency agreements to assist in exchanging information and fulfilling the provisions of this article.
§21A-2-6c. Payment withholding and interception.
(a) All state, county, district and municipal officers and agents making contracts on behalf of the state of West Virginia or any political subdivision thereof shall withhold payment in the final settlement of such contracts until the receipt of a certificate from the commissioner to the effect that all payments, interest and penalties thereon accrued against the contractor under this chapter and under chapter twenty-three of this code have been paid or that provisions satisfactory to the commissioner have been made for payment. Any official violating this subsection is guilty of a misdemeanor and, on conviction thereof, shall be fined not more than one thousand dollars or county imprisoned confined in a county or regional jail for not more than one year in the jail, or both fined and imprisoned confined.
(b) Any agency of the state, for the limited purpose of intercepting, pursuant to section sixteen, article five of this chapter and pursuant to section five-a, of article two, chapter twenty-three of this code, any payment by or through the state to an employer who is in default in payment of contributions, premiums, deposits, interest or penalties under the provisions of this chapter or of chapter twenty-three of this code, shall assist the commissioner in collecting the payment that is due. For this purpose, disclosure of joint delinquency and default lists of employers with respect to unemployment compensation and workers' compensation as provided in section one-c, article one, chapter twenty-three of this code contributions, premiums, interest, deposits or penalties is authorized. The bureau and the workers' compensation commission may enter into an interagency agreement to effectuate the provisions of this section. The lists may be in the form of a computerized database to be accessed by the auditor, the department of tax and revenue, the department of administration, the division of highways or any other appropriate state agency or officer.
§21A-2-13. Deputies.
For the original determination of claims under this chapter and chapter twenty-three of this code, the commissioner shall appoint a necessary number of deputies as his or her representatives.
ARTICLE 10. GENERAL PROVISIONS. §21A-10-11. Reporting requirements and required information; use of information; libel and slander actions prohibited.
(a) Each employer, including labor organizations as defined in subsection (i) of this section, shall, quarterly, submit certified reports on or before the last day of the month next following the calendar quarter, on forms to be prescribed by the commissioner. The reports shall contain:
(1) The employer's assigned unemployment compensation registration number, the employer's name and the address at which the employer's payroll records are maintained;
(2) Each employee's social security account number, name, and the gross wages paid to each employee, which shall include the first eight thousand dollars of remuneration and all amounts in excess of such that amount, notwithstanding subdivision (1), subsection (b), section twenty-eight, article one-a of this chapter;
(3) The total gross wages paid within the quarter for employment, which includes money wages and the cash value of other remuneration, and shall include the first eight thousand dollars of remuneration paid to each employee and all amounts in excess of such that amount, notwithstanding subdivision (1), subsection (b), section twenty-eight, article one-a of this chapter; and
(4) Other information as that is reasonably connected with the administration of this chapter.
(b) Information thus obtained may not be published or be open to public inspection so as to reveal the identity of the employing unit or the individual.
(c) Notwithstanding the provisions of subsection (b) of this section, the commissioner may provide information thus obtained to the following governmental entities for purposes consistent with state and federal laws:
(1) The United States department of agriculture;
(2) The state agency responsible for enforcement of the medicaid program under Title XIX of the Social Security Act;
(3) The United States department of health and human services or any state or federal program operating and approved under Title I, Title II, Title X, Title XIV or Title XVI of the Social Security Act;
(4) Those agencies of state government responsible for economic and community development; secondary, post-secondary and vocational education; vocational rehabilitation, employment and training, including, but not limited to, the administration of the Perkins Act and the Job Training and Partnership Act;
(5) The tax division, but only for the purposes of collection and enforcement;
(6) The division of labor for purposes of enforcing the wage bond and the contractor licensing provisions of chapter twenty-one of this code;
(7) Any agency of this or any other state, or any federal agency, charged with the administration of an unemployment compensation law or the maintenance of a system of public employment offices;
(8) Any claimant for benefits or any other interested party to the extent necessary for the proper presentation or defense of a claim; and
(9) The division of workers' compensation commission for purposes of collection and enforcement: Provided, That the division of workers' compensation commission shall provide similar information to the other divisions of the bureau of employment programs.
(d) The agencies or organizations which receive information under subsection (c) of this section shall agree that the information shall remain confidential so as not to reveal the identity of the employing unit or the individual consistent with the provisions of this chapter.
(e) The commissioner may, before furnishing any information permitted under this section, require that those who request the information shall reimburse the bureau of employment programs for any cost associated therewith for furnishing the information.
(f) The commissioner may refuse to provide any information requested under this section if the agency or organization making the request does not certify that it will comply with the state and federal law protecting the confidentiality of the information.
(g) A person who violates the confidentiality provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty dollars nor more than two hundred dollars, or imprisoned confined in a county or regional jail not longer than ninety days, or both.
(h) No action for slander or libel, either criminal or civil, shall be predicated upon information furnished by any employer or any employee to the commissioner in connection with the administration of any of the provisions of this chapter.
(i) For purposes of subsection (a) of this section, the term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. It includes any entity, also known as a hiring hall, which is used by the organization and an employer to carry out requirements described in 29 U. S. C. 158(f)(3) of an agreement between the organization and the employer.
CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-8. Prohibition of surface mining without a permit; permit requirements; successor in interest; duration of permits; proof of insurance; termination of permits; permit fees.
No person may engage in surface-mining operations unless such person he or she has first obtained a permit from the director in accordance with the following:
(1) All permits issued pursuant to the requirements of this article shall be issued for a term not to exceed five years: Provided, That if the applicant demonstrates that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and the opening of the operation, and if the application is full and complete for such the specified longer term, the director may extend a permit for such a longer term: Provided, however, That subject to the prior approval of the director, with such the approval being subject to the provisions of subsection (c), section eighteen of this article, a successor in interest to a permittee who applies for a new permit, or transfer of a permit, within thirty days of succeeding to such the interest, and who is able to obtain the bond coverage of the original permittee, may continue surface-mining and reclamation operations according to the approved mining and reclamation plan of the original permittee until such the successor's permit application or application for transfer is granted or denied.
(2) Proof of insurance is required on an annual basis.
(3) A permit terminates if the permittee has not commenced the surface-mining operations covered by such the permit within three years of the date the permit was issued: Provided, That the director may grant reasonable extensions of time upon a timely showing that such the extensions are necessary by reason of litigation precluding such commencement, or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee: Provided, however, That with respect to coal to be mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee shall be deemed considered to have commenced surface-mining operations at such the time as the construction of the synthetic fuel or generating facility is initiated.
(4) Each application for a new surface-mining permit filed pursuant to this article shall be accompanied by a fee of one thousand dollars. All permit fees and renewal fees provided for in this section or elsewhere in this article shall be collected by the director and deposited with the treasurer of the state of West Virginia to the credit of the operating permit fees fund and shall be used, upon requisition of the director, for the administration of this article.
(5) Prior to the issuance of any permit, the director shall ascertain from the commissioner of the division of labor whether the applicant is in compliance with section fourteen, article five, chapter twenty-one of this code. Upon issuance of the permit, the director shall forward a copy to the commissioner of the division of labor, who shall assure continued compliance under such the permit.
(6) (A) Prior to the issuance of any permit the director shall ascertain from the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission whether the applicant is in compliance with the provisions of section six-c, article two, chapter twenty-one-a of this code and section five, article two, chapter twenty-three of this code with regard to any required subscription to the unemployment compensation fund or to the workers' compensation fund, the payment of premiums to the fund, the timely filing of payroll reports and the maintenance of an adequate premium deposit. If the applicant is delinquent or defaulted, or has been terminated by the bureau or the commission, then the permit shall not be issued until the applicant returns to compliance or is restored by the workers' compensation division bureau or the commission under a reinstatement agreement: Provided, That in all such inquiries the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission shall make response to the division of environmental protection within fifteen calendar days; otherwise, failure to respond timely shall be is considered to indicate the applicant is in compliance and such the failure will not be used to preclude issuance of the permit.
(B) It is a requirement of this article that each operator maintain continued compliance with the provisions of section five, article two, chapter twenty-three of this code and provide proof of compliance to the director on a annual quarterly basis.
CHAPTER 23. WORKERS' COMPENSATION.

ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Workers' compensation commission created; findings.
(a) The commissioner of the bureau of employment programs appointed under the provisions of section one, article two, chapter twenty-one-a of this code, has the sole responsibility for the administration of this chapter except for such matters as are entrusted to the compensation programs performance council created pursuant to section one, article three, chapter twenty-one-a of this code. In the administration of this chapter, the commissioner shall exercise all the powers and duties described in this chapter and in article two, chapter twenty-one-a of this code.
(b) The commissioner is authorized to promulgate rules and regulations to implement the provisions of this chapter.
(c) The commissioner shall have an official seal for the authentication of orders and proceedings, upon which seal shall be engraved the words "West Virginia Commissioner of Employment Programs" and such other design as the commissioner may prescribe. The courts in this state shall take judicial notice of the seal of the commissioner and in all cases copies of orders, proceedings or records in the office of the West Virginia commissioner of employment programs shall be equal to the original in evidence.
(d) Pursuant to the provisions of article ten, chapter four of this code, the commissioner of the bureau of employment programs shall continue to administer this chapter until the first day of July, two thousand four.
(e) The attorney general shall perform all legal services required by the commissioner under the provisions of this chapter: Provided, That in any case in which an application for review is prosecuted from any final decision of the workers' compensation appeal board to the supreme court of appeals, as provided by section four, article five of this chapter, or in any court proceeding before the workers' compensation appeal board, or in any proceedings before the office of judges, or in any case in which a petition for an extraordinary writ is filed in the supreme court of appeals or in any circuit court, in which such representation shall appear to the commissioner to be desirable, the commissioner may designate a regular employee of this office, qualified to practice before such court to represent the commissioner upon such appeal or proceeding, and in no case shall the person so appearing for the commissioner before the court receive remuneration therefor other than such person's regular salary.
(a) The Legislature finds that a deficit exists in the workers' compensation fund of such critical proportions that it constitutes an imminent threat to the immediate and long-term solvency of the fund. The Legislature further finds that addressing the workers' compensation crisis requires the efforts of all persons and entities involved. Modification to the rate system, alteration of the benefit structure, improvement of current management practices and changes in perception must be merged into a unified effort to make the workers' compensation system viable and solvent. It is the intent of the Legislature that the amendments to this chapter enacted during the regular session of the Legislature in the year two thousand three be applied from the date upon which the enactment is made effective by the Legislature. The Legislature finds that an emergency exists as a result of the combined effect of this deficit, other state budgetary deficits and liabilities, and other grave social and economic circumstances currently confronting the State, and that unless the changes provided by the enactment of the amendments to this chapter, as well as other legislation designed to address the problem are made effective immediately, the fiscal stability of this state will suffer irreparable harm. Accordingly, the Legislature finds that the need of the citizens of this state for the protection of the state treasury and the solvency of the workers' compensation funds requires the limitations on any expectations that may have arisen from prior enactments of this chapter.
(b) It is the further intent of the Legislature that this chapter be interpreted so as to assure the quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of this chapter. It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits and that a rule of "liberal construction" based on any "remedial" basis of workers' compensation legislation shall not affect the weighing of evidence in resolving such cases. The workers' compensation system in this state is based on a mutual renunciation of common law rights and defenses by employers and employees alike. Employees' rights to sue for damages over and above medical and health care benefits and wage loss benefits are to a certain degree limited by the provisions of this chapter, and employers' rights to raise common law defenses such as lack of negligence, contributory negligence on the part of the employee, and others, are curtailed as well. Accordingly, the Legislature hereby declares that any remedial component of the workers' compensation laws is not to cause it to receive liberal construction that alters in any way the proper weighing of evidence as required by section one-g, article four of this chapter.
(c) The "Workers' Compensation Division of the Bureau of Employment Programs" is, on or after the first day of July, two thousand three, reestablished, reconstituted and continued as the workers' compensation commission, an agency of the state. The purpose of the commission is to ensure the fair, efficient and financially stable administration of the workers' compensation system of the state of West Virginia. The powers and duties heretofore imposed upon the workers' compensation division and the commissioner of the bureau of employment programs as they relate to workers' compensation are hereby imposed upon the workers' compensation commission and its executive director in the manner prescribed by this chapter.
§23-1-1a. Workers' compensation management council; appointment; composition; qualifications; terms; chairperson; meetings and quorum; compensation and travel expenses; powers and duties.
(a) On the effective date of the enactment of this section in two thousand three, the compensation programs performance council heretofore established in article three, chapter twenty- one-a of this code is reestablished, reconstituted and continued as the "workers' compensation management council", which may also be referred to as "management council" or "council".
(b)(1) The council shall consist of eleven as follows:
(A) The governor or his or her designee;
(B) The chief executive officer of the West Virginia investment management board, if required to attend more than one meeting per month, he or she may send a designee to the additional meetings;
(C) The executive director of the West Virginia development office, if required to attend more than one meeting per month, he or she may send a designee to the additional meetings; and
(D) Eight members meeting the requirements of this subsection and subsection (c) of this section: Provided, That the members serving on the performance council on the effective date of the enactment of this section in two thousand three, shall continue in office subject to the provisions of subsection (b) of this section.
(2) Two members of the West Virginia Senate and two members of the West Virginia House of Delegate shall serve as advisory members of the council. The governor shall appoint the legislative members to the council. No more than three of the legislative members shall be of the same political party.
(c) Members appointed to the performance council shall continue in office as members of the management council until the expiration of their term and until a successor has been duly appointed and confirmed pursuant to this section. Subsequently appointed members of the management council shall be appointed by the governor, with the advice and consent of the Senate. No appointed member may be a candidate for or hold elected office. If a candidate for council member is not confirmed by the Senate, a new candidate shall be selected in accordance with the provisions of this section. The appointed members shall be appointed for a term of four years and until a successor has been duly appointed and confirmed pursuant to this section. Members may be reappointed no more than two full terms. Appointments to fill the unexpired term of a member shall be for the remainder of the term. Members of the management council may only be removed by the governor for good cause shown.
(d) The eight voting members of the council appointed by the governor shall be appointed based upon his or her demonstrated knowledge and experience to effectively accomplish the purposes of this chapter. They shall meet the minimum qualifications as follows:
(1) Each shall hold a baccalaureate degree from an accredited college or university;
(2) Each member shall have a minimum of ten years experience in his or her field of expertise. The governor shall consider the following guidelines when determining whether potential candidates meet the qualifications of this subsection: expertise in insurance claims management; expertise in insurance underwriting; expertise in financial management in pension or insurance; expertise as a trustee of pension or trust funds of more than two hundred beneficiaries or three hundred million dollars; expertise in workers' compensation management; expertise in occupational medicine demonstrated by licensure as a medical doctor in West Virginia and experience, board certification or university affiliation; or expertise in similar areas of endeavor.
(3) Of the members appointed by the governor, at least one member shall be a certified public accountant with financial management or pension or insurance audit expertise; at least one shall be an attorney with financial management experience; and one shall be an academician holding an advanced degree from an accredited college or university in business, finance, insurance or economics.
(e) All members of the management council shall have a fiduciary responsibility to the commission and all workers' compensation funds and shall assure the proper administration of the fund in a fiscally responsible manner.
(f) The management council shall elect one member to serve as the chairperson of the council. The chairperson shall serve for a one year term and may serve more than one consecutive term. The management council shall hold meetings at the request of the chairperson or at the request of at least three of the members of the management council, but no less frequently than once every three months. The chairperson shall determine the date and time of each meeting. Six members of the management council constitute a quorum for the conduct of the business of the management council. No vacancy in the membership of the council shall impair the right of a quorum to exercise all the rights and perform all the duties of the council. No action shall be taken by the management council except upon the affirmative vote of six members of the council.
(g) Notwithstanding the provisions of article seven, chapter six of this code, the management council shall establish the salary of the executive director. The minimum salary is one hundred twenty thousand dollars and the maximum salary may not exceed one hundred eighty thousand dollars: Provided, That the maximum salary may be adjusted by the council in accordance with generally accepted annual inflation indices. The council shall establish a set of performance measurements to evaluate the performance of the executive director in fulfilling his or her duties as prescribed in this chapter and shall annually rate the executive director's performance according to the established measurements and may adjust his or her annual salary in accordance with that performance rating.
(h) In addition to actual travel expenses incurred in the performance of his or her duties, each voting appointed member of the council shall receive not more than five hundred dollars for each meeting where he or she is required to and does attend.
(i) Each member of the council shall be provided appropriate liability insurance, including, but not limited to, errors and omissions coverage, without additional premium, by the state board of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.
(j) The management council shall:
(1) Review and approve, reject or modify recommendations from the executive director for the development of overall policy for the administration of this chapter;
(2) In conjunction with the executive director, propose legislation and establish operating guidelines and policies designed to ensure the effective administration and financial viability of the workers' compensation system of West Virginia;
(3) Review and approve, reject or modify rules that are proposed by the executive director for operation of the workers' compensation system before the filing of the rules with the secretary of state. The rules adopted by the management council are not subject to sections nine through sixteen, article three, chapter twenty-nine-a of this code. The management council shall follow the remaining provisions of chapter twenty-nine-a of this code for giving notice to the public of their actions and for holding hearings and receiving public comments on the rules;
(4) In accordance with the laws, rules and regulations of West Virginia and the United States government, establish and monitor performance standards and measurements to ensure the timeliness and accuracy of activities performed under the workers' compensation laws and rules;
(5) Review and approve, reject or modify all classifications of occupations or industries, premium rates and taxes, administrative charges, rules and systems of rating, rating plans, rate revisions, deficit management assessments and merit rating for employers covered by this chapter. The executive director shall provide all information required for the council's review;
(6) In conjunction with the executive director initiate, oversee and review all independent financial audits and actuarial reviews of the commission and shall review all internal audits. The council shall employ an actuary or contract for actuarial services. The executive director shall provide access to records of the commission to facilitate the review required under this section;
(7) Approve the allocation of sufficient administrative resources and funding to efficiently operate the workers' compensation system of West Virginia. To assure efficient operation, the council shall direct the development of a plan for the collections performed under section five-a, article two of this chapter. The plan for collections shall maximize ratio of dollars potentially realized by the collection proceeding to the dollars invested in collection activity;
(8) Review and approve, reject or modify the budget prepared by the executive director for the operation of the commission. The budget shall include estimates of the costs and necessary expenditures of the commission in the discharge of all duties imposed by this chapter as well as the cost of providing offices, furniture, equipment and supplies to all commission officers and employees;
(9) In conjunction with the executive director, approve the designation of health care providers to make decisions for the commission regarding appropriateness of medical services;
(10) Require the workers' compensation commission to develop, maintain and use an effective program of return to work services for employers and workers;
(11) Require the workers' compensation commission to develop, maintain and use thorough and efficient claims management procedures and processes and fund management in accordance with the generally accepted practices of the workers' compensation insurance industry;
(12) Consider other matters regarding the workers' compensation system as the governor, executive director or any member of the management council may desire;
(13) Review and approve, reject or modify standards recommended by the executive director to be considered by the commission in making decisions on all levels of disability awards. The standards should be established as an effective means to make prompt, appropriate decisions relating to medical care and methods to assist employees to return to work as quickly as possible;
(14) Appoint, if necessary, a temporary executive director;
(15) Establish an audit committee and employ an independent auditor and an actuary to evaluate the actuarial soundness of the workers' compensation funds and the deficit management funds annually to ensure that sufficient funds are available to meet obligations;
(16) Employ sufficient professional and clerical staff to carry out the duties of the council. Employees of the council shall serve at the will and pleasure of the council. The council's employees are exempt from the salary schedule or pay plan adopted by the division of personnel; and
(17) Study the feasability of privatizing the workers' compensation system of this state; the effect, if any, of attorneys fees on the cost of administering the workers' compensation system; the extent, if any, of fraud or abuse on the part of employees, employers, providers and others on the cost of administering the workers' compensation system; the extent, if any, that the rates and amounts of disability awards exceed the rates and amounts of such awards in other states and the comparative desirability of alternative permanent disability administration in those other states; and alternative deficit management strategies, including non-traditional funding. On or before the first day of January, two thousand six, the commission shall report the findings and conclusions of each study and any recommendations the commission may have as a result of the study to the joint committee on government and finance.
§23-1-1b. Executive director; qualifications; oath; seal; removal; powers and duties.
(a) The executive director shall be hired by the management council for a term not to exceed five years and may be retained based on overall performance for additional terms: Provided, That the current executive director of the division of workers' compensation shall be the initial executive director of the commission. The position of executive director shall be full-time employment. Future candidates for the position of executive director shall have a minimum of a bachelor of arts or science degree from an accredited four-year college or university in one or more of the following disciplines: Finance; economics; insurance administration; law; public administration; accounting; or business administration. Candidates for the position of executive director will be considered based on their demonstrated education, knowledge and a minimum of ten years' experience in the areas of workers' compensation, insurance company management, administrative and management experience with an organization comparable in size to the workers' compensation commission, or any relevant experience which demonstrates an ability to effectively accomplish the purposes of this chapter.
(b) The executive director shall not be a candidate for or hold any other public office or trust, nor shall he or she be a member of a political committee. If he or she becomes a candidate for a public office or becomes a member of a political committee, his or her office as executive director shall be immediately vacated.
(c) The executive director, before entering upon the duties of his or her office, shall take and subscribe to the oath prescribed by section five, article IV of the state constitution. The oath shall be filed with the secretary of state.
(d) The executive director shall have an official seal for the authentication of orders and proceedings, upon which seal shall be engraved the words "West Virginia Workers' Compensation Commission" and any other design prescribed by the management council. The courts in this state shall take judicial notice of the seal of the commission and in all cases copies of orders, proceedings or records in the office of the West Virginia workers' compensation commission are equal to the original in evidence.
(e) The executive director shall not be a member of the management council.
(f) The executive director shall serve until the expiration of his or her term, resignation or until removed by a majority vote of the full management council. The management council and the executive director may, by agreement, terminate the term of employment at any time.
(g) The executive director shall have overall management responsibility and administrative control and supervision within the workers' compensation commission and has the power and duty to:
(1) Establish, with the approval of the management council, the overall administrative policy of the commission for the purposes of this chapter;
(2) Employ, direct and supervise all employees required in connection with the performance of the duties assigned to the commission by this chapter and fix the compensation of the employees in accordance with the provisions of article six, chapter twenty-nine of this code;
(3) Reorganize the work of the commission, its divisions, sections, and offices to the extent necessary to achieve the most efficient performance of its functions. All persons employed by the workers' compensation division in positions that were formerly supervised and directed by the commissioner of the bureau of employment programs under chapter twenty-one-a of this code are hereby transferred to the workers' compensation commission in their respective classifications. Due to the emergency currently existing at the commission and the urgent need to develop fast, efficient claims processing, management and administration, the executive director is hereby granted authority to create new positions and to establish pay grade and wage scales necessary for the commission to effectuate the purposes of this chapter: Provided, That no provision of this subdivision may be construed to authorize the reduction of the salary, benefits or other rights of a classified employee transferred to the commission under the provisions of this subdivision. The division of personnel shall cooperate fully by assisting in the development of classifications, position descriptions and other materials necessary to expedite all changes for the commission. No more than fifteen of the newly created positions may be exempted from the salary schedules or pay plan adopted by the state personnel board;
(4) Provide offices, equipment, supplies and other facilities for the commission, including suitable office space for commission employees;
(5) With the advice and approval of the management council, propose operating guidelines and policies to standardize administration, expedite commission business and promote the efficiency of the services provided by the commission;
(6) Prepare and submit to the management council information the council requires for classifications of occupations or industries; the basis for premium rates, taxes, surcharges and assessment for administrative charges, for assessments related to loss experience, for assessments of prospective risk exposure, for assessments of retrospective costs incurred, for deficit management assessments, for rules and systems of rating, rate revisions and merit rating for employers covered by this chapter; and information regarding the extent, degree and amount of subsidization between the classifications. The executive director shall obtain, prepare and submit any other information the management council requires for the prompt and efficient discharge of its duties;
(7) Keep accurate and complete accounts and records necessary to the collection, administration and distribution of the workers' compensation funds;
(8) Sign and execute in the name of the state, by "The Workers' Compensation Commission", any contract or agreement;
(9) Make recommendations and an annual report to the governor concerning the condition, operation and functioning of the commission;
(10) Invoke any legal or special remedy for the enforcement of orders or the provisions of this chapter;
(11) Prepare and submit for approval to the management council a budget for each fiscal year, including estimates of the costs and necessary expenditures of the commission in the discharge of all duties imposed by this chapter as well as the costs of furnishing office space to the officers and employees of the commission;
(12) Ensure that all employees of the commission follow the orders, operating guidelines and policies of the commission as they relate to the commission's overall policy-making, management and adjudicatory duties under this chapter;
(13) Delegate all powers and duties vested in the executive director to his or her appointees and employees; but the executive director is responsible for their acts;
(14) Provide at commission expense a program of continuing professional, technical and specialized instruction for the personnel of the commission. The executive director shall consult with and report at least annually to the legislative oversight commission on workforce investment for economic development to obtain the most appropriate training using all available resources;
(15) (A) May contract or employ counsel to perform all legal services for the commission including, but not limited to, representing the executive director, management council and commission in any administrative proceeding and in any state or federal court. Additionally, the commission may, but shall not be required to, call upon the attorney general for legal assistance and representation as provided by law. The attorney general shall not approve or exercise authority over in-house counsel or contract counsel hired pursuant to this section.
(B) In addition to the authority granted by this section to the executive director and notwithstanding any provision to the contrary elsewhere in this code, use any attorney regularly employed by the commission or the office of the attorney general to represent the commission, the executive director or the management council in any matter arising from the performance of its duties or the execution of its powers under this chapter. In addition, the executive director, with the approval of the management council, may retain counsel for any purpose in the administration of this chapter relating to the collection of any amounts due from employers to the commission: Provided, That the allocation of resources for the purpose of any collections shall be pursuant to the plan developed by the management council. The management council shall solicit proposals from counsel who are interested in representing the commission under the terms of this subdivision. Thereafter, the management council shall select any attorneys it determines necessary to pursue the collection objectives of this subdivision:
(i) Payment to retained counsel may either be hourly or by other fixed fee, or as determined by the court or administrative law judge as provided for in this section. A contingency fee payable from the amount recovered by judgment or settlement for the commission is only permitted, to the extent not prohibited by federal law, when the assets of a defendant or respondent are depleted so that a full recovery plus attorneys' fees is not possible;
(ii) In the event that any collections action, other than a collections action against a claimant, initiated either by retained counsel or other counsel on behalf of the commission results in a judgment or settlement in favor of the commission, the court or, if there was no judicial component to the action, the administrative law judge, shall determine the amount of attorneys' fees that shall be paid by the defendants or respondents to the retained or other counsel representing the commission. If the court is to determine the amount of attorneys' fees, it shall include in its determination the amount of fee that should be paid for the representation of the commission in pursuing the administrative component, if any, of the action. The amount so paid shall be fixed by the court or the administrative law judge in an amount no less than twenty percent of its recovery. Any additional amount of attorneys' fees shall be determined by use of the following factors:
(I) The counsel's normal hourly rate or, if the counsel is an employee of the commission or is an employee of the office of the attorney general, an hourly rate the court or the administrative law judge determines to be customary based upon the attorney's experience and skill level;
(II) The number of hours actually expended on the action;
(III) The complexity of the issues involved in the action;
(IV) The degree of risk involved in the case with regard to the probability of success or failure;
(V) The overhead costs incurred by counsel with regard to the use of paralegals and other office staff, experts and investigators; and
(VI) The public purpose served or public objective achieved by the attorney in obtaining the judgment or settlement on behalf of the commission.
(iii) Notwithstanding the provisions of paragraph (B) of this subdivision, if the commission and the defendants or respondents to any administrative or judicial action settle the action, the parties may negotiate a separate settlement of attorneys' fees to be paid by the defendants or respondents above and beyond the amount recovered by the commission. In the event that a settlement of attorneys' fees is made, it must be submitted to the court or administrative law judge for approval;
(iv) Any attorney regularly employed by the commission or by the office of the attorney general may not receive any remuneration for his or her services other than the attorney's regular salary. Any attorneys' fees awarded for an employed attorney are payable to the commission;
(16) With the approval of the management council, promulgate rules under which agencies of this state shall revoke or refuse to grant, issue or renew any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit whose account is in default with the commission with regard to the administration of this chapter. The term "agency" includes any unit of state government such as officers, agencies, divisions, departments, boards, commissions, authorities or public corporations. An employing unit is not in default if it has entered into a repayment agreement with the commission and remains in compliance with its obligations under the repayment agreements.
(A) The rules shall provide that, before granting, issuing or renewing any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit, the designated agencies shall review a list or lists provided by the commission of employers that are in default. If the employing unit's name is not on the list, the agency, unless it has actual knowledge that the employing unit is in default with the commission, may grant, issue or renew the contract, license, permit, certificate or other authority to conduct a trade, profession or business. The list may be provided to the agency in the form of a computerized database or databases that the agency can access. Any objections to the refusal to issue or renew shall be reviewed under the appropriate provisions of this chapter. The prohibition against granting, issuing or renewing any contract, license, permit, certificate or other authority under this subdivision shall remain in full force and effect as promulgated under section six, article two, chapter twenty-one-a of this code until the rules required by this subsection are promulgated and in effect.
(B) The rules shall also provide a procedure allowing any agency or interested person, after being covered under the rules for at least one year, to petition the commission to be exempt from the provisions of the rules;
(17) Deposit to the credit of the appropriate special revenue account or fund, notwithstanding any other provision of this code and to the extent allowed by federal law, all amounts of delinquent payments or overpayments, interest and penalties thereon, and attorneys' fees and costs collected under the provisions of this chapter. The amounts collected shall not be treated by the auditor or treasurer as part of the general revenue of the state;
(18) Recommend for approval of the council, rules for the administration of claims management by self-insured employers and third-party administrators including regulation and sanctions for the rejection of claims and for maintaining claim records and ensuring access to all claim records by interested claimants, claimant representatives, the commission and the office of judges;
(19) Recommend for approval of the management council, rules to eliminate the ability of an employer to avoid an experience modification factor by virtue of a reorganization of a business;
(20) Submit for approval of the council, rules setting forth procedures for auditing and investigating employers, including programs of self-insured employers and third-party administrators, employees, health care providers and medical and vocational rehabilitation service providers wherever a formal substantive complaint has been filed. Audits and investigations shall be conducted whenever the commission has grounds for believing that the person, persons, organization or group is not in full compliance with the commission's rules or this chapter;
(21) Regularly audit and monitor programs established by self-insured or third-party administrators under this chapter to ensure compliance with the commission's rules and the law;
(22) Establish and maintain an investigation and fraud unit. The unit is not subject to any requirement of article nine-a, chapter six of this code, and the investigations conducted by the unit and the materials placed in the files of the unit as a result of any such investigation are exempt from public disclosure under the provisions of chapter twenty-nine-b of this code;
(23) Enter into interagency agreements to assist in exchanging information and fulfilling the default provisions of this chapter;
(24) Notwithstanding any provision of this code to the contrary, the executive director, under emergency authorization, may expend up to fifty thousand dollars for purchases of and may contract for goods and services without securing competitive bids. This emergency spending authority expires on the first day of July, two thousand five;
(25) Establish an employer violator system to identify individuals and employers who are in default or are delinquent on any premium, assessment, surcharge, tax or penalty owed to the commission. The employer violator system shall prohibit violators who own, control or have an ownership interest, as defined by the commission, in a company from obtaining or maintaining any license or permit issued by the state until the violator has paid all monies owed to the commission or has entered into and remains in compliance with a repayment agreement; and
(26) Propose the designation of health care providers to make decisions for the commission regarding appropriateness of medical services.
§23-1-1c. Payment withholding; interception; penalty.
(a) All state, county, district and municipal officers and agents making contracts on behalf of the state of West Virginia or any political subdivision thereof shall withhold payment in the final settlement of contracts until the receipt of a certificate from the commission to the effect that all payments, interest and penalties thereon accrued against the contractor under this chapter have been paid or that provisions satisfactory to the commission have been made for payment. Any official violating this subsection is guilty of a misdemeanor and, on conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail for not more than one year, or both fined and confined.
(b) Any agency of the state, for the limited purpose of intercepting, pursuant to section five- a, article two, chapter twenty-three of this code, any payment by or through the state to an employer who is in default in payment of contributions, premiums, deposits, interest or penalties under the provisions of this chapter, shall assist the commission in collecting the payment that is due. For this purpose, disclosure of joint delinquency and default lists of employers with respect to unemployment compensation as provided in section six-c, article one, chapter twenty-one-a of this code and workers' compensation contributions, premiums, interest, deposits or penalties is authorized. The commission and the bureau of employment programs may enter into an interagency agreement to effectuate the provisions of this section. The lists may be in the form of a computerized database to be accessed by the auditor, the department of tax and revenue, the department of administration, the division of highways or other appropriate state agency or officer.
§23-1-1d. Rules of former division of workers' compensation.
Except as otherwise provided for in this chapter, all rules applicable to the former workers' compensation division of the bureau of employment programs are hereby adopted and made effective as to the operation of the workers' compensation commission under this chapter to the extent that they are not in conflict with the current law. The management council shall review and approve, modify or replace all existing rules no later than the first day of July, two thousand six.
§23-1-1e. Transfer of assets and contracts.
With the establishment of the workers' compensation commission, all assets and contracts, along with rights and obligations thereunder, obtained or signed on behalf of the workers' compensation division of the bureau of employment programs in furtherance of the purposes of this chapter, are hereby transferred and assigned to the workers' compensation commission.
§23-1-1f. Continuation.
The workers' compensation division shall continue to exist pursuant to article ten, chapter four of this code, until the first day of July, two thousand three, at which time all powers and duties are transferred to the workers' compensation commission. The workers' compensation commission shall continue to exist, pursuant to said article until the first day of July, two thousand four, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
§23-1-2. Oversight of the workers' compensation commission.
All expenses peculiar to the administration of this chapter, and, when on official business, the traveling and incidental expenses of the commissioner and salaries or other compensation, traveling and other expenses of all officers or employees of the commissioner, and all expenses for furniture, books, maps, stationery, appliances, property of all kinds and dues for membership in all organizations pertaining to workers' compensation or safety in which the commissioner considers it advisable to maintain membership, shall be paid out of the workers' compensation fund.
(a) In addition to any other oversight of the commission exercised by the Legislature, the commission shall report at least quarterly to the joint committee on government and finance and the joint commission on economic development. The commission shall collect data and report on claims and injuries and on the costs and outcomes of injuries by standard codes for medical treatment, vocation rehabilitation services, return to work services, other benefits payable to or on behalf of employees, efforts to eliminate fraud and abuse, and the impact of judicial and quasi- judicial rulings on the administration of the workers' compensation system and the solvency of the fund. The workers' compensation commission shall provide to the joint committee on government and finance and the joint commission on economic development an action plan for improving the workers' compensation system. This plan shall include detail on any administrative changes undertaken by the commission, a report on the anticipated outcome of the changes, a cost-benefit analysis of the changes and time frames for commencement and completion of these changes. Subsequent reports to the joint committee on government and finance and the joint commission on economic development shall report on the progress of these changes. The administrative changes shall include, but are not limited to, claims processing, reorganization, staff development and training, return-to-work programs, workplace alternatives for injured workers, safety programs and medical and vocational services.
(b) The commission shall further provide detailed analysis in each report to the Legislature of the current status of the deficit management fund. This analysis shall include the current balance in the fund, revenue generated and expended in relationship to the deficit management fund and estimates of debt reduction relative to the deficit management fund over the next reporting period.
(c) The commission shall also report on the current status of the workers' compensation fund and the occupational pneumoconiosis fund. This analysis shall include the current balances in the fund and revenue generated and expended in relationship to the liabilities and assets of the funds.
(d) The commission shall further report to the Legislature on the impact on the workers' compensation system of the amendments to subdivision (2), subsection (n), section six, article four of this chapter enacted during the year two thousand three, including but not limited to an analysis of any litigation resulting from the amendments.
(e) The commission shall further report to the Legislature on methodologies used to establish all types of assessments and rates.
(f) The commission shall further report to the Legislature on legislative action that may be required to further improve the operation of the commission.
§23-1-3. Payment of salaries and expenses generally; manner; limitation.
(a) All expenses peculiar to the administration of this chapter, and, when on official business, the travel and incidental expenses of the commissioner and salaries or other compensation, traveling and other expenses of all officers or employees of the commission, and all expenses for furniture, books, maps, stationery, appliances, property of all kinds and dues for membership in all organizations pertaining to workers' compensation, safety maintenance or professional designation in which the executive director considers it advisable to maintain membership, shall be paid out of the workers' compensation fund.
(b) All payments of salaries and expenses in the administration of this chapter shall be made by the state treasurer upon requisition signed by the commissioner executive director, directed to the auditor of the state, who shall draw his or her warrant therefor, and any such the payment shall be charged to the workers' compensation fund: Provided, That the total charges against such the fund under this section for any one fiscal year shall not exceed the amount appropriated therefor for the administration of this chapter.
§23-1-4. Office hours; records; confidentiality; exceptions.
(a) The offices of the workers' compensation division commission shall be open for the transaction of business between the hours of eight-thirty o'clock a.m., and five o'clock p.m., of each and every day, excepting Saturdays, Sundays and legal holidays, and be open upon such any additional days and at such any additional times as elected by the division may elect commission. As The executive director is the chief executive officer of the bureau of employment programs workers' compensation commission., the commissioner shall designate an executive director to serve as the chief operating officer for the daily operations of the workers' compensation division: Provided, That in any instance in this chapter which refers to the commissioner's secretary, such reference shall be taken to mean the executive director
(b) Except as expressly provided for in this subsection, information obtained regarding employers and claimants pursuant to this chapter for the purposes of its administration shall is not be subject to the provisions of chapter twenty-nine-b of this code unless such the provisions are hereafter specifically made applicable, in whole or in part. Such The information as may be that is reasonably necessary may be released in formal orders or opinions of any tribunal or court which is presented with an issue arising under this chapter as well as in the presentations of the parties before any such the tribunal or court. Similarly, claimants or other interested parties to an issue arising under this chapter may, upon request, obtain information from the division's commission's records to the extent necessary for the proper presentation or defense of a claim or other matter. Information may be released pursuant to the provisions of chapter twenty-nine-b of this code only if all identifying information has first been eliminated from the records. Nothing in this subsection shall prevent the release of information to another agency of the state or of the federal government for the legitimate purposes of those agencies: Provided, That any such the agency shall guarantee the confidentiality of the information so provided to the fullest extent possible in keeping with its own statutory and regulatory mandates. Nothing in this section shall prevent the division commission from complying with any subpoena duces tecum: Provided, however, That the issuing tribunal or court shall take such actions as may be proper to maintain the confidentiality of the information.
The division commission may release, pursuant to a proper request under the provisions of chapter twenty-nine-b of this code, the following information:
(1) The base premium tax rate for a specific employer;
(2) Whether or not a specific employer has obtained coverage under the provisions of this chapter;
(3) Whether or not a specific employer is in good standing or is delinquent or in default according to the division's commission's records and the time periods thereof; and
(4) If a specific employer is delinquent or in default, what the payments due the division commission are and what the components of that payment are including the time periods affected.
§23-1-4a. Bond for executive director and associate director.
(a) The executive director and associate director of the workers' compensation commission shall give bond in an amount determined by the management council conditioned for the faithful management of the fund and performance of their duties. The bond shall be approved by the attorney general as to form. The surety of the bond may be a bonding or surety company, in which case the premium shall be paid out of the workers' compensation fund.
(b) The executive director and associate director shall be provided appropriate insurance, including, but not limited to, errors and omission coverage, without additional premium, by the state board of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.
§23-1-5. Office of executive director; hearings.
The commissioner executive director shall keep and maintain his or her office at the seat of government and shall provide a suitable room or rooms, necessary office furniture, supplies, books, periodicals, maps and other equipment. After due notice, showing the time and place, the commissioner executive director may hold hearings anywhere within the state, or elsewhere by agreement of claimant and employer, with the approval of the commissioner executive director.
§23-1-6. Employment of associate director and other assistants; compensation and travel expenses.
(a) The commissioner executive director may employ a secretary an associate director, actuary, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants, and fix their compensation, which shall be paid as provided in sections two and section three of this article. The associate director shall be hired with the approval of the management council and serves at the will and pleasure of the executive director.
(b) The commissioner, secretary associate director, supervisory officers, actuaries, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants who may be employed shall be are entitled to receive from the workers' compensation fund their actual and necessary expense while traveling on business of the commissioner Such commission. Travel reimbursement shall be paid in accordance with the travel guidelines established by the department of administration. All expenses shall be itemized and sworn to by the person who incurred the expense, and shall be are subject to the approval of the commissioner executive director: Provided, That the expenses of the executive director shall be subject to the approval of the management council.
§23-1-7. Associate director to act during executive director's absence or inability to act and in case of vacancy; bond of associate director.
Whenever it shall appear appears that the commissioner executive director will be absent or unable to act for one week or more, the secretary associate director of the commissioner commission may be designated by the commissioner executive director to act during his or her absence or inability to act, and during such that period he or she shall have all the duties and powers of the commissioner. The secretary shall give bond in the penalty of twenty-five thousand dollars conditioned for the faithful performance of the duties of his office, which bond shall be approved by the attorney general as to form and by the governor as to sufficiency. The surety of such bond may be a bonding or surety company, in which case the premium shall be paid out of the appropriation made for the administration of this chapter. executive director. In the event a vacancy occurs in the office of commissioner executive director, the secretary of the commissioner associate director shall have all the duties and powers of the commissioner executive director until a commissioner is appointed by the governor in accordance with section one of this article an executive director or a temporary executive director is hired by the management council. The management council shall determine the amount of additional compensation the associate director may receive as acting executive director.
§23-1-8. Authority of executive director and employees as to oaths and evidence.
The commissioner, secretary executive director, associate director and every inspector or examiner other employees appointed by the commissioner shall executive director may, for the purpose contemplated by this chapter, have power to administer oaths, certify official acts, take depositions, issue subpoenas and compel the attendance of witnesses and the production of pertinent books, accounts, papers, records, documents and testimony.
§23-1-9. Compelling compliance with order or subpoena.
In case of failure or refusal of any person to comply with the order of the commissioner executive director, or subpoena issued by him or her, his secretary the associate director, or one of his inspectors or examiners duly appointed employee, or on the refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, or refusal to permit an inspection as aforesaid, the circuit judge of the county in which the person resides, on application of the commissioner executive director, associate director or any inspector or examiner duly appointed by him employee, shall compel obedience by attachment proceedings as for contempt, as in the case of disobedience of the requirements of a subpoena issued from such the court on a refusal to testify therein in the court.
§23-1-10. Fee of officer serving subpoena; fees and mileage of witnesses.
Each officer who serves such subpoenas on behalf of the commission shall receive the same fee as a sheriff, and each witness who appears in obedience to a subpoena before the commissioner executive director, associate director or an inspector, or an examiner duly appointed employee, shall receive for his or her attendance the fees and mileage provided for witnesses in civil cases in the circuit court, which shall be audited and paid out of the workers' compensation fund in the same manner as other expenses are audited and paid, if such the witness was subpoenaed without the request of either claimant or employer at the instance of the commissioner executive director, associate director or an inspector or an examiner duly appointed employee. The witness fees and mileage of any witness subpoenaed by, or at the instance of, either claimant or employer shall be paid by the party who subpoenas such the witness.
§23-1-11. Depositions; investigations.
(a) In an investigation into any matter arising under articles one through five, inclusive, of this chapter, the division commission may cause depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in the circuit court, but such the depositions shall be upon reasonable notice to claimant and employer or other affected persons or their respective attorneys. The division commission shall designate the person to represent it for the taking of any such the deposition.
(b) The division shall commission also have has discretion to accept and consider depositions taken within or without the state by either the claimant or employer or other affected person, provided due and reasonable notice of the taking of such the depositions was given to the other parties or their attorneys, if any: Provided, That the division commission, upon due notice to the parties, shall have has authority to refuse or permit the taking of such depositions or to reject such the depositions after the taking thereof they are taken, if they were taken at such a place or under such circumstances as which imposed an undue burden or hardship upon the other parties., and the division's The commission's discretion to accept, refuse to approve or reject such the depositions shall be is binding in the absence of abuse of such the discretion.
§23-1-12. Copies of proceedings as evidence.
A transcribed copy of the evidence and proceedings, or any specific part thereof, on any investigation or hearing, taken by a stenographer appointed by the commissioner executive director and certified and sworn to by such the stenographer to be a true and correct transcript of the testimony in the investigation or hearing, or of a particular witness, or of a specific part thereof, or to be a correct transcript of the proceedings had on such the investigation or hearing so purporting to be taken and subscribed, may be received in evidence by the commissioner executive director with the same effect as if such the stenographer were present and testified to the facts certified. A copy of such the transcript shall be furnished on demand to any party upon payment of the fee prescribed therefor in the rules and regulations policies of the commissioner commission. such The fee shall not to exceed that prescribed for transcripts in the circuit court.
§23-1-13. Rules of procedure and evidence; persons authorized to appear in proceedings; withholding of psychiatric and psychological reports and providing summaries thereof.
(a) The workers' compensation division commission shall adopt reasonable and proper rules of procedure, regulate and provide for the kind and character of notices, and the service thereof of the notices, in cases of accident and injury to employees, the nature and extent of the proofs and evidence, the method of taking and furnishing the same of evidence to establish the rights to benefits or compensation from the fund hereinafter provided for, or directly from employers as hereinafter provided, as the case may require, and the method of making investigations, physical examinations and inspections, and prescribe the time within which adjudications and awards shall be made.
(b) At hearings and other proceedings before the division commission or before the duly authorized representative of the division commission, an employer who is a natural person may appear, and a claimant may appear, only as follows:
(1) By an attorney duly licensed and admitted to the practice of law in this state;
(2) By a nonresident attorney duly licensed and admitted to practice before a court of record of general jurisdiction in another state or country or in the District of Columbia who has complied with the provisions of rule 8.0--admission pro hac vice, West Virginia supreme court rules for admission to the practice of law, as amended;
(3) By a representative from a labor organization who has been recognized by the division commission as being qualified to represent a claimant or who is an individual otherwise found to be qualified by the division commission to act as a representative. Such The representative shall participate in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to such the facts and figures; or
(4) Pro se.
(c) At hearings and other proceedings before the division commission or before the duly authorized representative of the division commission, an employer who is not a natural person may appear only as follows:
(1) By an attorney duly licensed and admitted to the practice of law in this state;
(2) By a nonresident attorney duly licensed and admitted to practice before a court of record of general jurisdiction in another state or country or in the District of Columbia who has complied with the provisions of rule 8.0--admission pro hac vice, West Virginia supreme court rules for admission to the practice of law, as amended;
(3) By a member of the board of directors of a corporation or by an officer of the corporation for purposes of representing the interest of the corporation in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to such the facts and figures; or
(4) By a representative from an employer service company who has been recognized by the division commission as being qualified to represent an employer or who is an individual otherwise found to be qualified by the division commission to act as a representative. Such The representative shall participate in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to such the facts and figures.
(d) The division commission or its representative may require an individual appearing on behalf of a natural person or corporation to produce satisfactory evidence that he or she is properly qualified and authorized to so appear pursuant to this section.
(e) Subsections (b), (c) and (d) of this section shall not be construed as being applicable to proceedings before the office of judges pursuant to the provisions of article five of this chapter.
(f) At the direction of a treating or evaluating psychiatrist or clinical doctoral level psychologist, a psychiatric or psychological report concerning a claimant who is receiving treatment or is being evaluated for psychiatric or psychological problems may be withheld from the claimant. In that event, a summary of the report shall be compiled by the reporting psychiatrist or clinical doctoral level psychologist which. The summary shall be provided to the claimant upon his or her request. Any representative or attorney of the claimant must agree to provide such a the claimant with only the summary before the full report shall be is provided to the representative or attorney for his or her use in preparing the claimant's case. Such a The report shall only be withheld from the claimant in those instances where the treating or evaluating psychiatrist or clinical doctoral level psychologist certifies that exposure to the contents of the full report is likely to cause serious harm to the claimant or is likely to cause the claimant to pose a serious threat of harm to a third party.
(g) In any matter arising under articles one through five, inclusive, of this chapter in which the division commission is required to give notice to a party, if a party is represented by an attorney or other representative, then notice to the attorney or other representative shall be is sufficient notice to the party so represented.
§23-1-14. Forms.
The commissioner commission shall prepare and furnish free of cost blank forms (and provide in his or her rules for their distribution so that the same they may be readily available) of applications for benefits for compensation from the workers' compensation fund, or directly from employers, as the case may be, notices to employers, proofs of injury or death, of medical attendance, of employment and wage earnings, and such any other blanks forms as may be deemed considered proper and advisable. and it shall be It is the duty of employers to constantly keep on hand a sufficient supply of such blanks the forms.
§23-1-15. Procedure before commission.
The commissioner shall commission is not be bound by the usual common-law or statutory rules of evidence, but shall adopt formal rules of practice and procedure as herein provided, and may make investigations in such a manner as that in his or her judgment is best calculated to ascertain the substantial rights of the parties and to carry out the provisions of this chapter.
§23-1-17. Annual report by commission and occupational pneumoconiosis board.
Annually, on or about the fifteenth day of September in each year, the commissioner executive director and the occupational pneumoconiosis board shall make a report as of the thirtieth day of June addressed to the governor, which shall include a statement of the causes of the injuries for which the awards were made, an explanation of the diagnostic techniques used by the occupational pneumoconiosis board and all examining physicians to determine the presence of disease, the extent of impairment attributable thereto, a description of the scientific support for such the diagnostic techniques and a summary of public and private research relating to problems and prevention of occupational diseases. The report shall include a detailed statement of all disbursements, and the condition of the fund, together with any specific recommendations for improvements in the workers' compensation law and for more efficient and responsive administration thereof of the workers' compensation law, which the commissioner may consider executive director considers appropriate. Copies of all annual reports shall be filed with the secretary of state and shall be made available to the Legislature and to the public at large.
§23-1-18. Commission employees not subject to subpoena for workers' compensation hearings.
No employee of the workers' compensation division commission shall be compelled to testify as to the basis, findings or reasons for any decision or order rendered by the employee under this chapter in any hearing conducted pursuant to article five of this chapter.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER; EXTRATERRITORIAL COVERAGE.
§23-2-1. Employers subject to chapter; elections not to provide certain coverages; notices; filing of business registration certificates.
(a) The state of West Virginia and all governmental agencies or departments created by it, including county boards of education, political subdivisions of the state, any volunteer fire department or company and other emergency service organizations as defined by article five, chapter fifteen of this code, and all persons, firms, associations and corporations regularly employing another person or persons for the purpose of carrying on any form of industry, service or business in this state, are employers within the meaning of this chapter and are hereby required to subscribe to and pay premium taxes into the workers' compensation fund for the protection of their employees and shall be are subject to all requirements of this chapter and all rules and regulations prescribed by the workers' compensation division commission with reference to rate, classification and premium payment: Provided, That such rates will be adjusted by the division commission to reflect the demand on the compensation fund by the covered employer.
(b) The following employers are not required to subscribe to the fund, but may elect to do so:
(1) Employers of employees in domestic services; or
(2) Employers of five or fewer full-time employees in agricultural service; or
(3) Employers of employees while said the employees are employed without the state except in cases of temporary employment without the state; or
(4) Casual employers. An employer is deemed to be a casual employer when the number of his or her employees does not exceed three and the period of employment is temporary, intermittent and sporadic in nature and does not exceed ten calendar days in any calendar quarter; or
(5) Churches; or
(6) Employers engaged in organized professional sports activities, including employers of trainers and jockeys engaged in thoroughbred horse racing; or
(7) Any volunteer rescue squad or volunteer police auxiliary unit organized under the auspices of a county commission, municipality or other government entity or political subdivision; volunteer organizations created or sponsored by government entities, political subdivisions or, area or regional emergency medical services boards of directors in furtherance of the purposes of the emergency medical services act of article four-c, chapter sixteen of this code: Provided, That should if any of the employers described in this subdivision have paid employees then to the extent of those paid employees, the employer must shall subscribe to and pay premium taxes into the workers' compensation fund based upon the gross wages of the paid employees but with regard to the volunteers, such the coverage remains optional; or
(c) Notwithstanding any other provision of this chapter to the contrary, whenever there are churches in a circuit which employ one individual clergyman and the payments to such the clergyman from such the churches constitute his or her full salary, such circuit or group of churches may elect to be considered a single employer for the purpose of premium payment into the workers' compensation fund.
(d) Employers who are not required to subscribe to the workers' compensation fund may voluntarily choose to subscribe to and pay premiums into the fund for the protection of their employees and in such that case shall be are subject to all requirements of this chapter and all rules and regulations prescribed by the division commission with reference to rates, classifications and premium payments and shall afford to them the protection of this chapter, including section six of this article, but the failure of such the employers to choose to subscribe to and to pay premiums into the fund shall not impose any liability upon them other than such any liability as that would exist notwithstanding the provisions of this chapter.
(e) Any foreign corporation employer whose employment in this state is to be for a definite or limited period which could not be considered "regularly employing" within the meaning of this section may choose to pay into the workers' compensation fund the premiums herein provided for in this section, and at the time of making application to the workers' compensation division such commission, the employer shall furnish a statement under oath showing the probable length of time the employment will continue in this state, the character of the work, an estimate of the monthly payroll and any other information which may be required by the division commission. At the time of making application such the employer shall deposit with the division commission to the credit of the workers' compensation fund the amount required by section five of this article, which. That amount shall be returned to the employer if the employer's application be is rejected by the division commission. Upon notice to such the employer of the acceptance of his or her application by the division commission, he or she shall be is an employer within the meaning of this chapter and subject to all of its provisions.
(f) Any foreign corporation employer choosing to comply with the provisions of this chapter and to receive the benefits hereunder under this chapter shall, at the time of making application to the division commission in addition to other requirements of this chapter, furnish the division commission with a certificate from the secretary of state, where such the certificate is necessary, showing that it has complied with all the requirements necessary to enable it legally to do business in this state and no application of such a foreign corporation employer shall be accepted by the division commission until such the certificate is filed.
(g) The following employers may elect not to provide coverage to certain of their employees under the provisions of this chapter:
(1) Employers of employees who are officers of and stockholders in a corporation qualifying for special tax treatment under subchapter S of the Internal Revenue Code of the United States may elect not to provide coverage to such employees or Any political subdivision of the state including county commissions and municipalities, boards of education, or emergency services organizations organized under the auspices of a county commission may elect not to provide coverage to any elected official. The election not to provide coverage does not apply to appointed individuals, or to any other employees of the political subdivision;
(2) If an employer is a partnership, sole proprietorship, association or corporation, such the employer may elect not to include as an "employee" within this chapter, any member of such the partnership, the owner of the sole proprietorship or any corporate officer or member of the board of directors of the association or corporation. The officers of a corporation or an association shall consist consist of a president, a vice president, a secretary and a treasurer, each of whom shall be is elected by the board of directors at such the time and in such the manner as may be prescribed by the bylaws. Such other Other officers and assistant officers as may be deemed that are considered necessary may be elected or appointed by the board of directors or chosen in such any other manner as may be prescribed by the bylaws and, if so elected, appointed or chosen, such the employer may elect not to include any such the officer or assistant officer as an "employee" within the meaning of this chapter: Provided, That except for those persons who are members of the board of directors or who are the corporation's or association's president, vice president, secretary and treasurer and who may be excluded by reason of their aforementioned positions from the benefits of this chapter even though their duties, responsibilities, activities or actions may have a dual capacity of work which is ordinarily performed by an officer and also of work which is ordinarily performed by a worker, an administrator or an employee who is not an officer, no such other officer or assistant officer who is elected or appointed shall be excluded by election from coverage or be denied the benefits of this chapter merely because he or she is such an officer or assistant officer if, as a matter of fact:
(A) He or she is engaged in a dual capacity of having the duties and responsibilities for work ordinarily performed by an officer and also having duties and work ordinarily performed by a worker, administrator or employee who is not an officer;
(B) He or she is engaged ordinarily in performing the duties of a worker, an administrator or an employee who is not an officer and receives pay therefor for performing the duties in the capacity of an employee; or
(C) If He or she is engaged in an employment palpably separate and distinct from his or her official duties as an officer of the association or corporation.
(h) In the event of election under subsection (g) of this section, the employer shall serve upon the division commission written notice naming the positions not to be covered and shall not include such the "employee's" remuneration for premium purposes in all future payroll reports, and such the partner, proprietor or corporate or executive officer shall is not be deemed considered an employee within the meaning of this chapter after such the notice has been served. Notwithstanding the provisions of subsection (g), section five of this article, if an employer has not subscribed to the fund even though it is obligated to do so under the provisions of this article, then any such partner, proprietor or corporate or executive officer shall not be covered and shall not receive the benefits of this chapter.
(i) "Regularly employing" or "regular employment" shall mean means employment by an employer which is not a casual employer under this section.
§23-2-1c. Extraterritorial coverage; approval and change of agreements.
(a) Whenever, with respect to an employee of an employer who is a subscriber in good standing to the workers' compensation fund or an employer who has elected to pay compensation directly, as provided in section nine of this article, there is a possibility of conflict with respect to the application of workers' compensation laws because the contract of employment is entered into and all or some portion of the work is performed or is to be performed in a state or states other than this state, the employer and the employee may agree to be bound by the laws of this state or by the laws of such any other state in which all or some portion of the work of the employee is to be performed: Provided, That the commissioner shall have the authority to executive director may review and accept or reject any such the agreement. Any such The review shall be conducted in keeping with the commissioner's executive director's fiduciary obligations to the workers' compensation fund which may include, among other things, the nexus of the employer and the employee to the state: Provided, however, That nothing in this section shall be construed so as to require such an agreement in those instances where subdivision (3), subsection (b), section one of this article or subdivision (1), subsection (a), section one-a of this article are applicable. Such agreement shall All agreements shall be in writing and filed with the commissioner executive director within ten days after execution thereof of the agreement but shall not become effective until approved by the commissioner executive director and shall, thereafter, remain in effect until terminated or modified by agreement of the parties similarly filed or by order of the commissioner executive director. If the parties agree to be bound by the laws of this state, an employee injured within the terms and provisions of this chapter shall be is entitled to benefits under this chapter regardless of the situs of the injury or exposure to occupational pneumoconiosis or other occupational disease, and the rights of the employee and his or her dependents under the laws of this state shall be the exclusive remedy against the employer on account of injury, disease or death in the course of and as a result of the employment.
(b) If the parties agree to be bound by the laws of another state and the employer has complied with the laws of that state, the rights of the employee and his or her dependents under the laws of that state shall be the exclusive remedy against the employer on account of injury, disease or death in the course of and as a result of the employment without regard to the situs of the injury or exposure to occupational pneumoconiosis or other occupational disease.
(c) If the employee is a resident of a state other than this state and is subject to the terms and provisions of the workers' compensation law or similar laws of a state other than this state, such the employee and his or her dependents shall not be are not entitled to the benefits payable under this chapter on account of injury, disease or death in the course of and as a result of employment temporarily within this state, and the rights of such the employee and his or her dependents under the laws of such the other state shall be the exclusive remedy against the employer on account of such any injury, disease or death.
(d) If any employee or his or her dependents be are awarded workers' compensation benefits or recover damages from the employer under the laws of another state for an injury received in the course of and resulting from the employment, the amount so awarded or recovered, whether paid or to be paid in future installments, shall be credited against the amount of any benefits payable under this chapter for the same injury.
§23-2-1d. Primary contractor liability; definitions; applications and exceptions; certificates of good standing; reimbursement and indemnification; termination of contracts; effective date; collections efforts.
(a) For the exclusive purposes of this section, the term "employer" as defined in section one of this article shall include includes any primary contractor who regularly subcontracts with other employers for the performance of any work arising from or as a result of the primary contractor's own contract: Provided, That a subcontractor shall does not include one providing goods rather than services. For purposes of this subsection, extraction of natural resources is a provision of services. In the event that such a subcontracting employer defaults on its obligations to make payments to the commissioner commission, then such the primary contractor shall be is liable for such the payments. Notwithstanding the foregoing However, nothing contained in this section shall extend or except to such a primary contractor or subcontractors the provisions of section six, six-a or eight of this article. This section is applicable only with regard to subcontractors with whom the primary contractor has a contract for any work or services for a period longer than thirty days: Provided, however, That this section shall also be is also applicable to contracts for consecutive periods of work that total more than thirty days. It is not applicable to the primary contractor with regard to sub-subcontractors. However, a subcontractor for the purposes of a contract with the primary contractor can itself become a primary contractor with regard to other employers with whom it subcontracts. It is the intent of the Legislature that no contractor, whether a primary contractor, subcontractor or sub-subcontractor escape or avoid liability for any workers' compensation premium, assessment or tax. The executive director shall promulgate a rule to effectuate this purpose on or before the thirty-first day of December, two thousand three.
(b) A primary contractor may avoid initial liability under subsection (a) of this section if it obtains from the commissioner executive director, prior to the initial performance of any work by the subcontractor's employees, a certificate that the subcontractor is in good standing with the workers' compensation fund.
(1) Failure to obtain the certificate of good standing prior to the initial performance of any work by the subcontractor shall result results in the primary contractor being equally liable with the subcontractor for all delinquent and defaulted premium taxes, premium deposits, interest and other penalties arising during the life of the contract or due to work performed in furtherance of the contract: Provided, That the division shall be commission is entitled to collect only once for the amount of premiums, premium deposits and interest due to the default, but the division commission may impose other penalties on the primary contractor or on the subcontractor, or both.
(2) In order to continue avoiding liability under this section, the primary contractor shall request that the commissioner of the bureau of employment programs commission inform the primary contractor of any subsequent default by the subcontractor. In the event that the subcontractor does default, the commissioner commission shall then notify the primary contractor of the default by placing a notice in the first-class United States mail, postage prepaid, and addressed to the primary contractor at the address furnished to the commissioner commission by the primary contractor. Such The mailing shall be is good and sufficient notice to the primary contractor of the subcontractor's default. However, the primary contractor shall is not become liable under this section until the first day of the calendar quarter following the calendar quarter in which the notice is given and then such the liability shall is only be for that following calendar quarter and thereafter and only if the subcontract has not been terminated: Provided, That the commissioner shall be commission is entitled to collect only once for the amount of premiums, premium deposits and interest due to the default, but the commissioner commission may impose other penalties on the primary contractor or on the subcontractor, or both.
(c) In any situation where a subcontractor defaults with regard to its payment obligations under this chapter or fails to provide a certificate of good standing as provided for in this section, such the default or failure shall be is good and sufficient cause for a primary contractor to hold the subcontractor responsible and to seek reimbursement or indemnification for any amounts paid on behalf of the subcontractor to avoid or cure a workers' compensation default, plus related costs including reasonable attorneys' fees, and to terminate its subcontract with the subcontractor notwithstanding any provision to the contrary in the contract.
(d) The provisions of this section are applicable only to those contracts entered into or extended on or after the first day of January, one thousand nine hundred ninety-four.
(e) The division commission may take any action authorized by section five-a of this article in furtherance of its efforts to collect amounts due from the primary contractor under this section.
§23-2-2. Commission to be furnished information by employers, state tax commissioner and division of unemployment compensation; secrecy of information; examination of employers, etc.; violation a misdemeanor.

(a) Every employer shall furnish the commissioner executive director, upon request, all information required by him or her to carry out the purposes of this chapter. The commissioner executive director, or any person employed by the commissioner commission for that purpose, shall have the right to may examine under oath any employer or officer, agent or employee of any employer.
(b) Notwithstanding the provisions of any other statute, specifically, but not exclusively, sections five and five-b, article ten, chapter eleven of this code, and section eleven, article ten, chapter twenty-one-a of this code the commissioner of the bureau of employment programs executive director of the workers' compensation commission may receive the following information:
(1) Upon written request to the state tax commissioner: The names, addresses, places of business and other identifying information of all businesses receiving a business franchise registration certificate and the dates thereof; and the names and social security numbers or other tax identification numbers of the businesses and of the businesses' workers and employees, if otherwise collected, and the quarterly and annual gross wages or other compensation paid to the workers and employees of such businesses reported pursuant to the requirement of withholding of tax on income.
(2) Upon written application to the division of unemployment compensation: In addition to the information that may be released to the division of workers' compensation commission for the purposes of this chapter under the provisions of chapter twenty-one-a of this code, the names, addresses and other identifying information of all employing units filing reports and information pursuant to section eleven, article ten, chapter twenty-one-a of this code as well as information contained in those reports regarding the number and names, addresses and social security numbers of employees employed and the gross quarterly wages paid by each employing unit to each identified employee.
(c) All information acquired by the division of workers' compensation commission pursuant to subsection (b) of this section shall be used only for auditing premium payments, assisting in the determination of employment status and registering businesses under the single point of registration program as defined in section two, article one, chapter eleven of this code. The division of workers' compensation commission, upon receiving the business franchise registration certificate information made available pursuant to subsection (b) of this section, shall contact all businesses receiving a business franchise registration certificate and provide all necessary forms to register the business under the provisions of this article. Any officer or employee of this state who uses the aforementioned information obtained under this section in any manner other than the one stated herein in this section or elsewhere authorized in this code, or who divulges or makes known in any manner any of the aforementioned information obtained under this section, shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned incarcerated in the county or regional jail for not more than one year, or both, together with cost of prosecution.
(d) Reasonable costs of compilation and production of any information made available pursuant to subsection (b) of this section shall be charged to the division of workers' compensation commission.
(e) Information acquired by the commissioner commission pursuant to subsection (b) of this section shall is not be subject to disclosure under the provisions of chapter twenty-nine-b of this code.
§23-2-3. Report forms and other forms for use of employers.
The division commission shall prepare and furnish report forms for the use of employers subject to this chapter. Every employer receiving from the division commission any form or forms with direction for completion and returning to the division commission shall return the same form, within the period fixed by the division commission, completed so as to answer fully and correctly all pertinent questions therein propounded in the form, and if unable to do so, shall give good and sufficient reasons for such the failure. Every employer subject to the provisions of this chapter, shall make application to the division commission on the forms prescribed by the division commission for such that purpose; and any employer who shall terminate terminates his or her business or for any other reason is no longer subject to this chapter shall so notify the division commission on forms to be furnished by the division commission for that purpose.
§23-2-4. Classification of industries; rate of premiums; authority to adopt various systems; accounts.

(a) The commissioner in conjunction with the compensation programs performance council is authorized to, executive director with approval of the management council is authorized to establish by rule a system for determining the classification and distribution into classes of employers subject to this chapter, a system for determining rates of premium taxes applicable to employers subject to this chapter, a system of multiple policy options with criteria for subscription thereto and criteria for an annual employer's statement providing both benefits liability information and rate determination information.
(1) In addition, the rule shall provide for, but not be limited to:
(A) Rate adjustments by industry or individual employer, including merit rate adjustments;
(B) Notification regarding rate adjustments prior to the quarter in which the rate adjustments will be in effect;
(C) Chargeability of claims; and
(D) Such Any further matters that are necessary and consistent with the goals of this chapter;
(2) The rule shall be consistent with the duty of the commissioner and the compensation programs performance council executive director and the management council to fix and maintain the lowest possible rates of premium taxes consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit that may exist in such fund the funds and in keeping with their fiduciary obligations to the fund;
(3) The rule shall be consistent with generally accepted accounting principles;
(4) The rule shall be consistent with classification and rate-making methodologies found in the insurance industry; and
(5) The rule shall be consistent with the principles of promoting more effective workplace health and safety programs as contained in article two-b of this chapter.
(b) Notwithstanding any other provision of this chapter to the contrary, the compensation programs performance council may elect to premise its premium tax determination methodology on the aggregate number of hours worked by employees of the employer rather than upon the gross wages of the employer. Such an election may apply to all industrial classifications or to less than all. If this election is made, then in all instances in which this chapter refers to gross wage reports for the purpose of premium tax determination such references shall be taken to mean a report of the number of hours so worked.
(c) The rule authorized by subsection (a) of this section shall be promulgated on or before the first day of July, one thousand nine hundred ninety-six. Until the rule is finally promulgated, the prior provisions of this section, as found in chapter one hundred seventy-one of the acts of the Legislature, one thousand nine hundred ninety-three, shall remain in effect.
(d) (b) In accordance with generally accepted accounting principles, the workers' compensation division commission shall keep an accurate accounting of all money or moneys earned, due and received by the workers' compensation fund and of the liability incurred and disbursements made against the same fund; and an accurate account of all money or moneys earned, due and received from each individual subscriber and of the liability incurred and disbursements made against the same.
(c) Prospective rates set in accordance with the provisions of this article shall at all times