__________*__________
Saturday, March 13, 2004
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 12, 2004, 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. 85, Requesting a study on complaints regarding home improvement contractors,
home building contractors and other complaints against contractors,
H. C. R. 86, Requesting the United States Corps of Engineers, the State Soil Conservation
Agency and the West Virginia Division of Highways to study the issue of flooding in Kanawha
County,
H. C. R. 87, Requesting a study on the projected costs and potential sources of revenue which may be made available to support a plan to provide public campaign finances for designated
elected offices,
S. C. R. 49, Urging President George W. Bush and Congress stop outsourcing American
jobs,
And,
S. C. R. 94, Urging U. S. Forest Service Division plan and develop trails for off-highway
vehicles in Monongahela National Forest,
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 given further consideration to:
Com. Sub. for S. B. 22, Requiring participation in motor vehicle alcohol test and lock
program for repeat offenders,
And reports the same back, by unanimous vote of the Committee, 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.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 22) will be placed on the
Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 71, Relating to verifying legal employment status of workers employed
in state,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 71) will be placed on the
Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 447, Relating to powers and duties of municipal courts to collect certain
moneys,
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. 31, Providing person not guilty of trespassing for hunting with dogs on
lands of another,
Com. Sub. for S. B. 315, Creating mental hygiene pilot program in certain counties or
circuits,
S. B. 510, Relating to commission on uniform state laws,
And,
S. B. 579, Relating to sex offender registration,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that they each do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bills (Com. Sub. for S. B. 31, Com. Sub. for S. B. 315,
S. B. 510 and S. B. 579) will be placed on the Consent Calendar.
Motions
The time limit having expired as to the Committee of Conference on H. B. 4084, West
Virginia Pharmaceutical Availability and Affordability Act, the Speaker was authorized to appoint
an additional committee of conference of five on the disagreeing votes of the two houses.
Whereupon,
The Speaker reappointed as members of such committee the following:
Delegates Campbell, Doyle, Foster, Perdue and Hall.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Executive
Mr. Speaker, Mr. Kiss, presents Executive Message No. 3, setting forth a list of annual
reports which have been received in the Office of the Governor, as required by law.
March 12, 2004
EXECUTIVE MESSAGE NO. 3
2004 REGULAR SESSION
The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Mr. Speaker:
Pursuant to the provisions of § 5-1-20 of the Code of West Virginia, I hereby certify that the
following 2002-2003 annual reports have been received in the Office of the Governor:
1. Accountancy, West Virginia Board of
2. Aeronautics Commission, West Virginia Department of Transportation
3. Affordable Housing Trust Fund, West Virginia
4. Architects, West Virginia State Board of
5. Association of Counties, West Virginia
6. Attorney General, Office of the
7. Banking, West Virginia Division of, West Virginia Department of Tax and Revenue
8. Barbers and Cosmetologists, Board of, West Virginia Department of Health and Human
Resources
9. Blind and Severely Disabled, West Virginia Society for
10. Cancer Registry, West Virginia Department of Health and Human Resources
11. Children and Families, Governor's Cabinet on
12. Children's Health Insurance Program, West Virginia Department of Administration
13. Chiropractic, West Virginia Board of
14. Coal Mine Health and Safety, Board of, and Coal Mine Safety Technical Review Committee,
West Virginia Bureau of Commerce
15. Commodities and Services from the Handicapped, Committee for the Purchase of
16. Community Corrections Act, Governors Committee on Crime, Delinquency and Correction,
Division of Criminal Justice Services, West Virginia Department of Military Affairs and
Public Safety
17. Consumer Advocate Division, West Virginia Public Service Commission
18. Consumer Protection and Antitrust Divisions, West Virginia Attorney General's Office
19. Corrections, Division of, West Virginia Department of Military Affairs and Public Safety
20. Court of Claims, West Virginia
21. Court of Claims, Crime Victims Compensation Fund, West Virginia
22. Dental Examiners, West Virginia Board of
23. Economic Development Authority, West Virginia
24. Education and State Employees Grievance Board, West Virginia
25. Education, Board of, and Education, Department of, West Virginia
26. Examiners in Counseling, West Virginia Board of
27. Employment Programs, West Virginia Bureau of
28. Environmental Protection, West Virginia Department of
29. Equal Employment Opportunity Office, West Virginia
30. Family Support, Bureau for Behavioral Health and Health Facilities, West Virginia
Department of Health and Human Resources
31. Fire Marshal, West Virginia State
32. Forestry, Division of, West Virginia Bureau of Commerce
33. Funeral Service Examiners, West Virginia Board of
34. General Administration Fund, West Virginia Division of Rehabilitation Services
35. Governor's Youth Advisory Board, West Virginia Human Rights Commission
36. Health Care Authority, West Virginia Department of Health and Human Resources
37. Holocaust Education Commission, West Virginia Department of Education and the Arts
38. Housing Development Fund, West Virginia
39. Human Rights Commission, State of West Virginia
40. Interstate Pest Control Compact, State of West Virginia Department of Agriculture
41. Investment Management Board, West Virginia
42. Juvenile Justice Subcommittee, Governor's Committee on Crime, Delinquency, and
Corrections, Division of Criminal Justice Services, West Virginia Department of Military
Affairs and Public Safety
43. Juvenile Services, Division of, West Virginia Department of Military Affairs and Public
Safety
44. Labor, Division of, West Virginia Bureau of Commerce
45. Land Surveyors, West Virginia State Board of Examiners of
46. Law Enforcement Training Subcommittee, Governor's Committee on Crime, Delinquency
and Correction, Division of Criminal Justice Services, West Virginia Department of Military
Affairs and Public Safety
47. Library Commission, West Virginia
48. Licensed Practical Nurses, West Virginia State Board of Examiners for
49. Long Term Care, Office of Health Facility Licensure and Certification, Department of Health
and Human Resources
50. Massage Therapy, West Virginia Licensure Board of
51. Medicine, West Virginia Board of (Volumes I and II)
52. Mine Inspectors Examining Board,West Virginia
53. Motor Vehicles, Division of, West Virginia Department of Transportation
54. Municipal Bond Commission, West Virginia
55. Natural Resources, West Virginia Division of
56. National and Community Service, West Virginia Commission for
57. Neighborhood Investment Program, West Virginia Development Office
58. Nursing Home Administrators Licensing Board, West Virginia
59. Nursing Shortage Study Commission, Board of Examiners for Registered Professional
Nurses, West Virginia
60. Occupational Therapy, West Virginia Board of
61. Oil and Gas Inspectors' Examining Board, West Virginia Department of Environmental
Protection
62. Optometry, West Virginia Board of
63. Osteopathy, West Virginia Board of
64. Parole Board, West Virginia Department of Military Affairs and Public Safety
65. Personnel, Division of, West Virginia Department of Administration
66. Physical Therapy, West Virginia Board of
67. Planning and Development Council, Region VII, West Virginia
68. Poison Center, Robert C. Byrd Health Sciences Center, Charleston
69. Professional Engineers, West Virginia State Board of Registration for
70. Psychologists, West Virginia Board of Examiners of
71. Public Defender Services, West Virginia Department of Administration
72. Public Service Commission
73. Purchasing, Division of, West Virginia Department of Administration
74. Radiologic Technology, West Virginia Board of Examiners for
75. Real Estate Commission, West Virginia
76. Registered Professional Nurses, West Virginia Board of Examiners for
77. Risk and Insurance Management, Board of, West Virginia Department of Administration
78. Senior Services, West Virginia Bureau of
79. Social Work Examiners, West Virginia Board of
80. Speech-Language Pathology and Audiology, West Virginia Board of Examiners for
81. State Police, West Virginia Department of Military Affairs and Public Safety
82. Technology, Governor's Office of
83. Veterans Affairs, Division of, West Virginia Department of Military Affairs and Public
Safety
84. Veterinary Medicine, West Virginia Board of
85. Water and Waste Managements' Groundwater Program, West Virginia Department of
Environmental Protection
86. Water Development Authority of West Virginia, Bureau of Commerce
87. Workers' Compensation Office of Judges, West Virginia
88. Workforce Investment Board, Inc., Northern Panhandle
89. Workforce Investment Division, Development Office, West Virginia Bureau of Commerce
Very truly yours,
Bob Wise,
Governor.
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. 2755, Creating a criminal penalty for persons receiving stolen property
that was obtained by means other than through the commission of a theft.
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 after the enacting clause and inserting in lieu thereof
the following:
"That §16-1-4 of the code of West Virginia, 1931, as amended, be amended and reenacted
to read as follows:
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-4. Proposal of rules by the secretary.
The secretary may propose rules, in accordance with the provisions of article three, chapter twenty-nine-a of the code, that are necessary and proper to effectuate the purposes of this chapter.
The secretary may appoint or designate advisory councils of professionals in the areas of hospitals,
nursing homes, barbers and beauticians, postmortem examinations, mental health and mental
retardation centers and any other areas necessary to advise the secretary on rules.
The rules may include, but are not limited to, the regulation of:
(a) Land usage endangering the public health: Provided, That no rules may be promulgated
or enforced restricting the subdivision or development of any parcel of land within which the
individual tracts, lots or parcels exceed two acres each in total surface area and which individual
tracts, lots or parcels have an average frontage of not less than one hundred fifty feet even though
the total surface area of the tract, lot or parcel equals or exceeds two acres in total surface area, and
which tracts are sold, leased or utilized only as single family dwelling units. Notwithstanding the
provisions of this subsection, nothing in this section may be construed to abate the authority of the
department to: (1) Restrict the subdivision or development of a tract for any more intense or higher
density occupancy than a single family dwelling unit; (2) propose or enforce rules applicable to
single family dwelling units for single family dwelling unit sanitary sewerage disposal systems; or
(3) restrict any subdivision or development which might endanger the public health, the sanitary
condition of streams, or sources of water supply;
(b) The sanitary condition of all institutions and schools, whether public or private, public
conveyances, dairies, slaughterhouses, workshops, factories, labor camps, all other places open to
the general public and inviting public patronage or public assembly, or tendering to the public any
item for human consumption, and places where trades or industries are conducted;
(c) Occupational and industrial health hazards, the sanitary conditions of streams, sources of water supply, sewerage facilities and plumbing systems and the qualifications of personnel
connected with any of those facilities, without regard to whether the supplies or systems are publicly
or privately owned; and the design of all water systems, plumbing systems, sewerage systems,
sewage treatment plants, excreta disposal methods and swimming pools in this state, whether
publicly or privately owned;
(d) Safe drinking water, including:
(1) The maximum contaminant levels to which all public water systems must conform in
order to prevent adverse effects on the health of individuals, and, if appropriate, treatment techniques
that reduce the contaminant or contaminants to a level which will not adversely affect the health of
the consumer. The rule shall contain provisions to protect and prevent contamination of wellheads
and well fields used by public water supplies so that contaminants do not reach a level that would
adversely affect the health of the consumer;
(2) The minimum requirements for: Sampling and testing; system operation; public
notification by a public water system on being granted a variance or exemption or upon failure to
comply with specific requirements of this section and rules promulgated under this section; record
keeping; laboratory certification; as well as procedures and conditions for granting variances and
exemptions to public water systems from state public water systems rules; and
(3) The requirements covering the production and distribution of bottled drinking water and
may establish requirements governing the taste, odor, appearance and other consumer acceptability
parameters of drinking water;
(e) Food and drug standards, including cleanliness, proscription of additives, proscription of
sale and other requirements in accordance with article seven of this chapter, as are necessary to protect the health of the citizens of this state;
(f) The training and examination requirements for emergency medical service attendants and
emergency medical care technician-paramedics; the designation of the health care facilities, health
care services, and the industries and occupations in the state that must have emergency medical
service attendants and emergency medical care technician-paramedics employed, and the availability,
communications, and equipment requirements with respect to emergency medical service attendants
and to emergency medical care technician-paramedics: Provided, That any regulation of emergency
medical service attendants and emergency medical care technician-paramedics shall not exceed the
provisions of article four-c of this chapter;
(g) The health and sanitary conditions of establishments commonly referred to as bed and
breakfast inns. For purposes of this article, 'bed and breakfast inn' means an establishment
providing sleeping accommodations and, at a minimum, a breakfast for a fee: Provided, That the
secretary may not require an owner of a bed and breakfast providing sleeping accommodations of
six or fewer rooms to install a restaurant style or commercial food service facility: Provided,
however, That the secretary may not require an owner of a bed and breakfast providing sleeping
accommodations of more than six rooms to install a restaurant-type or commercial food service
facility if the entire bed and breakfast inn or those rooms numbering above six are used on an
aggregate of two weeks or less per year;
(h) Fees for services provided by the bureau for public health including, but not limited to,
laboratory service fees, environmental health service fees, health facility fees and permit fees;
(i) The collection of data on health status, the health system and the costs of health care; and
(j) Opioid treatment programs duly licensed and operating under the requirements of chapter twenty-seven of this code. The secretary shall promulgate emergency rules to govern such programs:
Provided, That there shall be a moratorium on the licensure of new opioid treatment programs that
do not have a certificate of need as of the effective date of this subsection until such time as the
secretary files emergency rules with the secretary of state to regulate such programs. All existing
opioid treatment programs shall be in compliance within one hundred eighty days of the effective
date of this rule; and
_________________________(j) (k) Other health-related matters which the department is authorized to supervise and for
which the rule-making authority has not been otherwise assigned."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2755 - "A Bill to amend and reenact §16-1-4 of the code of West
Virginia, 1931, as amended, relating to authorizing the secretary of the department of health and
human resources to promulgate emergency rules to regulate opioid treatment centers; establishing
a moritorium on licensure of new opioid treatment facilities without certificates of need until
emergency rule filed; and establishing time period for compliance."
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. 594), 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, Faircloth, R. M. Thompson and Webster.
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. 2755) 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. 2991, Relating to the fee charged by fiduciary commissioners in settling an estate.
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 after the enacting clause and inserting in lieu thereof
the following:
"That §44-2-2 of the code of West Virginia, 1931, as amended, be repealed; that said code
be amended by adding thereto a new section, designated §41-5-1a; that §44-1-1, §44-1-6 and
§44-1-14a of said code be amended and reenacted; that said code be amended by adding thereto a
new section, designated §44-1-4a; and that §44-2-1 of said code be amended and reenacted, all to
read as follows:
CHAPTER 41. WILLS.
ARTICLE 5. PRODUCTION, PROBATE AND RECORD OF WILLS.
§41-5-1a. Record notice of a person's death by filing a death certificate and will, if any.
Notwithstanding any provision of this code to the contrary, a death certificate and a will, if
any, of a person who was a resident of the county or who owned property in the county at the time
of death may be filed with the clerk of the county commission for the purposes of providing record
notice of the person's death. The filing of a death certificate and a will, if any, does not commence probate of the person's estate.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-1. Executor has no powers before qualifying.
(a) A person appointed by a will as executor thereof shall or executrix of the will does not
have the powers of executor or executrix until he qualify as such by taking an oath before or she
qualifies by:
_______________(1) (A) Filing with the clerk of the county commission or fiduciary supervisor a statement:
_______________(i) Submitting to the jurisdiction of the courts of this state; and
_______________(ii) Containing the names and last known addresses, if known, of any persons who would
take any part of the estate as required in section thirteen of this article;
_______________(B) The statement shall be sworn to by oath or affirmation before a notary public or other
person authorized to administer oaths in this state; and
_______________(2) Giving bond the county court in which for his or her service in this state unless the will
or an authenticated copy thereof of the will is admitted to record or before the clerk thereof in
vacation, except that which specifically states that the representative shall serve without bond, and
the will: Provided, That he or she may provide for the burial of the testator funeral arrangements
of the testator, pay reasonable funeral expenses and preserve the estate from waste.
(b) The clerk may require a person appointed by the will to appear personally to give the oath,
for good cause found and specifically stated in a letter or notice mailed to the person.
§44-1-4a. No probate of small estates.
In any estate where the probate assets of the estate, excluding real estate, have a value of one hundred thousand dollars or less, the personal representative in addition to qualifying under section
one-a or three of this article may file a sworn affidavit stating that the value of the estate, exclusive
of real estate, has a value of one hundred thousand dollars or less exclusive of real estate and all
known or discovered debts are or will be satisfied in the next immediately succeeding one hundred
eighty days. If no protests or claims are filed within ninety days after notice is published pursuant
to section fourteen-a of this article, the estate shall be closed by the clerk without further action or
administration. If a protest or claim is received within ninety days, or if the personal representative
reports to the clerk that a debt of the estate was not satisfied, or will not be satisfied, within the one
hundred eighty-day period specified in the affidavit, the personal representative shall begin probate
of the estate pursuant to the provisions of this chapter.
§44-1-6. Bond and oath; termination of grant in certain cases.
(a) At the time of the grant of administration upon the estate of any intestate, the person to
whom it is granted shall: in the court or before the clerk granting it, give
(1)(A) File with the clerk of the county commission or fiduciary supervisor a statement:
_______________(i) Submitting to the jurisdiction of the courts of this state;
_______________(ii) Averring that the deceased left no will so far as he or she knows;
_______________(iii) Containing the names and addresses, if known, of any persons who would take any part
of the estate as required in section thirteen of this article; and
_______________(iv) That he or she will faithfully perform the duties of the office to the best of his or her
judgment;
_______________(B) The statement shall be sworn to by oath or affirmation before a notary public or other
person authorized to administer oaths in this state; and
_______________(2) Give bond and take an oath that the deceased has left no will so far as he knows, and that
he will faithfully perform the duties of his office to the best of his judgment for his or her service in
this state.
(b) The clerk may require a person seeking to be appointed under this section to appear
personally to give the oath, for good cause found and specifically stated in a letter or notice mailed
to the person.
_______________(c) If a will of the deceased be is afterwards admitted to record or if, after administration is
granted to a creditor or other person other than a distributee, any distributee who shall not have has
not before been refused shall may apply for administration and there may shall be a grant of probate
or administration, after reasonable notice to such creditor or other the person theretofore appointed,
in like manner as if the former grant had not been made, and such the former grant shall thereupon
cease upon paying over of the estate which came into the former's hand to the subsequent
representative.
§44-1-14a. Notice of administration of estate; time limits for filing of objections; liability of
personal representative.
(a) Within thirty days of the filing of the appraisement of any estate as required in section
fourteen of this article, On or before the fifteenth day of each month, the clerk of the county
commission shall publish, once a week for two successive weeks, in a newspaper of general
circulation within the county of the administration of the estate, a notice of the filing of the
appraisement of any estate as required in section fourteen of this article which is to include:
(1) The name of the decedent;
(2) The name and address of the county commission before whom the proceedings are pending;
(3) The name and address of the personal representative;
(4) The name and address of any attorney representing the personal representative;
(5) The name and address of the fiduciary commissioner, if any;
(6) The date of first publication;
(7) A statement that claims against the estate must be filed in accordance with the provisions
of article two or article three-a of this chapter;
(8) A statement published pursuant to article four-a of this chapter shall state that if no protest
or claim on estate assets is made within ninety days, the estate will be closed without administration
and no further protests or claims will be accepted, except as may otherwise be permitted by law;
_____(8) (9) A statement that any person seeking to impeach or establish a will must make a
complaint in accordance with the provisions of section eleven, twelve or thirteen, article five, chapter
forty-one of this code;
(9) (10) A statement that an interested person objecting to the qualifications of the personal
representative or the venue or jurisdiction of the court must be filed with the county commission
within three months after the date of first publication or thirty days of service of the notice,
whichever is later; and
(10) (11) If the appraisement of the assets of the estate shows the value to be one hundred
thousand dollars or less, exclusive of real estate specifically devised and nonprobate assets or, if it
appears to the clerk that there is only one beneficiary of the probate estate and that the beneficiary
is competent at law, a statement substantially as follows: 'Settlement of the estate of the following
named decedents will proceed without reference to a fiduciary commissioner unless within ninety days from the first publication of this notice a reference is requested by a party in interest or an
unpaid creditor files a claim and good cause is shown to support reference to a fiduciary
commissioner'.
(b) At any time an estate is to be referred to a fiduciary commissioner, as part of the next
publication as required in subsection (a) of this section, notice that the estate has been referred and
the date by which claims against the estate must be filed. The publication of notice shall include the
information required in subdivisions (1), (2), (3), (4), (5) and (6), subsection (a) of this section. This
publication of notice is equivalent to personal service on the estate's creditors, distributees or
legatees.
_____(b) (c) If no appraisement is filed within the time period established pursuant to section
fourteen of this article, unless the estate is closed by the clerk pursuant to section four-a of this
article, the county clerk shall send a notice to the personal representative by first-class mail, postage
prepaid, indicating that the appraisement has not been filed. Notwithstanding any other provision
of this code to the contrary, the county clerk shall publish the notice required in subsection (a) of this
section within six months of the qualification of the personal representative.
(c) (d) The personal representative shall promptly make a diligent search to determine the
names and addresses of creditors of the decedent who are reasonably ascertainable.
(d) (e) The personal representative shall, within ninety days after the date of first publication,
serve a copy of the notice, published pursuant to subsection (a) of this section, by first-class mail,
postage prepaid, or by personal service on the following persons:
(1) If the personal representative is not the decedent's surviving spouse and not the sole
beneficiary or sole heir, the decedent's surviving spouse, if any;
(2) If there is a will and the personal representative is not the sole beneficiary, any
beneficiaries;
(3) If there is not a will and the personal representative is not the sole heir, any heirs;
(4) The trustee of any trust in which the decedent was a grantor, if any; and
(5) All creditors identified under subsection (c) (d) of this section, other than a creditor who
filed a claim as provided in article two of this chapter or a creditor whose claim has been paid in full.
(e) (f) Any person interested in the estate who objects to the qualifications of the personal
representative or the venue or jurisdiction of the court shall file notice of an objection with the
county commission within ninety days after the date of the first publication as required in subsection
(a) of this section or within thirty days after service of the notice as required by subsection (d) (e)
of this section, whichever is later. If an objection is not timely filed, the objection is forever barred.
(f) (g) A personal representative acting in good faith is not personally liable for serving notice
under this section, notwithstanding a determination that notice was not required by this section. A
personal representative acting in good faith who fails to serve the notice required by this section is
not personally liable. The service of the notice in accordance with this subsection may not be
construed to admit the validity or enforceability of a claim.
(g) (h) The clerk of the county commission shall collect a fee of twenty dollars for the
publication of the notice required in this section.
(h) (i) For purposes of this section, the term beneficiary means a person designated in a will
to receive real or personal property.
ARTICLE 2. PROOF AND ALLOWANCE OF CLAIMS AGAINST ESTATES OF
DECEDENTS.
§44-2-1. Reference of decedents' estates; proceedings thereon.
(a) Upon the return of the appraisement by the personal representative to the county clerk,
the estate of his or her decedent, by order of the county commission, must be referred to a fiduciary
commissioner for proof and determination of debts and claims, establishment of their priority,
determination of the amount of the respective shares of the legatees and distributees, and any other
matter necessary for the settlement of the estate: Provided, That in counties where there are two or
more commissioners, the estates of decedents must be referred to the commissioners in rotation, so
there may be an equal division of the work. Notwithstanding any other provision of this code to the
contrary, a fiduciary commissioner may not charge to the estate a fee greater than three hundred
dollars and expenses for the settlement of an estate, except upon: (i) Approval of the personal
representative; or (ii) a determination by the county commission after a hearing that complicating
issues or problems attendant to the settlement substantiate the allowance of a greater fee that the fee
is based upon the actual time spent and actual services rendered pursuant to a schedule of fees or rate
of compensation for fiduciary commissioners promulgated by the commission in accordance with
the provisions of section nine, article one, chapter fifty-nine of this code.
(b) If the personal representative delivers to the clerk an appraisement of the assets of the
estate showing their value to be one hundred thousand dollars or less, exclusive of real estate
specifically devised and nonprobate assets, or if it appears to the clerk that there is only one
beneficiary of the probate estate and that the beneficiary is competent at law, the clerk shall record
the appraisement. If an unpaid creditor files a claim against the estate, the personal representative
has twenty days after the date of the filing of a claim against the estate of the decedent to approve
or reject the claim before the estate is referred to a fiduciary commissioner. If the personal representative approves all claims as filed, then no reference may be made.
The personal representative shall, within a reasonable time after the date of recordation of
the appraisement: (i) File a waiver of final settlement in accordance with the provisions of section
twenty-nine of this article; or (ii) make a report to the clerk of his or her receipts, disbursements and
distribution and submit an affidavit stating that all claims against the estate for expenses of
administration, taxes and debts of the decedent have been paid in full. Upon receipt of the waiver
of final settlement or report, the clerk shall record the waiver or report and mail copies to each
beneficiary and creditor by first-class mail, postage prepaid. The clerk shall retain the report for ten
days to allow any beneficiary or creditor to appear before the county commission to request reference
to a fiduciary commissioner. The clerk shall collect a fee of ten dollars for recording and mailing
the waiver of final settlement or report.
If no request or objection is made to the clerk or to the county commission, the county
commission may confirm the report of the personal representative, the personal representative and
his or her surety shall be discharged; but if an objection or request is made, the county commission
may confirm and record the accounting or may refer the estate to its fiduciary commissioners:
Provided, That the personal representative has twenty days after the date of the filing of a claim
against the estate of the decedent to approve or reject the claim before the estate is referred to a
fiduciary commissioner and if all claims are approved as filed, then no reference may be made.
(c) For purposes of this section, the term beneficiary means a person designated in a will to
receive real or personal property."
And,
By amending the title of the bill to read as follows:
H. B. 2991 - "A Bill to repeal §44-2-2 of the code of West Virginia, 1931, as amended; to
amend said code by adding thereto a new section, designated §41-5-1a; to amend and reenact
§44-1-1, §44-1-6 and §44-1-14a of said code; to amend said code by adding thereto a new section,
designated §44-1-4a; and to amend and reenact §44-2-1 of said code, all relating to decedents and
their estates generally; creating the 'Small Estate Probate Relief Act of 2004'; providing record
notice of death; permitting personal representatives to qualify without appearing personally;
eliminating administration of small uncontested estates of one hundred thousand dollars or less in
assets exclusive of real estate assets; modifying the time of publication of notice of the filing of an
appraisement; modifying the contents of notice of probate of estates; allowing estates having a value
of one hundred thousand dollars to be probated without reference to a fiduciary commissioner;
permitting county commissions to promulgate fees for fiduciary commissioners; and standardizing
certain provisions governing probate which relate to fiduciary supervisors and county clerks."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate
amendments 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, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4019, Prohibiting the division of motor vehicles' sale of personal
information for bulk distribution of surveys, marketing and solicitations.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 2A. UNIFORM MOTOR VEHICLE RECORDS DISCLOSURE ACT.
§17A-2A-4. Prohibition on disclosure and use of personal information from motor vehicles
records.
Notwithstanding any other provision of law to the contrary, and except as provided in
sections five through eight, both inclusive, of this article, the division, and any officer, employee,
agent or contractor thereof may not disclose any personal information obtained by the division in
connection with a motor vehicle record. Notwithstanding the provisions of this article or any other
provision of law to the contrary, finger images obtained and stored by the division of motor vehicles
as part of the driver's licensing process may not be disclosed to any person or used for any purpose
other than the processing and issuance of driver's licenses and associated legal action unless the
disclosure or other use is expressly authorized by this code. Notwithstanding the provisions of this
article or any other provision of law to the contrary, an individual's photograph or image, social
security number, and medical or disability information shall not be disclosed pursuant to West
Virginia Code §17A-2A-7(2),(3),(5),(7),(8),(10) and (11), without the express written consent of the
person to whom such information applies.
§17A-2A-7. Permitted disclosures.
The division or its designee shall disclose personal information as defined in section three of
this article to any person who requests the information if the person: (a) Has proof of his or her
identity; and (b) verifies that the use of the personal information will be strictly limited to one or more of the following:
(1) For use by any governmental agency, including any court or law-enforcement agency, in
carrying out its functions, or any private person or entity acting on behalf of a governmental agency
in carrying out its functions;
(2) For use in connection with matters of motor vehicle or driver safety and theft, motor vehicle
product alterations, recalls or advisories, performance monitoring of motor vehicles, motor vehicle
parts and dealers, motor vehicle market research activities including survey research and removal
of nonowner records from the original owner records of motor vehicle manufacturers;
(3) For use in the normal course of business by a legitimate business or its agents, employees
or contractors:
(A) For the purpose of verifying the accuracy of personal information submitted by the
individual to the business or its agents, employees or contractors; and
(B) If the information as submitted is not correct or is no longer correct, to obtain the correct
information, but only for the purposes of preventing fraud by, pursuing legal remedies against or
recovering on a debt or security interest against the individual;
(4) For use in conjunction with any civil, criminal, administrative or arbitral proceeding in any
court or governmental agency or before any self-regulatory body, including the service of process,
investigation in anticipation of litigation, the execution or enforcement of judgments and orders or
pursuant to an order of any court;
(5) For use in research and producing statistical reports, so long as the personal information
is not published, redisclosed or used to contact individuals;
(6) For use by any insurer or insurance support organization or by a self-insured entity, its agents, employees or contractors in connection with claim investigation activities, antifraud
activities, rating or underwriting;
(7) For use in providing notice to the owners of towed or impounded vehicles;
(8) For use by any licensed private investigator agency or licensed security service for any
purpose permitted under this section;
(9) For use by an employer or its agent or insurer to obtain or verify information relating to a
holder of a commercial driver's license that is required under the Commercial Motor Vehicle Safety
Act of 1986 (49 U.S.C. App. 2710 et seq.);
(10) For use in connection with the operation of private toll transportation facilities; and
(11) For bulk distribution for surveys, marketing or solicitations after the division has
implemented methods and procedures to ensure that the information will be used, rented or sold
solely for bulk distribution for surveys, marketing and solicitations, and only if the person whose
information will be used has authorized the use of his or her name and address for those purposes;
and
(12) (11) For any other use specifically authorized by law that is related to the operation of a
motor vehicle or public safety.
§17A-2A-11. Resale or redisclosure.
(a) An authorized recipient of personal information except a recipient under subsection (11),
section seven of this article may resell or redisclose the information for any use permitted under said
section seven. except the use for bulk distribution for surveys, marketing or solicitations as provided
in subsection (11), section seven of this article
(b) An authorized recipient of personal information for bulk distribution for surveys, marketing or solicitations, under subsection (11), section seven of this article may resell or redisclose personal
information only in accordance with the terms of said subsection allowing surveys for marketing and
solicitations to be directed only to those individuals who have authorized the use of their name and
address for those purposes.
(c) (b) Any authorized recipient who resells or rediscloses personal information shall: (1)
Maintain for a period of not less than five years, records as to the person or entity receiving
information, and the permitted use for which it was obtained; (2) make the records available for
inspection by the division, upon request; and (3) only be disseminated in accordance with express
consent obtained pursuant to 17A-2A-4."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B 4019 - "A Bill to amend and reenact §17A-2A-4, §17A-2A-7 and
§17A-2A-11 of the code of West Virginia, 1931, as amended, all relating to limiting disclosure of
personal information from motor vehicle records; prohibiting the division of motor vehicles' sale
of personal information for bulk distribution of surveys, marketing and solicitations."
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
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Coleman and Faircloth.
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. 4019) 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. 4037, Providing for safe schools through alternative education
programs and providing certain juvenile justice records to public school officials.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-17. Confidentiality of juvenile records.
(a) Records of a juvenile proceeding conducted under this chapter are not public records and
shall not be disclosed to anyone unless disclosure is otherwise authorized by this section.
(b) Notwithstanding the provisions of subsection (a) of this section, a copy of a juvenile's
records shall automatically be disclosed to certain school officials, subject to the following terms and
conditions:
(1) Only the records of certain types of juvenile juveniles records shall be disclosed. These
include and are limited to cases in which:
(A) The juvenile has been charged with an offense which: would be a felony if the juvenile
were an adult and
(i) The offense Involves violence against another person;
(ii) The offense Involves possession of a dangerous or deadly weapon; or
(iii) The offense Involves possession or delivery of a controlled substance as that term is
defined in section one hundred one, article one, chapter sixty-a of this code; and
(B) The juvenile juvenile's case has proceeded to a point where one or more of the following
has occurred:
(i) A judge, magistrate or referee has determined that there is probable cause to believe that
the juvenile committed the offense as charged;
(ii) A judge, magistrate or referee has placed the juvenile on probation for the offense;
(iii) A judge, magistrate or referee has placed the juvenile into an improvement period in
accordance with section nine article five, chapter forty-nine of this code of this article; or
(iv) Some other type of disposition has been made of the case other than dismissal.
(2) The circuit court for each judicial circuit in West Virginia shall designate one person to
supervise the disclosure of juvenile records to certain school officials.
(3) If the juvenile attends a West Virginia public school, the person designated by the circuit
court shall automatically disclose all records of a juvenile the juvenile's case to the county
superintendent of schools in the county in which the juvenile attends school The person designated
by the circuit court shall also automatically disclose all records of a juvenile case and to the principal
of the school which the juvenile attends, subject to the following:
_____(A) At a minimum, the records shall disclose the following information:
_____(i) Copies of the arrest report;
_____(ii) Copies of all investigations;
_____(iii) Copies of any psychological test results and any mental health records;
_____(iv) Copies of any evaluation reports for probation or facility placement; and
_____(v) Any other material that would alert the school to potential danger that the juvenile may
pose to himself, herself or others;
_____(B) The disclosure of the juvenile's psychological test results and any mental health records
shall only be made in accordance with subdivision (14) of this subsection;
_____(C) If the disclosure of any record to be automatically disclosed under this section is
restricted in its disclosure by the Health Insurance Portability and Accountability Act of 1996 and
any amendments and regulations under the Act, the person designated by the circuit court shall
provide the superintendent and principal any notice of the existence of the record that is permissible
under the Act and, if applicable, any action that is required to obtain the record; and
_____(D) When multiple disclosures are required by this subsection, the person designated by the
circuit court is required to disclose only material in the juvenile record that had not previously been
disclosed to the county superintendent and the principal of the school which the juvenile attends.
(4) If the juvenile attends a private school in West Virginia, the person designated by the
circuit court shall determine the identity of the highest ranking person at that school, and shall
automatically disclose all records of a juvenile's case to that person.
(5) If the juvenile does not attend school at the time the juvenile's case is pending, the person
designated by the circuit court shall not transmit the juvenile's records to any school. However, the
person designated by the circuit court shall transmit the juvenile's records to any school in West
Virginia which the juvenile subsequently attends.
(6) The person designated by the circuit court shall not automatically transmit juvenile
records to a school which is not located in West Virginia. Instead, the person designated by the
circuit court shall contact the out-of-state school, inform it that juvenile records exist, and make an
inquiry regarding whether the laws of that state permit the disclosure of juvenile records. If so, the
person designated by the circuit court shall consult with the circuit judge who presided over the case
to determine whether the juvenile records should be disclosed to the out-of-state school. The circuit
judge shall have discretion in determining whether to disclose the juvenile records, and shall
consider whether the other state's law regarding disclosure provides for sufficient confidentiality of
juvenile records, using this section as a guide. If the circuit judge orders the juvenile records to be
disclosed, they shall be disclosed in accordance with the provisions of subdivision (7) of this
subsection.
(7) The person designated by the circuit court shall transmit the juvenile's records to the
appropriate school official under cover of a letter emphasizing the confidentiality of such records and
directing the official to consult this section of the code. A copy of this section of the code shall be
transmitted with the juvenile's records and cover letter.
(8) Juvenile records must be treated as absolutely confidential by the school official to whom
they are transmitted, and nothing contained within the juvenile's records shall be noted on the
juvenile's permanent educational record. The juvenile records are to be maintained in a secure
location and are not to be copied under any circumstances. However, the principal of a school to
whom the records are transmitted shall have the duty to disclose the contents of those records to any
teacher who teaches a class in which the subject juvenile is enrolled and to the regular driver of a
school bus in which the subject juvenile is regularly transported to or from school, except that the disclosure of the juvenile's psychological test results and any mental health records shall only be
made in accordance with subdivision (14) of this subsection. Furthermore, any school official to
whom the juvenile's records are transmitted may disclose the contents of such records to any adult
within the school system who, in the discretion of the school official, has the need to be aware of the
contents of those records.
(9) If for any reason a juvenile ceases to attend a school which possesses that juvenile's
records, the appropriate official at that school shall seal the records and return them to the circuit
court which sent them to that school. If the juvenile has changed schools for any reason, the former
school shall inform the circuit court of the name and location of the new school which the juvenile
attends or will be attending. If the new school is located within West Virginia, the person designated
by the circuit court shall forward the juvenile's records to the juvenile's new school in the same
manner as provided in subdivision (7) of this subsection. If the new school is not located within
West Virginia, the person designated by the circuit court shall handle the juvenile records in
accordance with subdivision (6) of this subsection.
If the juvenile has been found not guilty of an offense for which records were previously
forwarded to the juvenile's school on the basis of a finding of probable cause, the circuit court shall
not forward those records to the juvenile's new school. However, this shall not affect records related
to other prior or future offenses. If the juvenile has graduated or quit school, or will otherwise not
be attending another school, the circuit court shall retain the juvenile's records and handle them as
otherwise provided in this article.
(10) Under no circumstances shall one school transmit a juvenile's records to another school.
(11) Under no circumstances shall juvenile records be automatically transmitted to a college,
university or other post-secondary school.
(12) No one shall suffer any penalty, civil or criminal, for accidentally or negligently
attributing certain juvenile records to the wrong person. However, such person shall have the
affirmative duty to promptly correct any mistake that he or she has made in disclosing juvenile
records when the mistake is brought to his or her attention. A person who intentionally attributes
false information to a certain person shall be subjected to both criminal and civil penalties, in
accordance with subsection (e) of this section.
(13) If a judge, magistrate or referee has determined that there is probable cause to believe
that a juvenile has committed an offense but there has been no final adjudication of the charge, the
records which are transmitted by the circuit court shall be accompanied by a notice which clearly
states in bold print that there has been no determination of delinquency and that our legal system
requires a presumption of innocence.
(14) The county superintendent shall designate the school psychologist or psychologists to
receive the juvenile's psychological test results and any mental health records. The psychologist
designated shall review the juvenile's psychological test results and any mental health records, and,
in the psychologist's professional judgement, may disclose to the principal of the school that the
juvenile attends and other school employees who would have a need to know the psychological test
results, mental health records and any behavior that may trigger violence or other disruptive behavior
by the juvenile. Other school employees includes, but is not limited to, any teacher who teaches a
class in which the subject juvenile is enrolled and the regular driver of a school bus in which the
subject juvenile is regularly transported to or from school.
(c) Notwithstanding the provisions of subsection (a) of this section, juvenile records may be
disclosed, subject to the following terms and conditions:
(1) If a juvenile case is transferred to the criminal jurisdiction of the circuit court pursuant
to the provisions of subsection (c) or (d), section ten of this article, the juvenile records shall be open
to public inspection.
(2) If a juvenile case is transferred to the criminal jurisdiction of the circuit court pursuant
to the provisions of subsection (e), (f) or (g), section ten of this article, the juvenile records shall be
open to public inspection only if the juvenile fails to file a timely appeal of the transfer order, or the
supreme court of appeals refuses to hear or denies an appeal which has been timely filed.
(3) If a juvenile is fourteen years of age or older and a court has determined there is a
probable cause to believe the juvenile committed an offense set forth in subsection (g), section ten
of this article, but the case is not transferred to criminal jurisdiction, the juvenile records shall be
open to public inspection pending trial only if the juvenile is released on bond and no longer detained
or adjudicated delinquent of the offense.
(4) If a juvenile is younger than fourteen years of age and a court has determined there is
probable cause to believe that the juvenile committed the crime of murder under section one, two
or three, article two, chapter sixty-one of this code, or the crime of sexual assault in the first degree
under section three, article eight-b of said chapter, but the case is not transferred to criminal
jurisdiction, the juvenile records shall be open to public inspection pending trial only if the juvenile
is released on bond and no longer detained or adjudicated delinquent of the offense.
(5) Upon a written petition and pursuant to a written order, the circuit court may permit
disclosure of juvenile records to:
(A) A court which has juvenile jurisdiction and has the juvenile before it in a juvenile
proceeding;
(B) A court exercising criminal jurisdiction over the juvenile which requests such records
for the purpose of a presentence report or disposition proceeding;
(C) The juvenile, the juvenile's parents or legal guardian, or the juvenile's counsel;
(D) The officials of a public institution to which the juvenile is committed if they require
such records for transfer, parole or discharge; or
(E) A person who is conducting research. However, juvenile records may be disclosed for
research purposes only upon the condition that information which would identify the subject juvenile
or the juvenile's family shall not be disclosed.
(d) Any records open to public inspection pursuant to the provisions of this section are
subject to the same requirements governing the disclosure of adult criminal records.
(e) Any person who willfully violates this section shall be 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 for not more than six months, or both so fined and confined, and shall be liable for
damages in the amount of three hundred dollars or actual damages, whichever is greater."
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
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Coleman and Faircloth.
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. 4037) 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. 4250, Providing good faith protection for licensed psychologists and
psychiatrists acting upon appointment by a court in child custody cases.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-21. Creating presumption of good faith for court appointed licensed psychologists and
psychiatrists conducting a child custody evaluation; method for
assigning court and legal fees.
(a) A licensed psychologist or licensed psychiatrist who has been appointed by a court to
conduct a child custody evaluation in a judicial proceeding shall be presumed to be acting in good
faith if the evaluation has been conducted consistent with standards established by the American
psychological association's guidelines for child custody evaluations in divorce proceedings.
(b) No complaint to a licensing or accrediting entity against a court appointed licensed
psychologist or psychiatrist relating to a child custody evaluation shall be considered if it is filed
anonymously and does not include the full name, address and telephone number of the complainant.
(c) Any action filed against a licensed psychologist or licensed psychiatrist alleging tortious
conduct related to evidence provided while acting as a court-appointed expert in a child custody
matter shall contain a recitation of a specific allegation of breaches of American psychological
association's guidelines for child custody evaluations in divorce proceedings. Failure to specifically
plead such violations shall be cause for dismissal of the action
(d) Any licensed psychologist or licensed psychiatrist who is named in a civil action as a
defendant because of his or her performance of a child custody evaluation while acting as a court-
appointed expert and who prevails due to a finding that he or she acted consistently with the
American psychological association's guidelines shall be entitled to reimbursement of all reasonable
costs and attorneys fees expended."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4250 - "A Bill to amend the code of West Virginia, 1931, as amended
by adding thereto a new section, designated §55-7-21, relating to legal actions against psychologists
and psychiatrists appointed by a court to provide expert testimony for child custody evaluations;
providing standard for good faith; barring of anonymous administrative complaints; providing
method for assigning costs of proceedings; and awarding of attorneys fees."
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. 597), 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 Faircloth.
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. 4250) 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. 4259, Revising the composition, powers and duties of the Governor's
Cabinet on Children and Families.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page eighteen, section three, by striking out all of subdivisions (5) and (6) and inserting
in lieu thereof the following:
"(5) Report annually to the Joint Committee on Government and Finance on its progress in
implementing the comprehensive multi-year state plan required under subdivision (2) of this section;
and
(6) Submit an annual electronic report before the first day of January to the Legislature and
a written copy of the report to the legislative librarian on its financial transactions for the preceding
year, minutes of its meetings, narrative descriptions of any training sessions, conferences or other events, and a progress report on its implementation of the comprehensive multi-year state plan
required under subdivision (2) of this section."
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. 598), 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. 4259) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 599), 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. 4259) takes effect from 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. 4330, Revising the law governing vital records.
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, by striking out everything after the enacting clause and inserting in lieu
thereof the following:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §16-5-36, to read as follows:
ARTICLE 5. VITAL STATISTICS.
§16-5-36. Electronic filing.
That any certificate filed pursuant to this article may be filed electronically."
And,
By amending the title of the bill to read as follows:
H. B. 4330 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §16-5-36, relating to vital statistics; authorizing electronic filing
of certificates."
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. 600), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: R. Thompson.
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. 4330) 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. 4354, Authorizing county commissions to adopt ordinances to reduce
false alarms.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section in inserting in lieu thereof
the following:
"ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3oo. Authority to adopt ordinances relating to false alarms.
(a) In addition to all other powers and duties they now possess, county commissions may
enact ordinances, establish a system of administration and enforcement, assess fees and penalties,
issue orders and take other necessary and appropriate actions for the reduction and elimination of
false alarms.
(b) The provisions of any false alarm ordinance adopted by a county commission pursuant
to this section shall take precedence over any other county ordinance pertaining to false alarms.
(c) Any false alarm ordinance adopted by a county commission shall provide that on or
before the first day of January 2006, county 911 centers will only accept calls from Underwriters
Laboratories certified central stations and be consistent with the standards relating to burglar, security, medical and fire alarms as established by the National Burglar and Fire Alarm Association,
the National Alarm Reduction Association, or their successor organizations.
(d) The county commission shall appoint an alarm administrator to administer the false alarm
ordinance. In counties that have an enhanced emergency telephone system pursuant to section six,
article six, chapter twenty-four, the enhanced emergency telephone system director shall be the
administrator. In counties without an enhanced emergency telephone system, the alarm administrator
shall be knowledgeable and qualified in the areas of alarm systems and false alarm reduction efforts.
(e) The false alarm ordinance shall provide for the appointment of a false alarm advisory
board, which shall consist of the alarm administrator, the county sheriff or other law-enforcement
officer, a chief from a county fire department, or his or her designee, a representative from the alarm
industry, and a member-at-large selected by the county commission to serve a two-year term. The
advisory board shall review, assist and make recommendations concerning false alarm reduction
efforts and report to the commission."
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. 601), 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. 4354) 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. 4433, Creating the crime of abuse and neglect of an elderly person and
the crime of misuse or misappropriation of the funds or assets of an elderly person.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; abuse or neglect of elder person;
misappropriation or misuse of assets or funds of elder person;
misappropriation or misuse of assets or funds of elder person through
deception, intimidation, coercion, bodily injury or threats of bodily
injury; penalties.
(a) The following words when used in this section have the meaning ascribed, unless the
context clearly indicates otherwise:
(1) 'Abuse' means the infliction or threat to inflict physical pain or injury on an incapacitated
adult or elder person;
(2) 'Caregiver' means an adult who has or shares actual physical possession or care of an
incapacitated adult or elder person on a full-time or temporary basis, regardless of whether such
person has been designated as a guardian of such adult by any contract, agreement or legal proceeding. Caregiver includes health care providers, family members, and any person who
otherwise voluntarily accepts a supervisory role towards an incapacitated adult or elder person;
(3) 'Neglect' means: (i) The failure to provide the necessities of life to an incapacitated adult
or elder person; or (ii) the unlawful expenditure or willful dissipation of the funds or other assets
owned or paid to or for the benefit of an incapacitated adult or elder person; and
(4) 'Incapacitated adult' means any person who by reason of physical, mental or other
infirmity is unable to physically carry on the daily activities of life necessary to sustaining life and
reasonable health;
_____(5) 'Elder' means a person age sixty-five years or older;
_____(6) 'Bodily injury' means substantial physical pain, illness or any impairment of physical
condition; and
_____(7) 'Custodian' means a person over the age of eighteen years who has or shares actual
physical possession of care and custody of an elder person on a full-time or temporary basis,
regardless of whether the person has been granted custody of the elder person by any contract,
agreement or legal proceeding.
(b) Any person, caregiver, guardian or custodian who neglects an incapacitated adult or elder
person, or who knowingly permits another person to neglect said adult, is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than fifteen
hundred dollars, or imprisoned in the county or regional jail for not less than ninety days nor more
than one year, or both fined and imprisoned.
(c) Any person, caregiver, guardian or custodian who intentionally abuses or neglects an
incapacitated adult or elder person is guilty of a felony and, upon conviction thereof, shall, in the discretion of the court, be confined in the penitentiary a state correctional facility for not less than
two nor more than ten years. or be confined in the county jail for not more than twelve months and
fined not more than fifteen hundred dollars
_____(d) If any person, caregiver, guardian or custodian of an elder person or incapacitated adult,
willfully misappropriates, or misuses the funds or assets of an incapacitated adult or elder person for
the person's, caregiver's, guardian's, or custodian's personal use, advantage or wrongful profit or
to the advantage or wrongful profit of another, he or she is guilty of a felony and, upon conviction
thereof, shall be fined not more than five thousand dollars and incarcerated in a correctional facility
not less than two nor more than ten years.
_____(e) If any person, caregiver, guardian or custodian of an elder person or incapacitated adult,
by means of deception, intimidation, coercion, infliction of bodily injury or threats of the infliction
of bodily injury, willfully misappropriates, or misuses the funds or assets of an incapacitated adult
or elder person for the person's, caregiver's, guardian's, or custodian's personal use, advantage or
wrongful profit or to the advantage or wrongful profit of another, he or she is guilty of a felony and,
upon conviction thereof, shall be fined not more than five thousand dollars and incarcerated in a
correctional facility not less than five nor more than fifteen years.
_____(d) (f) Nothing in this article shall be construed to mean an adult is abused or neglected for
the sole reason that his or her independent decision is to rely upon treatment by spiritual means in
accordance with the tenets and practices of a recognized church or religious denomination or
organization in lieu of medical treatment."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4433 - "A Bill to amend and reenact §61-2-29 of the code of West
Virginia, 1931, as amended, relating to abuse or neglect of an incapacitated adult; adding the crimes
of abuse and neglect of an elder person age sixty-five years or older and the crime of misuse and
misappropriation of the funds or assets of an elder person; and creating the crime of misuse or
misappropriation of the funds or assets of an elder person through deception, intimidation, coercion,
the infliction of bodily injury or the threat of bodily injury; and 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. 602), 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. 4433) 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. 4492, Creating the criminal offense of soliciting a minor via computer.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 3C. WEST VIRGINIA COMPUTER CRIME AND ABUSE ACT.
§61-3C-14b. Soliciting, etc. a minor via computer; penalty.
Any person over the age of eighteen, who knowingly uses a computer to solicit, entice,
seduce or lure, or attempt to solicit, entice, seduce or lure, a minor known or believed to be at least
four years younger than the person using the computer or a person he or she believes to be such a
minor, to commit any illegal act proscribed by the provisions of articles eight, eight-b, eight-c or
eight-d of this chapter, or any felony offense under section four hundred one, article four, chapter
sixty-a of this code, is guilty of a felony and, upon conviction thereof, shall be fined not more than
five thousand dollars or imprisoned in a state correctional facility not less than two nor more than
ten years, or both."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4492 - "A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §61-3C-14b, relating to creating the criminal offense of
soliciting certain minors or one believed to be a minor via computer to commit violations of certain
criminal laws; and providing 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. 603), 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. 4492) 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. 4582, Limiting the division of labor elevator inspectors to inspection of elevators in
state owned buildings.
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 one, lines four through six, by striking out the words "National
Standards Institute (ANSI) Code A17.1-3, 'Safety Code for Elevators' " and inserting in lieu thereof
the words "Society of Mechanical Engineers Safety Code for Elevators and Escalators (ASME)
A17.1-3, 'Safety Code for Elevators' and ASME A18.1, 'Safety Code for Platform Lifts and
Stairway Chairlifts' ".
On page five, section two, line sixteen, by striking out the words "a written" and inserting
in lieu thereof the word "an".
On page six, section two, line forty-one, by striking out the word "shall" and inserting in lieu
thereof the word "may".
On page eight, section five, lines eighteen and nineteen, by striking out the words "National
Standards Institute (ANSI) Code A17.1-3, 'Safety Code for Elevators' " and inserting in lieu thereof
the words "Society of Mechanical Engineers Safety Code for Elevators and Escalators (ASME)
A17.1-3, 'Safety Code for Elevators' and ASME A18.1, 'Safety Code for Platform Lifts and
Stairway Chairlifts' ".
And,
On page nine, section six, line fourteen, by striking out the words "a passenger" and inserting
in lieu thereof the word "an".
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. 604), 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. 4582) 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. 4587, Including persons who are members or consultants to review organizations
within the definition of health care professionals for peer review purposes.
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 one, by striking out everything after the section heading and inserting
in lieu thereof the following:
"As used in this article:
'Health care professionals' means individuals who are licensed to practice in any health care
field and individuals, who, because of their education, experience or training participate as members
of or consultants to a review organization.
'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, claims review and patient safety 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.
'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, the joint commission on accreditation of health care organizations or
similar accrediting body or any entity established by such accrediting body or to fulfill the
requirements of such accrediting body, any entity established pursuant to state or federal law for peer
review purposes, 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."
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. 605), 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. 4587) 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. 4658, Relating to defense of self, others and property and providing limited immunity
from civil liability.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-21. Civil immunity to persons resisting criminal activities.
(a) Any person who unlawfully enters upon the property of another for purposes of engaging
in criminal conduct assumes the risk for any injury caused to him or her by the reasonable and
proportionate acts of the owner or his agent in resisting the commission of the criminal conduct.
(b) The provisions of this section do not apply to the creation of a hazardous or dangerous
condition on the property designed to prevent criminal conduct or cause injury to a person engaging
in criminal conduct."
And,
By amending the title of the bill to read as follows:
H. B. 4658 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §55-7-21, relating to defense of property; providing limited
immunity from civil liability; 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. 606), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Fleischauer.
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. 4658) 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. 4740, Relating to the establishment, initial funding and operation of a patient injury
compensation fund.
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, by striking out everything after the enacting section and inserting in lieu
thereof the following:
"ARTICLE 12D. WEST VIRGINIA PATIENT INJURY COMPENSATION FUND.
§29-12D-1. Creation of patient injury compensation fund; purpose; initial funding of patient
injury compensation fund.
(a) There is created the West Virginia patient injury compensation fund, for the purpose of
providing fair and reasonable compensation to claimants in medical malpractice actions for any
portion of economic damages awarded that is uncollectible as a result of limitations on economic
damage awards for trauma care, or as a result of the operation of the joint and several liability
principles and standards, set forth in article seven-b, chapter fifty-five of this code. The fund shall
consist of all contributions, revenues and moneys which may be paid into the fund from time to time
by the state of West Virginia or from any other source whatsoever, together with any and all interest,
earnings, dividends, distributions, moneys or revenues of any nature whatsoever accruing to the fund.
(b) Initial funding for the fund shall be provided as follows: during fiscal year two thousand
five, two million two hundred thousand dollars of the revenues that would otherwise be transferred
to the tobacco account established at subsection (b), section two, article eleven-a, chapter four of this
code pursuant to the provisions of section fourteen, article three, chapter thirty-three of this code
shall be transferred to the fund; during fiscal year two thousand six, two million two hundred
thousand dollars of the revenues that would otherwise be transferred to the tobacco account
established at subsection (b), section two, article eleven-a, chapter four of this code pursuant to the
provisions of section fourteen, article three, chapter thirty-three of this code, shall be transferred to
the fund; and during fiscal year two thousand seven, two million two hundred thousand dollars of
the revenues that would otherwise be transferred to the tobacco account established at subsection (b),
section two, article eleven-a, chapter four of this code pursuant to the provisions of section fourteen,
article three, chapter thirty-three of this code shall be transferred to the fund. Beginning fiscal year
two thousand eight, if and to the extent additional funding for the fund is required from time to time
to maintain the actuarial soundness of the fund, the additional funding may be provided by further act of the legislature, either from the revenue stream identified in this subsection or otherwise.
Payments to the tobacco fund shall be extended until the tobacco fund is repaid in full.
(c) The fund is not and shall not be considered a defendant in any civil action arising under
article seven-b, chapter fifty-five of this code.
(d) The fund is not and shall not be considered an insurance company or insurer for any
purpose under this code.
§29-12D-2. Administration of fund; investment of fund assets; annual actuarial review and
audit; fund assets and liabilities not assets and liabilities of the state.
(a) The patient injury compensation fund shall be implemented, administered and operated
by the board of risk and insurance management. In addition to any other powers and authority
expressly or impliedly conferred on the board of risk and insurance management in this code, the
board may:
(1) Receive, collect and deposit all revenues and moneys due the fund;
(2) Employ, or in accordance with the provisions of law applicable contract for personal,
professional or consulting services, retain the services of a qualified competent actuary to perform
the annual actuarial study of the fund required by this section and advise the board on all aspects of
the fund's administration, operation and defense which require application of the actuarial science;
(3) Contract for any services necessary or advisable to implement the authority and discharge
the responsibilities conferred and imposed on the board by this article;
(4) Employ, or contract with, legal counsel of the board's choosing to advise and represent
the board and represent the fund in respect of any and all matters relating to the operation of the fund
and payments out of the fund;
(5) Employ necessary or appropriate clerical personnel to carry out the responsibilities of the
board under this part; and
(6) Promulgate rules, in accordance with article three, chapter twenty-nine-a of this code as
it considers necessary or advisable to implement the authority of and discharge the responsibilities
conferred and imposed on the board by this article.
(b) The assets of the fund, and any and all income, dividends, distributions or other income
or moneys earned by or accruing to the benefit of the fund, shall be held in trust for the purposes
contemplated by this article, and shall not be spent for any other purpose: Provided, That the assets
of the fund may be used to pay for all reasonable costs and expenses of any nature whatsoever
associated with the ongoing administration and operation of the fund. All assets of the fund from
time to time shall be deposited with, held and invested by, and accounted for separately by the
investment management board. All moneys and assets of the fund shall be invested and reinvested
by the investment management board in the same manner as provided by law for the investment of
other trust fund assets held and invested by the investment management board.
(c) The board shall cause an annual review of the assets and liabilities of the fund to be
conducted on an annual basis by a qualified, independent actuary.
(d) The board shall cause an audit of the fund to be conducted on an annual basis by a
qualified, independent auditor.
(e) The state of West Virginia is not liable for any liabilities of the fund. Claims or expenses
against the fund are not a debt of the state of West Virginia or a charge against the general revenue
fund of the state of West Virginia.
§29-12D-3. Payments from the patient injury compensation fund.
(a) Other than payments in connection with the ongoing operation and administration of the
fund, no payments may be made from the fund other than in satisfaction of claims for economic
damages to qualified claimants who would have collected economic damages but for the operation
of the limits on economic damages set forth in article seven-b, chapter fifty-five of this code.
(b) For purposes of this article, a qualified claimant must be both a 'patient' and a 'plaintiff'
as those terms are defined in article seven-b, chapter fifty-five of this code.
(c) Any qualified claimant seeking payment from the fund must establish to the satisfaction
of the board that he or she has exhausted all reasonable means to recover from all applicable liability
insurance an award of economic damages, following procedures prescribed by the board by
legislative rule.
(d) Upon a determination by the board that a qualified claimant to the fund for compensation
has exhausted all reasonable means to recover from all applicable liability insurance an award of
economic damages arising under article seven-b, chapter fifty-five of this code, the board shall make
a payment or payments to the claimant for economic damages. The economic damages must have
been awarded but be uncollectible after the exhaustion of all reasonable means of recovery of
applicable insurance proceeds. In no event shall the amount paid by the board in respect to any one
occurrence exceed one million dollars or the maximum amount of money that could have been
collected from all applicable insurance prior to the creation of the patient injury compensation fund
under this article, regardless of the number of plaintiffs or the number of defendants or, in the case
of wrongful death, regardless of the number of distributees.
(e) The board, in its discretion, may make payments to a qualified claimant in a lump sum
amount or in the form of periodic payments. Periodic payments are to be based upon the present value of the total amount to be paid by the fund to the claimant by using federally approved qualified
assignments.
(f) In its discretion, the board may make a payment or payments out of the fund to a qualified
claimant in connection with the settlement of claims arising under article seven-b, chapter fifty-five
of this code, all according to rules promulgated by the board. The board shall prior to making
payment determine that payment from the fund to a qualified claimant is in the best interests of the
fund. When the claimant and the board agree upon a settlement amount, the following procedure
shall be followed:
(1) A petition shall be filed by the claimant with the court in which the action is pending, or
if none is pending, in a court of appropriate jurisdiction, for approval of the agreement between the
claimant and the board.
(2) The court shall set the petition for hearing as soon as the court's calendar permits. Notice
of the time, date and place of hearing shall be given to the claimant and to the board.
(3) At the hearing the court shall approve the proposed settlement if the court finds it to be
valid, just and equitable.
(g) If and to the extent that any payment to one or more qualified claimants under this section
would deplete the fund during any fiscal year, payments to and among qualified claimant's shall be
prorated during the fiscal year according to the rules promulgated by the board. Any amounts due
and unpaid to qualified claimants shall be paid in subsequent fiscal years from available funds, but
only to the extent funds are available in any fiscal year, according to the board's rules.
(h) Payments out of the fund may be used to pay reasonable attorney fees of attorneys
representing qualified claimants receiving compensation in respect of economic damages as
established by the board of risk and insurance management.
(i) The claimant may appeal a final decision made by the board pursuant to the provisions
of article five, chapter twenty-nine-a of this code."
And,
By amending the title of the bill to read as follows:
H. B. 4740 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new article, designated §29-12D-1, §29-12D-2 and §29-12D-3, all relating to the
establishment, initial funding and operation of a patient injury compensation fund; creating a patient
injury compensation fund; providing initial funding; providing the fund is not an insurer or insurance
company under the code; providing for administration by the board of risk and insurance
management; specifying certain powers and authority of the board; protecting the assets of the fund;
requiring an annual audit of the fund by an independent actuary; providing immunity for the state
and its agents for the debts, liabilities or obligations of the fund; providing for payments from the
fund to qualified claimants; providing limits on the amount on payment in respect of any occurrence;
authorizing payments from the fund either in lump sums or periodic payments; establishing
procedures; providing for proration of payments under certain circumstances; authorizing the
payment of reasonable attorney fees; and providing for appeals."
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. 607), 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. 4740) 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 to
S. B. 697, Delegating motor carrier inspector duties to weight enforcement officers.
On motion of Delegate Staton, the House of Delegates receded from their amendment to S.
B. 697.
On the passage of the bill, 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 Frederick.
So, two thirds of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 697) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption 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:
S. C. R. 95 - "Suspending Joint Rule No. 5, providing for consideration of S. B. 737,
Authorizing use of flashing white lights as auxiliary lights on emergency vehicles."
Resolved by the Legislature of West Virginia, two thirds of all the members present and
voting in each house agreeing thereto:
That the provisions of Rule No. 5 of the Joint Rules of the Senate and House of Delegates
are hereby suspended for the express purpose of consideration of Senate Bill No. 737.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the
resolution (S. C. R. 95) 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. 609), 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 Hartman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the resolution (S. C. R. 95) 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, without amendment, a bill
of the House of Delegates as follows:
Com. Sub. for H. B. 2801, Requiring the ethics commission to furnish copies of all advisory
opinions issued by the commission to the West Virginia Legislature and the supreme court law
library.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
Com. Sub. for H. B. 4047, Creating a high growth business investment tax credit to
encourage investment by state citizens and businesses in certain companies started by fellow West
Virginians.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4083, Continuing the veterans' council.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
Com. Sub. for H. B. 4123, Authorizing the supreme court of appeals to create a panel of
senior magistrate court clerks.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4134, Substituting the governor's chief technology officer as a member of the
employee suggestion award program.
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. 4193, Authorizing the Department of Environmental Protection to
promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
Com. Sub. for H. B. 4318, Imposing personal income tax on funds withdrawn from a
prepaid college tuition contract or other college savings plans.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
Com. Sub. for H. B. 4364, Including division of forestry employees in the assault and battery
statute with similar state personnel.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4403, Repealing the requirement of affidavits acknowledging receipt of compensation.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4418, Continuing the board of architects.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4419, Continuing the board of landscape architects.
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:
H. B. 4456, Extending the time for the Harrison County commission to submit a proposed
levy to the Harrison County voters for approval or rejection intended to finance vital public services.
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:
H. B. 4464, Extending the time for the county commission of Cabell County to present to
the voters an election to consider an excess levy for fire protection services, firefighting training and
economic development.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4468, Allowing housing development authorities to pay for persons of eligible income
the costs of preparation and recording of any title instrument, deed of trust, note or security
instrument and the amount of impact fees imposed.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4480, Continuing West Virginia's participation in the interstate commission on the
Potomac River basin.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4531, Continuing the public employees insurance agency finance board.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4532, Continuing the state fire commission.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4581, Continuing the division of protective services.
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:
H. B. 4622, Repealing the section of the code relating to the exemption of lottery prizes from
taxation.
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:
H. B. 4625, Authorizing the tourism commission the use of the tourism promotion fund to
support the 2004 Pete Dye West Virginia Classic.
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:
H. B. 4672, Relating to calculation of workers' compensation premiums for members of
limited liability companies.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 28, Requesting that September 12th of every year be declared as West Virginia
Monarch Butterfly Day.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 47, Requesting a study on providing limitations on nurse overtime policies in
hospitals operated by state agencies within West Virginia.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 55, Requesting a study whether wild ginseng and cultivated ginseng should be
regulated in the same manner.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
Com. Sub. for H. C. R. 60, Designating Route 19/25 near Sutton, Braxton County, as
"Tiffany Jackson Drive" in memory and honor of Tiffany Elaine Jackson.
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
S. B. 517, Relating to valuation of annuities.
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. 431, Establishing Interstate Insurance Product Regulation Compact.
Resolutions Introduced
Delegates Blair, Anderson, Armstead, Ashley, Azinger, Beane, Border, Calvert, Canterbury,
Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Fleischauer, Frederick, Frich, Hall, Hamilton,
Howard, Hrutkay, Leggett, Long, Louisos, Overington, Romine, Schadler, Schoen, Smirl, Sobonya,
Sumner, Susman, Trump, Wakim, Walters, Webb and G. White offered the following resolution,
which was read by its title and referred to the Committee on Rules:
H. C. R. 96 - "Requesting the Joint Committee on Government and Finance to study ways
to reduce and eliminate the consumer sales tax on food sold for off premises consumption."
Whereas, West Virginia's sales tax on food sold for off premises consumption is six
percent; and
Whereas, West Virginia's sales tax on food sold for off premises consumption is the second
highest in the United States; and
Whereas, Four of the states that border West Virginia have no sales tax on food sold for off
premises consumption; and
Whereas, The remaining state that borders West Virginia has a sales tax on food sold for
off premises consumption of only three and one-half percent; and
Whereas, This disparity in tax rates places West Virginia businesses at a competitive
disadvantage with those in neighboring states; and
Whereas, The sales tax on food sold for off premises consumption is a regressive tax that
is a heavy burden to poor and working families in West Virginia; and
Whereas, It would be beneficial to West Virginia families and businesses if the tax on food
sold for off premises consumption is reduced and eliminated; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the ways
by which the sales tax on food sold for off premises consumption may be reduced and ultimately
eliminated; and, be it
Further Resolved, That the Joint Committee on Government and Finance report back to the
full Legislature in January, 2005, its findings, conclusions and recommendations, together with drafts
of any legislation that it may determine is necessary to ensure that West Virginia's poor and working
families may be relieved of the heavy burden imposed by the sales tax on food sold for off premises
consumption; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare the report
and to draft the necessary legislation be paid from legislative appropriations to the Joint Committee
on Government and Finance.
Delegate DeLong offered the following resolution, which was read by its title and referred
to the Committee on Rules:
H. C. R. 97 - "Requesting the Joint Committee on Government and Finance study and
promulgate legislative rules to maintain and enforce a West Virginia central abuse registry in
accordance with West Virginia code §15-2C-1."
Whereas, The criminal identification bureau of the West Virginia state police is entrusted
to serve, protect and investigate claims of abuse, neglect or misappropriation of property by an
individual performing services for compensation in a residential care facility, licensed day care
center or in connection with providing behavioral health care services or home care services; and
Whereas, There presently exists no legislative rules or enforcement of West Virginia code
§15-2C-1 (a central abuse registry) that identifies persons convicted of abuse, neglect or
misappropriation of property, making it possible for those persons to remain employed in a
residential care facility or a licensed day care center or employed in providing behavioral health
services or home care services; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is requested to study the establishment
of legislative rules to enforce and maintain a West Virginia central abuse registry in accordance with
West Virginia code §15-2C-1, containing the names of those persons employed in a residential care
facility or a licensed day care center or employed in providing behavioral health services or home
care services that have been convicted of abuse, neglect or misappropriation of property against a
child or an incapacitated adult; and, be it
Further Resolved, That the Joint Committee on Government and Finance consult with the
Department of Health and Human Resources, the West Virginia state police and Mountain State
Centers for Independent Living to implement this program; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, 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.
Consent Calendar
Third Reading
Com. Sub. for S. B. 28, Exempting certain personal property from levy, forced sale,
attachment or execution; on third reading, coming up in regular order, with a Committee amendment
pending and the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill as follows:
On page one, after the enacting clause, by striking out the remainder of the bill, and inserting
in lieu thereof the following language:
"That §38-8-1 of the code of West Virginia, 1931, as amended, be amended and reenacted
to read as follows:
ARTICLE 8. EXEMPTIONS FROM LEVY.
§38-8-1. Exemptions of personal property.
(a) Any individual residing in this state or the dependent of such individual may set apart and
hold as exempt from execution or other process the following personal property:
(1) Such individual's interest, not to exceed five thousand dollars in value, in one motor
vehicle;
(2) Such individual's interest not to exceed eight thousand dollars in aggregate value, in
household goods, furniture, toys, animals, appliances, books and wearing apparel that are held
primarily for the personal, family or household use of such individual;
(3) Such individual's aggregate interest, not to exceed three thousand dollars, in any
implements, professional books or tools of such individual's trade;
(4) Such individual's funds on deposit in a federally insured financial institution, wages or
salary, not to exceed the greater of (i) one thousand dollars, or (ii) one hundred twenty-five percent
of the amount of the annualized federal poverty level of such individual's household divided by the
number of pay periods for such individual per year; and
(5) Funds on deposit in an individual retirement account (IRA), including a simplified
employee pension (SEP), in the name of such individual: Provided, That the amount is exempt only
to the extent it is not or has not been subject to an excise or other tax on excess contributions under
Section 4973 or Section 4979 of the Internal Revenue Code of 1986, or both sections, or any
successor provisions, regardless of whether the tax is or has been paid.
(b) Notwithstanding the foregoing, in no case may an individual residing in this state or the
dependent of such individual exempt from execution or other process more than fifteen thousand
dollars in the aggregate in personal property listed in subdivisions (1), (2), (3) and (4), subsection
(a) of this section."
The bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub for S. B. 230, Relating to definitions of casualty insurance and federal flood
insurance; other provisions,
S. B. 317, Increasing parolee supervision fee; on third reading, coming up in regular order,
was read a third time,
Com. Sub. for 320, Relating to division of motor vehicles application for certificate of title;
exempting modular homes,
And,
S. B. 418, Allowing certain sheriff employees to carry deadly weapons.
S. B. 428, Defining "transacting insurance"; on third reading, coming up in regular order,
with a Committee amendment pending and the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill as follows:
On page one, following the enacting clause, by striking out the remainder of the bill and
inserting in lieu thereof the following language:
"That §33-31-1, §33-31-2, §33-31-4, §33-31-5, §33-31-6, §33-31-7, §33-31-8, §33-31-9,
§33-31-10, §33-31-11, §33-31-13, §33-31-14 and §33-31-15 of the code of West Virginia, 1931, as
amended, be amended and reenacted; that said code be amended by adding thereto nine new sections,
designated §33-31-17, §33-31-18, §33-31-19, §33-31-20, §33-31-21, §33-31-22, §33-31-23,
§33-31-24 and §33-31-25; and that said code be amended by adding thereto a new article, designated
§33-31A-1, §33-31A-2, §33-31A-3, §33-31A-4, §33-31A-5, §33-31A-6, §33-31A-7 and §33-31A-8,
all to read as follows:
ARTICLE 31. CAPTIVE INSURANCE.
§33-31-1. Definitions.
As used in this chapter, unless the context requires otherwise:
(1) 'Affiliated company' means any company in the same corporate system as a parent, an
industrial insured, or a member organization by virtue of common ownership, control, operation or
management.
(2) 'Alien captive insurance company' means any insurance company formed to write
insurance business for its parents and affiliates and licensed pursuant to the laws of a country other than the United States which imposes statutory or regulatory standards in a form acceptable to the
commissioner on companies transacting the business of insurance in such jurisdiction.
___(2) (3) 'Association' means any legal association of individuals, corporations, partnerships
or associations limited liability companies, partnerships, associations, or other entities that has been
in continuous existence for at least one year, the member organizations of which collectively or
which does itself, whether or not in conjunction with some or all of the member organizations:
(A) Own, control or hold with power to vote all of the outstanding voting securities of an
association captive insurance company incorporated as a stock insurer; or
(B) Have complete voting control over an association captive insurance company
incorporated as a mutual insurer; or
___(C) Constitute all of the subscribers of an association captive insurance company formed as
a reciprocal insurer.
___(3) (4) 'Association captive insurance company' means any company that insures risks of the
member organizations of the association, and their affiliated companies.
(5) 'Branch business' means any insurance business transacted by a branch captive insurance
company in this state.
___(6) 'Branch captive insurance company' means any alien captive insurance company licensed
by the commissioner to transact the business of insurance in this state through a business unit with
a principal place of business in this state.
___(7) 'Branch operations' means any business operations of a branch captive insurance
company in this state.
___(4) (8) 'Captive insurance company' means any pure captive insurance company, association
captive insurance company, or sponsored captive insurance company, industrial insured captive
insurance company, or risk retention group formed or licensed under the provisions of this chapter.
For purposes of this chapter, a branch captive insurance company shall be a pure captive insurance
company with respect to operations in this state, unless otherwise permitted by the commissioner.
___(5) (9) 'Commissioner' means the insurance commissioner of West Virginia.
(10) 'Controlled unaffiliated business' means any company:
___(A) That is not in the corporate system of a parent and affiliated companies;
___(B) That has an existing contractual relationship with a parent or affiliated company; and
___(C) Whose risks are managed by a pure captive insurance company in accordance with
section nineteen of this article.
___(6) (11) 'Industrial insured' means an insured:
(A) Who procures the insurance of any risk or risks by use of the services of a full-time
employee acting as an insurance manager or buyer;
(B) Whose aggregate annual premiums for insurance on all risks total at least twenty-five
thousand dollars; and
(C) Who has at least twenty-five full-time employees.
(7) (12) 'Industrial insured captive insurance company' means any company that insures
risks of the industrial insureds that comprise the industrial insured group and their affiliated
companies.
(8) (13) 'Industrial insured group' means any group that meets the following criteria:
Any group of industrial insureds that collectively:
(i) (A) Own, control or hold with power to vote all of the outstanding voting securities of
an industrial insured captive insurance company incorporated as a stock insurer; or
(ii) (B) Have complete voting control over an industrial insured captive insurance company
incorporated as a mutual insurer; or
(C) Constitute all of the subscribers of an industrial insured captive insurance company
formed as a reciprocal insurer.
(9) (14) 'Member organization' means any individual, corporation, limited liability
company, partnership, or association or other entity that belongs to an association.
(15) 'Mutual corporation' means a corporation organized without stockholders and includes
a nonprofit corporation with members.
___(10) (16) 'Parent' means a corporation, limited liability company, partnership, other entity,
or individual that directly or indirectly owns, controls or holds with power to vote more than fifty
percent of the outstanding voting:
___(A) Securities of a pure captive insurance company organized as a stock corporation; or
___(B) Membership interests of a pure captive insurance company organized as a nonprofit
corporation.
___(11) (17) 'Pure captive insurance company' means any company that insures risks of its
parent and affiliated companies or controlled unaffiliated business.
(18) 'Risk retention group' means a captive insurance company organized under the laws
of this state pursuant to the Liability Risk Retention Act of 1986, 15 U.S.C. § 3901 et seq., as
amended, as a stock or mutual corporation, a reciprocal or other limited liability entity.
§33-31-2. Licensing; authority.
(a) Any captive insurance company, when permitted by its articles of association, or charter
or other organizational document, may apply to the commissioner for a license to do any and all
insurance comprised in chapter thirty-three of this code section ten, article one of this chapter except
as indicated in subdivision (4), subsection (a) of this section: Provided, That said captive insurance
company maintains its all captive insurance companies, except pure captive insurance companies,
shall maintain their principal office and principal place of business in this state: Provided, however,
That:
(1) No pure captive insurance company may insure any risks other than those of its parent
and affiliated companies or controlled unaffiliated business;
(2) No association captive insurance company may insure any risks other than those of the
member organizations of its association, and their affiliated companies;
(3) No industrial insured captive insurance company may insure any risks other than those
of the industrial insureds that comprise the industrial insured group, and their affiliated companies;
(4) No risk retention group may insure any risks other than those of its members and owners;
___(4) (5) No captive insurance company may provide personal motor vehicle or homeowner's
insurance coverage or any component thereof; and
(5) (6) No captive insurance company may accept or cede reinsurance except as provided
in section eleven hereof of this article;
(7) Any captive insurance company may provide excess workers' compensation insurance
to its parent and affiliated companies, unless prohibited by the federal law or laws of the state having
jurisdiction over the transaction. Any captive insurance company, unless prohibited by federal law, may reinsure workers' compensation of a qualified self-insured plan of its parent and affiliated
companies; and
___(8) Any captive insurance company which insures risks described in subsections (a) and (b)
of section ten, article one of this chapter shall comply with all applicable state and federal laws.
(b) No captive insurance company may do any insurance business in this state unless:
(1) It first obtains from the commissioner a license authorizing it to do insurance business
in this state;
(2) Its board of directors, or in the case of a reciprocal insurer its subscribers' advisory
committee, holds at least one meeting each year in this state; and
___(3) It maintains its principal place of business in this state; and
(4) (3) It appoints a resident registered agent to accept service of process and to otherwise
act on its behalf in this state: Provided, That whenever such registered agent cannot with reasonable
diligence be found at the registered office of the captive insurance company, the secretary of state
shall be an agent of such captive insurance company upon whom any process, notice, or demand may
be served.
(c)(1) Before receiving a license, a captive insurance company shall:
___(A) File with the commissioner a certified copy of its charter and bylaws organizational
documents, a statement under oath of its president and secretary showing its financial condition, and
any other statements or documents required by the commissioner; and
___(B) Submit to the commissioner for approval a description of the coverages, deductibles,
coverage limits, and rates, together with such additional information as the commissioner may
reasonably require. In the event of any subsequent material change in any item in such description, the captive insurance company shall submit to the commissioner for approval an appropriate revision
and shall not offer any additional kinds of insurance until a revision of such description is approved
by the commissioner. The captive insurance company shall inform the commissioner of any material
change in rates within thirty days of the adoption of such change.
___In addition to the information required above,
(2) Each applicant captive insurance company shall also file with the commissioner evidence
of the following:
(1) (A) The amount and liquidity of its assets relative to the risks to be assumed;
(2) (B) The adequacy of the expertise, experience, and character of the person or persons
who will manage it;
(3) (C) The overall soundness of its plan of operation;
(4) (D) The adequacy of the loss prevention programs of its parent, member organizations,
or industrial insureds as applicable; and
(5) (E) Such other factors deemed relevant by the commissioner in ascertaining whether the
proposed captive insurance company will be able to meet its policy obligations.
(3) Information submitted pursuant to this subsection shall be and remain confidential, and
may not be made public by the commissioner or an employee or agent of the commissioner without
the written consent of the company, except that:
___(A) Such information may be discoverable by a party in a civil action or contested case to
which the captive insurance company that submitted such information is a party, upon a showing by
the party seeking to discover such information that:
___(i) The information sought is relevant to and necessary for the furtherance of such action or
case;
___(ii) The information sought is unavailable from other nonconfidential sources; and
___(iii) A subpoena issued by a judicial or administrative officer of competent jurisdiction has
been submitted to the commissioner: Provided, That the provisions of subdivision (3) of this
subsection shall not apply to any risk retention group; and
___(B) The commissioner may, in the commissioner's discretion, disclose such information to
a public officer having jurisdiction over the regulation of insurance in another state, if:
___(i) The public official shall agree in writing to maintain the confidentiality of such
information; and
___(ii) The laws of the state in which such public official serves require such information to be
and to remain confidential.
(d) Each captive insurance company shall pay to the commissioner a nonrefundable fee of
two hundred dollars for examining, investigating, and processing its application for license, and upon
issuance of a license, an annual license fee of three hundred dollars. In addition, it shall pay fees and
charges in accordance with article three of this chapter and the commissioner is authorized to retain
legal, financial and examination services from outside the department, the reasonable cost of which
may be charged against the applicant. The provisions of subsection (r), section nine, article two of
this chapter shall apply to examinations, investigations, and processing conducted under the authority
of this section. In addition, each captive insurance company shall pay a license fee for the year of
registration and a renewal fee for each year thereafter of three hundred dollars.
(e) If the commissioner is satisfied that the documents and statements that such captive
insurance company has filed comply with the provisions of this chapter, he the commissioner may
grant a license authorizing it to do insurance business in this state until April first, thereafter, which
license may be renewed.
§33-31-4. Minimum capital and surplus; letter of credit.
No pure captive insurance company, association captive insurance company incorporated as
a stock insurer, or industrial insured captive insurance company incorporated as a stock insurer shall
be issued a license unless it shall possess and thereafter maintain unimpaired paid-in capital of:
(1) In the case of a pure captive insurance company, not less than one hundred thousand
dollars;
(2) In the case of an association captive insurance company incorporated as a stock insurer,
not less than three hundred twenty thousand dollars; and
(3) In the case of an industrial insured captive insurance company incorporated as a stock
insurer, not less than one hundred sixty thousand dollars.
Such capital may be in the form of cash or an irrevocable letter of credit issued by a bank
chartered by the state of West Virginia or a member bank of the federal reserve system and approved
by the commissioner.
(a) No captive insurance company shall be issued a license unless it shall possess and
thereafter maintain free surplus unimpaired paid-in capital of:
(1) In the case of a pure captive insurance company, not less than one hundred fifty thousand
dollars one hundred thousand dollars;
(2) In the case of an association captive insurance company, incorporated as a stock insurer,
not less than two hundred eighty thousand dollars not less than three hundred fifty thousand dollars;
(3) In the case of an industrial insured captive insurance company, incorporated as a stock
insurer not less than two hundred forty thousand dollars not less than two hundred fifty thousand
dollars;
(4) In the case of an association captive insurance company incorporated as a mutual insurer,
not less than six hundred thousand dollars.
(4) In the case of a risk retention group, not less than five hundred thousand dollars; and
(5) In the case of an industrial insured captive insurance company incorporated as a mutual
insurer not less than four hundred thousand dollars a sponsored captive insurance company, not less
than two hundred fifty thousand dollars.
(b) No captive insurance company shall be issued a license unless it possesses and thereafter
maintains unimpaired paid-in surplus of:
___(1) In the case of a pure captive insurance company, not less than one hundred fifty thousand
dollars;
___(2) In the case of an association captive insurance company, not less than three hundred fifty
thousand dollars;
___(3) In the case of an industrial insured captive insurance company, not less than two hundred
fifty thousand dollars;
___(4) In the case of a risk retention group, not less than five hundred thousand dollars; and
___(5) In the case of a sponsored captive insurance company, not less than two hundred fifty
thousand dollars.
___(c) The commissioner may prescribe additional capital and surplus based upon the type,
volume, and nature of insurance business transacted.
___(d) Such Capital and surplus may be in the form of cash or an irrevocable letter of credit issued
by a bank chartered by the state of West Virginia or a member bank of the federal reserve system and
approved by the commissioner.
§33-31-5. Dividends.
___No captive insurance company may pay a dividend out of, or other distribution with respect
to, capital or surplus without the prior approval of the commissioner. Approval of an ongoing plan
for the payment of dividends or other distributions shall be conditioned upon the retention, at the time
of each payment, of capital or surplus in excess of amounts specified by, or determined in accordance
with formulas approved by, the commissioner.
§33-31-6. Formation of captive insurance companies in this state.
(a) A pure captive insurance company shall may be incorporated as a stock insurer with its
capital divided into shares and held by the stockholders, or as a nonprofit corporation with one or more
members.
(b) An association captive insurance company or an industrial insured captive insurance
company may be incorporated:
(1) Incorporated as a stock insurer with its capital divided into shares and held by the
stockholders; or
(2) Incorporated as a mutual insurer without capital stock, the governing body of which is
elected by the member organizations of its association its insureds; or
___(3) Organized as a reciprocal insurer in accordance with article twenty-one of this chapter.
(c) A captive insurance company incorporated or organized in this state shall have at least one
incorporator who not less than three incorporators or three organizers of whom not less than one shall
be a resident of this state.
(d) In the case of a captive insurance company:
___(1) (A) Formed as a corporation before the articles of association are transmitted to the
secretary of state, the incorporators shall petition the commissioner to issue a certificate setting forth
his or her the commissioner's finding that the establishment and maintenance of the proposed
corporation will promote the general good of the state. In arriving at such a finding the commissioner
shall consider:
(1) (i) The character, reputation, financial standing and purpose purposes of the incorporators;
(2) (ii) The character, reputation, financial responsibility, insurance experience and business
qualifications of the officers and directors; and
(3) (iii) Such other aspects as the commissioner deems shall
deem advisable.
(e) (B) The articles of association incorporation, such certificate, and the organization fee shall
be transmitted to the secretary of state, who shall thereupon record both the articles of incorporation
and the certificate.
(2) Formed as a reciprocal insurer, the organizers shall petition the commissioner to issue a
certificate setting forth the commissioner's finding that the establishment and maintenance of the
proposed association will promote the general good of the state. In arriving at such a finding the
commissioner shall consider the items set forth in subparagraphs (i), (ii) and (iii), paragraph (A),
subdivision (1) of this subsection.
___(f) (e) The capital stock of a captive insurance company incorporated as a stock insurer shall
be issued at not less than par value may be authorized with no par value.
(f) In the case of a captive insurance company:
___(g) (1) Formed as a corporation, at least one of the members of the board of directors of a
captive insurance company incorporated in this state shall be a resident of this state; and
___(2) Formed as a reciprocal insurer, at least one of the members of the subscribers' advisory
committee shall be a resident of this state.
___(h) (g) Other than captive insurance companies formed as nonprofit corporations under chapter
thirty-one-e of this code, captive insurance companies formed as corporations under the provisions of
this chapter article shall have the privileges and be subject to the provisions of the general corporation
law as well as the applicable provisions contained in this chapter. Captive insurance companies are
subject to the provisions of article thirty-three, article thirty-four, article thirty-seven and article
thirty-nine of this chapter. In the event of conflict between the provisions of said general corporation
law and the provisions of this chapter, the latter shall control.
(h) Captive insurance companies formed as nonprofit corporations under the provisions of this
article shall have the privileges and be subject to the provisions of chapter thirty-one-e of this code as
well as the applicable provisions contained in this chapter. In the event of conflict between the
provisions of chapter thirty-one-e of this code and the provisions of this chapter, the latter shall control.
___(i) The provisions of sections twenty-five, twenty-seven and twenty-eight, article five of this
chapter and section three, article twenty-seven of this chapter, pertaining to mergers, consolidations,
conversions, mutualizations, redomestications, and mutual holding companies, shall apply in determining the procedures to be followed by captive insurance companies in carrying out any of the
transactions described therein, except that:
___(1) The commissioner may waive or modify the requirements for public notice and hearing
in accordance with rules which the commissioner may adopt addressing categories of transactions. If
a notice of public hearing is required, but no one requests a hearing, then the commissioner may cancel
the hearing; and
___(2) An alien insurer may be a party to a merger authorized under this subsection: Provided,
That the requirements for a merger between a captive insurance company and a foreign insurer under
section twenty-five, article five of this chapter shall apply to a merger between a captive insurance
company and an alien insurer under this subsection. Such alien insurer shall be treated as a foreign
insurer under section twenty-five, article five of this chapter and such other jurisdictions shall be the
equivalent of a state for purposes of section twenty-five, article five of this chapter.
___(j) Captive insurance companies formed as reciprocal insurers under the provisions of this
chapter shall have the privileges and be subject to the provisions of article twenty-one of this chapter
in addition to the applicable provisions of this chapter. In the event of a conflict between the
provisions of article twenty-one of this chapter and the provisions of this chapter, the latter shall
control. To the extent a reciprocal insurer is made subject to other provisions of this chapter pursuant
to article twenty-one of this chapter, such provisions shall not be applicable to a reciprocal insurer
formed under this chapter unless such provisions are expressly made applicable to captive insurance
companies under this chapter.
___(k) The articles of incorporation or bylaws of a captive insurance company formed as a
corporation may authorize a quorum of its board of directors to consist of no fewer than one-third of the fixed or prescribed number of directors determined under section eight hundred twenty-four, article
eight, chapter thirty-one-e of this code.
___(l) The subscribers' agreement or other organizing document of a captive insurance company
formed as a reciprocal insurer may authorize a quorum of its subscribers' advisory committee to
consist of no fewer than one-third of the number of its members.
§33-31-7. Reports and statements.
(a) Captive insurance companies shall not be required to make any annual report except as
provided in this chapter.
(b) On or before the first day of March first of each year, each captive insurance company shall
submit to the commissioner a report of its financial condition, verified by oath of two of its executive
officers. Each captive insurance company shall report using generally accepted accounting principles,
unless the commissioner approves the use of statutory accounting principles, with any appropriate or
necessary modifications or adaptations thereof required or approved or accepted by the commissioner
for the type of insurance and kinds of insurers to be reported upon, and as supplemented by additional
information required by the commissioner. Except as otherwise provided, each association captive
insurance company and each risk retention group shall file its report in the form required by section
fourteen, article three of this chapter, and each risk retention group shall comply with the requirements
set forth in article thirty-two of this chapter. The commissioner shall by rule propose the form forms
in which pure captive insurance companies and industrial insured captive insurance companies shall
report.
(c) Any pure captive insurance company or an industrial insured captive insurance company
may make written application for filing the required report on a fiscal year-end. If an alternative
reporting date is granted:
(1) The annual report is due sixty days after the fiscal year-end; and
___(2) In order to provide sufficient detail to support the premium tax return, the pure captive
insurance company or industrial insured captive insurance company shall file on or before the first day
of March of each year for each calendar year-end, pages one, two, three, and five of the 'captive annual
statement; pure or industrial insured,' verified by oath of two of its executive officers.
§33-31-8. Examinations and investigations.
(a) At least once in three five years, and whenever the commissioner determines it to be
prudent, he the commissioner shall personally, or by some competent person appointed by him the
commissioner, visit each captive insurance company and thoroughly inspect and examine its affairs
to ascertain its financial condition, its ability to fulfill its obligations and whether it has complied with
the provisions of this chapter. The commissioner upon application, in his discretion, may extend the
aforesaid three-year period to five years, provided said captive insurance company is subject to a
comprehensive annual audit during such period of a scope satisfactory to the commissioner by
independent auditors approved by him. The captive insurance company shall be subject to the
provisions of section nine, article two of this chapter in regard to the expense and conduct of the
examination.
(b) All examination reports, preliminary examination reports or results, working papers,
recorded information, documents and copies thereof produced by, obtained by or disclosed to the
commissioner or any other person in the course of an examination made under this section are confidential and are not subject to subpoena and may not be made public by the commissioner or an
employee or agent of the commissioner without the written consent of the company, except to the
extent provided in this subsection. Nothing in this subsection shall prevent the commissioner from
using such information in furtherance of the commissioner's regulatory authority under this title. The
commissioner may, in the commissioner's discretion, grant access to such information to public
officers having jurisdiction over the regulation of insurance in any other state or country, or to law-
enforcement officers of this state or any other state or agency of the federal government at any time,
so long as such officers receiving the information agree in writing to hold it in a manner consistent
with this section.
§33-31-9. Grounds and procedures for suspension or revocation of license.
(a) The license of a captive insurance company to do any insurance business in this state may
be suspended or revoked by the commissioner for any of the following reasons:
(1) Insolvency or impairment of capital or surplus;
(2) Failure to meet the requirements of section four or five of this article;
(3) Refusal or failure to submit an annual report, as required by section seven of this article,
or any other report or statement required by law or by lawful order of the commissioner;
(4) Failure to comply with the provisions of its own charter, or bylaws or other organizational
document;
(5) Failure to submit to examination or any legal obligation relative thereto, as required by
section eight of this article;
(6) Refusal or failure to pay the cost of examination as required by section eight of this article;
(7) Use of methods that, although not otherwise specifically prohibited by law, nevertheless
render its operation detrimental or its condition unsound with respect to the public or to its
policyholders; or
(8) Failure otherwise to comply with the laws of this state.
(b) If the commissioner finds, upon examination, hearing, or other evidence, that any captive
insurance company has committed any of the acts specified in violated any provision of subsection (a)
of this section, he the commissioner may suspend or revoke such company's license if he the
commissioner deems it in the best interest of the public and the policyholders of such captive insurance
company, notwithstanding any other provision of this title.
§33-31-10. Legal investments.
(a) An Association captive insurance company companies and risk retention groups shall
comply with the investment requirements of the commissioner contained in article eight of this
chapter, as applicable. Section eleven, article seven of this chapter shall apply to association captive
insurance companies and risk retention groups except to the extent it is inconsistent with approved
accounting standards in use by the company. Notwithstanding any other provision of this chapter, the
commissioner may approve the use of alternative reliable methods of valuation and rating.
(b) No pure captive insurance company or industrial insured captive insurance company may
shall be subject to any restrictions on allowable investments whatever, including those limitations
contained in article eight of this chapter: Provided, That the commissioner may, however, prohibit or
limit any investment that threatens the solvency or liquidity of any such company.
(c) No pure captive insurance company may make a loan to or an investment in its parent
company or affiliates without prior written approval of the commissioner, and any such loan or investment must be evidenced by documentation approved by the commissioner. Loans of minimum
capital and surplus funds required by section four of this article are prohibited.
§33-31-11. Reinsurance.
(a) A Any captive insurance company may procure reinsurance or issue policies of reinsurance
to other licensed insurers transacting like kinds of insurance, pursuant to the provisions of section
fifteen, article four of this chapter provide reinsurance, comprised in section fifteen-a, article four of
this chapter, on risks ceded by any other insurer.
___(b) Any captive insurance company may take credit for the reinsurance of risks or portions of
risks ceded to reinsurers complying with the provisions of sections fifteen-a and fifteen-b, article four
of this chapter. Prior approval of the commissioner shall be required for ceding or taking credit for
the reinsurance of risks or portions of risks ceded to reinsurers not complying with sections fifteen-a
and fifteen-b, article four of this chapter, except for business written by an alien captive insurance
company outside of the United States.
___(c) In addition to reinsurers authorized under the provisions of section fifteen, article four of
this chapter, a captive insurance company may take credit for the reinsurance of risks or portions of
risks ceded to a pool, exchange or association acting as a reinsurer which has been authorized by the
commissioner. The commissioner may require any other documents, financial information or other
evidence that such a pool, exchange or association will be able to provide adequate security for its
financial obligations. The commissioner may deny authorization or impose any limitations on the
activities of a reinsurance pool, exchange or association that, in the commissioner's judgment, are
necessary and proper to provide adequate security for the ceding captive insurance company and for
the protection and consequent benefit of the public at large.
___(d) For all purposes of this chapter, insurance by a captive insurance company of any workers'
compensation qualified self-insured plan of its parent and affiliates shall be deemed to be reinsurance.
§33-31-13. Exemption from compulsory associations.
No captive insurance company may be permitted to join or contribute financially to any plan,
pool, association, or guaranty or insolvency fund in this state, nor may any captive insurance company,
or its insured, or its parent or any affiliated company, or any member organization of its association
any insured or affiliate thereof, receive any benefit from any such plan, pool, association, or guaranty
or insolvency fund for claims arising out of the operations of such captive insurance company.
§33-31-14. Tax on premiums collected.
(a) Each pure captive insurance company which maintains its principal office and principal
place of business in this state shall pay to the commissioner, in the month of February of each year,
a tax at the rate of five tenths of one percent on the gross amount of all premiums collected or
contracted for on policies or contracts of insurance covering property or risks in this state and on risks
and property situated elsewhere upon which no premium tax is otherwise paid written by the pure
captive insurance company during the year ending December thirty-first, next preceding, after
deducting from the gross amount of direct premiums, subject to the tax, the amount received as
reinsurance premiums on business in the state and the amount amounts paid to policyholders as return
premiums which shall include dividends on unabsorbed premiums or premium deposits returned or
credited to policyholders; Provided, That no tax shall be due or payable as to considerations received
for annuity contracts.
___(b) Except as otherwise provided in subsection (a) of this section, each captive insurance
company shall pay to the commissioner in the month of February of each year, a tax at the rate of two percent on the gross amount of all premiums collected on or contracted for on policies or contracts of
insurance written by the captive insurance company during the year ending December thirty-first, next
preceding, after deducting from the direct premiums, subject to the tax, the amounts paid to
policyholders as return premiums which shall include dividends on unabsorbed premiums or premium
deposits returned or credited to policyholders. Each captive insurance company shall also be subject
to the additional premium taxes levied by sections fourteen-a and fourteen-d, article three of this
chapter and the surcharge levied by section thirty-three, article three of this chapter.
___(b) (c) The tax provided for in this section shall constitute all taxes collectible under the laws
of this state from any captive insurance company, and no other premium occupation tax or other taxes
shall be levied or collected from any captive insurance company by the state or any county, city, or
municipality within this state, except ad valorem taxes.
(d) The tax provided for in this section shall be calculated on an annual basis, notwithstanding
policies or contracts of insurance or contracts of reinsurance issued on a multiyear basis. In the case
of multiyear policies or contracts, the premium shall be prorated for purposes of determining the tax
under this section.
§33-31-15. Rules and regulations.
The commissioner may establish rules and from time to time amend such rules relating to
captive insurance companies as are necessary to enable him the commissioner to carry out the
provisions of this chapter.
§33-31-17. Delinquency.
Except as otherwise provided in this article, the terms and conditions set forth in article ten of
this chapter, pertaining to insurance reorganizations, receiverships and injunctions, shall apply in full
to captive insurance companies formed or licensed under this article.
§33-31-18. Rules for controlled unaffiliated business.
The commissioner may adopt rules establishing standards to ensure that a parent or affiliated
company is able to exercise control of the risk management function of any controlled unaffiliated
business to be insured by the pure captive insurance company. Until such time as rules under this
section are adopted, the commissioner may approve the coverage of such risks by a pure captive
insurance company.
§33-31-19. Conversion to or merger with reciprocal insurer.
(a) An association captive insurance company, risk retention group, or industrial insured
captive insurance company formed as a stock or mutual corporation may be converted to or merged
with and into a reciprocal insurer in accordance with a plan therefore and the provisions of this section.
(b) Any plan for such conversion or merger shall provide a fair and equitable plan for
purchasing, retiring, or otherwise extinguishing the interests of the stockholders and policyholders of
a stock insurer, and the members and policyholders of a mutual insurer, including a fair and equitable
provision for the rights and remedies of dissenting stockholders, members, or policyholders.
(c) In the case of a conversion authorized under subsection (a) of this section:
(1) Such conversion shall be accomplished under such reasonable plan and procedure as
approved by the commissioner. The commissioner may not approve any plan of conversion unless the
plan:
(A) Satisfies the provisions of subsection (b) of this section;
(B) Provides for a hearing, of which notice is given or to be given to the captive insurance
company, its directors, officers, and policyholders, and, in the case of a stock insurer, its stockholders,
and in the case of a mutual insurer, its members, all of which persons shall be entitled to attend and
appear at such hearing. If notice of a hearing is given and no director, officer, policyholder, member,
or stockholder requests a hearing, the commissioner may cancel such hearing;
(C) Provides a fair and equitable plan for the conversion of stockholder, member, or
policyholder interests into subscriber interests in the resulting reciprocal insurer, substantially
proportionate to the corresponding interests in the stock or mutual insurer: Provided, That this
requirement shall not preclude the resulting reciprocal insurer from applying underwriting criteria that
could affect ongoing ownership interests; and
(D) Is approved:
(i) In the case of a stock insurer, by a majority of the shares entitled to vote represented in
person or by proxy at a duly called regular or special meeting at which a quorum is present; and
(ii) In the case of a mutual insurer, by a majority of the voting interests of policyholders
represented in person or by proxy at a duly called regular or special meeting thereof at which a quorum
is present;
(2) The commissioner shall approve such plan of conversion if the commissioner finds that
the conversion will promote the general good of the state in conformity with those standards set forth
in subdivision (2), subsection (d) of section six of this article;
(3) If the commissioner approves the plan, the commissioner shall amend the converting
insurer's certificate of authority to reflect conversion to a reciprocal insurer and issue such amended
certificate of authority to the company's attorney-in-fact;
(4) Upon the issuance of an amended certificate of authority of a reciprocal insurer by the
commissioner, the conversion shall be effective; and
(5) Upon the effectiveness of such conversion the corporate existence of the converting insurer
shall cease and the resulting reciprocal insurer shall notify the secretary of state of such conversion.
(d) A merger authorized under subsection (a) of this section shall be accomplished
substantially in accordance with the procedures set forth in sections twenty-five and twenty-eight,
article five of this chapter, except that, solely for purposes of such merger:
(1) The plan of merger shall satisfy the provisions of subsection (b) of this section;
(2) The subscribers' advisory committee of a reciprocal insurer shall be equivalent to the board
of directors of a stock or mutual insurance company;
(3) The subscribers of a reciprocal insurer shall be the equivalent of the policyholders of a
mutual insurance company;
(4) If a subscribers' advisory committee does not have a president or secretary, the officers of
such committee having substantially equivalent duties shall be deemed the president or secretary of
such committee;
(5) The commissioner shall approve the articles of merger if the commissioner finds that the
merger will promote the general good of the state in conformity with those standards set forth in
subdivision (2), subsection (d), section six of this article. If the commissioner approves the articles
of merger, the commissioner shall endorse the commissioner's approval thereon and the surviving
insurer shall present the same to the secretary of state at the secretary of state's office;
(6) Notwithstanding section four of this article, the commissioner may permit the formation,
without surplus, of a captive insurance company organized as a reciprocal insurer, into which an existing captive insurance company may be merged for the purpose of facilitating a transaction under
this section: Provided, That there shall be no more than one authorized insurance company surviving
such merger; and
(7) An alien insurer may be a party to a merger authorized under subsection (a) of this section:
Provided, That the requirements for a merger between a domestic and a foreign insurer under section
twenty-five, article five of this chapter shall apply to a merger between a domestic and an alien insurer
under this subsection. Such alien insurer shall be treated as a foreign insurer under section twenty-five,
article five of this chapter and such other jurisdictions shall be the equivalent of a state for purposes
of section twenty-five, article five of this chapter.
§33-31-20. Branch captive insurance company formation.
(a) A branch captive may be established in this state in accordance with the provisions of this
article to write in this state only insurance or reinsurance of the employee benefit business of its parent
and affiliated companies which is subject to the provisions of the federal Employee Retirement Income
Security Act of 1974 and set forth in 29 USC 1001, et seq., as amended. In addition to the general
provisions of this chapter, the provisions of sections twenty-one through twenty-five of this article
shall apply to branch captive insurance companies.
(b) No branch captive insurance company shall do any insurance business in this state unless
it maintains the principal place of business for its branch operations in this state.
§33-31-21. Security required.
In the case of a branch captive insurance company, as security for the payment of liabilities
attributable to the branch operations, the commissioner shall require that a trust fund, funded by an
irrevocable letter of credit or other acceptable asset, be established and maintained in the United States for the benefit of United States policyholders and United States ceding insurers under insurance
policies issued or reinsurance contracts issued or assumed by the branch captive insurance company
through its branch operations. The amount of such security may be no less than the amount set forth
in subdivision (1), subsection (a), section four of this article and the reserves on such insurance
policies or such reinsurance contracts, including reserves for losses, allocated loss adjustment
expenses, incurred but not reported losses, and unearned premiums with regard to business written
through the branch operations: Provided, That the commissioner may permit a branch captive
insurance company that is required to post security for loss reserves on branch business by its reinsurer
to reduce the funds in the trust account required by this section by the same amount so long as the
security remains posted with the reinsurer. If the form of security selected is a letter of credit, the letter
of credit must be established by, or issued or confirmed by, a bank chartered in this state or a member
bank of the Federal Reserve System.
§33-31-22. Certificate of general good.
In the case of a captive insurance company licensed as a branch captive, the alien captive
insurance company shall petition the commissioner to issue a certificate setting forth the
commissioner's finding that, after considering the character, reputation, financial responsibility,
insurance experience, and business qualifications of the officers and directors of the alien captive
insurance company, the licensing and maintenance of the branch operations will promote the general
good of the state. The alien captive insurance company may register to do business in this state after
the commissioner's certificate is issued.
§33-31-23. Reports.
Prior to the first day of March of each year, or with the approval of the commissioner within
sixty days after its fiscal year-end, a branch captive insurance company shall file with the
commissioner a copy of all reports and statements required to be filed under the laws of the jurisdiction
in which the alien captive insurance company is formed, verified under oath by its president and
secretary. If the commissioner is satisfied that the annual report filed by the alien captive insurance
company in its domiciliary jurisdiction provides adequate information concerning the financial
condition of the alien captive insurance company, the commissioner may waive the requirement for
completion of the captive annual statement for business written in the alien jurisdiction.
§33-31-24. Examination.
(a) The examination of a branch captive insurance company pursuant to section eight of this
article shall be of branch business and branch operations only, so long as the branch captive insurance
company annually provides to the commissioner a certificate of compliance, or its equivalent, issued
by or filed with the licensing authority of the jurisdiction in which the branch captive insurance
company is formed, and demonstrates to the commissioner's satisfaction that it is operating in sound
financial condition in accordance with all applicable laws and regulations of such jurisdiction.
(b) As a condition of licensure, the alien captive insurance company shall grant authority to
the commissioner for examination of the affairs of the alien captive insurance company in the
jurisdiction in which the alien captive insurance company is formed.
§33-31-25. Taxation.
In the case of a branch captive insurance company, the tax provided for in section fourteen of
this article shall apply only to the branch business of such company.
ARTICLE 31A. SPONSORED CAPTIVE INSURANCE COMPANY FORMATION.
§33-31A-1. Applicability of article.
In addition to the provisions of article thirty-one of this chapter, the provisions of this article
shall apply to all sponsored captive insurance companies.
§33-31A-2. Definitions.
As used in this article, unless the context requires otherwise:
(1) 'Participant' means associations, corporations, limited liability companies, partnerships,
trusts, and other business entities and any affiliates thereof, that are insured by a sponsored captive
insurance company, where the losses of the participant are limited through a participant contract to
such participant's pro rata share of the assets of one or more protected cells identified in such
participant contract.
(2) 'Participant contract' means a contract by which a sponsored captive insurance company
insures the risks of a participant and limits the losses of each such participant to its pro rata share of
the assets of one or more protected cells identified in such participant contract.
(3) 'Protected cell' means a separate account established by a sponsored captive insurance
company formed or licensed under the provisions of this chapter, in which assets are maintained for
one or more participants in accordance with the terms of one or more participant contracts to fund the
liability of the sponsored captive insurance company assumed on behalf of such participants as set
forth in such participant contracts.
(4) 'Sponsor' means any entity that meets the requirements of section six of this article and
is approved by the commissioner to provide all or part of the capital and surplus required by applicable
law and to organize and operate a sponsored captive insurance company.
(5) 'Sponsored captive insurance company' means any captive insurance company:
(A) In which the minimum capital and surplus required by applicable law is provided by one
or more sponsors;
(B) That is formed or licensed under the provisions of this chapter;
(C) That insures the risks only of its participants through separate participant contracts; and
(D) That funds its liability to each participant through one or more protected cells and
segregates the assets of each protected cell from the assets of other protected cells and from the assets
of the sponsored captive insurance company's general account.
§33-31A-3. Formation of sponsored captive insurance companies.
One or more sponsors may form a sponsored captive insurance company under the provisions
of this article. A sponsored captive insurance company shall be incorporated as a stock insurer with
its capital divided into shares and held by the stockholders.
§33-31A-4. Supplemental application materials
.
In addition to the information required by subdivisions (1) and (2), subsection (c), section two
of article thirty-one of this chapter, each applicant-sponsored captive insurance company shall file with
the commissioner the following:
(1) Materials demonstrating how the applicant will account for the loss and expense
experience of each protected cell at a level of detail found to be sufficient by the commissioner, and
how it will report such experience to the commissioner;
(2) A statement acknowledging that all financial records of the sponsored captive insurance
company, including records pertaining to any protected cells, shall be made available for inspection
or examination by the commissioner or the commissioner's designated agent;
(3) All contracts or sample contracts between the sponsored captive insurance company and
any participants; and
(4) Evidence that expenses shall be allocated to each protected cell in a fair and equitable
manner.
§33-31A-5. Protected cells.
A sponsored captive insurance company formed or licensed under the provisions of this article
may establish and maintain one or more protected cells to insure risks of one or more participants,
subject to the following conditions:
(1) The shareholders of a sponsored captive insurance company shall be limited to its
participants and sponsors: Provided, That a sponsored captive insurance company may issue nonvoting
securities to other persons on terms approved by the commissioner;
(2) Each protected cell shall be accounted for separately on the books and records of the
sponsored captive insurance company to reflect the financial condition and results of operations of
such protected cell, net income or loss, dividends or other distributions to participants, and such other
factors as may be provided in the participant contract or required by the commissioner;
(3) The assets of a protected cell shall not be chargeable with liabilities arising out of any other
insurance business the sponsored captive insurance company may conduct;
(4) No sale, exchange or other transfer of assets may be made by such sponsored captive
insurance company between or among any of its protected cells without the consent of such protected
cells;
(5) No sale, exchange, transfer of assets, dividend or distribution may be made from a
protected cell to a sponsor or participant without the commissioner's approval and in no event shall such approval be given if the sale, exchange, transfer, dividend or distribution would result in
insolvency or impairment with respect to a protected cell;
(6) Each sponsored captive insurance company shall annually file with the commissioner such
financial reports as the commissioner shall require, which shall include, without limitation, accounting
statements detailing the financial experience of each protected cell;
(7) Each sponsored captive insurance company shall notify the commissioner in writing within
ten business days of any protected cell that is insolvent or otherwise unable to meet its claim or
expense obligations;
(8) No participant contract shall take effect without the commissioner's prior written approval,
and the addition of each new protected cell and withdrawal of any participant or termination of any
existing protected cell shall constitute a change in the business plan requiring the commissioner's prior
written approval; and
(9) The business written by a sponsored captive, with respect to each cell, shall be:
(A) Fronted by an insurance company licensed under the laws of any state;
(B) Reinsured by a reinsurer authorized or approved by the state of West Virginia; or
(C) Secured by a trust fund in the United States for the benefit of policyholders and claimants
or funded by an irrevocable letter of credit or other arrangement that is acceptable to the commissioner.
The amount of security provided shall be no less than the reserves associated with those liabilities
which are neither fronted nor reinsured, including reserves for losses, allocated loss adjustment
expenses, incurred but not reported losses and unearned premiums for business written through the
participant's protected cell. The commissioner may require the sponsored captive to increase the
funding of any security arrangement established under this subdivision. If the form of security is a letter of credit, the letter of credit must be established, issued or confirmed by a bank chartered in this
state, a member of the Federal Reserve System, or a bank chartered by another state if such state
chartered bank is acceptable to the commissioner. A trust maintained pursuant to this paragraph shall
be established in a form and upon such terms approved by the commissioner.
§33-31A-6. Qualification of sponsors.
A sponsor of a sponsored captive insurance company shall be an insurer licensed under the
laws of any state, a reinsurer authorized or approved under the laws of any state, or a captive insurance
company formed or licensed under this article. A risk retention group shall not be either a sponsor or
a participant of a sponsored captive insurance company.
§33-31A-7. Authorized participants.
Associations, corporations, limited liability companies, partnerships, trusts, and other business
entities may be participants in any sponsored captive insurance company formed or licensed under this
chapter. A sponsor may be a participant in a sponsored captive insurance company. A participant
need not be a shareholder of the sponsored captive insurance company or any affiliate thereof. A
participant shall insure only its own risks through a sponsored captive insurance company.
§33-31A-7. Investments.
Notwithstanding the provisions of section five of this article, the assets of two or more
protected cells may be combined for purposes of investment, and such combination shall not be
construed as defeating the segregation of such assets for accounting or other purposes. Sponsored
captive insurance companies shall comply with the investment requirements contained in article eight
of this chapter, as applicable: Provided, That compliance with such investment requirements shall be
waived for sponsored captive insurance companies to the extent that credit for reinsurance ceded to reinsurers is allowed pursuant to section eleven, article thirty-one of this article or to the extent
otherwise deemed reasonable and appropriate by the commissioner. Notwithstanding any other
provision of this chapter, the commissioner may approve the use of alternative reliable methods of
valuation and rating.
§33-31A-8. Delinquency.
In the case of a delinquency of a sponsored captive insurance company, the provisions of
section seventeen, article thirty-one of this chapter shall apply, provided:
(1) The assets of a protected cell may not be used to pay any expenses or claims other than
those attributable to such protected cell; and
(2) Its capital and surplus shall at all times be available to pay any expenses of or claims
against the sponsored captive insurance company."
The bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
S. B. 444, Requiring county litter control officers to enforce litter laws,
Com. Sub. for S. B. 505, Creating motor vehicle classification of "low-speed vehicle",
Com. Sub. for S. B. 533, Authorizing division of corrections charge certain adult offenders
transfer application fee,
And
S. B. 569, Clarifying and preserving irrevocability of certain trusts.
On the passage of the bills, the yeas and nays were taken (Roll No. 610), 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 (Com. Sub. for S. B. 28, Com. Sub. for S. B. 230, S. B. 317, Com. Sub. for S. B. 320,
S. B. 418, S. B. 428, S. B. 444, Com. Sub. for S. B. 505, Com. Sub. for S. B. 533 and S. B. 569.)
passed.
An amendment to the title of Com. Sub. for S. B. 320, recommended by the Committee on
the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 320 - "A Bill to amend and reenact §11-5-12 of the code of West
Virginia, 1931, as amended; to amend and reenact §17A-3-4 of said code; and to amend said code by
adding thereto a new section, designated §17A-3-12b, all relating to certificates of title; permitting the
filing of canceled certificates of title in the office of the clerk of the county commission; exempting
mobile and manufactured homes from the prohibition against the transfer, purchase or sale of a mobile
or manufactured home when a certificate of title has been cancelled; exempting modular homes from
the need for certificates of title; cancellation of certificates of title for mobile and manufactured homes
permanently attached to real estate."
An amendment to the title of S. B. 418, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 418 - "A Bill to amend and reenact §50-1-14 of the code of West Virginia, 1931, as
amended, relating to authorizing civil process servers employed by a county sheriff to carry firearms
and requiring training, continued annual weapons qualifications and bonding through the office of the
sheriff."
An amendment to the title of S. B. 428, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 428 - "A Bill to amend and reenact §33-31-1, §33-31-2, §33-31-4, §33-31-5, §33-31-6,
§33-31-7, §33-31-8, §33-31-9, §33-31-10, §33-31-11, §33-31-13, §33-31-14 and §33-31-15 of the
code of West Virginia 1931, as amended; to amend said code by adding thereto nine new sections,
designated §33-31-17, §33-31-18, §33-31-19, §33-31-20, §33-31-21, §33-31-22, §33-31-23, §33-31-24
and §33-31-25; and to amend said code by adding thereto a new article, designated §33-31A-1, §33-
31A-2, §33-31A-3, §33-31A-4, §33-31A-5, §33-31A-6, §33-31A-7, and §33-31A-8, all relating to
captive insurance companies; authorizing establishment of and regulating branch captive insurance
companies and sponsored cell captives; and generally modernizing the captive insurance law."
An amendment to the title of S. B. 444, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 444 - "A Bill to amend and reenact §7-1-3ff of the code of West Virginia, 1931, as
amended; and to amend and reenact §20-7-25 of said code, all relating to authority of county
commissions to hire litter control officer; requiring county litter control officer to enforce litter laws
under the litter control program; and encouraging volunteers by creating a volunteer program."
Delegate Staton moved that S. B. 317 take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 621), 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. 317) takes effect July 1, 2004.
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 requiring the same.
Second Reading
The following bills on second reading, coming up in regular order, were each read a second
time and ordered to third reading:
Com. Sub. for S. B. 50, Relating to waste tire remediation; liability,
Com. Sub. for S. B. 89, Relating to beneficial use of water treatment plant sludge,
Com. Sub. for S. B. 119, Enhancing criminal penalties for obtaining money, property and
services by false pretenses from persons over certain age,
S. B. 529, Repealing section of code relating to working prisoners by county courts,
S. B. 532, Repealing section of code relating to inspection of jails,
Com. Sub. for S. B. 629, Creating Small Estate Probate Relief Act of 2004,
S. B. 688, Relating to wages election official can receive and not be considered for
unemployment compensation,
And,
S. B. 731, Relating to promulgation of rules by department of administration for compliance
standards for state leased property.
Special Calendar
Unfinished Business
S. C. R. 17, Requesting Division of Highways name bridge near Rowlesburg, Preston County,
"Charles B. Felton, Jr., Bridge"; coming up in regular order, as unfinished business, was reported by
the Clerk.
The question now being on the adoption of the resolution, Delegate Trump demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 622), 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 resolution (S. C. R. 17) adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Third Reading
At the request of Delegates Staton, and by unanimous consent, the House of Delegates then
proceeded to consideration of the following bills:
Com. Sub. for S. B. 327, Authorizing department of administration to promulgate legislative
rules; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 623), and there were--yeas
91, nays 8, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Border, Frich, Hall, Louisos, Schoen, Sobonya and Walters.
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. 327) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 327 - "A Bill to reenact §64-1-1 of the code of West Virginia, 1931, as
amended, and to amend and reenact article 2, chapter 64 of said code, all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the
procedures relating thereto; legislative mandate or authorization for the promulgation of certain
legislative rules by various executive or administrative agencies of the state; 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 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;
disapproving certain legislative rules; authorizing the department of administration to promulgate a
legislative rule relating to leasing space on behalf of state spending units; authorizing the department
of administration to promulgate a legislative rule relating to parking; authorizing the consolidated
public retirement board to promulgate a legislative rule relating to general provisions; 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 board of risk and insurance management to promulgate a legislative
rule relating to the public entities insurance program; and disapproving the board of risk and insurance
management legislative rule relating to the terms and conditions pertaining to members of self-
insurance pools who wish to participate in state insurance programs."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 624), and there were--yeas 97, nays
2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Border and Walters.
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 327) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 350, Authorizing bureau of commerce to promulgate legislative rules; on
third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 625), and there were--yeas
97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Frich and Walters.
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. 350) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 350 - "A Bill to amend and reenact article 10, chapter 64 of the code of
West Virginia, 1931, as amended, 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 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; disapproving certain
legislative rules; authorizing the economic development authority to promulgate a legislative rule
relating to the general administration of the West Virginia venture capital act; authorizing the
economic development authority to promulgate a legislative rule relating to economic development
and technology advancement centers; authorizing the infrastructure and jobs development council to
promulgate a legislative rule relating to council; authorizing the division of labor to promulgate a
legislative rule relating to psychophysiological detection of deception examinations; disapproving the
manufactured housing construction and safety standards board to promulgate a legislative rule relating
to the board; authorizing the office of miners' health, safety and training to promulgate a legislative
rule relating to reporting requirements for independent contractors; authorizing the division of natural
resources to promulgate a legislative rule relating to public land corporation rule controlling sale, lease,
exchange or transfer of land and minerals; authorizing the division of natural resources to promulgate
a legislative rule relating to revocation of hunting and fishing licenses; authorizing the division of
natural resources to promulgate a legislative rule relating to special motorboating regulations; and
authorizing the division of natural resources to promulgate a legislative rule relating to special
fishing."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 626), 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 S. B. 350) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 399, Authorizing miscellaneous boards and agencies to promulgate
legislative rules; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 627), and there were--yeas
97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Border and Walters.
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. 399) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 399 - "A Bill to amend and reenact article 9, chapter 64 of the code of
West Virginia, 1931, as amended, 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 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; disapproving certain
rules; authorizing the board of accountancy to promulgate a legislative rule relating to the board and
rules of professional conduct; authorizing commissioner of agriculture to promulgate legislative rule
relating to frozen desserts and imitation frozen desserts; authorizing commissioner of agriculture to
promulgate legislative rule relating to dairy products and imitation dairy products; authorizing
commissioner of agriculture to promulgate legislative rule relating to seed law; authorizing board of
architects to promulgate legislative rule relating to registration of architects; authorizing auditor's
office to promulgate legislative rule relating to transaction fee and rate structure; authorizing auditor's
office to promulgate legislative rule relating to state purchasing card program; authorizing board of
examiners in counseling to promulgate legislative rule relating to fees; authorizing board of
registration for professional engineers to promulgate legislative rule relating to governance of board;
authorizing board of examiners of land surveyors to promulgate legislative rule relating to minimum
standards for practice of land surveying; authorizing board of examiners of land surveyors to
promulgate legislative rule relating to mandatory continuing education for land surveyors; authorizing
board of landscape architects to promulgate legislative rule relating to board; authorizing board of
examiners for licensed practical nurses to promulgate legislative rule relating to policies and procedures for development and maintenance of education programs in practical nursing; authorizing
board of medicine to promulgate legislative rule relating to licensing and disciplinary procedures:
physicians and podiatrists; authorizing board of optometry to promulgate legislative rule relating to
board; authorizing board of examiners of psychologists to promulgate legislative rule relating to fees;
authorizing public service commission to promulgate legislative rule relating to transportation of coal
by commercial motor vehicles; authorizing records management and preservation board to promulgate
legislative rule relating to general management and preservation of county records; and authorizing
statewide addressing and mapping board to promulgate legislative rule relating to addressing and
mapping standards and participation by public agencies in statewide addressing and mapping projects."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 628), 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 S. B. 399) 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.
And,
Com. Sub. for S. B. 502, Relating to rights of members of teachers defined contribution
retirement system; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 629), and there were--yeas
96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead and Frederick.
Absent And Not Voting: Coleman and Long.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 502) 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:
Com. Sub. for S. B. 502 - "A Bill to amend and reenact §18-7B-7, §18-7B-9, §18-7B-11 and
§18-7B-16 of the code of West Virginia, 1931, as amended; to amend said code by adding thereto two
new sections, designated §18-7B-7a and §18-7B-20, and to amend said code by adding thereto a new
article, designated §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18-7C-
8, §18-7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and §18-7C-14, all relating to the
teachers' defined contribution retirement system generally; clarifying when membership required;
requiring certain corporation to provide private pension system for its new employees and permitting
existing employees to elect to withdraw from membership in teachers' defined contribution retirement
system; permitting periodic payment distributions; modifying purposes for which moneys in
suspension account may be expended; clarifying that certain employer contributions are not forfeited
upon reemployment; prohibiting involuntary distributions; providing for the merger and consolidation
of the teachers' defined contribution retirement system and the state teachers retirement system;
closing the teachers' defined contribution retirement system to newly hired personnel; providing that
certain persons rehired are to become members of the last plan contributed to; setting forth short title;
providing legislative findings and purpose; providing definitions; providing for merger and
consolidation of the teachers' defined contribution retirement system and the state teachers retirement
system upon election; providing responsibilities of the consolidated public retirement board; setting forth dates and time periods for transition and election; requiring that increase of or new benefits to
the teachers retirement system be amortized over a seven-year time period; providing for education
about election and merger for members; requiring legal notice to members; providing for transfer of
assets from the teachers' defined contribution retirement system to the state teachers retirement system
upon favorable vote for consolidation and merger; providing that the teachers' defined contribution
retirement system shall not exist upon favorable vote for consolidation and merger; setting forth terms
of merger and consolidation of the teachers' defined contribution retirement system and the state
teachers retirement system; providing for service credit in the state teachers retirement; requiring
members of teachers' defined contribution plan to pay additional amount to receive credit upon
merger; providing options and loans for members moving to the remaining plan; providing service
credit for transferring member; addressing withdrawals and cash outs; providing for election on the
question of merger and consolidation of the teachers' defined contribution retirement system and the
state teachers retirement system; setting forth requirements of election; allowing consolidated public
retirement board to contract directly for professional services for purposes of performing its
responsibilities related to the merger and consolidation and conducting the election; permitting only
one election; addressing qualified domestic relations orders; providing for vesting of members and
minimum guarantees of benefits for them; providing for due process and right to appeal; and providing
for nonseverability of the new article."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
The House of Delegates then returned to the regular order of bills on Third Reading.
Com. Sub. for S. B. 143, Relating to small employer accident and sickness insurance policies;
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. 630), and there were--yeas
87, nays 12, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Blair, Border, Carmichael, Fragale, Frich, Hall, Hamilton, Iaquinta, Schoen, Sumner,
Trump and Wakim.
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. 143) 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. 148, Creating Tax Amnesty Program of 2004; 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. 631), and there were--yeas
96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Faircloth, 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. 148) 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. 148 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto
a new article, designated §11-10D-1, §11-10D-2, §11-10D-3, §11-10D-4, §11-10D-5, §11-10D-6, §11-
10D-7, §11-10D-8, §11-10D-9, §11-10D-10, §11-10D-11 and §11-10D-12; to amend and reenact §11-
12-5 of said code; to amend and reenact §11A-1-7 of said code; and to amend and reenact §11A-2-11 of said code, all relating generally to the collection of delinquent taxes; granting persons who owe but
have not paid one or more taxes administered under West Virginia tax procedure and administration
act an amnesty period during which past-due taxes may be paid or payment agreements acceptable to
tax commissioner executed; providing for waiver of additions to tax, money penalties and fifty percent
of accrued interest on past-due taxes when taxes for which amnesty is granted are paid within one
month after tax amnesty period closes or paid pursuant to payment agreements executed during
amnesty period; prohibiting criminal prosecution for default for which tax amnesty is granted; setting
forth legislative findings and declarations; establishing requirements of and exceptions and limitations
to tax amnesty program; defining certain terms; authorizing tax commissioner to do all things
necessary to implement two-month tax amnesty program during current calendar year, including, but
not limited to, issuance of emergency legislative rules; suspending language of code that is inconsistent
or conflicts with language creating tax amnesty program; requiring tax commissioner to report certain
information to Legislature and governor after conclusion of tax amnesty program; authorizing tax
commissioner to suspend a business registration certificate for failure to pay delinquent personal
property taxes; requiring the tax commissioner to refuse to issue or renew a business registration
certificate upon certain notice from the sheriff that the registrant has not paid delinquent personal
property taxes; requiring tax commissioner to propose legislative rules establishing ancillary
procedures for the tax commissioner's suspension of business registration certificates; requiring sheriff
to decline to receive current taxes due on any personal property where a prior year's taxes are unpaid;
and providing language for inclusion in publication giving notice of that license to do business in state
will be suspended for failure to pay delinquent personal property taxes."
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. 163, Establishing Water Resources Protection Act; 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. 632), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Azinger.
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. 163) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 163 - "A Bill to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §22-25-1, §22-25-2, §22-25-3, §22-25-4, §22-25-5 and §22-
25-6, all relating to establishing the water resources protection act; providing legislative findings;
finding that the state reserves a sovereign interest in the waters of the state as a valuable public
resource; defining terms; declaring the state shall claim and protect state waters for the use and benefit
of its citizens; providing for preservation of common law rights; providing that a water use survey and
registration of large users of state waters be undertaken by the secretary of the department of
environmental protection; requiring the secretary to coordinate survey with state agencies and report
to a legislative oversight commission; requiring persons making withdrawals exceeding seven hundred
fifty thousand gallons per month to participate in survey and registration; requiring the secretary to use
reasonable alternatives for estimating usage; requiring persons participating in survey and registration
to submit accurate information; providing limited exceptions to survey and registration participation;
authorizing the secretary to coordinate with other state agencies and the United States geological survey; directing the division of environmental protection to propose a strategy for water management;
authorizing secretary of division of environmental protection to promulgate rules; establishing
confidentiality of submitted information and exceptions; providing criteria for requesting and receiving
confidentiality designation; establishing requirements for requesting confidential documents and
appeal process; establishing a joint legislative oversight commission to monitor survey and develop
policies; and providing civil penalties for noncompliance."
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. 165, Simplifying state higher education tuition and fee system; 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. 633), 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. 165) passed.
On motion of Delegate Beach, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 165 - "A Bill to repeal §18B-10-3, §18B-10-4a and §18B-10-10 of the
code of West Virginia, 1931, as amended; to amend and reenact §18B-4-7 of said code; to amend said
code by adding thereto a new section, designated §18B-4-9; to amend and reenact §18B-5-4 of said
code; to amend said code by adding thereto a new section, designated §18B-9-2a; to amend and reenact
§18B-10-1, §18B-10-2, §18B-10-4, §18B-10-4b, §18B-10-5, §18B-10-6, §18B-10-7, §18B-10-7a,
§18B-10-8, §18B-10-9, §18B-10-11, §18B-10-12, §18B-10-13, §18B-10-14 and §18B-10-15 of said
code; to amend said code by adding thereto a new section, designated §18B-10-1b; to amend said code by adding thereto a new section, designated §18B-14-12; and to amend and reenact §18C-3-1 of said
code; all relating to fees collected and moneys expended by state institutions of higher education;
tuition and fee simplification for public higher education; clarifying authority of the West Virginia
council for community and technical college education related to community and technical college
tuition, fees and programs; establishing conditions precedent to eliminating certain National Collegiate
Athletic Association teams; expanding certain program and degree granting authority; repealing
obsolete language; expanding certain purchasing authority; modifying certain purchasing procedures;
expanding certain employee classifications; creating classifications of fees; authorizing deferred
payment plans for students; requiring maintenance of support for certain instructional and student
activities; clarifying authority of commission to enter into trust agreements; clarifying purposes for
which fees may be used; deleting certain restrictions on bookstore sales; expanding certain tuition and
fee waivers; clarifying terms and conditions for the health education student loan program; and
transferring operation of West Virginia network for educational telecomputing."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 634), 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 S. B. 165) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 197, Relating generally to distribution of net terminal income of racetrack
video lottery terminals; on third reading, coming up in regular order, was read a third time.
Delegate Louisos requested to be excused from voting on the passage of Com. Sub. for S. B.
197 under the provisions of House Rule 49.
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. 635), and there were--yeas
75, nays 22, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Ashley, Azinger, Border, Canterbury, Caputo, Carmichael, DeLong, Ellem,
Frich, Hamilton, Howard, Hrutkay, Leggett, Manchin, Schoen, Sobonya, Staton, Sumner, Susman, R.
Thompson and Tucker.
Absent And Not Voting: Coleman, Mezzatesta and Warner.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 197) 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:
Com. Sub. for S. B. 197 - "A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto three new sections, designated §5A-4-5a, §5A-4-6 and §5A-4-7; and to amend and
reenact §5B-2-12 of said code, all relating to funding specific activities; creation of a fund to be used
for the construction and maintenance of a parking garage; distribution of net terminal income to funds
for the construction and maintenance of parking garages, to the capitol dome and improvements fund,
to the cultural facilities and capitol resources matching grant program fund, to the capitol renovation
and improvement fund, to the tourism promotion fund and to the revenue shortfall reserve fund;
creation of a fund for renovations and improvements of the existing state capitol building and the capitol complex; and prohibiting members of the tourism commission from participating in the
discussion of, or action upon, an application for or an award of any grant in which the member has a
direct financial interest."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates then
proceeded to consideration of the following bills:
S. B. 526, Making supplementary appropriation of public moneys from unappropriated surplus
balance in general revenue to division of rehabilitation services; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 636), and there were--yeas
91, nays none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Blair, Calvert, Coleman, Crosier, Mezzatesta, Romine, Susman,
Swartzmiller 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 (S. B. 526) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 637), and there were--yeas 92, nays
none, absent and not voting 8, with the absent and not voting being as follows:
Absent And Not Voting: Blair, Calvert, Coleman, Crosier, Mezzatesta, Susman,
Swartzmiller and R. M. Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 526) 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. 713, Expiring funds to unappropriated balance of general revenue from board of risk and
insurance management, premium tax savings fund; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 638), and there were--yeas
93, nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent And Not Voting: Blair, Coleman, Crosier, Mezzatesta, Susman, Swartzmiller 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 (S. B. 713) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 639), 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: Coleman, Crosier, Mezzatesta, Swartzmiller and R. M. Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 713) 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. 714, Expiring funds to unappropriated balance of general revenue from insurance
commission fund; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 640), 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, Crosier and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 714) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 641), 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, Crosier 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. 714) 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. 715, Expiring funds to unappropriated balance of general revenue from public service
commission; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 642), and there were--yeas
96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Coleman, Crosier and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 715) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 643), 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, Crosier 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. 715) 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. 717, Terminating agencies following full performance evaluations; on third reading, was
read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 644), 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 Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 717) 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 H. B. 4000, Budget Bill, making appropriations of public money out of the
treasury in accordance with section fifty-one, article six of the Constitution; on third reading, was, on
motion of Delegate Staton, laid upon the table.
H. B. 4764, Supplemental appropriation to the public service commission-gas pipeline
division; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 645), 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. 4764) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 646), 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. 4764) 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. 4765, Supplemental appropriation to the public service commission; on third reading,
was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 647), and there were--yeas
97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Carmichael and Louisos.
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. 4765) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 648), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Louisos.
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. 4765) 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.
Conference Committee Report Availability
At 11:35 a.m., the Clerk announced the availability in his office of the report of the Committee
of Conference on Com. Sub. for H. B. 4377.
Conference Committee Report
Delegate Kominar, from the Committee of Conference on matters of disagreement between
the two houses, as to
H. B. 4107, Allowing licensees of charitable bingo and raffle games to transfer game proceeds
between their bingo and raffle operations,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendment of the Senate to H. B. 4107 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 agree to the same as follows:
That §47-20-11, §47-20-12a and §47-20-16 of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §47-21-12 and §47-21-16 of said code be amended and reenacted,
all to read as follows:
ARTICLE 20. CHARITABLE BINGO.
§47-20-11. Operator of bingo games and related concessions.
(a) Except as provided in sections thirteen and twenty-two of this article, the only persons, as
defined in section two of this article, that may participate in any manner in the conduct of any bingo
game or operate any concession in conjunction with a bingo occasion are either:
(1) Residents of this state and who are active members of the licensee organization or its
authorized auxiliary organization and who have been active members in good standing of the licensee
organization or its authorized auxiliary for at least two years prior to the date of filing of the
application for a charitable bingo license or the most recent filing of an application for renewal of the
license; may participate in any manner in the conduct of any bingo game or operate any concession in
conjunction with a bingo occasion: Provided, That or
___(2) Employees of the licensee organization or its authorized auxiliary organization who are:
___(A) Residents of this state;
___(B) Residents of a state bordering this state if the county of his or her residence is contiguous
to the county in this state in which the bingo operation is conducted; or
___(C) Residents of a bordering state who reside within thirty-five miles of the county in which
the bingo operation is conducted.
___(b) Notwithstanding anything contained in this article to the contrary, no individual under the
age of eighteen years may directly or indirectly participate in the conduct of a bingo game, except for
junior firefighters, in accordance with the provisions of this article.
§47-20-12a. Compensation of bingo operator; number of employees.
(a) Within the guidelines set forth in subsections (b), (c) and (d) of this section, a licensee may
pay a salary, the minimum of which shall be established at is the federal minimum wage and the
maximum being of which is six dollars and fifty cents per hour, to operators of bingo games who are
either:
(1) Active members of the licensee organization and who have been active members in good
standing for at least two years prior to the date of filing of the application for a charitable bingo license
or the most recent filing of an application for renewal of the license; or
___(2) Employees of the licensee organization or its authorized auxiliary organization who are:
___(A) Residents of this state;
___(B) Residents of a state bordering this state if the county of his or her residence is contiguous
to the county in this state in which the bingo operation is conducted; or
___(C) Residents of a bordering state who reside within thirty-five miles of the county in which
the bingo operation is conducted.
(b) If the licensee's gross receipts from bingo occasions equal or exceed one hundred thousand
dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more
than eight operators.
(c) If the licensee's gross receipts from bingo occasions are less than one hundred thousand
dollars, but equal or exceed fifty thousand dollars for the licensee's most recently filed annual financial
report, a salary may be paid to not more than five operators.
(d) If the licensee's gross receipts from bingo occasions are less than fifty thousand dollars for
the licensee's most recently filed annual financial report, a salary may be paid to not more than three
operators.
(e) If the licensee also possesses a super bingo license, it may pay a salary to not more than
fifteen operators during the super bingo occasion.
(f) In the case of a licensee lawfully holding a charitable bingo occasion simultaneously with
a charitable raffle occasion, the number of paid charitable bingo operator employees allowed under
this limitation for bingo licensees shall be is in addition to the number of charitable raffle operator employees allowed under section fifteen, article twenty-one of this chapter. Licensees holding
simultaneous occasions shall pay bingo operators from the proceeds of bingo operations and shall pay
raffle operators from the proceeds of raffle operations and the charitable bingo fund and the charitable
raffle fund and payments from the funds shall may not be commingled.
(g) For purposes of the limitations set forth in this section, the term "operator" or "bingo
operator" or "raffle operator" shall does not include concession stand workers. Wages paid to
concession workers shall may not exceed six dollars and fifty cents per hour.
§47-20-16. Records; commissioner audit.
Any licensee which holds a bingo occasion as provided by this article shall maintain a separate
checking account and separate book-keeping procedure for its bingo operations: Provided, That
nothing in this article restricts a licensee from transferring moneys in the account from a bingo
occasion to an account created under section sixteen, article twenty-one of this chapter in an amount
not to exceed the actual loss of the raffle occasion receiving the transfer: Provided, however, That
money transferred shall be withdrawn only by checks having preprinted consecutive numbers and
made payable to the account created under section sixteen, article twenty-one of this code. Money for
expenses shall be withdrawn only by checks having preprinted consecutive numbers and made payable
to a specific person, firm or corporation and at no time shall a check be made payable to cash. A
licensee shall maintain all records required by this article for at least three years and the records shall
be open to the commissioner for reasonable inspection. Whenever the tax commissioner has
reasonable cause to believe a licensee has violated any of the provisions of this article, he or she may
perform or cause to be performed an audit of the licensee's books and records: Provided further, That
the tax commissioner shall perform or cause to be performed an audit of the books and records of any
licensee that has awarded total prizes in excess of one hundred seventy-five thousand dollars. The tax commissioner shall file a copy of the completed audit with the county commission of the county
wherein the licensee holds bingo occasions.
ARTICLE 21. CHARITABLE RAFFLES.
§47-21-12. Compensation.
(a) A licensee may pay a salary, the minimum of which shall be established at is the federal
minimum wage and the maximum of which shall be is six dollars and fifty cents per hour, to operators
of charitable raffle games who are either:
(1) Active members of the licensee organization and who have been active members in good
standing for at least two years prior to the date of filing of the application for a charitable raffle license
or the most recent filing of an application for renewal of the license; or
___(2) Employees of the licensee organization or its authorized auxiliary organization who are:
___(A) Residents of this state;
___(B) Residents of a state bordering this state if the county of his or her residence is contiguous
to the county in this state in which the raffle operation is conducted; or
___(C) Residents of a bordering state who reside within thirty-five miles of the county in which
the raffle operation is conducted.
(b) If the licensee's gross receipts from raffle occasions equal or exceed one hundred thousand
dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more
than eight operators.
(c) If the licensee's gross receipts from charitable raffle occasions are less than one hundred
thousand dollars, but equal or exceed fifty thousand dollars for the licensee's most recently filed
annual financial report, a salary may be paid to not more than five operators.
(d) If the licensee's gross receipts from charitable raffle occasions are less than fifty thousand
dollars for the licensee's most recently filed annual financial report, a salary may be paid to no more
than three operators.
(e) In the case of a licensee lawfully holding a charitable bingo occasion simultaneously with
a charitable raffle occasion, the number of paid charitable raffle operator employees allowed under this
limitation for charitable raffle licensees is in addition to the number of charitable bingo operator
employees allowed under section twelve-a, article twenty of this chapter. Licensees holding
simultaneous occasions shall pay bingo operators from the proceeds of bingo operations and shall pay
raffle operators from the proceeds of raffle operations and the charitable bingo fund and the charitable
raffle fund and payments from the funds shall may not be commingled.
(f) For purposes of the limitations set forth in this section, the term "operator" or "bingo
operator" or "raffle operator" shall do not include concession stand workers. Wages paid to
concession workers shall may not exceed six dollars and fifty cents per hour.
§47-21-16. Records; commissioner audit.
Any licensee which holds a raffle occasion as provided by this article shall maintain a separate
account and separate book-keeping procedure for its raffle operations: Provided, That nothing in this
article restricts a licensee from transferring moneys in the account from a raffle occasion to an account
created under section sixteen, article twenty of this chapter in an amount not to exceed the actual loss
of the bingo occasion receiving the transfer: Provided, however, That money transferred shall be
withdrawn only by checks having preprinted consecutive numbers and made payable to the account
created under section sixteen, article twenty of this code. All records required by this article shall be
maintained for at least three years and shall be open to the commissioner for reasonable inspection.
Whenever the commissioner has reasonable cause to believe a licensee has violated any of the provisions of this article, he may perform or cause to be performed an audit of the licensee's books and
records.
And,
That both houses recede from their respective positions as to the title of the bill and agree to
the same as follows:
H. B. 4107 - "A Bill to amend and reenact §47-20-11, §47-20-12a and §47-20-16 of the code
of West Virginia, 1931, as amended; and to amend and reenact §47-21-12 and §47-21-16 of said code,
all relating to charitable bingo and charitable raffles; allowing certain employees to operate bingo and
raffle games; allowing game proceeds to be transferred, by check, between raffle and bingo accounts
to offset losses; and allowing certain residents of other states to be employed by charitable bingo and
charitable raffle operations."
Respectfully submitted,
Steven K. Kominar, John Pat Fanning
William F. Stemple, Joseph M. Minard,
Robert A. Schadler, Andy McKenzie,
Conferees on the part Conferees on the part
of the House of Delegates. of the Senate.
On motion of Delegate Kominar, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 649), and there were--yeas
72, nays 21, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Armstead, Ashley, Azinger, Border, Brown, Calvert, Carmichael, Ellem, Evans, Frich,
Hall, Hamilton, Howard, Leggett, Louisos, Overington, Schoen, Sobonya, Sumner, Walters and Webb.
Absent And Not Voting: Butcher, Cann, Coleman, DeLong, Perdue, Stalnaker and Tucker.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (H. B. 4107) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 650), and there were--yeas 82, nays
11, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Armstead, Calvert, Frich, Hall, Hamilton, Louisos, Overington, Schoen, Sumner,
Walters and Webb.
Absent And Not Voting: Butcher, Cann, Coleman, Long, Perdue, Stalnaker and Tucker.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4107) 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.
Miscellaneous Business
Delegate Mezzatesta asked and obtained unanimous consent that the prayer offered by Delegate
Staton on today be printed in the Appendix to the Journal.
Delegate Frich asked and obtained unanimous consent that the remarks of Delegates Manchin
and Ashley regarding their legislative experience be printed in the Appendix to the Journal.
Delegate Frich asked and obtained unanimous consent that the remarks of Delegate Blair
regarding Delegate Smirl be printed in the Appendix to the Journal.
Delegate Perdue announced that he was absent on today when the votes were taken on Rolls
Nos. 649 and 650, and that had he been present, he would have voted "Yea" thereon.
At 11:50 a.m., on motion of Delegate Staton, the House of Delegates recessed until 2:45 p.m.,
and reconvened at that time.
* * * * * * * * * *
Afternoon Session
* * * * * * * * * *
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment
and requested the House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 2088, Increasing the penalty for the manufacture, distribution or
possession of certain controlled or counterfeit substances near a park.
The message further announced that the President of the Senate had appointed as conferees on
the part of the Senate the following:
Senators White, Caldwell and Deem.
On motion of Delegate Staton, the House of Delegates agreed to the appointment of a
Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates R. Thompson, Stemple and Armstead.
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 July 1, 2004, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4001, Ensuring safer schools and empowering teachers by automating
student suspension and expulsion data.
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, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §18-2E-5 and §18-2E-5c of the code of West Virginia, 1931, as amended, be amended
and reenacted; that §18-5-15f be amended and reenacted; that said code be amended by adding thereto
a new section, designated section §18-5-46; that §18-20-5 of said code be amended and reenacted; that
§18A-2-12 of said code be amended and reenacted; that said code be amended by adding thereto a new
section, designated §18A-2-12a; and that §18A-5-1 and §18A-5-1a be amended and reenacted, all to
read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-5. Process for improving education; education standards and accountability measures;
office of education performance audits; school accreditation and school
system approval; intervention to correct impairments.
(a) Legislative findings, purpose and intent. -- The Legislature makes the following findings
with respect to the process for improving education and its purpose and intent in the enactment of this
section:
(1) The Legislature finds that the process for improving education includes four primary
elements, these being:
(A) Standards which set forth the things that students should know and be able to do as the
result of a thorough and efficient education including measurable criteria to evaluate student
performance and progress;
(B) Assessments of student performance and progress toward meeting the standards;
(C) A system for holding schools and school systems accountable for student performance and
progress toward obtaining a high quality education which is delivered in an efficient manner; and
(D) A method for building the capacity and improving the efficiency of schools and school
systems to improve student performance and progress.
(2) The Legislature further finds that As the constitutional body charged with the general
supervision of schools as provided by general law, the state board has the authority and the
responsibility to establish the standards, assess the performance and progress of students against the
standards, hold schools and school systems accountable, and assist schools and school systems to build
capacity and improve efficiency so that the standards are met, including, when necessary, seeking
additional resources in consultation with the Legislature and the governor.
(3) The Legislature also finds that As the constitutional body charged with providing for a
thorough and efficient system of schools, the Legislature has the authority and the responsibility to
establish and be engaged constructively in the determination of the things that students should know
and be able to do as the result of a thorough and efficient education. This determination is made by using the process for improving education to determine when school improvement is needed, by
evaluating the results and the efficiency of the system of schools, by ensuring accountability, and by
providing for the necessary capacity and its efficient use.
(4) Therefore, In consideration of these findings, the purpose of this section is to establish a
process for improving education that includes the four primary elements as set forth in subdivision (1)
of this subsection to provide assurances that the high quality standards are, at a minimum, being met
and that a thorough and efficient system of schools is being provided for all West Virginia public
school students on an equal education opportunity basis. and that the high quality standards are, at a
minimum, being met.
(5) The intent of the Legislature in enacting this section and section five-c of this article is to
establish a process through which the Legislature, the governor and the state board can work in the
spirit of cooperation and collaboration intended in the process for improving education to consult and
examine, when necessary, the performance and progress of students, schools and school systems and,
when necessary, to consider alternative measures to ensure that all students continue to receive the
thorough and efficient education to which they are entitled. However, nothing in this section requires
any specific level of funding by the Legislature.
(b) Unified county and school improvement plans. -- The state board shall promulgate rules a
rule consistent with the provisions of this section and in accordance with article three-b, chapter
twenty-nine-a of this code establishing a unified county improvement plan for each county board and
a unified school improvement plan for each public school in this state. Each respective plan shall be
a five-year plan that includes the mission and goals of the school or school system to improve student,
school or school system performance and progress, as applicable. The plan shall be revised annually
in each area in which the school or system is below the standard on the annual performance measures. The revised annual plan also shall identify any deficiency which is reported on the check lists
identified in paragraph (G), subdivision (5), subsection (j) of this section including any deficit more
than a casual deficit by the county board. The plan shall be revised when required pursuant to this
section to include each annual performance measure upon which the school or school system fails to
meet the standard for performance and progress, the action to be taken to meet each measure, a
separate time line and a date certain for meeting each measure, a cost estimate and, when applicable,
the assistance to be provided by the department and other education agencies to improve student,
school or school system performance and progress to meet the annual performance measure.
__The department shall make available on and after the first day of July, two thousand four, to
all public schools through its web site or the West Virginia education information system an electronic
unified school improvement plan boilerplate designed for use by all schools to develop a unified
school improvement plan which incorporates all required aspects and satisfies all improvement plan
requirements of the No Child Left Behind Act. The rules shall specify that the unified school
improvement plan shall include all appropriate plans required by law including, but not limited to, the
following:
(1) The report required to be delivered to the county-wide council on productive and safe
schools pursuant to subsection (f), section two, article five-a of this chapter;
(2) Plans or applications required in the area of technology pursuant to 20 U.S.C. §6845,
section seven, article two-e of this chapter, state board policy or rule or any other county, state or
federal law;
(3) The strategic plan to manage the integration of special needs students as required by section
five, article five-a of this chapter; and
(4) The school based improvement plan set forth in the Elementary and Secondary Education
Act pursuant to 29 U.S.C. §6301, et seq.
The plans are required to be included only to the extent permitted by state and federal law.
(c) High quality education standards and efficiency standards. -- In accordance with the
provisions of article three-b, chapter twenty-nine-a of this code, the state board shall adopt and
periodically review and update high quality education standards for student, school and school system
performance and processes in the following areas:
(1) Curriculum;
(2) Workplace readiness skills;
(3) Finance;
(4) Transportation;
(5) Special education;
(6) Facilities;
(7) Administrative practices;
(8) Training of county board members and administrators;
(9) Personnel qualifications;
(10) Professional development and evaluation;
(11) Student performance and progress;
(12) School and school system performance and progress;
(13) A code of conduct for students and employees;
(14) Indicators of efficiency; and
(15) Any other areas determined by the state board.
The standards shall assure that graduates are prepared for continuing post-secondary education,
training and work and that schools and school systems are making progress toward achieving the
education goals of the state.
(d) Annual performance measures. -- The standards shall assure that all graduates are prepared
for gainful employment or for continuing post-secondary education and training and that schools and
school systems are making progress in achieving the education goals of the state. The standards shall
include annual measures of student, school and school system performance and progress. The
following annual measures of student, school and school system performance and progress shall be
the only measures for determining school accreditation and school system approval:
__(1) The acquisition of student proficiencies as indicated by student performance and progress
in grades three through eight, inclusive, and grade ten shall be measured by a uniform statewide
assessment program. The indicators for student progress in reading and mathematics in grades
kindergarten through second grade shall be measured by the informal assessment established by the
West Virginia department of education or other assessments, as determined by the school curriculum
team. If the school fails to meet adequate yearly progress in reading or mathematics for two
consecutive years, the county superintendent, the school principal and the school curriculum team shall
decide whether a different assessment should be used to verify that benchmarks are being met. If the
county superintendent, the school principal and the school curriculum team differ on what assessment
is used, then each entity shall have one vote. Furthermore, the state board may require that student
proficiencies be measured through the West Virginia writing assessment at any of the grades that are
determined by the state board to be appropriate. It is the intent of the Legislature that in the future a
grade eleven uniform statewide assessment be administered in lieu of the grade ten uniform statewide
assessment. The state board shall perform an analysis of the costs and the benefits of administering the grade eleven uniform statewide assessment in lieu of the grade ten uniform statewide assessment.
The analysis shall include a review of the need for end of course exams in grades nine through twelve.
The state board shall report the results of the analysis to the legislative oversight commission on
education accountability prior to the first day of November, two thousand four. The state board may
provide other testing or assessment instruments applicable to grade levels kindergarten through grade
twelve through the statewide assessment program for optional use by each school as determined by
the school curriculum team to measure student performance and progress;
__(2) Only for schools that do not include grade twelve, the school attendance rate which shall
be no less than ninety percent in attendance. The following absences shall be excluded:
__(A) Student absences excused in accordance with the state board rule promulgated pursuant
to section four, article eight of this chapter;
__(B) Students not in attendance due to disciplinary measures; and
__(C) Absent students for whom the attendance director has pursued judicial remedies compelling
attendance to the extent of his or her authority; and
__(3) The high school graduation rate which shall be no less than eighty percent, or if the high
school graduation rate is less than eighty percent, the high school graduation rate shall be higher than
the high school graduation rate of the preceding year as determined from information on the West
Virginia education information system on the fifteenth day of August. and measures of school and
school system performance, progress and processes that enable student performance. The measures
of student performance and progress and school and school system performance, progress and
processes shall include, but are not limited to, the following:
(1) The acquisition of student proficiencies as indicated by student performance and progress
by grade level measured, where possible, by a uniform statewide assessment program;
(2) School attendance rates;
(3) The student dropout rate;
(4) The high school graduation rate;
(5) The percentage of graduates who enrolled in college and the percentage of graduates who
enrolled in other post-secondary education within one year following high school graduation;
(6) The percentage of graduates who received additional certification of their skills,
competence and readiness for college, other post-secondary education or employment above the level
required for graduation; and
(7) The percentage of students who enrolled in and the percentage of students who successfully
completed advanced placement, dual credit and honors classes, respectively, by grade level.
__(e) Indicators of exemplary performance and progress. - The standards shall include indicators
of exemplary student, school and school system performance and progress. The indicators of
exemplary student, school and school system performance and progress shall be used only as indicators
for determining whether accredited and approved schools and school systems should be granted
exemplary status. These indicators shall include, but are not limited to, the following:
__(1) The percentage of graduates who declare their intent to enroll in college and other post-
secondary education and training following high school graduation;
__(2) The percentage of graduates who receive additional certification of their skills, competence
and readiness for college, other post-secondary education or employment above the level required for
graduation; and
__(3) The percentage of students who successfully complete advanced placement, dual credit and
honors classes.
__(e) (f) Indicators of efficiency. -- In accordance with the provisions of article three-b, chapter
twenty-nine-a of this code, the state board shall adopt by rule and periodically review and update
indicators of efficiency for use by the appropriate divisions within the department to ensure efficient
management and use of resources in the public schools student and school system performance and
processes in the following areas:
(1) Curriculum delivery including, but not limited to, the use of distance learning;
(2) Transportation;
(3) Facilities;
(4) Administrative practices;
(5) Personnel;
(6) Utilization of regional educational service agency programs and services, including
programs and services that may be established by their assigned regional educational service agency,
or other regional services that may be initiated between and among participating county boards; and
(7) Any other indicators as determined by the state board.
(f) (g) Assessment and accountability of school and school system performance and processes.
-- In accordance with the provisions of article three-b, chapter twenty-nine-a of this code, the state
board shall establish by rule a system of education performance audits which measures the quality of
education and the preparation of students based on the annual measures of student, school and school
system performance and progress. standards and measures of student, school and school system
performance, progress and processes, including, but not limited to, the standards and measures set forth
in subsections (c) and (d) of this section. The system of education performance audits shall assist
provide information to the state board, the Legislature and the governor, individually and collectively
as the process for improving education council, upon which they may determine whether in ensuring that the standards and measures established pursuant to this section are, at a minimum, being met and
that a thorough and efficient system of schools is being provided. The system of education
performance audits shall include:
(1) The assessment of student, performance and progress, school and school system
performance and progress based on the annual measures set forth in subsection (d) of this section; ,
and the processes in place in schools and school systems which enable student performance and
progress;
__(2) The evaluation of records, reports and other information collected by the department upon
which the quality of education and compliance with statutes, policies and standards may be
determined;
__(2) (3) The review of school and school system unified improvement plans; and
(3) (4) The periodic on-site review of the processes in place in schools and school systems to
enable school and school system performance and progress and compliance with the standards.
(g) (h) Uses of school and school system assessment information. -- The state board and the
process for improving education council established pursuant to section five-c of this article shall use
information from the system of education performance audits to assist them in ensuring that a thorough
and efficient system of schools is being provided and to improve student, school and school system
performance and progress. Information from the system of education performance audits further shall
be used by the state board for these purposes, including, but not limited to, the following:
(1) Determining school accreditation and school system approval status;
(2) holding Holding schools and school systems accountable for the efficient use of existing
resources to meet or exceed the standards; and
(3) targeting Targeting additional resources when necessary to improve performance and
progress. Primary emphasis in determining school accreditation and school system approval status is
based on student performance and progress, school and school system performance and progress and
such other measures as selected by the state board.
The state board shall make accreditation information available to the Legislature, the governor,
the general public and to any individuals individual who request requests the information, subject to
the provisions of any act or rule restricting the release of information.
(i) Early detection and intervention programs. -- Based on the assessment of student, school
and school system performance and progress, the state board shall establish early detection and
intervention programs using the available resources of the department of education, the regional
educational service agencies, the center for professional development and the principals academy, as
appropriate, to assist underachieving schools and school systems to improve performance before
conditions become so grave as to warrant more substantive state intervention. Assistance shall include,
but is not limited to, providing additional technical assistance and programmatic, professional staff
development, providing monetary, staffing and other resources where appropriate, and, if necessary,
making appropriate recommendations to the process for improving education council.
(h) (j) Office of education performance audits. --
(1) To assist the state board and the process for improving education council in the operation
of a system of education performance audits, that will enable them to evaluate whether a thorough and
efficient education is being provided, and to assist the state board in making determinations regarding
the accreditation status of schools and the approval status of school systems, the state board shall
establish an office of education performance audits which consistent with the provisions of this
section. The office of education performance audits shall be operated under the direction of the state board independently of the functions and supervision of the state department of education and state
superintendent. The office of education performance audits shall report directly to and be responsible
to the state board and the process for improving education council created in section five-c of this
article in carrying out its duties under the provisions of this section.
(2) The office shall be headed by a director who shall be appointed by the state board and who
shall serve at the will and pleasure of the state board. The annual salary of the director shall be set by
the state board and may not exceed eighty percent of the salary cap of the state superintendent of
schools.
(3) The state board shall organize and sufficiently staff the office to fulfill the duties assigned
to it by law and by the state board. Employees of the state department of education who are transferred
to the office of education performance audits shall retain their benefit benefits and seniority status with
the department of education.
(4) Under the direction of the state board, the office of education performance audits shall
receive from the West Virginia education information system staff research and analysis data on the
performance and progress of students, schools and school systems, and shall receive assistance, as
determined by the state board, from staff at the state department of education, the regional education
service agencies, the center for professional development, the principals academy and the state school
building authority to carry out the duties assigned to the office.
(5) In addition to other duties which may be assigned to it by the state board or by statute, the
office of education performance audits also shall:
(A) Assure that all statewide assessments of student performance used as annual performance
measures are secure as required in section one-a of this article;
(B) Administer all accountability measures as assigned by the state board, including, but not
limited to, the following:
(i) Processes for the accreditation of schools and the approval of school systems; and These
processes shall focus on those measurable criteria related to student performance and progress and to
the delivery of instruction which will enable student performance and progress; and
(ii) Recommendations to the state board on appropriate action, including, but not limited to,
accreditation and approval action;
(C) Determine, in conjunction with the assessment and accountability processes, what capacity
may be needed by schools and school systems to meet the standards established by the Legislature and
the state board, and recommend to the school, the school system, the state board and the process for
improving education council, plans to establish those needed capacities;
(D) Determine, in conjunction with the assessment and accountability processes, whether
statewide system deficiencies exist in the capacity to establish and maintain a thorough and efficient
system of schools, of schools and school systems to meet the standards established by the state board,
including the identification of trends and the need for continuing improvements in education, and
report those deficiencies and trends to the state board and the process for improving education council;
(E) Determine, in conjunction with the assessment and accountability processes, staff
development needs of schools and school systems to meet the standards established by the Legislature
and the state board, and make recommendations to the state board, the process for improving education
council, the center for professional development, the regional educational service agencies, the higher
education policy commission, and the county boards;
(F) Identify, in conjunction with the assessment and accountability processes, exemplary
schools and school systems and best practices that improve student, school and school system performance, and make recommendations to the state board and the process for improving education
council for recognizing and rewarding exemplary schools and school systems and promoting the use
of best practices. The state board shall provide information on best practices to county school systems
and shall use information identified through the assessment and accountability processes to select
schools of excellence; and
(G) Develop reporting formats, such as check lists, which shall be used by the appropriate
administrative personnel in schools and school systems to document compliance with various of the
applicable laws, policies and process standards as considered appropriate and approved by the state
board, including, but not limited to, compliance with limitations on the number of pupils per teacher
in a classroom and the number of split grade classrooms the following:
__(i) The use of a policy for the evaluation of all school personnel that meets the requirements
of sections twelve and twelve-a, article two, chapter eighteen-a of this code;
__(ii) The participation of students in appropriate physical assessments as determined by the state
board, which assessment may not be used as a part of the assessment and accountability system;
__(iii) The appropriate licensure of school personnel; and
__(iv) The school provides multi-cultural activities.
Information contained in the reporting formats shall be examined is subject to examination
during an on-site review to determine compliance with laws, policies and standards. Intentional and
grossly negligent reporting of false information is ground are grounds for dismissal.
(i) (k) On-site reviews. --
(1) The system of education performance audits shall include on-site reviews of schools and
school systems. at the direction of the state board or by weighted selection by the education
performance audits. The reviews shall be conducted:
__(A) At the specific direction of the state board upon its determination that the performance and
progress of the school or school system are persistently below standard or other circumstances exist
that warrant an on-site review. For the purposes of this section, 'persistently below standard' means
that performance and progress are below standard for three consecutive years. Any discussion by the
state board of schools to be subject to an on-site review or dates for which on-site reviews will be
conducted may be held in executive session, and is not subject to the provisions of article nine-a,
chapter six of this code, relating to open governmental proceedings;
__(B) By weighted selection by the office of education performance audits: Provided, That a
school that is designated as having exemplary status one year or a school that achieves adequate yearly
progress one year shall not undergo an on-site review during the succeeding year; or
__(C) By a combination of the methods set forth in paragraphs (A) and (B) of this subdivision.
__(2) An on-site review shall be conducted by the office of education performance audits of any
school or school system for purposes, including, but not limited to, the following:
(A) Verifying data reported by the school or county board;
(B) Documenting Examining compliance with the laws and policies and laws affecting student,
school and school system performance and progress;
(C) Evaluating the effectiveness and implementation status of school and school system unified
improvement plans;
(D) Investigating official complaints submitted to the state board that allege serious
impairments in the quality of education in schools or school systems;
(E) Investigating official complaints submitted to the state board that allege that a school or
county board is in violation of policies or laws under which schools and county boards operate; and
(F) Determining and reporting whether required reviews and inspections have been conducted
by the appropriate agencies, including, but not limited to, the state fire marshal, the health department,
the school building authority and the responsible divisions within the department of education, and
whether noted deficiencies have been or are in the process of being corrected. The office of education
performance audits may not conduct a duplicate review or inspection of any compliance reviews or
inspections conducted by the department or its agents or other duly authorized agencies of the state,
nor may it mandate more stringent compliance measures.
(2) (3) The selection of schools and school systems for an on-site review shall use a weighted
sample so that those with lower performance and progress indicators have a greater likelihood of being
selected. The director of the office of education performance audits shall notify the county
superintendent of schools five school days prior to commencing an on-site review of the county school
system and shall notify both the county superintendent and the principal five school days prior to
commencing an on-site review of an individual school: Provided, That the state board may direct the
office of education performance audits to conduct an unannounced on-site review of a school or school
system if the state board believes circumstances warrant an unannounced on-site review.
(3) (4) The office of education performance audits may shall conduct on-site reviews which
are limited in scope to specific areas in which performance and progress are persistently below
standard as determined by the state board unless specifically directed by the state board to conduct a
review which covers additional areas. addition to full reviews which cover all areas.
(4) (5) An on-site review of a school or school system shall include a person or persons from
the department of education or a public education agency in the state who has expert knowledge and
experience in the area or areas to be reviewed, and who is has been trained and designated by the state
board to perform such functions. An on-site review also may include retired professional educators. from the department of education and the agencies responsible for assisting the office. If the size of
the school or school system and issues being reviewed necessitates necessitate the use of an on-site
review team or teams, the person or persons designated by the state board shall advise and assist the
director to appoint the team or teams. The person or persons designated by the state board shall be the
team leaders.
The persons designated by the state board shall be responsible for completing the report on the
findings and recommendations of the on-site review in their area of expertise. It is the intent of the
Legislature that the persons designated by the state board participate in all on-site reviews that involve
their area of expertise, to the extent practicable, so that the on-site review process will evaluate
compliance with the standards in a uniform, consistent and expert manner.
(5) (6) The office of education performance audits shall reimburse a county board for the costs
of substitutes required to replace county board employees while they are serving on a review team.
(6) (7) At the conclusion of an on-site review of a school system, the director and team leaders
shall hold an exit conference with the superintendent and shall provide an opportunity for principals
to be present for at least the portion of the conference pertaining to their respective schools. In the case
of an on-site review of a school, the exit conference shall be held with the principal and school
curriculum team of the school or teachers designated by the school curriculum team and the
superintendent shall be provided the opportunity to be present. The purpose of the exit conference is
to review the initial findings of the on-site review, clarify and correct any inaccuracies and allow the
opportunity for dialogue between the reviewers and the school or school system to promote a better
understanding of the findings.
__(7) (8) The office of education performance audits shall report the findings of an on-site review
to the county superintendent and the principals whose schools were reviewed within thirty days following the conclusion of the on-site review. The office of education performance audits shall report
the findings of the on-site reviews review to the state board within forty-five days after the conclusion
of the on-site review. for inclusion in the evaluation and determination of a school's or county board's
accreditation or approval status as applicable. The report on the findings of an on-site review shall be
submitted to the state board within thirty days following the conclusion of the on-site review and to
the county superintendent and principals of schools within the reviewed school system within forty-
five days following the conclusion of the on-site review. A copy of the report shall be provided to the
process for improving education council at its request.
(9) The Legislature finds that the accountability and oversight of the following activities and
programmatic areas in the public schools is controlled through other mechanisms and that additional
accountability and oversight are not only unnecessary but counter productive in distracting necessary
resources from teaching and learning. Therefore, notwithstanding any other provision of this section
to the contrary, the following activities and programmatic areas are not subject to review by the office
of education performance audits:
__(A) Work-based learning;
__(B) Use of advisory councils;
__(C) Program accreditation and student credentials;
__(D) Student transition plans;
__(E) Graduate assessment form;
__(F) Casual deficit;
__(G) Accounting practices;
__(H) Transportation services;
__(I) Special education services;
__(J) Safe, healthy and accessible facilities;
__(K) Attendance director;
__(L) Business/community partnerships;
__(M)Local school improvement council, faculty senate, student assistance team and curriculum
team;
__(N) Skill improvement program;
__(O) Certificate of proficiency;
__(P) Training of county board members;
__(Q) Excellence in job performance; and
__(R) Staff development.
__(j) (l) School accreditation. -- The state board annually shall review the information from the
system of education performance audits submitted for each school and shall issue to every school one
of the following approval levels: Exemplary accreditation status, full accreditation status, temporary
accreditation status, conditional accreditation status, or seriously impaired status.
(1) Full accreditation status shall be given to a school when the school's performance and
progress on meet or exceed the standards adopted by the state board pursuant to subsections (c) and
subsection (d) of this section are at a level which would be expected when all of the high quality
education standards are being met. A school which meets or exceeds the measures of student
performance and progress set forth in subsection (d) of this section, and which it does not have any
deficiencies which would endanger student health or safety or other extraordinary circumstances as
defined by the state board. A school that meets or exceeds the performance and progress standards
but has the other deficiencies shall remain on full accreditation status for six months following an
on-site review in which other deficiencies are noted. The school the remainder of the accreditation period and shall have an opportunity to correct those deficiencies, notwithstanding other provisions
of this subsection.
(2) Temporary accreditation status shall be given to a school when the measure of the school's
performance and progress is are below the level required for full accreditation status. Whenever a
school is given temporary accreditation status, the county board shall ensure that the school's unified
improvement plan is revised in accordance with subsection (b) of this section to increase the
performance and progress of the school to a full accreditation status level. The revised unified school
improvement plan shall include objectives, a time line, a plan for evaluation of the success of the
improvements, cost estimates, and a date certain for achieving full accreditation. The revised plan
shall be submitted to the state board for approval.
(3) Conditional accreditation status shall be given to a school when the school's performance
and progress on the standards adopted by the state board are below the level required for full
accreditation, but the school's unified improvement plan meets the following criteria:
__(A) The plan has been revised to achieve full accreditation status by a date certain to improve
performance and progress on the standard or standards by a date or dates certain;
(B) The plan has been approved by the state board; and
(C) The school is meeting the objectives and time line specified in the revised plan.
(4) Exemplary accreditation status shall be given to a school when the school's performance
and progress on meet or exceed the standards adopted by the state board pursuant to subsections (c)
and(d) and (e) of this section. substantially exceed the minimal level which would be expected when
all of the high quality education standards are being met. The state board shall promulgate legislative
rules in accordance with the provisions of article three-b, chapter twenty-nine-a, designated to establish
standards of performance and progress to identify exemplary schools.
(5) Seriously impaired accreditation status shall be given to a school The state board shall
establish and adopt standards of performance and progress to identify seriously impaired schools and
the state board may declare a school seriously impaired whenever extraordinary circumstances exist
as defined by the state board.
(A) These circumstances shall include, but are not limited to, the following:
(i) The failure of a school on temporary accreditation status to obtain approval of its revised
unified school improvement plan within a reasonable time period as defined by the state board;
(ii) The failure of a school on conditional accreditation status to meet the objectives and time
line of its revised unified school improvement plan; or
(iii) The failure of a school to achieve full accreditation meet a standard by the date specified
in the revised plan.
(B) Whenever the state board determines that the quality of education in a school is seriously
impaired, the state board shall appoint a team of improvement consultants to make recommendations
within sixty days of appointment for correction of the impairment. When the state board approves the
recommendations, they shall be communicated to the county board. If progress in correcting the
impairment as determined by the state board is not made within six months from the time the county
board receives the recommendations, the state board shall place the county board on temporary
approval status and provide consultation and assistance to the county board to assist it in the following
areas:
(i) Improving personnel management;
(ii) Establishing more efficient financial management practices;
(iii) Improving instructional programs and rules; or
(iv) Making any other improvements that are necessary to correct the impairment.
(C) If the impairment is not corrected by a date certain as set by the state board:
(i) The state board shall appoint a monitor who shall be paid at county expense to cause
improvements to be made at the school to bring it to full accreditation status within a reasonable time
period as determined by the state board. The monitor's work location shall be at the school and the
monitor shall work collaboratively with the principal. The monitor shall, at a minimum, report
monthly to the state board on the measures being taken to improve the school's performance and the
progress being made. The reports may include requests for additional assistance and recommendations
required in the judgment of the monitor to improve the school's performance, including, but not
limited to, the need for targeting resources strategically to eliminate deficiencies;
(ii) The state board may make a determination, in its sole judgment, that the improvements
necessary to provide a thorough and efficient education to the students at the school cannot be made
without additional targeted resources, in which case, it shall establish a plan in consultation with the
county board that includes targeted resources from sources under the control of the state board and the
county board to accomplish the needed improvements. Nothing in this subsection shall be construed
to allow a change in personnel at the school to improve school performance and progress, except as
provided by law;
(iii) If the impairment is not corrected within one year after the appointment of a monitor, the
state board may make a determination, in its sole judgment, that continuing a monitor arrangement is
not sufficient to correct the impairment and may intervene in the operation of the school to cause
improvements to be made that will provide assurances that a thorough and efficient system of schools
will be provided. This intervention may include, but is not limited to, establishing instructional
programs, taking such direct action as may be necessary to correct the impairments, declaring the
position of principal is vacant and assigning a principal for the school who shall serve at the will and pleasure of and, under the sole supervision of, the state board: Provided, That prior to declaring that
the position of the principal is vacant, the state board must make a determination that all other
resources needed to correct the impairment are present at the school. If the principal who was removed
elects not to remain an employee of the county board, then the principal assigned by the state board
shall be paid by the county board. If the principal who was removed elects to remain an employee of
the county board, then the following procedure applies:
(I) The principal assigned by the state board shall be paid by the state board until the next
school term, at which time the principal assigned by the state board shall be paid by the county board;
(II) The principal who was removed shall be placed on the preferred recall list for all positions
in the county for which the principal is certified, as defined in section seven, article four of this chapter
eligible for all positions in the county, including teaching positions, for which the principal is certified,
by either being placed on the transfer list in accordance with section seven, article two, chapter
eighteen-a of this code, or by being placed on the preferred recall list in accordance with section seven-
a, article four, chapter eighteen-a of this code; and
(III) The principal who was removed shall be paid by the county board and may be assigned
to administrative duties, without the county board being required to post that position until the end of
the school term;
(6) The county board shall take no action nor refuse any action if the effect would be to impair
further the school in which the state board has intervened.
(7) The state board may appoint a monitor pursuant to the provisions of this subsection to assist
the school principal after intervention in the operation of a school is completed.
(k) (m) Transfers from seriously impaired schools. -- Whenever a school is determined to be
seriously impaired and fails to improve its status within one year, following state intervention in the operation of the school to correct the impairment, any student attending the school may transfer once
to the nearest fully accredited school in the county, subject to approval of the fully accredited school
and at the expense of the school from which the student transferred.
(l) (n) School system approval. -- The state board annually shall review the information
submitted for each school system from the system of education performance audits and issue one of
the following approval levels to each county board: Full approval, temporary approval, conditional
approval, or nonapproval.
(1) Full approval shall be given to a county board whose education system meets or exceeds
all of the high quality standards for student, school and school system performance, progress and
processes adopted by the state board and whose schools have all been given full, temporary or
conditional accreditation status. A school system which meets or exceeds the measures of student
performance and progress set forth in subsection (d) of this section, and which does not have any
deficiencies which would endanger student health or safety or other extraordinary circumstances as
defined by the state board. A fully approved school system in which other deficiencies are discovered
shall remain on full accreditation status for six months following an on-site review in which other
deficiencies are noted. The school the remainder of the approval period and shall have an opportunity
to correct those deficiencies, notwithstanding other provisions of this subsection.
(2) Temporary approval shall be given to a county board whose education system is below the
level required for full approval. Whenever a county board is given temporary approval status, the
county board shall revise its unified county improvement plan in accordance with subsection (b) of this
section to increase the performance and progress of the school system to a full approval status level.
The revised plan shall include objectives, a time line, a plan for evaluation of the success of the improvements, a cost estimate, and a date certain for achieving full approval. The revised plan shall
be submitted to the state board for approval.
(3) Conditional approval shall be given to a county board whose education system is below the
level required for full approval, but whose unified county improvement plan meets the following
criteria:
(i) The plan has been revised in accordance with subsection (b) of this section; to achieve full
approval status by a date certain;
(ii) The plan has been approved by the state board; and
(iii) The county board is meeting the objectives and time line specified in the revised plan.
(4) Nonapproval status shall be given to a county board which fails to submit and gain approval
for its unified county improvement plan or revised unified county improvement plan within a
reasonable time period as defined by the state board or which fails to meet the objectives and time line
of its revised unified county improvement plan or fails to achieve full approval by the date specified
in the revised plan.
(A) The state board shall establish and adopt additional standards to identify school systems
in which the program may be nonapproved and the state board may issue nonapproval status whenever
extraordinary circumstances exist as defined by the state board.
(B) Whenever a county board has more than a casual deficit, as defined in section one, article
one of this chapter, the county board shall submit a plan to the state board specifying the county
board's strategy for eliminating the casual deficit. The state board either shall approve or reject the
plan. If the plan is rejected, the state board shall communicate to the county board the reason or
reasons for the rejection of the plan. The county board may resubmit the plan any number of times.
However, any county board that fails to submit a plan and gain approval for the plan from the state board before the end of the fiscal year after a deficit greater than a casual deficit occurred or any county
board which, in the opinion of the state board, fails to comply with an approved plan may be
designated as having nonapproval status.
(C) Whenever nonapproval status is given to a school system, the state board shall declare a
state of emergency in the school system and shall appoint a team of improvement consultants to make
recommendations within sixty days of appointment for correcting the emergency. When the state
board approves the recommendations, they shall be communicated to the county board. If progress
in correcting the emergency, as determined by the state board, is not made within six months from the
time the county board receives the recommendations, the state board shall intervene in the operation
of the school system to cause improvements to be made that will provide assurances that a thorough
and efficient system of schools will be provided. This intervention may include, but is not limited to,
the following:
(i) Limiting the authority of the county superintendent and county board as to the expenditure
of funds, the employment and dismissal of personnel, the establishment and operation of the school
calendar, the establishment of instructional programs and rules and any other areas designated by the
state board by rule, which may include delegating decision-making authority regarding these matters
to the state superintendent;
(ii) Declaring that the office of the county superintendent is vacant;
(iii) Delegating to the state superintendent both the authority to conduct hearings on personnel
matters and school closure or consolidation matters and, subsequently, to render the resulting
decisions, and the authority to appoint a designee for the limited purpose of conducting hearings while
reserving to the state superintendent the authority to render the resulting decisions;
(iv) Functioning in lieu of the county board of education in a transfer, sale, purchase or other
transaction regarding real property; and
(iv) (v) Taking any direct action necessary to correct the emergency including, but not limited
to, the following:
(I) Delegating to the state superintendent the authority to replace administrators and principals
in low performing schools and to transfer them into alternate professional positions within the county
at his or her discretion; and
(II) Delegating to the state superintendent the authority to fill positions of administrators and
principals with individuals determined by the state superintendent to be the most qualified for the
positions. Any authority related to intervention in the operation of a county board granted under this
paragraph is not subject to the provisions of article four, chapter eighteen-a of this code;
(m) (o) Notwithstanding any other provision of this section, the state board may intervene
immediately in the operation of the county school system with all the powers, duties and
responsibilities contained in subsection (l) (n) of this section, if the state board finds the following:
(1) That the conditions precedent to intervention exist as provided in this section; and that
delaying intervention for any period of time would not be in the best interests of the students of the
county school system; or
(2) That the conditions precedent to intervention exist as provided in this section and that the
state board had previously intervened in the operation of the same school system and had concluded
that intervention within the preceding five years.
(n) (p) Capacity. -- The process for improving education includes a process for targeting
resources strategically to improve the teaching and learning process. Development of unified school
and school system improvement plans, pursuant to subsection (b) of this section, is intended, in part, to provide mechanisms to target resources strategically to the teaching and learning process to improve
student, school and school system performance. When deficiencies are detected through the
assessment and accountability processes, the revision and approval of school and school system unified
improvement plans shall ensure that schools and school systems are efficiently using existing resources
to correct the deficiencies. When the state board determines that schools and school systems do not
have the capacity to correct deficiencies, the state board shall work with the county board to develop
or secure the resources necessary to increase the capacity of schools and school systems to meet the
standards and, when necessary, seek additional resources in consultation with the Legislature and the
governor.
The state board shall recommend to the appropriate body including, but not limited to, the
process for improving education council, the Legislature, county boards, schools and communities
methods for targeting resources strategically to eliminate deficiencies identified in the assessment and
accountability processes. When making determinations on recommendations, the state board shall
include, but is not limited to, the following methods:
(1) Examining reports and unified improvement plans regarding the performance and progress
of students, schools and school systems relative to the standards and identifying the areas in which
improvement is needed;
(2) Determining the areas of weakness and of ineffectiveness that appear to have contributed
to the substandard performance and progress of students or the deficiencies of the school or school
system;
(3) Determining the areas of strength that appear to have contributed to exceptional student,
school and school system performance and progress and promoting their emulation throughout the
system;
(4) Requesting technical assistance from the school building authority in assessing or designing
comprehensive educational facilities plans;
(5) Recommending priority funding from the school building authority based on identified
needs;
(6) Requesting special staff development programs from the center for professional
development, the principals academy, higher education, regional educational service agencies and
county boards based on identified needs;
(7) Submitting requests to the Legislature for appropriations to meet the identified needs for
improving education;
(8) Directing county boards to target their funds strategically toward alleviating deficiencies;
(9) Ensuring that the need for facilities in counties with increased enrollment are appropriately
reflected and recommended for funding;
(10) Ensuring that the appropriate person or entity is held accountable for eliminating
deficiencies; and
(11) Ensuring that the needed capacity is available from the state and local level to assist the
school or school system in achieving the standards and alleviating the deficiencies.
§18-2E-5c. Process for improving education council established; membership; expenses;
meetings; powers.
(a) Process for improving education council. -- There is hereby established the process for
improving education council for the purpose of providing opportunities for consultation among state
policy leaders on the process for improving education, including, but not limited to, determination of
the things that students should know and be able to do as the result of a thorough and efficient
education, the performance and progress of students toward meeting the high quality standards established by the state board, and any further improvements necessary to increase the capacity of
schools and school systems to deliver a thorough and efficient education.
(b) Council membership. -- The legislative oversight commission on education accountability,
together with the governor, ex officio, or the governor's designee, and the chancellor of the higher
education policy commission, ex officio, or the chancellor's designee, comprise the process for
improving education council. Ex officio members are entitled to vote. The governor or the governor's
designee shall convene the council, as appropriate, and shall serve as chair. The council may meet at
any time at the call of the governor or the governor's designee.
(c) Compensation. -- Members of the council shall serve without compensation, but shall be
reimbursed as provided by law by their respective agencies for all reasonable and necessary expenses
actually incurred in the performance of their official duties under this section upon presentation of an
itemized sworn statement of their expenses.
(d) Powers of the council. --
The council has the following powers:
(1) To meet and consult with the state board, or their designees, and make recommendations
on issues related to student, school and school system performance. The following steps are part of
the consultation process:
(A) The state board shall notify each member of the council whenever the state board proposes
to amend its rules on any of the following issues:
(i) High quality education standards and efficiency standards established pursuant to section
five of this article;
(ii) Indicators of efficiency established pursuant to section five of this article; and
(iii) Assessment and accountability of school and school system performance and processes
established pursuant to section five of this article.
(B) The notice to be given pursuant to paragraph (A) of this subdivision shall contain a
summary and explanation of the proposed changes, including a draft of the proposal when available,
and shall be sent at least fifteen days prior to filing the proposal with the secretary of state for public
comment.
__(B) (C) If the governor, or the governor's designee, believes it is necessary for the council to
meet and consult with the state board, or its designees, on changes proposed to any of the issues
outlined in subdivision (1) of this subsection, he or she may convene a meeting of the council.
(C) (D) If both the president of the Senate and the speaker of the House of Delegates believe
it is necessary for the council to meet and consult with the state board, or its designees, they shall
notify the governor who shall convene a meeting of the council.
(D) (E) If the chancellor, or the chancellor's designee, believes that it is necessary for the
council to meet and consult with the state board, or its designees, he or she may request the governor
to convene a meeting of the council.
(2) To require the state board, or its designees, to meet with the council to consult on issues
that lie within the scope of the council's jurisdiction;
(3) To participate as observers in any on-site review of a school or school system conducted
by the office of education performance audits; and
(4) To authorize any employee of the agencies represented by council members to participate
as observers in any on-site review of a school or school system conducted by the office of education
performance audits.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-15f. Affirmation regarding the suspension or expulsion of a pupil from school.
(a) Prior to the admission of a pupil to any public school in West Virginia, the county
superintendent shall require the pupil's parent(s), guardian(s) or custodian(s) to provide, upon
registration, a sworn statement or affirmation indicating whether the student is, at the time, under
suspension or expulsion from attendance at a private or public school in West Virginia or another state.
Any person willfully making a materially false statement or affirmation shall be guilty of a
misdemeanor and, upon conviction, the penalty shall be the same as provided for 'false swearing'
pursuant to section three, article five, chapter sixty-one of this code.
(b) Prior to the admission of a pupil to any public school, the principal of that school or his or
her designee shall consult the uniform integrated regional computer information system (commonly
known as the West Virginia Education Information System) described in subsection (f), section
twenty-six, article two, chapter eighteen of this code, to determine whether the pupil requesting
admission is, at the time of the request for admission, serving a suspension or expulsion from another
public school in West Virginia.
_____(c) The state board of education shall provide for the West Virginia Education Information
System to disallow the recording of the enrollment of any pupil who is, at the time of attempted
enrollment, serving a suspension or expulsion from another public school in West Virginia, and for
that system to notify the user who has attempted to record the enrollment that the pupil may not be
enrolled, and to notify that user of the reason therefor.
_____(b)(d) Notwithstanding any other provision of this code to the contrary, any pupil who has been
suspended or expelled from school pursuant to section one-a, article five, chapter eighteen-a of this
code, or who has been suspended or expelled from a public or private school in another state, due to
actions described in section one-a, article five, chapter eighteen-a of this code, may not be admitted to any public school within the state of West Virginia until the period of suspension or expulsion has
expired.
§18-5-46. Requiring teacher to change grade prohibited.
No teacher may be required by a principal or any other person to change a student's grade on
either an individual assignment or a report card unless there is clear and convincing evidence that there
was a mathematical error in calculating the student's grade.
ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.
§18-20-5. Powers and duties of state superintendent.
The state superintendent of schools shall organize, promote, administer and be responsible for:
(1) Stimulating and assisting county boards of education in establishing, organizing and
maintaining special schools, classes, regular class programs, home-teaching and visiting-teacher
services.
(2) Cooperating with all other public and private agencies engaged in relieving, caring for,
curing, educating and rehabilitating exceptional children, and in helping coordinate the services of
such agencies.
(3) Preparing the necessary rules, regulations policies, formula for distribution of available
appropriated funds, reporting forms and procedures necessary to define minimum standards in
providing suitable facilities for education of exceptional children and ensuring the employment,
certification and approval of qualified teachers and therapists subject to approval by the state board
of education: Provided, That no state rule, policy or standard under this article or any county board
rule, policy or standard governing special education may exceed the requirements of federal law or
regulation. The state superintendent shall conduct a comprehensive review and comparison of the
rules, policies and standards of the state with federal law and report the findings to the legislative oversight commission on education accountability at its July, two thousand four interim meeting or
as soon thereafter as requested by the commission.
(4) Receiving from county boards of education their applications, annual reports and claims
for reimbursement from such moneys as are appropriated by the Legislature, auditing such claims and
preparing vouchers to reimburse said counties the amounts reimbursable to them.
(5) Assuring that all exceptional children in the state, including children in mental health
facilities, residential institutions, private schools and correctional facilities as provided in section
thirteen-f, article two of this chapter receive an education in accordance with state and federal laws:
Provided, That the state superintendent shall also assure that adults in correctional facilities and
regional jails shall receive an education to the extent funds are provided therefor.
(6) Performing such other duties and assuming such other responsibilities in connection with
this program as may be needed.
(7) Receive the county plan for integrated classroom submitted by the county boards of
education and submit a state plan, approved by the state board of education, to the legislative oversight
commission on education accountability no later than the first day of December, one thousand nine
hundred ninety-five.
Nothing herein contained in this section shall be construed to prevent any county board of
education from establishing and maintaining special schools, classes, regular class programs, home-
teaching or visiting-teacher services out of funds available from local revenue.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-12. Performance evaluations of school personnel; professional personnel evaluation
process.
(a) The state board of education shall adopt a written system for the evaluation of the
employment performance of personnel, which system shall be applied uniformly by county boards of
education in the evaluation of the employment performance of personnel employed by the board.
(b) The system adopted by the state board of education for evaluating the employment
performance of professional personnel shall be in accordance with the provisions of this section.
(c) For purposes of this section, 'professional personnel', 'professional' or 'professionals',
means professional personnel as defined in section one, article one of this chapter.
(d) In developing the professional personnel performance evaluation system, and amendments
thereto, the state board shall consult with the professional development project of the center for
professional development created in section three, article three-a of this chapter. The center shall
participate actively with the state board in developing written standards for evaluation which clearly
specify satisfactory performance and the criteria to be used to determine whether the performance of
each professional meets such standards.
(e) The performance evaluation system shall contain, but shall not be limited to, the following
information:
(1) The professional personnel positions to be evaluated, whether they be teachers, substitute
teachers, administrators, principals, or others;
(2) The frequency and duration of the evaluations, which shall be on a regular basis and of such
frequency and duration as to insure the collection of a sufficient amount of data from which reliable
conclusions and findings may be drawn: Provided, That for school personnel with five or more years
of experience, who have not received an unsatisfactory rating, evaluations shall be conducted no more
than once every three years unless the principal determines an evaluation for a particular school employee is needed more frequently: Provided, however, That a classroom teacher may exercise the
option of being evaluated at more frequent intervals;
(3) The evaluation shall serve the following purposes:
(A) Serve as a basis for the improvement of the performance of the personnel in their assigned
duties;
(B) Provide an indicator of satisfactory performance for individual professionals;
(C) Serve as documentation for a dismissal on the grounds of unsatisfactory performance; and
(D) Serve as a basis for programs to increase the professional growth and development of
professional personnel;
(4) The standards for satisfactory performance for professional personnel and the criteria to be
used to determine whether the performance of each professional meets such standards and other
criteria for evaluation for each professional position evaluated. Effective the first day of July, two
thousand three and thereafter, professional personnel, as appropriate, shall demonstrate competency
in the knowledge and implementation of the technology standards adopted by the state board. If a
professional fails to demonstrate competency, in the knowledge and implementation of these standards,
he or she will be subject to an improvement plan to correct the deficiencies; and
(5) Provisions for a written improvement plan, which shall be specific as to what
improvements, if any, are needed in the performance of the professional and shall clearly set forth
recommendations for improvements, including recommendations for additional education and training
during the professional's recertification process.
(f) A professional whose performance is considered to be unsatisfactory shall be given notice
of deficiencies. A remediation plan to correct deficiencies shall be developed by the employing county
board of education and the professional. The professional shall be given a reasonable period of time for remediation of the deficiencies and shall receive a statement of the resources and assistance
available for the purposes of correcting the deficiencies.
(g) No person may evaluate professional personnel for the purposes of this section unless the
person has an administrative certificate issued by the state superintendent and has successfully
completed education and training in evaluation skills through the center for professional development,
or equivalent education training approved by the state board, which will enable the person to make fair,
professional, and credible evaluations of the personnel whom the person is responsible for evaluating.
After the first day of July, one thousand nine hundred ninety-four, no person may be issued an
administrative certificate or have an administrative certificate renewed unless the state board
determines that the person has successfully completed education and training in evaluation skills
through the center for professional development, or equivalent education and training approved by the
state board.
(h) Any professional whose performance evaluation includes a written improvement plan shall
be given an opportunity to improve his or her performance through the implementation of the plan.
If the next performance evaluation shows that the professional is now performing satisfactorily, no
further action may be taken concerning the original performance evaluation. If the evaluation shows
that the professional is still not performing satisfactorily, the evaluator either shall make additional
recommendations for improvement or may recommend the dismissal of the professional in accordance
with the provisions of section eight of this article.
(i) Lesson plans are intended to serve as a daily guide for teachers and substitutes for the
orderly presentation of the curriculum. Lesson plans may not be used as a substitute for observations
by an administrator in the performance evaluation process. A classroom teacher, as defined in section
one, article one of this chapter, may not be required to post his or her lesson plans on the internet or otherwise make them available to students and parents or to include in his or her lesson plans any of
the following:
(1) Teach and reteach strategies;
(2) Write to learn activities;
(3) Cultural diversity;
(4) Color coding; or
(5) Any other similar items which are not required to serve as a guide to the teacher or
substitute for daily instruction; and
(j) The Legislature finds that classroom teachers must be free of unnecessary paper work so
that they can focus their time on instruction. Therefore, classroom teachers may not be required to
keep records or logs of routine contacts with parents or guardians.
(k) Nothing in this section may be construed to prohibit classroom teachers from voluntarily
posting material on the internet.
§18A-2-12a. Statement of policy and practice for the county boards and school personnel to
minimize possible disagreement and misunderstanding.
(a) The Legislature makes the following findings:
(1) The effective and efficient operation of the public schools depends upon the development
of harmonious and cooperative relationships between county boards and school personnel;
(2) Each group has a fundamental role to perform in the educational program and each has
certain separate, distinct and clearly defined areas of responsibility as provided in chapters eighteen
and eighteen-a of this code; and
(3) There are instances, particularly involving questions of wages, salaries and conditions of
work, that are subject to disagreement and misunderstanding between county boards and school
personnel and may not be so clearly set forth.
(b) The purpose of this section is to establish a statement of policy and practice for the county
boards and school personnel, as follows, in order to minimize possible disagreement and
misunderstanding:
(1) County boards, subject to the provisions of this chapter, chapter eighteen of this code and
the policies and rules of the state board, are responsible for the management of the schools within their
respective counties. The powers and responsibilities of county boards in setting policy and in
providing management are broad, but not absolute;
(2) The school personnel shares the responsibility for putting into effect the policies and
practices approved by the county board that employs them and the school personnel also have certain
rights and responsibilities as provided in statute, and in their contracts;
(3) School personnel are entitled to meet together, form associations and work in concert to
improve their circumstances and the circumstances of the schools;
(4) County boards and school personnel can most effectively discharge their total
responsibilities to the public and to each other by establishing clear and open lines of communication.
School personnel should be encouraged to make suggestions, proposals and recommendations through
appropriate channels to the county board. Decisions of the county board concerning the suggestions,
proposals and recommendations should be communicated to the school personnel clearly and openly;
(5) Official meetings of county boards are public meetings. School personnel are free to attend
the meetings without fear of reprisal and should be encouraged to attend;
(6) All school personnel are entitled to know how well they are fulfilling their responsibilities
and should be offered the opportunity of open and honest evaluations of their performance on a regular
basis and in accordance with the provisions of section twelve of this article. All school personnel are
entitled to opportunities to improve their job performance prior to the termination or transfer of their
services. Decisions concerning the promotion, demotion, transfer or termination of employment of
school personnel, other than those for lack of need or governed by specific statutory provisions
unrelated to performance, should be based upon the evaluations, and not upon factors extraneous
thereto. All school personnel are entitled to due process in matters affecting their employment,
transfer, demotion or promotion; and
(7) All official and enforceable personnel policies of a county board must be written and made
available to its employees.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1. Authority of teachers and other school personnel; exclusion of pupils having
infectious diseases; suspension or expulsion of disorderly pupils; corporal
punishment abolished.
(a) The teacher shall stand in the place of the parent(s), guardian(s) or custodian(s) in
exercising authority over the school and shall have control of all pupils enrolled in the school from the
time they reach the school until they have returned to their respective homes, except that where
transportation of pupils is provided, the driver in charge of the school bus or other mode of
transportation shall exercise such authority and control over the children while they are in transit to
and from the school.
(b) Subject to the rules of the state board of education, the teacher shall exclude from the
school any pupil or pupils known to have or suspected of having any infectious disease, or any pupil or pupils who have been exposed to such disease, and shall immediately notify the proper health
officer or medical inspector of such exclusion. Any pupil so excluded shall not be readmitted to the
school until such pupil has complied with all the requirements of the rules governing such cases or has
presented a certificate of health signed by the medical inspector or other proper health officer.
(c) The teacher shall have authority to exclude from his or her classroom or school bus any
pupil who is guilty of disorderly conduct; who in any manner interferes with an orderly educational
process; who threatens, abuses or otherwise intimidates or attempts to intimidate a school employee
or a pupil; or who willfully disobeys a school employee; or who uses abusive or profane language
directed at a school employee. Any pupil excluded shall be placed under the control of the principal
of the school or a designee. The excluded pupil may be admitted to the classroom or school bus only
when the principal, or a designee, provides written certification to the teacher that the pupil may be
readmitted and specifies the specific type of disciplinary action, if any, which was taken. If the
principal finds that disciplinary action is warranted, he or she shall provide written and, if possible,
telephonic notice of such action to the parent(s), guardian(s) or custodian(s). When a teacher excludes
the same pupil from his or her classroom or from a school bus three times in one school year, and after
exhausting all reasonable methods of classroom discipline provided in the school discipline plan, the
pupil may be readmitted to the teacher's classroom only after the principal, teacher and, if possible,
the parent(s), guardian(s) or custodian(s) of the pupil have held a conference to discuss the pupil's
disruptive behavior patterns, and the teacher and the principal agree on a course of discipline for the
pupil and inform the parent(s), guardian(s) or custodian(s) of the course of action. Thereafter, if the
pupil's disruptive behavior persists, upon the teacher's request, the principal may, to the extent
feasible, transfer the pupil to another setting.
(d) The Legislature finds that suspension from school is not appropriate solely for a pupil's
failure to attend class. Therefore, no pupil may be suspended from school solely for not attending class.
Other methods of discipline may be used for the pupil which may include, but are not limited to,
detention, extra class time or alternative class settings.
(e) Corporal punishment of any pupil by a school employee is prohibited.
(f) The West Virginia board of education and county boards of education Each county board
is solely responsible for the administration of proper discipline in the public schools of the county and
shall adopt policies consistent with the provisions of this section to govern disciplinary actions. These
policies shall encourage encouraging the use of alternatives to corporal punishment, providing for the
training of school personnel in alternatives to corporal punishment and for the involvement of
parent(s), guardian(s) or custodian(s) in the maintenance of school discipline. The county boards of
education shall provide for the immediate incorporation and implementation in the schools of a
preventive discipline program which may include the responsible student program and a student
involvement program which may include the peer mediation program, devised by the West Virginia
board of education. Each board may modify such programs to meet the particular needs of the county.
The county boards shall provide in-service training for teachers and principals relating to assertive
discipline procedures and conflict resolution. The county boards of education may also establish
cooperatives with private entities to provide middle educational programs which may include programs
focusing on developing individual coping skills, conflict resolution, anger control, self-esteem issues,
stress management and decision making for students and any other program related to preventive
discipline.
(g) For the purpose of this section: (1) 'Pupil or student' shall include any child, youth or adult
who is enrolled in any instructional program or activity conducted under board authorization and within the facilities of or in connection with any program under public school direction: Provided,
That, in the case of adults, the pupil-teacher relationship shall terminate when the pupil leaves the
school or other place of instruction or activity; and (2) 'teacher' shall mean all professional educators
as defined in section one, article one of this chapter and shall include the driver of a school bus or other
mode of transportation.
(h) Teachers shall exercise such other authority and perform such other duties as may be
prescribed for them by law or by the rules of the state board of education not inconsistent with the
provisions of this chapter and chapter eighteen of this code.
§18A-5-1a. Possessing deadly weapons on premises of educational facilities; possessing a
controlled substance on premises of educational facilities; assaults and
batteries committed by pupils upon teachers or other school personnel;
temporary suspension, hearing; procedure, notice and formal hearing;
extended suspension; sale of narcotic; expulsion; exception; alternative
education.
(a) A principal shall suspend a pupil from school or from transportation to or from the school
on any school bus if the pupil, in the determination of the principal after an informal hearing pursuant
to subsection (d) of this section, has: (i) Violated the provisions of subsection (b), section fifteen,
article two, chapter sixty-one of this code; (ii) violated the provisions of subsection (b), section eleven-
a, article seven of said chapter; or (iii) sold a narcotic drug, as defined in section one hundred one,
article one, chapter sixty-a of this code, on the premises of an educational facility, at a
school-sponsored function or on a school bus. If a student has been suspended pursuant to this
subsection, the principal shall, within twenty-four hours, request that the county superintendent
recommend to the county board that the student be expelled. Upon such a request by a principal, the county superintendent shall recommend to the county board that the student be expelled. Upon such
recommendation, the county board shall conduct a hearing in accordance with subsections (e), (f) and
(g) of this section to determine if the student committed the alleged violation. If the county board finds
that the student did commit the alleged violation, the county board shall expel the student.
(b) A principal shall suspend a pupil from school, or from transportation to or from the school
on any school bus, if the pupil, in the determination of the principal after an informal hearing pursuant
to subsection (d) of this section, has: (i) Committed an act or engaged in conduct that would constitute
a felony under the laws of this state if committed by an adult; or (ii) unlawfully possessed on the
premises of an educational facility or at a school-sponsored function a controlled substance governed
by the uniform controlled substances act as described in chapter sixty-a of this code. If a student has
been suspended pursuant to this subsection, the principal may request that the superintendent
recommend to the county board that the student be expelled. Upon such recommendation by the
county superintendent, the county board may hold a hearing in accordance with the provisions of
subsections (e), (f) and (g) of this section to determine if the student committed the alleged violation.
If the county board finds that the student did commit the alleged violation, the county board may expel
the student.
(c) A principal may suspend a pupil from school, or transportation to or from the school on any
school bus, if the pupil, in the determination of the principal after an informal hearing pursuant to
subsection (d) of this section: (i) Threatened to injure, or in any manner injured, a pupil, teacher,
administrator or other school personnel; (ii) willfully disobeyed a teacher; (iii) possessed alcohol in
an educational facility, on school grounds, a school bus or at any school-sponsored function; (iv) used
profane language directed at a school employee or pupil; (v) intentionally defaced any school property;
(vi) participated in any physical altercation with another person while under the authority of school personnel; or (vii) habitually violated school rules or policies. If a student has been suspended
pursuant to this subsection, the principal may request that the superintendent recommend to the county
board that the student be expelled. Upon such recommendation by the county superintendent, the
county board may hold a hearing in accordance with the provisions of subsections (e), (f) and (g) of
this section to determine if the student committed the alleged violation. If the county board finds that
the student did commit the alleged violation, the county board may expel the student.
(d) The actions of any pupil which may be grounds for his or her suspension or expulsion under
the provisions of this section shall be reported immediately to the principal of the school in which the
pupil is enrolled. If the principal determines that the alleged actions of the pupil would be grounds for
suspension, he or she shall conduct an informal hearing for the pupil immediately after the alleged
actions have occurred. The hearing shall be held before the pupil is suspended unless the principal
believes that the continued presence of the pupil in the school poses a continuing danger to persons
or property or an ongoing threat of disrupting the academic process, in which case the pupil shall be
suspended immediately and a hearing held as soon as practicable after the suspension.
The pupil and his or her parent(s), guardian(s) or custodian(s), as the case may be, shall be
given telephonic notice, if possible, of this informal hearing, which notice shall briefly state the
grounds for suspension.
At the commencement of the informal hearing, the principal shall inquire of the pupil as to
whether he or she admits or denies the charges. If the pupil does not admit the charges, he or she shall
be given an explanation of the evidence possessed by the principal and an opportunity to present his
or her version of the occurrence. At the conclusion of the hearing or upon the failure of the noticed
student to appear, the principal may suspend the pupil for a maximum of ten school days, including
the time prior to the hearing, if any, for which the pupil has been excluded from school.
The principal shall report any suspension the same day it has been decided upon, in writing,
to the parent(s), guardian(s) or custodian(s) of the pupil by regular United States mail. The suspension
also shall be reported to the county superintendent and to the faculty senate of the school at the next
meeting after the suspension.
(e) Prior to a hearing before the county board, the county board shall cause a written notice
which states the charges and the recommended disposition to be served upon the pupil and his or her
parent(s), guardian(s) or custodian(s), as the case may be. The notice shall state clearly whether the
board will attempt at hearing to establish the student as a dangerous student, as defined by section one,
article one of this chapter. The notice also shall include any evidence upon which the board will rely
in asserting its claim that the student is a dangerous student. The notice shall set forth a date and time
at which the hearing shall be held, which date shall be within the ten-day period of suspension imposed
by the principal.
(f) The county board shall hold the scheduled hearing to determine if the pupil should be
reinstated or should or, under the provisions of this section, must be expelled from school. If the
county board determines that the student should or must be expelled from school, it may also
determine whether the student is a dangerous student pursuant to subsection (g) of this section. At this,
or any hearing before a county board conducted pursuant to this section, the pupil may be represented
by counsel, may call his or her own witnesses to verify his or her version of the incident and may
confront and cross-examine witnesses supporting the charge against him or her. Such a hearing shall
be recorded by mechanical means unless recorded by a certified court reporter. Any such hearing may
be postponed for good cause shown by the pupil but he or she shall remain under suspension until after
the hearing. The state board may adopt other supplementary rules of procedure to be followed in these
hearings. At the conclusion of the hearing the county board shall either: (1) Order the pupil reinstated immediately at the end of his or her initial suspension; (2) suspend the pupil for a further designated
number of days; or (3) expel the pupil from the public schools of the county.
(g) A county board that did not intend prior to a hearing to assert a dangerous student claim,
that did not notify the student prior to the hearing that such a determination would be considered and
that determines through the course of the hearing that the student may be a dangerous student shall
schedule a second hearing within ten days to decide the issue. The hearing may be postponed for good
cause shown by the pupil, but he or she remains under suspension until after the hearing.
A county board that expels a student, and finds that the student is a dangerous student, may
refuse to provide alternative education. However, after a hearing conducted pursuant to this section
for determining whether a student is a dangerous student, when the student is found to be a dangerous
student, is expelled and is denied alternative education, a hearing shall be conducted within three
months after the refusal by the board to provide alternative education to reexamine whether or not the
student remains a dangerous student and whether the student shall be provided alternative education.
Thereafter, a hearing for the purpose of reexamining whether or not the student remains a dangerous
student and whether the student shall be provided alternative education shall be conducted every three
months for so long as the student remains a dangerous student and is denied alternative education.
During the initial hearing, or in any subsequent hearing, the board may consider the history of the
pupil's conduct as well as any improvements made subsequent to the expulsion. If it is determined
during any of the hearings that the student is no longer a dangerous student or should be provided
alternative education, the student shall be provided alternative education during the remainder of the
expulsion period.
(h) The superintendent may apply to a circuit judge or magistrate for authority to subpoena
witnesses and documents, upon his or her own initiative, in a proceeding related to a recommended student expulsion or dangerous student determination, before a county board conducted pursuant to
the provisions of this section. Upon the written request of any other party, the superintendent shall
apply to a circuit judge or magistrate for the authority to subpoena witnesses, documents or both on
behalf of the other party in a proceeding related to a recommended student expulsion or dangerous
student determination before a county board. If the authority to subpoena is granted, the
superintendent shall subpoena the witnesses, documents or both requested by the other party.
Furthermore, if the authority to subpoena is granted, it shall be exercised in accordance with the
provisions of section one, article five, chapter twenty-nine-a of this code.
Any hearing conducted pursuant to this subsection may be postponed: (1) For good cause
shown by the pupil; (2) when proceedings to compel a subpoenaed witness to appear must be
instituted; or (3) when a delay in service of a subpoena hinders either party's ability to provide
sufficient notice to appear to a witness. A pupil remains under suspension until after the hearing in
any case where a postponement occurs.
The county boards are directed to report the number of pupils determined to be dangerous
students to the state board of education. The state board will compile the county boards' statistics and
shall report its findings to the legislative oversight commission on education accountability.
(i) Pupils may be expelled pursuant to the provisions of this section for a period not to exceed
one school year, except that if a pupil is determined to have violated the provisions of subsection (a)
of this section the pupil shall be expelled for a period of not less than twelve consecutive months:
Provided, That the county superintendent may lessen the mandatory period of twelve consecutive
months for the expulsion of the pupil if the circumstances of the pupil's case demonstrably warrant.
Upon the reduction of the period of expulsion, the county superintendent shall prepare a written
statement setting forth the circumstances of the pupil's case which warrant the reduction of the period of expulsion. The county superintendent shall submit the statement to the county board, the principal,
the faculty senate and the local school improvement council for the school from which the pupil was
expelled. The county superintendent may use the following factors as guidelines in determining
whether or not to reduce a mandatory twelve-month expulsion:
(1) The extent of the pupil's malicious intent;
(2) The outcome of the pupil's misconduct;
(3) The pupil's past behavior history; and
(4) The likelihood of the pupil's repeated misconduct.
(j) In all hearings under this section, facts shall be found by a preponderance of the evidence.
(k) For purposes of this section, nothing herein may be construed to be in conflict with the
federal provisions of the Individuals with Disabilities Education Act of 1990 (PL 101-476).
(l) If a pupil transfers to another school in West Virginia, the principal of the school from
which the pupil transfers shall provide a written record of any disciplinary action taken against the
pupil to the principal of the school to which the pupil transfers. Each suspension or expulsion imposed
upon a pupil under the authority of this section shall be recorded in the uniform integrated regional
computer information system (commonly known as the West Virginia Education Information System)
described in subsection (f), section twenty-six, article two, chapter eighteen of this code.
__________(1) The principal of the school at which the pupil is enrolled shall create an electronic record
within twenty-four hours of the imposition of the suspension or expulsion.
__________(2) Each record of a suspension or expulsion shall include the pupil's name and identification
number, the reason for the suspension or expulsion, and the beginning and ending dates of the
suspension or expulsion.
__________(3) The state board of education shall collect and disseminate data so that any principal of a
public school in West Virginia can review the complete history of disciplinary actions taken by West
Virginia public schools against any pupil enrolled or seeking to enroll at that principal's school. The
purposes of this provision are to allow every principal to fulfill his or her duty under subsection (b),
section fifteen-f, article five, chapter eighteen of this code to determine whether a pupil requesting to
enroll at a public school in West Virginia is currently serving a suspension or expulsion from another
public school in West Virginia and to allow principals to obtain general information about pupils'
disciplinary histories.
(m) Principals may exercise any other authority and perform any other duties to discipline
pupils consistent with state and federal law, including policies of the state board of education.
(n) Each county board is solely responsible for the administration of proper discipline in the
public schools of the county and shall adopt policies consistent with the provisions of this section to
govern disciplinary actions."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4001 - "A Bill to amend and reenact §18-2E-5 and §18-2E-5c of the code
of West Virginia, 1931, as amended; to amend and reenact §18-5-15f of said code; to amend said code
by adding thereto a new section, designated section §18-5-46; to amend and reenact §18-20-5 of said
code; to amend and reenact §18A-2-12 of said code; to amend said code by adding thereto a new
section, designated §18A-2-12a; and to amend and reenact §18A-5-1 and §18A-5-1a, all relating to
the process for improving education and removing impediments to improving performance and
progress; making technical references, grammatical corrections and stylistic changes; refocusing school
and county improvement plans; requiring unified school improvement plan boilerplate; adding requirement for standards; revising performance measures and specifying their use; modifying
requirements for assessments; adding indicators of exemplary performance and progress; specifying
use of efficiency indicators; reorienting system of education performance audits; changing policy for
making on-site reviews of schools and school systems; modifying who office of education performance
audits reports to; modifying salary cap for office director; revising and adding items specified for
compliance documentation on checklist format; modifying process for selection of schools and school
systems for on-site review; open meetings exemption for state board during certain discussions;
modifying limitation in scope of on-site review; modifying persons to be included in an on-site review;
expanding on-site exit conferences and specifying purpose; modifying time limitations for on-site
review reports; making certain findings and excluding certain areas from review by performance
audits; further specifying conditions for student transfers from seriously impaired schools; granting
certain authority for real estate transactions to state board during state intervention; clarifying rights
of principal removed from seriously impaired school; specifying certain notice requirements by state
board to process for improving education council; recording suspensions and expulsions on the West
Virginia education information system; prohibiting a teacher from being required to change grade;
exception; limiting state rules, policies and standards for exceptional children programs to federal
requirements and directing report of review and comparison of laws to legislative oversight
commission; restricting publication of lesson plans; setting forth general statement on relations
between county boards and school personnel; and placing sole responsibility for proper student
discipline with county boards and requiring county board policies."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
with amendment, as follows:
On page nineteen, section §18-2E-5, by striking out subsection (k) and inserting in lieu thereof
a new subsection (k) to read as follows:
" (i) (k) On-site reviews. --
(1) The system of education performance audits shall include on-site reviews of schools and
school systems which shall be conducted only at the specific direction of the state board upon its
determination that the performance and progress of the school or school system are persistently below
standard or that other circumstances exist that warrant an on-site review. or by weighted selection by
the education performance audits. Any discussion by the state board of schools to be subject to an on-
site review or dates for which on-site reviews will be conducted may be held in executive session, and
is not subject to the provisions of article nine-a, chapter six of this code, relating to open governmental
proceedings. An on-site review shall be conducted by the office of education performance audits of
any a school or school system for the purpose of investigating the reasons for performance and
progress that are persistently below standard and making recommendations to the school and school
system, as appropriate, and to the state board on such measures as it considers necessary to improve
performance and progress to meet the standard. The investigation may include, but is not limited to,
purposes, including, but not limited to, the following:
(A) Verifying data reported by the school or county board;
(B) Documenting Examining compliance with the laws and policies and laws affecting student,
school and school system performance and progress;
(C) Evaluating the effectiveness and implementation status of school and school system unified
improvement plans;
(D) Investigating official complaints submitted to the state board that allege serious
impairments in the quality of education in schools or school systems;
(E) Investigating official complaints submitted to the state board that allege that a school or
county board is in violation of policies or laws under which schools and county boards operate; and
(F) Determining and reporting whether required reviews and inspections have been conducted
by the appropriate agencies, including, but not limited to, the state fire marshal, the health department,
the school building authority and the responsible divisions within the department of education, and
whether noted deficiencies have been or are in the process of being corrected. The office of education
performance audits may not conduct a duplicate review or inspection of any compliance reviews or
inspections conducted by the department or its agents or other duly authorized agencies of the state,
nor may it mandate more stringent compliance measures.
(2) The selection of schools and school systems for an on-site review shall use a weighted
sample so that those with lower performance and progress indicators have a greater likelihood of being
selected. The director of the office of education performance audits shall notify the county
superintendent of schools five school days prior to commencing an on-site review of the county school
system and shall notify both the county superintendent and the principal five school days prior to
commencing an on-site review of an individual school: Provided, That the state board may direct the
office of education performance audits to conduct an unannounced on-site review of a school or school
system if the state board believes circumstances warrant an unannounced on-site review.
(3) The office of education performance audits may shall conduct on-site reviews which are
limited in scope to specific areas in which performance and progress are persistently below standard
as determined by the state board unless specifically directed by the state board to conduct a review
which covers additional areas. addition to full reviews which cover all areas.
(4) An on-site review of a school or school system shall include a person or persons from the
department of education or a public education agency in the state who has expert knowledge and experience in the area or areas to be reviewed, and who is has been trained and designated by the state
board to perform such functions. from the department of education and the agencies responsible for
assisting the office. If the size of the school or school system and issues being reviewed necessitates
necessitate the use of an on-site review team or teams, the person or persons designated by the state
board shall advise and assist the director to appoint the team or teams. The person or persons
designated by the state board shall be the team leaders.
The persons designated by the state board shall be responsible for completing the report on the
findings and recommendations of the on-site review in their area of expertise. It is the intent of the
Legislature that the persons designated by the state board participate in all on-site reviews that involve
their area of expertise, to the extent practicable, so that the on-site review process will evaluate
compliance with the standards in a uniform, consistent and expert manner.
(5) The office of education performance audits shall reimburse a county board for the costs of
substitutes required to replace county board employees while they are serving on a review team.
(6) At the conclusion of an on-site review of a school system, the director and team leaders
shall hold an exit conference with the superintendent and shall provide an opportunity for principals
to be present for at least the portion of the conference pertaining to their respective schools. In the case
of an on-site review of a school, the exit conference shall be held with the principal and curriculum
team of the school and the superintendent shall be provided the opportunity to be present. The purpose
of the exit conference is to review the initial findings of the on-site review, clarify and correct any
inaccuracies and allow the opportunity for dialogue between the reviewers and the school or school
system to promote a better understanding of the findings.
(7) The office of education performance audits shall report the findings of an on-site review
to the county superintendent and the principals whose schools were reviewed within thirty days following the conclusion of the on-site review. The office of education performance audits shall
report the findings of the on-site reviews review to the state board within forty-five days after the
conclusion of the on-site review. for inclusion in the evaluation and determination of a school's or
county board's accreditation or approval status as applicable. The report on the findings of an on-site
review shall be submitted to the state board within thirty days following the conclusion of the on-site
review and to the county superintendent and principals of schools within the reviewed school system
within forty-five days following the conclusion of the on-site review. A copy of the report shall be
provided to the process for improving education council at its request.
(8) The Legislature finds that the accountability and oversight of the following activities and
programmatic areas in the public schools is controlled through other mechanisms and that additional
accountability and oversight are not only unnecessary but counter productive in distracting necessary
resources from teaching and learning. Therefore, notwithstanding any other provision of this section
to the contrary, the following activities and programmatic areas are not subject to review by the office
of education performance audits:
__________(A) Work-based learning;
__________(B) Use of advisory councils;
__________(C) Program accreditation and student credentials;
__________(D) Student transition plans;
__________(E) Graduate assessment form;
__________(F) Casual deficit;
__________(G) Accounting practices;
__________(H) Transportation services;
__________(I) Special education services;
__________(J) Safe, healthy and accessible facilities;
__________(K) Health services;
__________(L) Attendance director;
__________(M) Business/community partnerships;
__________(N) Pupil-teacher ratio/split grade classes;
__________(O)Local school improvement council, faculty senate, student assistance team and curriculum
team;
__________(P) Planning and lunch periods;
__________(Q) Skill improvement program;
__________(R) Certificate of proficiency;
__________(S) Training of county board members;
__________(T) Excellence in job performance;
__________(U) Staff development; and
__________(V) Preventive discipline, character education and student and parental involvement."
The bill, as amended by the Senate, and as further amended by the House of Delegates, was
then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 651), and there were--yeas
88, nays none, absent and not voting 12, with the absent and not voting being as follows:
Absent And Not Voting: Amores, Beach, Calvert, Coleman, Ennis, Long, Mezzatesta,
Schoen, Wakim, Webster, Williams and Yeager.
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. 4001) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 652), and there were--yeas 90, nays
none, absent and not voting 10, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Calvert, Coleman, Ennis, Long, Mezzatesta, Schoen,
Wakim, Webster and Williams.
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. 4001) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the
House of Delegates as follows:
Com. Sub. for H. B. 4004, Establishing an insurance fraud unit within the office of 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 three, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §33-2-20; that §33-6A-4 of said code be amended and reenacted; that said code
be amended by adding thereto two new sections, designated §33-6A-4a and §33-6A-4b; that said code
be amended by adding thereto a new section, designated §33-22-2a; that said code be amended by
adding thereto a new section, designated §33-23-2a; that said code be amended by adding thereto a
new section, designated §33-24-4b; that said code be amended by adding thereto a new section, designated §33-25-6a; that said code be amended by adding thereto a new section, designated §33-
25A-24b; that §33-41-1, §33-41-2 and §33-41-3 of said code be amended and reenacted; and that said
code be amended by adding thereto nine new sections, designated §33-41-4, §33-41-5, §33-41-6, §33-
41-7, §33-41-8, §33-41-9, §33-41-10, §33-41-11 and §33-41-12, all to read as follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-20. Authority of commission to allow withdrawal of insurance carriers from doing
business in the state.
(a) Notwithstanding any provision of the code to the contrary, the commissioner may,
consistent with the provisions of this section, authorize an insurer to withdraw from the line of
authority of automobile liability insurance for personal, private passenger automobiles covered by
article six-a of this chapter from doing business entirely in this state if:
(1) The insurer has submitted and received approval from the commissioner of a withdrawal
plan; and
(2) The insurer demonstrates to the satisfaction of the commissioner that allowing the insurer
to withdraw would be in the best interest of the insurer, its policyholders and the citizens of this state.
(b) Any insurer that elects to nonrenew or cancel the particular type or line of insurance
coverage provided for by section five, article seventeen-a of this chapter shall submit to the insurance
commissioner a withdrawal plan for informational purposes only prior to cancellation or nonrenewal
of all its business in this state
(c) The commissioner shall promulgate rules pursuant to chapter twenty-nine-a of this code
setting forth the criteria for withdrawal plans.
ARTICLE 6A. CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY
POLICIES.
§33-6A-4. Advance notice of nonrenewal required; assigned risk policies; reasons for
nonrenewal; hearing and review after nonrenewal.
(a) No insurer shall fail to renew an outstanding automobile liability or physical damage
insurance policy unless such the nonrenewal is preceded by at least forty-five days of advance notice
to the named insured of such the insurer's election not to renew such the policy: Provided, That
subject to this section, nothing contained in this article shall be construed so as to prevent an insurer
from refusing to issue an automobile liability or physical damage insurance policy upon application
to such the insurer, nor shall any provision of this article be construed to prevent an insurer from
refusing to renew such a policy upon expiration, except as to the notice requirements of this section,
and except further as to those applicants lawfully submitted pursuant to the West Virginia assigned
risk plan. Provided, however, That an
_____(b) An insurer may not fail to renew an outstanding automobile liability or physical damage
insurance policy which has been in existence for two consecutive years or longer except for the
following reasons:
(a) (1) The named insured fails to make payments of premium for such the policy or any
installment of the premium when due;
(b) (2) The policy is obtained through material misrepresentation;
(c) (3) The insured violates any of the material terms and conditions of the policy;
(d) (4) The named insured or any other operator, either residing in the same household or who
customarily operates an automobile insured under such the policy:
(1) (A) Has had his or her operator's license suspended or revoked during the policy period;
or
(2) (B) Is or becomes subject to epilepsy or heart attacks, a physical or mental condition that
prevents the insured from operating a motor vehicle, and such the individual cannot produce a
certificate from a physician testifying to his or her ability to operate a motor vehicle;
(e) (5) The named insured or any other operator, either residing in the same household or who
customarily operates an automobile insured under such the policy, is convicted of or forfeits bail
during the policy period for any of the following reasons:
(1) (A) Any felony or assault involving the use of a motor vehicle;
(2) (B) Negligent homicide arising out of the operation of a motor vehicle;
(3) (C) Operating a motor vehicle while under the influence of intoxicating liquor or of any
narcotic drug;
(4) (D) Leaving the scene of a motor vehicle accident in which the insured is involved without
reporting it as required by law;
(5) (E) Theft of a motor vehicle or the unlawful taking of a motor vehicle; or
_____(6) (F) Making false statements in an application for a motor vehicle operator's license;
(7) (6) The named insured or any other operator, either residing in the same household or who
customarily operates an automobile insured under the policy, is convicted of or forfeits bail during the
policy period for two or more moving traffic violations committed within a period of twelve months,
each of which results in three or more points being assessed on the driver's record by the division of
motor vehicles, whether or not the insurer renewed the policy without knowledge of all such of the
violations: Provided, That an insurer may nonrenew an automobile liability or physical damage
insurance policy if the named insured, or any other operator, either residing in the same household or
who customarily operates an automobile insured under the policy is convicted of or forfeits bail during
the policy period for two or more moving traffic violations committed within a period of twenty-four months, each of which occurs on or after the first day of July, two thousand four and results in three
or more points being assessed on the driver's record by the division of motor vehicles, whether or not
the insurer renewed the policy without knowledge of all of the violations. Notice of any nonrenewal
made pursuant to this subsection subdivision shall be mailed to the named insured either during the
current policy period or during the first full policy period following the date that the second moving
traffic violation is recorded by the division of motor vehicles;
(f) (7) The named insured or any other operator either residing in the same household or who
customarily operates an automobile insured under the policy has had a second at-fault motor vehicle
accident within a period of twelve months, whether or not the insurer renewed the policy without
knowledge of all such of the accidents: Provided, That an insurer may non-renew an automobile
liability or physical damage insurance policy under this subsection if the named insured or any other
operator either residing in the same household or who customarily operates an automobile insured
under such policy has had two at-fault motor vehicle accidents within a period of thirty-six months,
each of which occurs after the first day of July, two thousand four and results in a claim paid by the
insurer for each accident, whether or not the insurer renewed the policy without knowledge of all of
the accidents. Notice of any nonrenewal made pursuant to this subsection shall be mailed to the named
insured either during the current policy period or during the first full policy period following the date
of the second accident; or
(9) The insurer ceases writing automobile liability or physical damage insurance policies
throughout the state after submission to and approval by the commissioner of a withdrawal plan or
discontinues operations within the state pursuant to a withdrawal plan approved by the commissioner.
_____(c) An insurer shall not fail to renew an automobile liability or physical damage insurance
policy when an operator other than the named insured has violated the provisions of subdivision (4) or (5), subsection (b) of this section, if the named insured, by restrictive endorsement, specifically
excludes the operator who violated the provision. An insurer issuing a nonrenewal notice informing
the named insured that the policy will be nonrenewed, the reason for that an operator has violated the
provisions of subdivision (4) or (5), subsection (b) of this section, shall at that time inform the named
insured of his or her option to specifically exclude the operator by restrictive endorsement and shall
further inform the named insured that upon obtaining the restrictive endorsement, the insurer will
renew the policy or rescind the nonrenewal absent the existence of any other basis for nonrenewal set
forth in this section.
_____(d) A notice provided under subsection (a) of this section shall state the specific reason or
reasons for nonrenewal and shall advise the named insured that Nonrenewal nonrenewal of such the
policy for any reason is subject to a hearing and review as provided for in section five of this article.
Cost of the hearing shall be assessed against the losing party but shall not exceed seventy-five dollars.
The notice must also advise the insured of possible eligibility for insurance through the West Virginia
assigned risk plan.
_____(e) Notwithstanding the provisions of subsection (a) of this section, the insurer shall renew
reinstate any automobile liability or physical damage insurance policy that has not been renewed due
to the insured's failure to pay the renewal premium when due if:
(1) None of the other grounds for nonrenewal as set forth in subsections subsection (b) through
(f), inclusive, of this section exist; and
(2) the The insured makes an application for renewal reinstatement within ninety forty-five
days of the original expiration date of the policy. If a policy is renewed reinstated as provided for in
this paragraph, then the coverage afforded shall not be retroactive to the original expiration date of the
policy but: Provided, That such policy shall begin be effective on the reinstatement date at the current premium levels offered by the company and shall not be afforded the protections of this section
relating to renewal of an outstanding automobile liability or physical damage insurance policy that has
been in existence for at least two consecutive years.
§33-6A-4a. Alternative method for nonrenewal for automobile liability and physical damage
insurance.
(a) On or after the first day of July, two thousand four, an insurer may nonrenew an automobile
liability or physical damage insurance policy for any reason other than race, religion, nationality, ethnic
group, age, sex, marital status, or other reason prohibited by the provisions of this chapter,
notwithstanding the provisions of section four of this article, upon forty-five days advance notice to
the named insured of the insurer's election not to renew the policy.
(b) The total number of nonrenewal notices issued by the insurer pursuant to this section may
not exceed one and one-half percent of the total number of the policies of the insurer in force at the
end of the previous calendar year in this state: Provided, That the total number of nonrenewal notices
issued to insureds within any given county in this state may not exceed one and one-half percent of the
total number of the policies of the insurer in force in that county at the end of the previous calendar
year: Provided, however, That an insurer may nonrenew one policy in any county if the applicable
percentage limitation results in less than one policy.
(c) Notwithstanding the provisions of subsection (b) of this section, on or after the first day of
July, two thousand seven, the total number of nonrenewal notices issued by the insurer pursuant to this
section may not exceed one percent of the total number of the policies of the insurer in force at the end
of the previous calendar year in this state: Provided, That the total number of nonrenewal notices
issued to insureds within any given county in this state may not exceed one percent of the total number
of the policies of the insurer in force in that county at the end of the previous calendar year: Provided, however, That an insurer may nonrenew one policy in any county if the applicable percentage
limitation results in less than one policy.
(d) A notice issued pursuant to this section shall state the specific reason or reasons for refusal
to renew and shall advise the named insured that nonrenewal of the policy for any reason is subject to
a hearing and review as provided for in section five of this article: Provided, That the hearing shall
relate to whether the nonrenewal notice was issued for a discriminatory reason, was based upon
inadequate notice, or causes the insurer to exceed the percentage limitation on nonrenewal notices set
forth in this section. Cost of the hearing shall be assessed against the losing party but shall not exceed
seventy-five dollars. The notice shall also advise the insured of possible eligibility for insurance
through the West Virginia assigned risk plan.
(e) Each insurer licensed to write automobile liability and physical damage insurance policies
in this state shall file with the commissioner a copy of its underwriting standards, including any
amendments or supplements. The commissioner shall review and examine the underwriting standards
to ensure compliance with this chapter. The underwriting standards filed with the commissioner shall
be considered confidential information and are exempt from disclosure pursuant to chapter twenty-
nine-b of this code. The commissioner may promulgate rules pursuant to chapter twenty-nine-a of this
code to implement the provisions of this section.
(f) Each insurer that has elected to issue nonrenewal notices pursuant to the percentage
limitations provided in subsection (b) or (c) of this section shall report to the commissioner on or
before the thirty-first day of March of each year the total number of nonrenewal notices issued in this
state and in each county of this state for the preceding calendar year.
§33-6A-4b. Manner of making election relating to nonrenewals.
(a) Each insurer licensed to write automobile liability or physical damage insurance policies
in this state as of the first day of July, two thousand four, shall make an election to issue all nonrenewal
notices either pursuant to section four or section four-a of this article. Each insurer shall notify the
commissioner of its election no later than the first day of July, two thousand four, and shall remain
bound by the election for a period of five years. For each subsequent five-year period each insurer
shall notify the commissioner of its election to issue all nonrenewal notices either pursuant to section
four or section four-a of this article.
(b) An insurer that is not licensed to write automobile liability or physical damage insurance
policies in this state as of the first day of July, two thousand four, but becomes licensed to write
policies after that date shall, no later than two years after the date the insurer becomes licensed to write
the policies, make an election to issue all nonrenewal notices either pursuant to section four or section
four-a of this article, and shall notify the commissioner of its election. If the insurer elects to issue all
nonrenewal notices pursuant to section four-a of this article, the total number of nonrenewal notices
issued by the insurer for the subsequent three-year period may not exceed the percentage limitation set
forth in subsection (b), section four-a of this article. At the end of the three-year period, the total
number of nonrenewal notices issued by the insurer with regard to the policies may not exceed the
percentage limitation set forth in subsection (c), section four-a of this article. An insurer first
becoming licensed to issue automobile liability and physical damage insurance policies in this state
after the first day of July, two thousand four, shall be bound by its election for a period of five years,
and for each subsequent five-year period shall notify the commissioner of its election to issue all
nonrenewal notices either pursuant to section four or section four-a of this article.
(c) Notwithstanding any provision of this article to the contrary, a named insured by restrictive
endorsement may specifically exclude from automobile liability or physical damage insurance policy an operator who has violated the provisions of subdivision (4) or (5), subsection (b), section four of
this article.
ARTICLE 22. FARMERS' MUTUAL FIRE INSURANCE COMPANIES.
§33-22-2a. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is
applicable to farmers' mutual fire insurance companies.
ARTICLE 23. FRATERNAL BENEFIT SOCIETIES.
§33-23-2a. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is
applicable to fraternal benefit societies.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE
CORPORATIONS, DENTAL SERVICE CORPORATIONS AND
HEALTH SERVICE CORPORATIONS.
§33-24-4b. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is
applicable to hospital service corporations, medical service corporations, dental service corporations
and health service corporations.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-6a. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is
applicable to health care corporations.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24b. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is
applicable to health maintenance organizations.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-1. Short title; legislative findings and purpose.
(a) This article may be cited as the 'West Virginia Insurance Fraud Prevention Act'.
(b) The Legislature finds that the business of insurance involves many transactions of numerous
types that have potential for fraud and other illegal activities. This article is intended to permit use of
the expertise of the commissioner to investigate and help prosecute insurance fraud and other crimes
related to the business of insurance more effectively, and to assist and receive assistance from state,
local and federal law-enforcement and regulatory agencies in enforcing laws prohibiting crimes
relating to the business of insurance.
§33-41-2. Definitions.
As used in this article:
(1) 'Benefits' mean money payments, goods, services or other thing of value paid in response
to a claim filed with an insurer based upon a policy of insurance;
(2) 'Business of insurance' means the writing of insurance or the reinsuring of risks by an
insurer, including acts necessary or incidental to writing insurance or reinsuring risks and the activities
of persons who act as or are officers, directors, agents or employees of insurers, or who are other
persons authorized to act on their behalf;
(3) 'Claim' means an application or request for payment or benefits provided under the terms
of a policy of insurance;
(4) 'Commissioner' means the insurance commissioner of West Virginia or his or her designee;
(5) 'Health care provider' means a person, partnership, corporation, facility or institution
licensed by, or certified in, this state or another state, to provide health care or professional health care
services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered
or licensed practical nurse, optometrist, pharmacist, podiatrist, chiropractor, physical therapist or
psychologist;
(6) 'Insurance' means a contract or arrangement in which a person undertakes to:
(A) Pay or indemnify another person as to loss from certain contingencies called 'risks,'
including through reinsurance;
(B) Pay or grant a specified amount or determinable benefit to another person in connection
with ascertainable risk contingencies;
(C) Pay an annuity to another person; or
(D) Act as surety.
(7) 'Insurer' means a person entering into arrangements or contracts of insurance or
reinsurance. Insurer includes, but is not limited to, any domestic or foreign stock company, mutual
company, mutual protective association, farmers' mutual fire companies, fraternal benefit society,
reciprocal or interinsurance exchange, nonprofit medical care corporation, nonprofit health care
corporation, nonprofit hospital service association, nonprofit dental care corporation, health
maintenance organization, captive insurance company, risk retention group or other insurer, regardless
of the type of coverage written, benefits provided or guarantees made by each. A person is an insurer
regardless of whether the person is acting in violation of laws requiring a certificate of authority or
regardless of whether the person denies being an insurer;
(8) 'Person' means an individual, a corporation, a limited liability company, a partnership, an
association, a joint stock company, a trust, trustees, an unincorporated organization, or any similar business entity or any combination of the foregoing. 'Person' also includes hospital service
corporations, medical service corporations and dental service corporations as defined in article twenty-
four of this chapter, health care corporations as defined in article twenty-five of this chapter, or a health
maintenance organization organized pursuant to article twenty-five-a of this chapter;
(9) 'Policy' means an individual or group policy, group certificate, contract or arrangement of
insurance or reinsurance affecting the rights of a resident of this state or bearing a reasonable relation
to this state, regardless of whether delivered or issued for delivery in this state;
(10) 'Reinsurance' means a contract, binder of coverage (including placement slip) or
arrangement under which an insurer procures insurance for itself in another insurer as to all or part of
an insurance risk of the originating insurer;
(11) 'Statement' means any written or oral representation made to any person, insurer or
authorized agency. A statement includes, but is not limited to, any oral report or representation; any
insurance application, policy, notice or statement; any proof of loss, bill of lading, receipt for payment,
invoice, account, estimate of property damages, or other evidence of loss, injury or expense; any bill
for services, diagnosis, prescription, hospital or doctor record, X ray, test result or other evidence of
treatment, services or expense; and any application, report, actuarial study, rate request or other
document submitted or required to be submitted to any authorized agency. A statement also includes
any written or oral representation recorded by electronic or other media; and
(12) 'Unit' means the insurance fraud unit established pursuant to the provisions of this article
acting collectively or by its duly authorized representatives.
§33-41-3. Fraud warning authorized; statement required of nonadmitted insurers.
(a) Claims forms and applications for insurance, regardless of the form of transmission, may
contain the following warning or a substantially similar caveat:
'Any person who knowingly presents a false or fraudulent claim for payment of a loss or
benefit or knowingly presents false information in an application for insurance is guilty of a crime and
may be subject to fines and confinement in prison.'
(b) The lack of a warning as authorized by the provisions of subsection (a) of this section does
not constitute a defense in any prosecution for a fraudulent or illegal act nor shall it constitute the basis
for any type of civil cause of action.
(c) Policies issued by nonadmitted insurers pursuant to article twelve-c of this chapter shall
contain a statement disclosing the status of the insurer to do business in the state where the policy is
delivered or issued for delivery or the state where coverage is in force. The requirement of this
subsection may be satisfied by a disclosure specifically required by section five, article twelve-c of this
chapter; section nine, article thirty-two of this chapter; and section eighteen, article thirty-two of this
chapter.
§33-41-4. Authority of the commissioner; use of special assistant prosecutors.
(a) The commissioner may investigate suspected criminal acts relating to the business of
insurance as authorized by the provisions of this article.
(b) If the prosecuting attorney of the county in which a criminal violation relating to the
business of insurance occurs determines that his or her office is unable to take appropriate action, he
or she may petition the appropriate circuit court for the appointment of a special prosecutor or special
assistant prosecutor from the West Virginia Prosecuting Attorney Institute pursuant to the provisions
of section six, article four, chapter seven of this code. Notwithstanding the provisions of that section,
attorneys employed by the commissioner and assigned to the insurance fraud unit created by the
provisions of section eight of this article may prosecute or assist in the prosecution of violations of the
criminal laws of this state related to the business of insurance and may act as special prosecutors or special assistant prosecutors in those cases if assistance is sought by the prosecuting attorney or special
prosecutor assigned by the institute to prosecute those matters.
(c) Funds allocated for insurance fraud prevention may be dispersed by the commissioner, at
his or her discretion, for the purpose of insurance fraud enforcement as authorized by the provisions
of this code.
(d) The Insurance Fraud Unit authorized by the provisions of section eight of this article may
assist federal law enforcement agencies, the West Virginia state police, the state fire marshal,
municipal police departments and the sheriffs of the counties in West Virginia in investigating crimes
related to the business of insurance.
(e) The commissioner may conduct public outreach, education, and awareness programs on the
costs of insurance fraud to the public.
§33-41-5. Reporting of insurance fraud or criminal offenses otherwise related to the business
of insurance.
(a) A person engaged in the business of insurance having knowledge or a reasonable belief that
fraud or another crime related to the business of insurance is being, will be or has been committed shall
provide to the commissioner the information required by, and in a manner prescribed by, the
commissioner.
(b) The commissioner may prescribe a reporting form to facilitate reporting of possible fraud
or other offenses related to the business of insurance for use by persons other than those persons
referred to in subsection (a) of this section.
§33-41-6. Immunity from liability.
(a) There shall be no civil liability imposed on and no cause of action shall arise from a
person's furnishing information concerning suspected or anticipated fraud relating to the business of
insurance, if the information is provided to or received from:
(1) The commissioner or the commissioner's employees, agents or representatives;
(2) Federal, state, or local law-enforcement or regulatory officials or their employees, agents
or representatives;
(3) A person involved in the prevention and detection of insurance fraud or that person's
agents, employees or representatives; or
(4) The national association of insurance commissioners or its employees, agents or
representatives.
(b) The provisions of subsection (a) of this section are not applicable to materially incorrect
statements made maliciously or fraudulently by a person designated a mandated reporter pursuant to
the provisions of subsection (a), section five of this article or made in reckless disregard to the truth
or falsity of the statement by those not mandated to report. In an action brought against a person for
filing a report or furnishing other information concerning an alleged insurance fraud, the party bringing
the action shall plead with specificity any facts supporting the allegation that subsection (a) of this
section does not apply because the person filing the report or furnishing the incorrect information did
so maliciously in the case of a mandated reporter or in the case of a person not designated a mandated
reporter, in reckless disregard for the truth or falsity of the statement.
(c) Nothing in this article shall be construed to limit, abrogate or modify existing statutes or
case law applicable to the duties or liabilities of insurers regarding bad faith or unfair trade practices.
(d) This section does not abrogate or modify common law or statutory privileges or immunities.
§33-41-7. Confidentiality.
(a) Documents, materials or other information in the possession or control of the office of the
insurance commissioner that are provided pursuant to section six of this article or obtained by the
commissioner in an investigation of alleged fraudulent acts related to the business of insurance shall
be confidential by law and privileged, shall not be subject to the provisions of chapter twenty-nine-b
of this code, shall not be open to public inspection, shall not be subject to subpoena, and shall not be
subject to discovery or admissible in evidence in any private civil action. The commissioner may use
the documents, materials or other information in the furtherance of any regulatory or legal action
brought as a part of the commissioner's official duties. The commissioner may use the documents,
materials or other information if they are required for evidence in criminal proceedings or other action
by the state or federal government and in such context may be discoverable as ordered by a court of
competent jurisdiction exercising its discretion.
(b) Neither the commissioner nor any person who receives documents, materials or other
information while acting under the authority of the commissioner may be permitted or required to
testify in any private civil action concerning any confidential documents, materials or information
subject to subsection (a) of this section except as ordered by a court of competent jurisdiction.
(c) In order to assist in the performance of the commissioner's duties, the commissioner:
(1) May share documents, materials or other information, including the confidential and
privileged documents, materials or information subject to subsection (a) of this section with other state,
federal and international regulatory agencies, with the national association of insurance commissioners
and its affiliates and subsidiaries, and with local, state, federal and international law-enforcement
authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of
the document, material or other information;
(2) May receive documents, materials or information, including otherwise confidential and
privileged documents, materials or information, from the national association of insurance
commissioners and its affiliates and subsidiaries, and from regulatory and law-enforcement officers
of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any
document, material or information received with notice or the understanding that it is confidential or
privileged under the laws of the jurisdiction that is the source of the document, material or information;
and
(3) May enter into agreements governing sharing and use of information including the
furtherance of any regulatory or legal action brought as part of the recipient's official duties.
(d) No waiver of any applicable privilege or claim of confidentiality in the documents,
materials or information shall occur as a result of disclosure to the commissioner under this section
or as a result of sharing as authorized in subsection (c) of this section.
(e) Nothing in this section shall prohibit the commissioner from providing information to or
receiving information from any local, state, federal or international law-enforcement authorities,
including any prosecuting authority; or from complying with subpoenas or other lawful process in
criminal actions; or as may otherwise be provided in this article.
(f) Nothing in this article may be construed to abrogate or limit the attorney-client or work
product privileges existing at common law or established by statute or court rule.
§33-41-8. Creation of insurance fraud unit; purpose; duties; personnel qualifications.
(a) There is established the West Virginia insurance fraud unit within the office of the
insurance commissioner of West Virginia. The commissioner may employ full-time supervisory, legal
and investigative personnel for the unit, who shall be qualified by training and experience in the areas
of detection, investigation or prosecution of fraud within and against the insurance industry to perform the duties of their positions. The director of the fraud unit shall be a full-time position and shall be
appointed by the commissioner and serve at his or her will and pleasure. The commissioner shall
provide office space, equipment, supplies, clerical and other staff that is necessary for the unit to carry
out its duties and responsibilities under this article.
(b) The fraud unit may in its discretion:
(1) Initiate inquiries and conduct investigations when the unit has cause to believe violations
of the provisions of this chapter or the provisions of article three, chapter sixty-one of this code relating
to the business of insurance have been or are being committed;
(2) Review reports or complaints of alleged fraud related to the business of insurance activities
from federal, state and local law-enforcement and regulatory agencies, persons engaged in the business
of insurance and the general public to determine whether the reports require further investigation; and
(3) Conduct independent examinations of alleged fraudulent activity related to the business of
insurance and undertake independent studies to determine the extent of fraudulent insurance acts.
(c) The insurance fraud unit may:
(1) Employ and train personnel to achieve the purposes of this article and to employ legal
counsel, investigators, auditors and clerical support personnel and other personnel as the commissioner
determines necessary from time to time to accomplish the purposes of this article;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas issued by grand juries and trial courts in criminal matters;
(4) Share records and evidence with federal, state or local law-enforcement or regulatory
agencies, and enter into interagency agreements;
(5) Make criminal referrals to the county prosecutors;
(6) Conduct investigations outside this state. If the information the insurance fraud unit seeks
to obtain is located outside this state, the person from whom the information is sought may make the
information available to the insurance fraud unit to examine at the place where the information is
located. The insurance fraud unit may designate representatives, including officials of the state in
which the matter is located, to inspect the information on behalf of the insurance fraud unit, and the
insurance fraud unit may respond to similar requests from officials of other states;
(7) The fraud unit may initiate investigations and participate in the development of, and if
necessary, the prosecution of any health care provider, including a provider of rehabilitation services,
suspected of fraudulent activity related to the business of insurance;
(8) Specific personnel, designated by the commissioner, shall be permitted to operate vehicles
owned or leased for the state displaying Class A registration plates;
(9) Notwithstanding any provision of this code to the contrary, specific personnel designated
by the commissioner may carry firearms in the course of their official duties after meeting specialized
qualifications established by the governor's committee on crime, delinquency and correction, which
shall include the successful completion of handgun training provided to law-enforcement officers by
the West Virginia state police: Provided, That nothing in this subsection shall be construed to include
any person designated by the commissioner as a law-enforcement officers as that term is defined by
the provisions of section one, article twenty-nine, chapter thirty of this code; and
(10) The insurance fraud unit shall not be subject to the provisions of article nine-a, chapter
six of this code and the investigations conducted by the insurance fraud 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.
§33-41-9. Other law-enforcement or regulatory authority.
This article does not:
(1) Preempt the authority or relieve the duty of other law-enforcement or regulatory agencies
to investigate, examine and prosecute suspected violations of law;
(2) Prevent or prohibit a person from disclosing voluntarily information concerning insurance
fraud to a law-enforcement or regulatory agency other than the insurance fraud unit; or
(3) Limit the powers granted elsewhere by the laws of this state to the commissioner or his or
her agents to investigate and examine possible violations of law and to take appropriate action against
violators of law.
§33-41-10. Rules.
The insurance commissioner shall, pursuant to the provisions of article three, chapter twenty-
nine-a of this code, promulgate such legislative rules as are necessary or proper to carry out the
purposes of this article.
§33-41-11. Fraudulent claims to insurance companies.
(a) Any person who knowingly and willfully and with intent to defraud submits a materially
false statement in support of a claim for insurance benefits or payment pursuant to a policy of
insurance or who conspires to do so is guilty of a crime and is subject to the penalties set forth in the
provisions of this section.
(b) Any person who commits a violation of the provisions of subsection (a) of this section
where the benefit sought exceeds one thousand dollars in value is guilty of a felony and, upon
conviction thereof shall be confined in a correctional facility for not less than one nor more than ten
years, fined not more than ten thousand dollars, or both or in the discretion of the circuit court confined
in a county or regional jail for not more than one year and so fined.
(c) Any person who commits a violation of the provisions of subsection (a) of this section
where the benefit sought is one thousand dollars or less in value, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail for not more than one year, fined not
more than two thousand five hundred dollars, or both.
(d) Any person convicted of a violation of this section is subject to the restitution provisions
of article eleven-a, chapter sixty-one of this code.
(e) The circuit court may award to the unit or other law enforcement agency investigating a
violation of this section or other criminal offense related to the business of insurance its cost of
investigation.
§33-41-12. Civil penalties; injunctive relief; employment disqualification.
A person or entity engaged in the business of insurance or a person or entity making a claim
against an insurer who violates any provision of this article may be subject to the following:
(1) Where applicable, suspension or revocation of license or certificate of authority or a civil
penalty of up to ten thousand dollars per violation, or where applicable, both. Suspension or
revocation of license or certificate of authority or imposition of civil penalties may be pursuant to an
order of the commissioner issued pursuant to the provisions of section thirteen, article two of this
chapter. The commissioner's order may require a person found to be in violation of this article to
make reasonable restitution to persons aggrieved by violations of this article. The commissioner may
assess a person sanctioned pursuant to the provisions of this section the cost of investigation;
(2) Notwithstanding any other provision of law, a civil penalty imposed pursuant to the
provisions of this section is mandatory and not subject to suspension;
(3) A person convicted of a felony violation law reasonably related to the business of insurance
shall be disqualified from engaging in the business of insurance; and
(4) The commissioner may apply for a temporary or permanent injunction in any appropriate
circuit court of this state seeking to enjoin and restrain a person from violating or continuing to violate
the provisions of this article or rule promulgated under this article, notwithstanding the existence of
other remedies at law. The circuit court shall have jurisdiction of the proceeding and have the power
to make and enter an order or judgment awarding temporary or permanent injunctive relief restraining
any person from violating or continuing to violate any provision of this article or rule promulgated
under the article as in its judgment is proper."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4004 - "A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §33-2-20; to amend and reenact §33-6A-4 of said code;
to amend said code by adding thereto two new sections, designated §33-6A-4a and §33-6A-4b; to
amend said code by adding thereto a new section, designated §33-22-2a; to amend said code by adding
thereto a new section, designated §33-23-2a; to amend said code by adding thereto a new section,
designated §33-24-4b; to amend said code by adding thereto a new section, designated §33-25-6a; to
amend said code by adding thereto a new section, designated §33-25A-24b; to amend and reenact §33-
41-1, §33-41-2 and §33-41-3 of said code; and to amend said code by adding thereto nine new
sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-41-8, §33-41-9, §33-41-10, §33-41-
11 and §33-41-12, all relating to insurance generally; additional reasons for nonrenewal of automobile
liability, physical damage and property insurance; providing that any existing policy or any policy
issued or renewed after the effective date of the bill may be nonrenewed by an insurer for any reason
with proper notice to the insured; authorizing the commissioner of insurance to act regarding
withdrawal of insurers from the state; prevention and investigation of insurance fraud generally; subjecting farmers' mutual insurance companies, fraternal benefit societies, certain hospital, medical,
dental and health services corporations, health care corporations, and health maintenance organizations
to insurance fraud provisions; creating the West Virginia insurance fraud prevention act; legislative
intent; defining terms; requiring fraud warning on forms; use of special assistant prosecutor;
establishing an insurance fraud unit within agency of insurance commissioner; authorizing
promulgation of rules; establishing powers and duties of the unit; establishing investigative powers
and procedures; providing confidentiality of fraud unit records; immunity for providing information
provided to law enforcement regarding fraud; exceptions; creating offense of insurance fraud;
establishing penalties and fines; authorizing prosecution for insurance fraud; authorizing fraud unit
attorneys to act as special prosecutors at request of county prosecutors; specifying duties of insurers;
creating misdemeanor and felony offenses for the commission of fraudulent acts; creating civil
penalties; granting authority to commissioner to administratively sanction regulated persons and
insureds for violations of the article; and exceptions and immunities."
Delegate Staton moved that the House of Delegates concur in the Senate amendments with
amendment.
Delegate Trump arose and expressed a desire to offer an amendment to the Senate amendments
and raised a point of inquiry as to the precedence of such motion.
The Speaker stated that the practice of the House of Delegates is to give precedence to the
motion to concur in an amendment of the other house with amendment, the same being provided for
and based on provisions of Joint Rule 3 of the Rules of the House and Senate.
Subsequently,
Delegate Trump requested unanimous consent to suspend Joint Rule 3 so that the House of
Delegates could take up his amendment to the Senate amendments to Com. Sub. for H. B. 4004 prior to consideration of Delegate Staton's motion to concur in the Senate amendments with further
amendment.
The Speaker put the unanimous consent request and objections were heard.
Delegate Trump then so moved, and on this question the yeas and nays were taken (Roll No.
653), and there were--yeas 30, nays 69, absent and not voting 1, with the yeas and absent and not
voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Canterbury, Carmichael,
Caruth, Duke, Ellem, Evans, Faircloth, Frich, Hall, Hamilton, Howard, Leggett, Overington, Romine,
Schadler, Schoen, Smirl, Sobonya, Sumner, Trump, Wakim, Webb and G. White.
Absent And Not Voting: Coleman.
So, two thirds of the members present and voting not having voted in the affirmative, the
motion to suspend Joint Rule 3 did not prevail.
On motion of Delegate Staton, the House then concurred in the Senate amendments with
amendment, as follows:
Following the enacting clause, by striking out the remainder of the Senate amendment and
inserting in lieu thereof the following:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto two new
sections designated § 33-2-15b and § 33-2-15c, that said code be amended by adding thereto a new
section, designated §33-2-20; that §33-6A-4 of said code be amended and reenacted; that said code
be amended by adding thereto three new sections, designated §33-6A-4a, §33-6A-4b and §33-6A-4c;
that said code be amended by adding thereto a new section, designated §33-22-2a; that said code be
amended by adding thereto a new section, designated §33-23-2a; that said code be amended by adding
thereto a new section, designated §33-24-4b; that said code be amended by adding thereto a new section, designated §33-25-6a; that said code be amended by adding thereto a new section, designated
§33-25A-24b; that §33-41-1, §33-41-2 and §33-41-3 of said code be amended and reenacted; and that
said code be amended by adding thereto nine new sections, designated §33-41-4, §33-41-5, §33-41-6,
§33-41-7, §33-41-8, §33-41-9, §33-41-10, §33-41-11 and §33-41-12, all to read as follows:
CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-15b. Reports to the Legislature.
(a) By the first of February, two thousand five, the commissioner shall submit to the
Legislature a report on third party causes of action;
(b) The report shall contain the following information:
(1) The legal history of the creation of a third party causes of action brought pursuant to Unfair
Trade Practices Act as codified in article eleven of this chapter;
(2) An analysis of the impact of third party causes of action upon insurance rates and the
availability of insurance in this state;
(3) A summary of the types of data which the commissioner utilized in preparing the analysis:
Provided, That the commissioner will not disclose information which is otherwise confidential:
Provided, further, That if the commissioner is unable to obtain data which he or she considers
necessary to preparing a full analysis, the commissioner shall state in the report:
(A) The reasons that he or she was not able to obtain the data;
(B) Recommendations or proposed legislation for facilitating the collection of necessary data
and protecting proprietary information;
(4) Information on what other states have this cause of action;
(5) Based upon the findings of the commissioner, and if the findings so suggest, proposed
legislation to address any reforms needed for third party claims under the Unfair Trade Practices Act;
(c) For purpose of preparing the report, the commissioner may request from companies
authorized to conduct business in this state any information that he or she believes is necessary to
determine the economic effect of third-party lawsuits on insurance premiums. The companies shall
not be required to provide the information. Any information which the company agrees to provide,
shall be considered confidential by law and privileged, is exempt from disclosure pursuant to chapter
twenty-nine-b of this code, is not open to public inspection, is not subject to subpoena, and is not
subject to discovery or admissible in evidence in any criminal, private civil or administrative action
and is not subject to production pursuant to court order. Notwithstanding any other provisions in this
section, while the commissioner is to provide his or her general conclusions based upon the review of
the data, the commissioner is not to disclose the information in a manner so as to violate the
confidentiality provisions of this section.
§33-2-15c. Reports to the Legislature.
(a) By the first of February, two thousand five, the commissioner shall submit to the Legislature a
report relating to the office of the consumer advocate.
(b) The report shall contain the following information:
(1) An overview of the function of the office of the consumer advocacy and how the office
addresses consumer complaints;
(2) The number of staff in the office of the consumer advocate and the structure of the existing
office;
(3) Statistics reflecting the number of consumer complaints and types handled by the office from
the first of January two thousand one until the first of January two thousand four;
(4) The number of states which have consumer advocates and the lines of insurance for which the
advocates are authorized to act on behalf of consumers;
(5) The recommendation of the commissioner in regard to whether this state would benefit by
having the role of the consumer advocate expanded to other lines of insurance;
(6) Based upon the findings and recommendations, of the commissioner, and if the findings so
suggest, proposed legislation for expanding the office of the consumer advocate to other lines of
insurance.
§33-2-20. Authority of commission to allow withdrawal of insurance carriers from doing
business in the state.
(a) Notwithstanding any provision of the code to the contrary, the commissioner may consistent
with the provisions of this section authorize an insurer to withdraw from the line of automobile
liability insurance for personal, private passenger automobiles covered by article six-a of this chapter
or from doing business entirely in this state if:
(1) The insurer has submitted and received approval from the commissioner of a withdrawal
plan; and
(2) The insurer demonstrates to the satisfaction of the commissioner that allowing the insurer
to withdraw would be in the best interest of the insurer, its policyholders and the citizens of this state.
(b) Any insurer that elects to nonrenew or cancel the particular type or line of insurance
coverage provided for by section five, article seventeen-a of this chapter shall submit to the insurance
commissioner a withdrawal plan for informational purposes only prior to cancellation or nonrenewal
of all its business in this state.
(c) The commissioner shall promulgate rules pursuant to chapter twenty-nine-a of this code
setting forth the criteria for withdrawal plans.
ARTICLE 6A. CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY
POLICIES.
§33-6A-4. Advance notice of nonrenewal required; assigned risk policies; reasons for
nonrenewal; hearing and review after nonrenewal.
(a) No insurer shall fail to renew an outstanding automobile liability or physical damage
insurance policy unless such the nonrenewal is preceded by at least forty-five days advance notice to
the named insured of such the insurer's election not to renew such the policy: Provided, That subject
to this section, nothing contained in this article shall be construed so as to prevent an insurer from
refusing to issue an automobile liability or physical damage insurance policy upon application to such
the insurer, nor shall any provision of this article be construed to prevent an insurer from refusing to
renew such a policy upon expiration, except as to the notice requirements of this section, and except
further as to those applicants lawfully submitted pursuant to the West Virginia assigned risk plan.
Provided, however, That an
_____(b) An insurer may not fail to renew an outstanding automobile liability or physical damage
insurance policy which has been in existence for two consecutive years or longer except for the
following reasons:
(a) (1) The named insured fails to make payments of premium for such the policy or any
installment of the premium when due;
(b) (2) The policy is obtained through material misrepresentation;
(c) (3) The insured violates any of the material terms and conditions of the policy;
(d) (4) The named insured or any other operator, either residing in the same household or who
customarily operates an automobile insured under such the policy:
(1) (A) Has had his or her operator's license suspended or revoked during the policy period;
or
(2) (B) Is or becomes subject to epilepsy or heart attacks, a physical or mental condition that
prevents the insured from operating a motor vehicle, and such the individual cannot produce a
certificate from a physician testifying to his or her ability to operate a motor vehicle;
(e) (5) The named insured or any other operator, either residing in the same household or who
customarily operates an automobile insured under such the policy, is convicted of or forfeits bail
during the policy period for any of the following reasons:
(1) (A) Any felony or assault involving the use of a motor vehicle;
(2) (B) Negligent homicide arising out of the operation of a motor vehicle;
(3) (C) Operating a motor vehicle while under the influence of intoxicating liquor or of any
narcotic drug;
(4) (D) Leaving the scene of a motor vehicle accident in which the insured is involved without
reporting it as required by law;
(5) (E) Theft of a motor vehicle or the unlawful taking of a motor vehicle; or
_____(6) (F) Making false statements in an application for a motor vehicle operator's license;
(7) (6) The named insured or any other operator, either residing in the same household or who
customarily operates an automobile insured under the policy, is convicted of or forfeits bail during the
policy period for two or more moving traffic violations committed within a period of twelve months,
each of which results in three or more points being assessed on the driver's record by the division of
motor vehicles, whether or not the insurer renewed the policy without knowledge of all such of the
violations: Provided, That an insurer that makes an election pursuant to section four-b of this article
to issue all nonrenewal notices pursuant to this section, may nonrenew an automobile liability or physical damage insurance policy if the named insured, or any other operator, either residing in the
same household or who customarily operates an automobile insured under the policy is convicted of
or forfeits bail during the policy period for two or more moving traffic violations committed within
a period of twenty-four months, each of which occurs on or after the first day of July, two thousand
four and after the date that the insurer makes an election pursuant to section four-b of this article, and
results in three or more points being assessed on the driver's record by the division of motor vehicles,
whether or not the insurer renewed the policy without knowledge of all of the violations. Notice of
any nonrenewal made pursuant to this subsection subdivision shall be mailed to the named insured
either during the current policy period or during the first full policy period following the date that the
second moving traffic violation is recorded by the division of motor vehicles;
(f) (7) The named insured or any other operator either residing in the same household or who
customarily operates an automobile insured under the policy has had a second at-fault motor vehicle
accident within a period of twelve months, whether or not the insurer renewed the policy without
knowledge of all such of the accidents: Provided, That an insurer that makes an election pursuant to
section four-b of this article to issue all nonrenewal notices pursuant to this section, may non-renew
an automobile liability or physical damage insurance policy under this subsection if the named insured
or any other operator either residing in the same household or who customarily operates an automobile
insured under such policy has had two at-fault motor vehicle accidents within a period of thirty-six
months, each of which occurs after the first day of July, two thousand four and after the date that the
insurer makes an election pursuant to section four-b of this article, and results in a claim paid by the
insurer for each accident, whether or not the insurer renewed the policy without knowledge of all of
the accidents. Notice of any nonrenewal made pursuant to this subsection shall be mailed to the named insured either during the current policy period or during the first full policy period following the date
of the second accident; or
(8) The insurer ceases writing automobile liability or physical damage insurance policies
throughout the state after submission to and approval by the commissioner of a withdrawal plan or
discontinues operations within the state pursuant to a withdrawal plan approved by the commissioner.
_____(c) An insurer that makes an election pursuant to section four-b of this article to issue all
nonrenewal notices pursuant to this section shall not fail to renew an automobile liability or physical
damage insurance policy when an operator other than the named insured has violated the provisions
of subdivision (6) or (7), subsection (b) of this section, if the named insured, by restrictive
endorsement, specifically excludes the operator who violated the provision. An insurer issuing a
nonrenewal notice informing the named insured that the policy will be nonrenewed for the reason that
an operator has violated the provisions of subdivision (6) or (7), subsection (b) of this section, shall
at that time inform the named insured of his or her option to specifically exclude the operator by
restrictive endorsement and shall further inform the named insured that upon obtaining the restrictive
endorsement, the insurer will renew the policy or rescind the nonrenewal absent the existence of any
other basis for nonrenewal set forth in this section.
_____(d) A notice provided under this section shall state the specific reason or reasons for
nonrenewal and shall advise the named insured that Nonrenewal nonrenewal of such the policy for any
reason is subject to a hearing and review as provided for in section five of this article. Cost of the
hearing shall be assessed against the losing party but shall not exceed seventy-five dollars. The notice
must also advise the insured of possible eligibility for insurance through the West Virginia assigned
risk plan.
_____(e) Notwithstanding the provisions of subsection (a) of this section, the insurer shall renew
reinstate any automobile liability or physical damage insurance policy that has not been renewed due
to the insured's failure to pay the renewal premium when due if:
(1) None of the other grounds for nonrenewal as set forth in subsections through (f), inclusive,
of this section exist; and
(2) the The insured makes an application for renewal reinstatement within ninety forty-five
days of the original expiration date of the policy. If a policy is renewed reinstated as provided for in
this paragraph, then the coverage afforded shall not be retroactive to the original expiration date of the
policy but: Provided, That such policy shall begin be effective on the reinstatement date at the current
premium levels offered by the company and shall not be afforded the protections of this section
relating to renewal of an outstanding automobile liability or physical damage insurance policy that has
been in existence for at least two consecutive years.
§33-6A-4a. Alternative method for nonrenewal for automobile liability and physical damage
insurance.
(a) On or after the first day of July, two thousand four, an insurer may nonrenew an automobile
liability or physical damage insurance policy for any reason which is consistent with its underwriting
standards.
(b) Notwithstanding any other provisions in this section, race, religion, nationality, ethnic
group, age, sex, marital status, or other reason prohibited by the provisions of this chapter may not be
considered as a reason for nonrenewal;
(c) Notwithstanding the provisions of section four of this article, a nonrenewal may only be
issued pursuant to the provisions of this section upon forty-five days advance notice to the named
insured of the insurer's election not to renew the policy.
(d) The total number of nonrenewal notices issued each year, commencing on the first day of
July, two thousand four, by the insurer, resulting in nonrenewal, pursuant to this section may not
exceed one percent per year of the total number of the policies of the insurer in force at the end of the
previous calendar year in this state: Provided, That the total number of nonrenewal notices issued each
year to insureds within any given county in this state resulting in nonrenewal may not exceed one
percent per year of the total number of the policies of the insurer in force in that county at the end of
the previous calendar year: Provided, however, That an insurer may nonrenew one policy per year in
any county if the applicable percentage limitation results in less than one policy.
(e) A notice issued pursuant to this section shall state the specific reason or reasons for refusal
to renew and shall advise the named insured that nonrenewal of the policy for any reason is subject to
a hearing and review as provided for in section five of this article: Provided, That the hearing shall
relate to whether the nonrenewal of the policy was issued for a discriminatory reason, was based upon
inadequate notice, an underwriting standard by the commissioner found to be in violation of this
chapter or causes the insurer to exceed the percentage limitations, or percentage limitations by county,
of nonrenewal notices set forth in this section. Cost of the hearing shall be assessed against the losing
party but shall not exceed seventy-five dollars. The notice shall also advise the insured of possible
eligibility for insurance through the West Virginia assigned risk plan.
(f) Each insurer licensed to write automobile liability and physical damage insurance policies
in this state shall file with the commissioner a copy of its underwriting standards, including any
amendments or supplements. The commissioner shall review and examine the underwriting standards
to ensure that they are consistent with generally accepted underwriting principles. The underwriting
standards filed with the commissioner shall be considered confidential by law and privileged, are
exempt from disclosure pursuant to chapter twenty-nine-b of this code, are not open to public inspection, are not subject to subpoena, and are not subject to discovery or admissible in evidence in
any criminal, private civil or administrative action and are not subject to production pursuant to court
order. The commissioner shall promulgate legislative rules pursuant to chapter twenty-nine-a of this
code to implement the provisions of this section.
(g) Each insurer that has elected to issue nonrenewal notices pursuant to the percentage
limitations provided in this section shall report to the commissioner, on a form prescribed by the
commissioner, on or before the thirtieth day of September of each year the total number of nonrenewal
notices issued in this state and in each county of this state for the preceding year. The insurer shall also
report to the commissioner the specific reason or reasons for the nonrenewals by county which have
been issued pursuant to this section.
§33-6A-4b. Manner of making election relating to nonrenewals.
(a) Each insurer licensed to write automobile liability or physical damage insurance policies in
this state, as of the first day of July, two thousand four, may elect to issue all nonrenewal notices either
pursuant to section four or section four-a of this article. Each insurer may notify the commissioner of
its election any time after the first day of July, two thousand four, and shall remain bound by the
election for a period of five years. For each subsequent five-year period each insurer shall notify the
commissioner of its election to issue all nonrenewal notices either pursuant to section four or section
four-a of this article.
(1) If no election is made by the first day of July, two thousand four, then, until the first day
of July, two thousand five, the insurer shall continue to issue all nonrenewal notices pursuant to the
existing nonrenewal provisions in section four prior to the amendments enacted therein by the acts of
the Seventy-Sixth Legislature during the second session, two thousand four.
(2) As of the first day of July, two thousand five, each insurer licensed to write automobile
liability or physical damage insurance policies in this state, and that has not previously made an
election under this section, shall elect to issue all nonrenewal notices either pursuant to section four
or section four-a of this article. Each insurer which has not previously made an election must notify
the commissioner of its election no later than the first day of July, two thousand five, and shall remain
bound by the election for a period of five years. For each subsequent five-year period each insurer shall
notify the commissioner of its election to issue all nonrenewal notices either pursuant to section four
or section four-a of this article.
(b) An insurer that is not licensed to write automobile liability or physical damage insurance
policies in this state, as of the first day of July, two thousand four, but becomes licensed to write such
policies after that date shall, no later than two years after the date the insurer becomes licensed to write
such policies, make an election to issue all nonrenewal notices either pursuant to section four or
section four-a of this article, and shall notify the commissioner of its election. If the insurer elects to
issue all nonrenewal notices pursuant to section four-a of this article, the total number of nonrenewals
may not exceed the percentage limitations set forth in section four-a of this article. An insurer first
becoming licensed to issue automobile liability and physical damage insurance policies in this state
after the first day of July, two thousand four, shall be bound by its election for a period of five years,
and for each subsequent five-year period shall notify the commissioner of its election to issue all
nonrenewal notices either pursuant to section four or section four-a of this article.
(c) Notwithstanding any provision of this article to the contrary, a named insured by restrictive
endorsement may specifically exclude from automobile liability or physical damage insurance policy
an operator who has violated the provisions of subdivision (6) or (7), subsection (b), section four of
this article.
§33-6A-4c. Report to the Legislature.
(a) By the first day of January, two thousand nine the commissioner shall submit a report to
the Legislature. The report shall contain the following:
(1) An analysis of the impact of legislation enacted during the two thousand four legislative
session upon rates and insurance availability in the state;
(2) Statistics reflecting the rate history of insurers conducting business in West Virginia from
the first day of July two thousand four until the first day of July, two thousand eight;
ARTICLE 22. FARMERS' MUTUAL FIRE INSURANCE COMPANIES.
§33-22-2a. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is
applicable to farmers' mutual fire insurance companies.
ARTICLE 23. FRATERNAL BENEFIT SOCIETIES.
§33-23-2a. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is
applicable to fraternal benefit societies.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE
CORPORATIONS, DENTAL SERVICE CORPORATIONS AND
HEALTH SERVICE CORPORATIONS.
§33-24-4b. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is
applicable to hospital service corporations, medical service corporations, dental service corporations
and health service corporations.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-6a. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is
applicable to health care corporations.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24b. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is
applicable to health maintenance organizations.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-1. Short title; legislative findings and purpose.
(a) This article may be cited as the 'West Virginia Insurance Fraud Prevention Act'.
(b) The Legislature finds that the business of insurance involves many transactions of numerous
types that have potential for fraud and other illegal activities. This article is intended to permit use of
the expertise of the commissioner to investigate and help prosecute insurance fraud and other crimes
related to the business of insurance more effectively, and to assist and receive assistance from state,
local and federal law-enforcement and regulatory agencies in enforcing laws prohibiting crimes
relating to the business of insurance.
§33-41-2. Definitions.
As used in this article:
(1) 'Benefits' mean money payments, goods, services or other thing of value paid in response
to a claim filed with an insurer based upon a policy of insurance;
(2) 'Business of insurance' means the writing of insurance or the reinsuring of risks by an
insurer, including acts necessary or incidental to writing insurance or reinsuring risks and the activities of persons who act as or are officers, directors, agents or employees of insurers, or who are other
persons authorized to act on their behalf;
(3) 'Claim' means an application or request for payment or benefits provided under the terms
of a policy of insurance;
(4) 'Commissioner' means the insurance commissioner of West Virginia or his or her designee;
(5) 'Health care provider' means a person, partnership, corporation, facility or institution
licensed by, or certified in, this state or another state, to provide health care or professional health care
services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered
or licensed practical nurse, optometrist, pharmacist, podiatrist, chiropractor, physical therapist or
psychologist;
(6) 'Insurance' means a contract or arrangement in which a person undertakes to:
(A) Pay or indemnify another person as to loss from certain contingencies called 'risks,'
including through reinsurance;
(B) Pay or grant a specified amount or determinable benefit to another person in connection
with ascertainable risk contingencies;
(C) Pay an annuity to another person; or
(D) Act as surety.
(7) 'Insurer' means a person entering into arrangements or contracts of insurance or
reinsurance. Insurer includes, but is not limited to, any domestic or foreign stock company, mutual
company, mutual protective association, farmers' mutual fire companies, fraternal benefit society,
reciprocal or interinsurance exchange, nonprofit medical care corporation, nonprofit health care
corporation, nonprofit hospital service association, nonprofit dental care corporation, health
maintenance organization, captive insurance company, risk retention group or other insurer, regardless of the type of coverage written, benefits provided or guarantees made by each. A person is an insurer
regardless of whether the person is acting in violation of laws requiring a certificate of authority or
regardless of whether the person denies being an insurer;
(8) 'Person' means an individual, a corporation, a limited liability company, a partnership, an
association, a joint stock company, a trust, trustees, an unincorporated organization, or any similar
business entity or any combination of the foregoing. 'Person' also includes hospital service
corporations, medical service corporations and dental service corporations as defined in article twenty-
four of this chapter, health care corporations as defined in article twenty-five of this chapter, or a health
maintenance organization organized pursuant to article twenty-five-a of this chapter;
(9) 'Policy' means an individual or group policy, group certificate, contract or arrangement of
insurance or reinsurance affecting the rights of a resident of this state or bearing a reasonable relation
to this state, regardless of whether delivered or issued for delivery in this state;
(10) 'Reinsurance' means a contract, binder of coverage (including placement slip) or
arrangement under which an insurer procures insurance for itself in another insurer as to all or part of
an insurance risk of the originating insurer;
(11) 'Statement' means any written or oral representation made to any person, insurer or
authorized agency. A statement includes, but is not limited to, any oral report or representation; any
insurance application, policy, notice or statement; any proof of loss, bill of lading, receipt for payment,
invoice, account, estimate of property damages, or other evidence of loss, injury or expense; any bill
for services, diagnosis, prescription, hospital or doctor record, X ray, test result or other evidence of
treatment, services or expense; and any application, report, actuarial study, rate request or other
document submitted or required to be submitted to any authorized agency. A statement also includes
any written or oral representation recorded by electronic or other media; and
(12) 'Unit' means the insurance fraud unit established pursuant to the provisions of this article
acting collectively or by its duly authorized representatives.
§33-41-3. Fraud warning authorized; statement required of nonadmitted insurers.
(a) Claims forms and applications for insurance, regardless of the form of transmission, may
contain the following warning or a substantially similar caveat:
'Any person who knowingly presents a false or fraudulent claim for payment of a loss or
benefit or knowingly presents false information in an application for insurance is guilty of a crime and
may be subject to fines and confinement in prison.'
(b) The lack of a warning as authorized by the provisions of subsection (a) of this section does
not constitute a defense in any prosecution for a fraudulent or illegal act nor shall it constitute the basis
for any type of civil cause of action.
(c) Policies issued by nonadmitted insurers pursuant to article twelve-c of this chapter shall
contain a statement disclosing the status of the insurer to do business in the state where the policy is
delivered or issued for delivery or the state where coverage is in force. The requirement of this
subsection may be satisfied by a disclosure specifically required by section five, article twelve-c of this
chapter; section nine, article thirty-two of this chapter; and section eighteen, article thirty-two of this
chapter.
§33-41-4. Authority of the commissioner; use of special assistant prosecutors.
(a) The commissioner may investigate suspected criminal acts relating to the business of
insurance as authorized by the provisions of this article.
(b) If the prosecuting attorney of the county in which a criminal violation relating to the
business of insurance occurs determines that his or her office is unable to take appropriate action, he
or she may petition the appropriate circuit court for the appointment of a special prosecutor or special assistant prosecutor from the West Virginia Prosecuting Attorney Institute pursuant to the provisions
of section six, article four, chapter seven of this code. Notwithstanding the provisions of that section,
attorneys employed by the commissioner and assigned to the insurance fraud unit created by the
provisions of section eight of this article may prosecute or assist in the prosecution of violations of the
criminal laws of this state related to the business of insurance and may act as special prosecutors or
special assistant prosecutors in those cases if assistance is sought by the prosecuting attorney or special
prosecutor assigned by the institute to prosecute those matters.
(c) Funds allocated for insurance fraud prevention may be dispersed by the commissioner, at
his or her discretion, for the purpose of insurance fraud enforcement as authorized by the provisions
of this code.
(d) The Insurance Fraud Unit authorized by the provisions of section eight of this article may
assist federal law enforcement agencies, the West Virginia state police, the state fire marshal,
municipal police departments and the sheriffs of the counties in West Virginia in investigating crimes
related to the business of insurance.
(e) The commissioner may conduct public outreach, education, and awareness programs on the
costs of insurance fraud to the public.
§33-41-5. Reporting of insurance fraud or criminal offenses otherwise related to the business
of insurance.
(a) A person engaged in the business of insurance having knowledge or a reasonable belief that
fraud or another crime related to the business of insurance is being, will be or has been committed shall
provide to the commissioner the information required by, and in a manner prescribed by, the
commissioner.
(b) The commissioner may prescribe a reporting form to facilitate reporting of possible fraud
or other offenses related to the business of insurance for use by persons other than those persons
referred to in subsection (a) of this section.
§33-41-6. Immunity from liability.
(a) There shall be no civil liability imposed on and no cause of action shall arise from a
person's furnishing information concerning suspected or anticipated fraud relating to the business of
insurance, if the information is provided to or received from:
(1) The commissioner or the commissioner's employees, agents or representatives;
(2) Federal, state, or local law-enforcement or regulatory officials or their employees, agents
or representatives;
(3) A person involved in the prevention and detection of insurance fraud or that person's
agents, employees or representatives; or
(4) The national association of insurance commissioners or its employees, agents or
representatives.
(b) The provisions of subsection (a) of this section are not applicable to materially incorrect
statements made maliciously or fraudulently by a person designated a mandated reporter pursuant to
the provisions of subsection (a), section five of this article or made in reckless disregard to the truth
or falsity of the statement by those not mandated to report. In an action brought against a person for
filing a report or furnishing other information concerning an alleged insurance fraud, the party bringing
the action shall plead with specificity any facts supporting the allegation that subsection (a) of this
section does not apply because the person filing the report or furnishing the incorrect information did
so maliciously in the case of a mandated reporter or in the case of a person not designated a mandated
reporter, in reckless disregard for the truth or falsity of the statement.
(c) Nothing in this article shall be construed to limit, abrogate or modify existing statutes or
case law applicable to the duties or liabilities of insurers regarding bad faith or unfair trade practices.
(d) This section does not abrogate or modify common law or statutory privileges or immunities.
§33-41-7. Confidentiality.
(a) Documents, materials or other information in the possession or control of the office of the
insurance commissioner that are provided pursuant to section six of this article or obtained by the
commissioner in an investigation of alleged fraudulent acts related to the business of insurance shall
be confidential by law and privileged, shall not be subject to the provisions of chapter twenty-nine-b
of this code, shall not be open to public inspection, shall not be subject to subpoena, and shall not be
subject to discovery or admissible in evidence in any private civil action. The commissioner may use
the documents, materials or other information in the furtherance of any regulatory or legal action
brought as a part of the commissioner's official duties. The commissioner may use the documents,
materials or other information if they are required for evidence in criminal proceedings or other action
by the state or federal government and in such context may be discoverable as ordered by a court of
competent jurisdiction exercising its discretion.
(b) Neither the commissioner nor any person who receives documents, materials or other
information while acting under the authority of the commissioner may be permitted or required to
testify in any private civil action concerning any confidential documents, materials or information
subject to subsection (a) of this section except as ordered by a court of competent jurisdiction.
(c) In order to assist in the performance of the commissioner's duties, the commissioner:
(1) May share documents, materials or other information, including the confidential and
privileged documents, materials or information subject to subsection (a) of this section with other state,
federal and international regulatory agencies, with the national association of insurance commissioners and its affiliates and subsidiaries, and with local, state, federal and international law-enforcement
authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of
the document, material or other information;
(2) May receive documents, materials or information, including otherwise confidential and
privileged documents, materials or information, from the national association of insurance
commissioners and its affiliates and subsidiaries, and from regulatory and law-enforcement officers
of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any
document, material or information received with notice or the understanding that it is confidential or
privileged under the laws of the jurisdiction that is the source of the document, material or information;
and
(3) May enter into agreements governing sharing and use of information including the
furtherance of any regulatory or legal action brought as part of the recipient's official duties.
(d) No waiver of any applicable privilege or claim of confidentiality in the documents,
materials or information shall occur as a result of disclosure to the commissioner under this section
or as a result of sharing as authorized in subsection (c) of this section.
(e) Nothing in this section shall prohibit the commissioner from providing information to or
receiving information from any local, state, federal or international law-enforcement authorities,
including any prosecuting authority; or from complying with subpoenas or other lawful process in
criminal actions; or as may otherwise be provided in this article.
(f) Nothing in this article may be construed to abrogate or limit the attorney-client or work
product privileges existing at common law or established by statute or court rule.
§33-41-8. Creation of insurance fraud unit; purpose; duties; personnel qualifications.
(a) There is established the West Virginia insurance fraud unit within the office of the
insurance commissioner of West Virginia. The commissioner may employ full-time supervisory, legal
and investigative personnel for the unit, who shall be qualified by training and experience in the areas
of detection, investigation or prosecution of fraud within and against the insurance industry to perform
the duties of their positions. The director of the fraud unit shall be a full-time position and shall be
appointed by the commissioner and serve at his or her will and pleasure. The commissioner shall
provide office space, equipment, supplies, clerical and other staff that is necessary for the unit to carry
out its duties and responsibilities under this article.
(b) The fraud unit may in its discretion:
(1) Initiate inquiries and conduct investigations when the unit has cause to believe violations
of the provisions of this chapter or the provisions of article three, chapter sixty-one of this code relating
to the business of insurance have been or are being committed;
(2) Review reports or complaints of alleged fraud related to the business of insurance activities
from federal, state and local law-enforcement and regulatory agencies, persons engaged in the business
of insurance and the general public to determine whether the reports require further investigation; and
(3) Conduct independent examinations of alleged fraudulent activity related to the business of
insurance and undertake independent studies to determine the extent of fraudulent insurance acts.
(c) The insurance fraud unit may:
(1) Employ and train personnel to achieve the purposes of this article and to employ legal
counsel, investigators, auditors and clerical support personnel and other personnel as the commissioner
determines necessary from time to time to accomplish the purposes of this article;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas issued by grand juries and trial courts in criminal matters;
(4) Share records and evidence with federal, state or local law-enforcement or regulatory
agencies, and enter into interagency agreements;
(5) Make criminal referrals to the county prosecutors;
(6) Conduct investigations outside this state. If the information the insurance fraud unit seeks
to obtain is located outside this state, the person from whom the information is sought may make the
information available to the insurance fraud unit to examine at the place where the information is
located. The insurance fraud unit may designate representatives, including officials of the state in
which the matter is located, to inspect the information on behalf of the insurance fraud unit, and the
insurance fraud unit may respond to similar requests from officials of other states;
(7) The fraud unit may initiate investigations and participate in the development of, and if
necessary, the prosecution of any health care provider, including a provider of rehabilitation services,
suspected of fraudulent activity related to the business of insurance;
(8) Specific personnel, designated by the commissioner, shall be permitted to operate vehicles
owned or leased for the state displaying Class A registration plates;
(9) Notwithstanding any provision of this code to the contrary, specific personnel designated
by the commissioner may carry firearms in the course of their official duties after meeting specialized
qualifications established by the governor's committee on crime, delinquency and correction, which
shall include the successful completion of handgun training provided to law-enforcement officers by
the West Virginia state police: Provided, That nothing in this subsection shall be construed to include
any person designated by the commissioner as a law-enforcement officers as that term is defined by
the provisions of section one, article twenty-nine, chapter thirty of this code; and
(10) The insurance fraud unit shall not be subject to the provisions of article nine-a, chapter
six of this code and the investigations conducted by the insurance fraud 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.
§33-41-9. Other law-enforcement or regulatory authority.
This article does not:
(1) Preempt the authority or relieve the duty of other law-enforcement or regulatory agencies
to investigate, examine and prosecute suspected violations of law;
(2) Prevent or prohibit a person from disclosing voluntarily information concerning insurance
fraud to a law-enforcement or regulatory agency other than the insurance fraud unit; or
(3) Limit the powers granted elsewhere by the laws of this state to the commissioner or his or
her agents to investigate and examine possible violations of law and to take appropriate action against
violators of law.
§33-41-10. Rules.
The insurance commissioner shall, pursuant to the provisions of article three, chapter twenty-
nine-a of this code, promulgate such legislative rules as are necessary or proper to carry out the
purposes of this article.
§33-41-11. Fraudulent claims to insurance companies.
(a) Any person who knowingly and willfully and with intent to defraud submits a materially
false statement in support of a claim for insurance benefits or payment pursuant to a policy of
insurance or who conspires to do so is guilty of a crime and is subject to the penalties set forth in the
provisions of this section.
(b) Any person who commits a violation of the provisions of subsection (a) of this section
where the benefit sought exceeds one thousand dollars in value is guilty of a felony and, upon
conviction thereof shall be confined in a correctional facility for not less than one nor more than ten years, fined not more than ten thousand dollars, or both or in the discretion of the circuit court confined
in a county or regional jail for not more than one year and so fined.
(c) Any person who commits a violation of the provisions of subsection (a) of this section
where the benefit sought is one thousand dollars or less in value, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail for not more than one year, fined not
more than two thousand five hundred dollars, or both.
(d) Any person convicted of a violation of this section is subject to the restitution provisions
of article eleven-a, chapter sixty-one of this code.
(e) The circuit court may award to the unit or other law enforcement agency investigating a
violation of this section or other criminal offense related to the business of insurance its cost of
investigation.
§33-41-12. Civil penalties; injunctive relief; employment disqualification.
A person or entity engaged in the business of insurance or a person or entity making a claim
against an insurer who violates any provision of this article may be subject to the following:
(1) Where applicable, suspension or revocation of license or certificate of authority or a civil
penalty of up to ten thousand dollars per violation, or where applicable, both. Suspension or
revocation of license or certificate of authority or imposition of civil penalties may be pursuant to an
order of the commissioner issued pursuant to the provisions of section thirteen, article two of this
chapter. The commissioner's order may require a person found to be in violation of this article to
make reasonable restitution to persons aggrieved by violations of this article. The commissioner may
assess a person sanctioned pursuant to the provisions of this section the cost of investigation;
(2) Notwithstanding any other provision of law, a civil penalty imposed pursuant to the
provisions of this section is mandatory and not subject to suspension;
(3) A person convicted of a felony violation law reasonably related to the business of insurance
shall be disqualified from engaging in the business of insurance; and
(4) The commissioner may apply for a temporary or permanent injunction in any appropriate
circuit court of this state seeking to enjoin and restrain a person from violating or continuing to violate
the provisions of this article or rule promulgated under this article, notwithstanding the existence of
other remedies at law. The circuit court shall have jurisdiction of the proceeding and have the power
to make and enter an order or judgment awarding temporary or permanent injunctive relief restraining
any person from violating or continuing to violate any provision of this article or rule promulgated
under the article as in its judgment is proper."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4004 - "A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto two new sections, designated § 33-2-15b and § 33-2-15c; to amend said code by
adding thereto a new section entitled §33-2-20; to amend and reenact §33-6A-4 of said code; to amend
said code by adding thereto three new sections, designated §33-6A-4a, §33-6A-4b and §33-6A-4c; to
amend said code by adding thereto a new section, designated §33-22-2a; to amend said code by adding
thereto a new section, designated §33-23-2a; to amend said code by adding thereto a new section,
designated §33-24-4b; to amend said code by adding thereto a new section, designated §33-25-6a; to
amend said code by adding thereto a new section, designated §33-25A-24b; to amend and reenact §33-
41-1, §33-41-2 and §33-41-3 of said code; and to amend said code by adding thereto nine new
sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-41-8, §33-41-9, §33-41-10, §33-41-
11 and §33-41-12, all relating to insurance generally; requiring the insurance commissioner to submit
a report to the legislature on the impact of third party causes of actions on rates and availability and to make recommendations; authorizing the commissioner to request information from insurers;
providing that certain information provided by insurers is not subject to disclosure; requiring the
insurance commissioner to submit a report to the legislature on the office of the consumer advocate;
requiring the commissioner to make recommendations regarding the office of the consumer advocate;
permitting additional reasons for nonrenewal of automobile liability or physical damage policies;
requiring the submission of withdrawal plans in certain instances; providing that a certain percentage
of existing policies or any policies issued or renewed after the effective date of the bill may be
nonrenewed by an insurer for any reason with proper notice to the insured; providing that a certain
percentage of policies may be nonrenewed for underwriting reasons; allowing insurers to elect a
method of nonrenewal; requiring renewal in certain instances when there are restrictive endorsements;
authorizing the commissioner of insurance to act regarding withdrawal of insurers from the state;
authorizing the commissioner to allow certain insurers to withdraw from the state; requiring insurers
and the insurance commissioner to submit information regarding the impact of legislation on rates and
availability; prevention and investigation of insurance fraud generally; subjecting farmers' mutual
insurance companies, fraternal benefit societies, certain hospital, medical, dental and health services
corporations, health care corporations, and health maintenance organizations to insurance fraud
provisions; creating the West Virginia insurance fraud prevention act; legislative intent; defining
terms; requiring fraud warning on forms; use of special assistant prosecutor; establishing an insurance
fraud unit within agency of insurance commissioner; authorizing promulgation of rules; establishing
powers and duties of the unit; establishing investigative powers and procedures; providing
confidentiality of fraud unit records; immunity for providing information provided to law enforcement
regarding fraud; exceptions; creating offense of insurance fraud; establishing penalties and fines;
authorizing prosecution for insurance fraud; authorizing fraud unit attorneys to act as special prosecutors at request of county prosecutors; specifying duties of insurers; creating misdemeanor and
felony offenses for the commission of fraudulent acts; creating civil penalties; granting authority to
commissioner to administratively sanction regulated persons and insureds for violations of the article;
and exceptions and immunities."
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. 654), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley.
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. 4004) 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. 4086, Including Gulf War and Afghanistan conflict veterans on the
veterans' council.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4086 - "A Bill to amend and reenact §9A-1-2 and §9A-1-3 of the code
of West Virginia, 1931, as amended, all relating to the veterans' council; adding Gulf War veterans
and Afghanistan conflict or Iraqi conflict veterans to the veterans' council; and deleting outdated
language."
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. 655), 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. 4086) 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. 4140, Requiring the ethics commission to establish a code of conduct for state
administrative law judges.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS AND EMPLOYEES;
APPEARANCES BEFORE PUBLIC AGENCIES; CODE OF CONDUCT FOR
ADMINISTRATIVE LAW JUDGES.
§6B-2-5a. Code of conduct for state administrative law judges.
(a) As used in this section, 'state administrative law judge' means any public employee, public
officer or contractor functioning as a hearing officer, referee, trial examiner or other position in state
government to whom the authority to conduct an administrative adjudication has been delegated by
an agency or by statute and who exercises independent and impartial judgment in conducting hearings
and in issuing recommended decisions or reports containing findings of fact and conclusions of law
in accordance with applicable statutes or rules, but does not include any person whose conduct is
subject to the code of judicial conduct promulgated by the West Virginia supreme court of appeals.
(b) In accordance with the provisions of chapter twenty-nine-a of this code, the commission,
in consultation with the West Virginia state bar, shall propose rules for legislative approval
establishing a code of conduct for state administrative law judges, which shall incorporate the
following major provisions:
(1) A state administrative law judge shall uphold the integrity and independence of the
administrative judiciary;
(2) A state administrative law judge shall avoid impropriety and the appearance of impropriety
in all activities;
(3) A state administrative law judge shall perform the duties of the office impartially and
diligently;
(4) A state administrative law judge shall regulate the judge's extra-judicial activities to
minimize the risk of conflict with judicial duties;
(5) A state administrative law judge shall refrain from political activity inappropriate to the
office; and
(6) Appropriate civil penalties and sanctions for violations.
In proposing the rules, the commission shall consider the model codes of judicial conduct for
state administrative law judges as drafted by the National Association of Administrative Law Judges
and the American Bar Association.
(c) The legislative rules shall provide that an individual agency may develop a code of conduct
for its own administrative law judges, which shall supersede the general code of conduct established
under this section, if the commission determines that it is in substantial compliance with the objectives
of the code proposed by the commission. Upon granting a waiver to an agency, the commission shall
retain a copy of the agency's code to be made available to the public.
(d) The commission shall propose the legislative rules by the first day of October, two thousand
four, so that it may be considered by the Legislature at the regular session in the year two thousand
five, and the commission may not promulgate an emergency rule on this matter in the interim."
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. 656), 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. 4140) 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. 4247, Clarifying that the board of registration for professional engineers may assess civil
penalties.
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-one, line three, following the word "probation" and the comma,
by inserting the words "impose a".
On page four, section twenty-one, line fifty, before the word "In", by inserting "(b)" and
relettering the remaining subsections.
On page five, section twenty-one, line seventy-two, following the word "penalty", by inserting
the words "and related costs".
On page six, section twenty-two, line fourteen, by striking out the words "holding a certificate
of authorization".
On page six, section twenty-two, lines fifteen and sixteen, by striking out the words "individual
registrant or firm holding a certificate of authorization" and inserting in lieu thereof the words "person
or firm".
On page six, section twenty-two, line nineteen, by striking out the word "corporation" and
inserting in lieu thereof the word "firm".
On page seven, section twenty-two, lines twenty-nine and thirty, by striking out the words "An
individual registrant, having a certificate of registration, or a firm, having a certificate of
authorization"and the comma and inserting in lieu thereof the words "Any person or firm".
And,
On page seven, section twenty-two, lines thirty-eight and thirty-nine, by striking out the words
"an individual registrant or firm holding a certificate of authorization" and inserting in lieu thereof the
words "a person or firm".
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. 657), 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. 4247) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 658), 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. 4247) 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:
Com. Sub. for H. B. 4266, Requiring regulatory agencies of government, with exceptions, to
study ways to expedite the issuance of licenses, permits and certificates.
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 after the enacting clause and inserting in lieu thereof
the following:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new
article, designated §5F-4-1 and §5F-4-2, 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 29. EXPEDITIOUS ISSUANCE OF LICENSES BY REGULATORY AGENCIES.
§5-29-1. Purpose of article.
The purpose of this article is to provide for more expeditious and efficient issuance of permits,
licenses or certificates by state regulatory agencies to business entities that are in good standing in the
payment of taxes and other obligations to the state. For the purposes of this article, a business entity
in good standing is one that:
(1) Has conducted commercial activities in this state for at least two years;
(2) Has paid any business tax, workers' compensation or unemployment compensation
premiums due in the preceding two years; and,
(3) Has not engaged in activities for which any claim of a substantial violation of any statute
or rule has occurred in the previous two years.
§5-29-2. Regulatory agencies to study expedited permits, licenses and certificates; reports to the
Legislature.
(a) The following regulatory agencies shall study, review and develop a plan for expediting the
issuance and renewal of permits, licenses and certificates for business entities in good standing:
(1) Division of labor;
(2) The office of miners' health, safety and training; (3) the division of forestry;
(4) The office of health facilities licensure and certification within the department of health and
human resources; and
(5) The department of environmental protection excepting the oil and gas inspectors'
examining board.
(b) On or before the first day of December, two thousand four, each agency to which this article
applies shall file a report with the joint standing committee on government organization, setting forth
the findings of its study, its plan to expedite the issuance and renewal of permits, licenses and
certificates to business entities in good standing, and its recommendations for any legislation required
to meet the purposes of this article."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4266 - "A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §5-29-1 and §5-29-2, all relating to requiring certain state
regulatory agencies to study ways and develop plans to expedite the issuance and renewal of licenses,
permits and certificates to business entities in good standing; and requiring reports to the Legislature."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
with amendment, as follows:
On page one, by amending the enacting section to read as follows:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new
article, designated §5-29-1 and §5-29-2, all to read as follows" followed by a colon.
The bill, as amended by the Senate, and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 659), 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. 4266) 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. 4303, Relating to Gramm-Leach-Bliley and reciprocity.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page three, by striking out everything after the article heading and inserting in lieu thereof
the following:
"§33-3-33. Surcharge on fire and casualty insurance policies to benefit volunteer and part
volunteer fire departments; special fund created; allocation of proceeds; effective date.
(a) For the purpose of providing additional revenue for volunteer fire departments, part-
volunteer fire departments, certain retired teachers and the teachers retirement reserve fund, there is
hereby authorized and imposed on and after the first day of July, one thousand nine hundred ninety-
two, on the policyholder of any fire insurance policy or casualty insurance policy issued by any insurer,
authorized or unauthorized, or by any risk retention group, a policy surcharge equal to one percent of
the taxable premium for each such policy. For purposes of this section, casualty insurance may not
include insurance on the life of a debtor pursuant to or in connection with a specific loan or other credit
transaction or insurance on a debtor to provide indemnity for payments becoming due on a specific
loan or other credit transaction while the debtor is disabled as defined in the policy. The policy
surcharge may not be subject to premium taxes, agent commissions or any other assessment against
premiums.
(b) The policy surcharge shall be collected and remitted to the commissioner by the insurer,
or in the case of excess surplus lines coverage, by the resident excess lines broker surplus lines
licensee, or if the policy is issued by a risk retention group, by the risk retention group. The amount
required to be collected under this section shall be remitted to the commissioner on a quarterly basis
on or before the twenty-fifth day of the month succeeding the end of the quarter in which they are
collected, except for the fourth quarter for which the surcharge shall be remitted on or before the first
day of March of the succeeding year.
(c) Any person failing or refusing to collect and remit to the commissioner any policy surcharge
and whose surcharge payments are not postmarked by the due dates for quarterly filing is liable for a
civil penalty of up to one hundred dollars for each day of delinquency, to be assessed by the commissioner. The commissioner may suspend the insurer, broker or risk retention group until all
surcharge payments and penalties are remitted in full to the commissioner.
(d) One half of all money from the policy surcharge shall be collected by the commissioner
who shall disburse the money received from the surcharge into a special account in the state treasury,
designated the 'fire protection fund'. The net proceeds of this portion of the tax and the interest
thereon, after appropriation by the Legislature, shall be distributed quarterly on the first day of the
months of January, April, July and October to each volunteer fire company or department on an equal
share basis by the state treasurer.
(1) Before each distribution date, the state fire marshal shall report to the state treasurer the
names and addresses of all volunteer and part-volunteer fire companies and departments within the
state which meet the eligibility requirements established in section eight-a, article fifteen, chapter eight
of this code.
(2) The remaining fifty percent of the moneys collected shall be transferred to the teachers
retirement system to be disbursed according to the provisions of sections twenty-six-j, twenty-six-k
and twenty-six-l, article seven-a, chapter eighteen of this code. Any balance remaining after the
disbursements authorized by this subdivision have been paid shall be paid by the teachers retirement
system into the teachers retirement system reserve fund.
(e) The allocation, distribution and use of revenues provided in the fire protection fund are
subject to the provisions of sections eight-a and eight-b, article fifteen, chapter eight of this code.
ARTICLE 12. INSURANCE PRODUCERS AND SOLICITORS.
§33-12-3. License required.
(a) A person may not sell, solicit or negotiate insurance covering subjects of insurance resident,
located or to be performed in this state for any class or classes of insurance unless the person is
licensed for that line of authority in accordance with this article.
(b) No person shall in West Virginia act as or hold himself or herself out to be an agent
individual insurance producer or insurance agency or solicitor unless then licensed therefor pursuant
to this article.
(c) No agent individual insurance producer, insurance agency or solicitor or any representative
or employee thereof shall solicit or take application for, negotiate, procure or place for others any kind
of insurance or receive or share, directly or indirectly, any commission or other valuable consideration
arising from the sale, solicitation or negotiation of any insurance contract for which that person is not
then licensed.
(d) No insurer shall accept any business from or pay any commission to any agent individual
insurance producer who does not then hold an appointment as agent an individual insurance producer
for such insurer pursuant to this article.
§33-12-8. Continuing education required.
The purpose of this provision is to provide continuing education under guidelines set up under
the insurance commissioner's office, with the guidelines to be set up under the board of insurance
agent education. Nothing in this section prohibits an individual from receiving commissions which
have been vested and earned while that individual maintained an approved insurance agent's license.
(a) This section applies to individual insurance producers licensed to engage in the sale of the
following types of insurance:
(1) Life. -- Life insurance coverage on human lives, including benefits of endowment and
annuities, and may include benefits in the event of death or dismemberment by accident and benefits
for disability income;
(2) Accident and health or sickness. -- Insurance coverage for sickness, bodily injury or
accidental death and may include benefits for disability income;
(3) Property. -- Property insurance coverage for the direct or consequential loss or damage to
property of every kind;
(4) Casualty. -- Insurance coverage against legal liability, including that for death, injury or
disability or damage to real or personal property;
(5) Variable life and variable annuity products. -- Insurance coverage provided under variable
life insurance contracts and variable annuities;
(6) Personal lines. -- Property and casualty insurance coverage sold to individuals and families
for primarily noncommercial purposes; and
(7) Any other line of insurance permitted under state laws or regulations.
(b) This section does not apply to:
(1) Individual insurance producers holding limited line credit insurance licenses for any kind
or kinds of insurance offered in connection with loans or other credit transactions or insurance for
which an examination is not required by the commissioner, nor does it apply to any limited or
restricted license as the commissioner may exempt; and
(2) Individual insurance producers selling credit life or credit accident and health insurance.
(c) (1) The board of insurance agent education as established by section seven of this article
shall develop a program of continuing insurance education and submit the proposal for the approval
of the commissioner on or before the thirty-first day of December of each year. No program may be approved by the commissioner that includes a requirement that any agent individual insurance
producer complete more than twenty-four hours of continuing insurance education triennially
biennially. No program may be approved by the commissioner that includes a requirement that any
of the following individual insurance producers complete more than six hours of continuing insurance
education biennially:
(A) Individual insurance producers who sell only preneed burial insurance contracts; and
(B) Individual insurance producers who engage solely in telemarketing insurance products by
a scripted presentation which scripted presentation has been filed with and approved by the
commissioner.
(C) The biennium mandatory continuing insurance education provisions of this section become
effective on the reporting period beginning the first day of July, two thousand three six.
(2) The commissioner and the board, under standards established by the board, may approve
any course or program of instruction developed or sponsored by an authorized insurer, accredited
college or university, agents' association, insurance trade association or independent program of
instruction that presents the criteria and the number of hours that the board and commissioner
determine appropriate for the purpose of this section.
(d) Individual insurance producers licensed to sell insurance and who are not otherwise exempt
shall satisfactorily complete the courses or programs of instructions the commissioner may prescribe.
(e) Every individual insurance producer subject to the continuing education requirements shall
furnish, at intervals and on forms as may be prescribed by the commissioner, written certification
listing the courses, programs or seminars of instruction successfully completed by the person. The
certification shall be executed by, or on behalf of, the organization sponsoring the courses, programs
or seminars of instruction.
(f) Any individual insurance producer failing to meet the requirements mandated in this section
and who has not been granted an extension of time, with respect to the requirements, or who has
submitted to the commissioner a false or fraudulent certificate of compliance shall have his or her
license automatically suspended and no further license may be issued to the person for any kind or
kinds of insurance until the person demonstrates to the satisfaction of the commissioner that he or she
has complied with all of the requirements mandated by this section and all other applicable laws or
rules.
(g) The commissioner shall notify the individual insurance producer of his or her suspension
pursuant to subsection (f) of this section by certified mail, return receipt requested, to the last address
on file with the commissioner pursuant to subsection (e), section nine of this article. Any individual
insurance producer who has had a suspension order entered against him or her pursuant to this section
may, within thirty calendar days of receipt of the order, file with the commissioner a request for a
hearing for reconsideration of the matter.
(h) Any individual insurance producer who does not satisfactorily demonstrate compliance with
this section and all other laws applicable thereto as of the last day of the biennium following his or her
suspension shall have his or her license automatically canceled and is subject to the education and
examination requirements of section five of this article.
(i) The commissioner is authorized to hire personnel and make reasonable expenditures
considered necessary for purposes of establishing and maintaining a system of continuing education
for insurers. The commissioner shall charge a fee of twenty-five dollars to continuing education
providers for each continuing education course submitted for approval which shall be used to maintain
the continuing education system. The commissioner may, at his or her discretion, designate an outside
administrator to provide all of or part of the administrative duties of the continuing education system subject to direction and approval by the commissioner. The fees charged by the outside administrator
shall be paid by the continuing education providers. In addition to fees charged by the outside
administrator, the outside administrator shall collect and remit to the commissioner the 25-dollar
course submission fee.
§33-12-10. Fees.
The fee for an agent's individual insurance producer's license shall be twenty-five dollars, as
provided in section thirteen, article three of this chapter the fee for a solicitor's license shall be
twenty-five dollars and the fee for an insurance agency producer license shall be two hundred dollars.
The commissioner shall receive the following fees from insurance agents individual insurance
producers, solicitors insurance agencies and excess line brokers and insurance agency producers: For
letters of certification, five dollars; for letters of clearance, ten dollars; and for duplicate license, five
dollars. All fees and moneys so collected shall be used for the purposes set forth in section thirteen,
article three of this chapter.
§33-12-11. Countersignature.
No contract of insurance covering a subject of insurance, resident, located or to be performed
in this state, shall be executed, issued or delivered by any insurer unless the contract, or, in the case
of an interstate risk, a countersignature endorsement carrying full information as to the West Virginia
risk, is signed or countersigned in writing by a licensed resident agent of the insurer, except that excess
line insurance shall be countersigned by a duly licensed excess line broker. This section does not apply
to: Reinsurance; credit insurance; any contract of insurance covering the rolling stock of any railroad
or covering any vessel, aircraft or motor carrier used in interstate or foreign commerce or covering any
liability or other risks incident to the ownership, maintenance or operation thereof; any contract of
insurance covering any property in interstate or foreign commerce, or any liability or risks incident thereto. Countersignature of a duly licensed resident agent of the company originating a contract of
insurance participated in by other companies as cosureties or coindemnitors shall satisfy all
countersignature requirements in respect to such contract of insurance: Provided, That the
countersignature requirements of this section shall no longer be required for any contract of insurance
executed, issued or delivered on or after the thirty-first day of December, two thousand four.
§33-12-18. Individual insurance producer to deal only with licensed insurer or solicitor; appointment
as individual insurance producer required
.
(a) An individual insurance producer may not act as an agent of an insurer unless the individual
insurance producer becomes an appointed agent of that insurer. An individual insurance producer who
is not acting as an agent of an insurer is not required to become appointed.
(b) To appoint an individual insurance producer as its agent, the appointing insurer shall file,
in a format approved by the insurance commissioner, a notice of appointment within fifteen days from
the date the agency contract is executed or the first insurance application is submitted. An insurer may
also elect to appoint an individual insurance producer to all or some insurers within the insurer's
holding company system or group by the filing of a single appointment request.
(c) Upon receipt of the notice of appointment, the insurance commissioner shall verify within
a reasonable time not to exceed thirty days that the individual insurance producer is eligible for
appointment. If the individual insurance producer is determined to be ineligible for appointment, the
insurance commissioner shall notify the insurer within five days of its determination.
(d) An insurer shall pay a nonrefundable appointment processing fee, in the amount and
method of payment set forth in section thirteen, article three of this chapter, for each appointment
notification submitted by the insurer to the commissioner.
(e) An insurer shall remit, in a manner prescribed by the insurance commissioner, a renewal
appointment fee in the amount set forth in section thirteen, article three of this chapter no later than
midnight the thirty-first day of May annually.
(f) Each insurer shall maintain a current list of individual insurance producers appointed to
accept applications on behalf of the insurer. Each insurer shall make a list available to the
commissioner upon reasonable request for purposes of conducting investigations and enforcing the
provisions of this chapter.
(g) Insurance agencies licensed as producers are not subject to the provisions of this section.
§33-12-23. Payment of commissions.
(a) The entire commission payable by any insurer licensed to transact insurance in this state
on any insurance policy shall be paid directly to the licensed resident agent individual insurance
producer who countersigns the policy. The countersigning agent individual insurance producer may
not pay any part of the commission to any person other than a licensed agent individual insurance
producer: Provided, That the portion of such commission retained by the countersigning resident agent
individual insurance producer may not be less than ten percent of the gross policy premium or fifty
percent of the commission payable by the insurer as provided herein, whichever is the lesser amount.
The term 'commission' as used herein shall include engineering fees, service fees or any other
compensation incident to the issuance of a policy payable by or to any insurer or agent individual
insurance producer: Provided, however, That the provisions and requirements of this subsection shall
no longer be required for any insurance contract executed, issued or delivered after the thirty-first day
of December, two thousand four.
(b) It shall be unlawful for any insurer or agent individual insurance producer to pay, and any
person to accept, directly or indirectly, any commission except as provided in this section: Provided, That any licensed resident agent individual insurance producer may pay his or her commissions, or
direct that his or her commissions be paid, to a business entity licensed as an insurance producer if:
(1) The business entity is engaged, through its licensed resident agents individual insurance
producers, in conducting an insurance agency business with respect to the general public;
(2) If a partnership licensed as an insurance agency producer, each partner satisfies the
commissioner that he or she meets the licensing qualifications as set forth in section six of this article;
(3) If a corporation licensed as an insurance agency producer, each officer, employee or any
one or more stockholders owning, directly or indirectly, the controlling interest in the corporation
satisfies the commissioner that he or she meets the licensing qualifications as set forth in section six
of this article. The requirements set forth in this subdivision may do not apply to clerical employees
or other employees not directly engaged in the selling or servicing of insurance;
(4) If a limited liability company licensed as an insurance agency producer, each officer,
employee or any one or more members owning, directly or indirectly, the controlling interest in a
limited liability company satisfies the commissioner that he or she meets the licensing qualifications
as set forth in section six of this article. The requirements set forth in this subdivision shall do not
apply to clerical employees or other employees not directly engaged in the selling or servicing of
insurance; and
(5) If any other business entity licensed as an insurance agency producer, approval is granted
by the commissioner.
(c) This section Subsections (a) and (b) of this section will do not apply to reinsurance or life
insurance, or accident and sickness insurance; nor to excess line insurance procured in accordance with
the provisions of article twelve-c of this chapter relating thereto; nor to limited line credit insurance,
limited lines insurance, any contract of insurance covering the rolling stock of any railroad or covering any vessel, aircraft or motor carrier used in interstate or foreign commerce, any liability or other risks
incident to the ownership, maintenance or operation thereof, any contract of insurance covering any
property in interstate or foreign commerce or any liability or risks incident thereto.
(d) An insurance company or insurance producer may not pay a commission, service fee,
brokerage or other valuable consideration to a person for selling, soliciting or negotiating insurance
in this state if that person is required to be licensed under this article and is not so licensed.
(e) A person shall may not accept a commission, service fee, brokerage or other valuable
consideration for selling, soliciting or negotiating insurance in this state if that person is required to
be licensed under this article and is not so licensed.
(f) Renewal or other deferred commissions may be paid to a person for selling, soliciting or
negotiating insurance in this state if the person was required to be licensed under this article at the time
of the sale, solicitation or negotiation and was so licensed at that time.
§33-12-27. Payment of commissions under assigned risk plan.
An insurer participating in a plan for assignment of personal injury liability insurance or
property damage liability insurance on owner's automobiles or operators, which plan has been
approved by the commissioner, may pay a commission to a qualified agent individual insurance
producer who is licensed to act as agent individual insurance producer for any insurer participating in
the plan when the agent individual insurance producer is designated by the insured as the individual
insurance producer of record under an automobile assigned risk plan pursuant to which a policy is
issued under the plan and section eleven of this article shall not be is not applicable thereto.
§33-12-28. Service representative permit.
Individual nonresidents of West Virginia, employed on salary by an insurer, who enter the state
to assist and advise resident agents individual insurance producers in the solicitation, negotiation, making or procuring of contracts of insurance on risks resident, located or to be performed in West
Virginia shall obtain a service representative permit. The commissioner may, upon receipt of a
properly prepared application, issue the permit without requiring a written examination therefor. On
or after the first day of July, two thousand four, no service representative license will be issued which
is not a renewal of an existing license. The fee for a service representative permit shall be twenty-five
dollars and the permit shall expire at midnight on the thirty-first day of March next following the date
of issuance. Issuance of a service representative permit may not entitle the holder to countersign
policies. The representative may not in any manner sell, solicit, negotiate, make or procure insurance
in this state except when in the actual company of the licensed resident agent individual producer
whom he or she has been assigned to assist. All fees collected under this section shall be used for the
purposes set forth in section thirteen, article three of this chapter.
§33-12-30. Termination of contractual relationship prohibited.
No insurance company may cancel, refuse to renew or otherwise terminate a written contractual
relationship with any insurance agent individual insurance producer who has been employed or
appointed pursuant to that written contract by an insurance company as a result of any analysis of a
loss ratio resulting from claims paid under the provisions of an endorsement for uninsured and
underinsured motor vehicle coverage issued pursuant to the provisions of section thirty-one, article six
of this chapter, nor may any provision of that contract, including the provisions for compensation
therein, operate to deter or discourage the insurance agent individual insurance producer from selling
and writing endorsements for optional uninsured or underinsured motor vehicle coverage.
§33-12-31. Termination of contractual relationship; continuation of certain commissions;
exceptions.
(a) In the event of a termination of a contractual relationship between a duly licensed insurance
agent individual insurance producer and an automobile insurer of private passenger automobiles who
is withdrawing from writing private passenger automobile insurance within the state, the insurer shall
pay the agent individual insurance producer a commission, equal to the commission the agent
individual insurance producer would have otherwise been entitled to under his or her contract with the
insurer, for a period of two years from the date of termination of the contractual relationship for those
renewal policies that cannot otherwise be canceled or nonrenewed pursuant to law, which policies the
agent individual insurance producer continues to service. The insurer must continue the appointment
of the agent individual insurance producer for the duration of time the agent individual insurance
producer continues to service the business: Provided, That this requirement shall not obligate the
withdrawing insurer to accept any new private passenger automobile insurance within the state.
(b) Subsection (a) of this section does not apply to an agent individual insurance producer who
is an employee of the insurer or an agent individual insurance producer as defined by article twelve-a
of this chapter or an agent individual insurance producer who by contractual agreement either
represents only one insurer or group of affiliated insurers or who is required by contract to submit risks
to a specified insurer or group of affiliated insurers prior to submitting them to others.
§33-12-32. Limited licenses for rental companies.
(a) Purpose. -- This section authorizes the insurance commissioner to issue limited licenses for
the sale of automobile rental coverage.
(b) Definitions. -- The following words when used in this section shall have the following
meanings:
(1) 'Authorized insurer' means an insurer that is licensed by the commissioner to transact
insurance in West Virginia.
(2) 'Automobile rental coverage' or 'rental coverage' is insurance offered incidental to the
rental of a vehicle as described in this section.
(3) 'Limited license' means the authorization by the commissioner for a person to sell rental
coverage as agent an individual insurance producer of an authorized insurer pursuant to the provisions
of this section without the necessity of agent individual insurance producer prelicensing education,
examination or continuing education.
(4) 'Limited licensee' is an individual resident of this state or nonresident of this state who
obtains a limited license.
(5) 'Rental agreement' means any written agreement setting forth the terms and conditions
governing the use of a vehicle provided by the rental company for rental or lease.
(6) 'Rental company' means any person or entity in the business of providing private motor
vehicles to the public under a rental agreement for a period not to exceed ninety days.
(7) 'Renter' means any person obtaining the use of a vehicle from a rental company under the
terms of a rental agreement for a period not to exceed ninety days.
(8) 'Vehicle' or 'rental vehicle' means a motor vehicle of the private passenger type including
passenger vans, minivans and sport utility vehicles and of the cargo type, including cargo vans, pick-up
trucks and trucks with a gross vehicle weight of twenty-six thousand pounds or less and which do not
require the operator to possess a commercial driver's license.
(9) 'Rental period' means the term of the rental agreement.
(c) The commissioner may issue a limited license for the sale of automobile rental coverage
to an employee of a rental company, who has satisfied the requirements of this section.
(d) As a prerequisite for issuance of a limited license under this section, there shall be filed
with the commissioner a written application for a limited license, signed by the applicant, in a form or forms and supplements thereto and containing any information as the commissioner may prescribe.
The limited licensee shall pay to the insurance commissioner an annual fee of twenty-five dollars.
(e) The limited licensee shall be appointed by the licensed insurer or insurers for the sale of
automobile rental coverage. The employer of the limited licensee shall maintain at each insurance
sales location a list of the names and addresses of employees which are selling insurance at the
location.
(f) In the event that any provision of this section or applicable provisions of the insurance code
is violated by a limited licensee or other employees operating under his or her direction, the
commissioner may:
(1) After notice and a hearing, revoke or suspend a limited license issued under this section in
accordance with the provisions of section thirteen, article two of this chapter; or
(2) After notice and hearing, impose any other penalties, including suspending the transaction
of insurance at specific locations where applicable violations of the insurance code have occurred, as
the commissioner considers to be necessary or convenient to carry out the purposes of this section.
(g) Any limited license issued under this section shall also authorize any other employee
working for the same employer and at the same location as the limited licensee to act individually, on
behalf and under the supervision of the limited licensee with respect to the kinds of coverage
authorized in this section. In order to sell insurance products under this section at least one employee
who has obtained a limited license must be present at each location where insurance is sold. All other
employees working at that location may offer or sell insurance consistent with this section without
obtaining a limited license. However, the limited licensee shall directly supervise and be responsible
for the actions of all other employees at that location related to the offer or sale of insurance as
authorized by this section. No limited licensee under this section shall may advertise, represent or otherwise hold himself or herself or any other employees out as licensed insurers, insurance agents or
insurance brokers or individual insurance producers.
(h) No automobile rental coverage insurance may be issued by a limited licensee pursuant to
this section unless:
(1) The rental period of the rental agreement does not exceed ninety consecutive days; and
(2) At every rental location where rental agreements are executed, brochures or other written
material are readily available to the prospective renter that:
(A) Summarize, clearly and correctly, the material terms of coverage offered to renters,
including the identity of the insurer;
(B) Disclose that the coverage offered by the rental company may provide a duplication of
coverage provided by a renter's personal automobile insurance policy, homeowner's insurance policy,
personal liability insurance policy or other source of coverage;
(C) State that the purchase by the renter of the kinds of coverage specified in this section is not
required in order to rent a vehicle; and
(D) Describe the process for filing a claim in the event the renter elects to purchase coverage.
and in the event of a claim
(3) Any evidence of coverage on the face of the rental agreement is disclosed to every renter
who elects to purchase the coverage.
(4) The limited licensee to sell automobile rental coverage may offer or sell insurance only in
connection with and incidental to the rental of vehicles, whether at the rental office or by preselection
of coverage in a master, corporate, group rental or individual agreements in any of the following
general categories;:
(A) Personal accident insurance covering the risks of travel, including, but not limited to,
accident and health insurance that provides coverage, as applicable, to renters and other rental vehicle
occupants for accidental death or dismemberment and reimbursement for medical expenses resulting
from an accident that occurs during the rental period;
(B) Liability insurance (which may include uninsured and underinsured motorist coverage
whether offered separately or in combination with other liability insurance) that provides coverage,
as applicable, to renters and other authorized drivers of rental vehicles for liability arising from the
operation of the rental vehicle;
(C) Personal effects insurance that provides coverage, applicable to renters and other vehicle
occupants of the loss of, or damage to, personal effects that occurs during the rental period;
(D) Roadside assistance and emergency sickness protection programs; and
(E) Any other travel or auto-related coverage that a rental company offers in connection with
and incidental to the rental of vehicles.
(i) Each rental company for which an employee has received a limited license pursuant to this
section shall conduct a training program in which its employees being trained shall receive basic
instruction about the kinds of coverage specified in this section and offered for purchase by prospective
renters of rental vehicles: Provided, That limited licensees and employees working hereunder are not
subject to the agent prelicensing education, examination or continuing education requirements of this
article.
(j) Notwithstanding any other provision of this section or any rule adopted by the
commissioner, neither the rental company, the limited licensee, nor the other employees working with
the limited licensee at the rental company shall be required to treat moneys collected from renters
purchasing such insurance when renting vehicles as funds received in a fiduciary capacity, provided that the charges for coverage shall be itemized and be ancillary to a rental transaction. The sale of
insurance not in conjunction with a rental transaction may not be is not permitted.
ARTICLE 12C. SURPLUS LINE.
§33-12C-24. Countersignature requirements.
Surplus lines insurance shall be countersigned by a duly licensed resident surplus lines licensee:
Provided, That the countersignature requirements imposed by this section shall no longer be required
for any surplus line of insurance executed, issued or delivered after the thirty-first day of December,
two thousand four.
ARTICLE 37. MANAGING GENERAL AGENTS.
§33-37-1. Definitions.
As used in this Article For the purposes of this article:
(a) 'Actuary' means a person who is a member in good standing of the American academy of
actuaries.
(b) 'Insurer' means any person, firm, association or corporation engaged as indemnitor, surety
or contractor in the business of entering into contracts of insurance or of annuities as limited to:
(1) Any insurer who is doing an insurance business, or has transacted insurance in this state,
and against whom claims arising from that transaction may exist now or in the future:
(2) This includes, but is not limited to, any domestic insurer as defined in section six, article
one of this chapter and any foreign insurer as defined in section seven, article one of this chapter,
including any stock insurer, mutual insurer, reciprocal insurer, farmers' mutual fire insurance
company, fraternal benefit society, hospital service corporation, medical service corporation, dental
service corporation, health service corporation, health care corporation, health maintenance
organization, captive insurance company or risk retention group.
(c) 'Managing general agent' means any person, firm, association or corporation who
negotiates and binds ceding reinsurance contracts on behalf of an insurer or manages all or part of the
insurance business of an insurer, including the management of a separate division, department or
underwriting office, and acts as an agent for such insurer whether known as a managing general agent,
manager or other similar term, who, with or without the authority, either separately or together with
affiliates, produces, directly or indirectly, and underwrites an amount of gross direct written premium
equal to or greater than five percent of the policyholder surplus as reported in the last annual statement
of the insurer in any one quarter or year, together with one or more of the following:
(1) Adjusts or pays claims in excess of an amount determined by the commissioner; or
(2) Negotiates reinsurance on behalf of the insurer.
Notwithstanding the preceding provision, the following persons are not to be considered as
managing general agents for the purposes of this article:
(1) An employee of the insurer;
(2) A United States manager of the United States branch of an alien insurer;
(3) An underwriting manager that, pursuant to contract, manages all or part of the insurance
operations of the insurer, is under common control with the insurer, is subject to the holding company
regulatory act, and whose compensation is not based on the volume of premiums written without
regard to the profitability of the business written;
(4) The attorney-in-fact authorized by and acting for the subscribers of a reciprocal insurer or
inter-insurance exchange under powers of attorney
__(b) 'Home state' means the District of Columbia or any state or territory of the United States
in which a managing general agent is incorporated or maintains its principal place of business. If
neither the state in which the managing general agent is incorporated, nor the state in which the managing general agent maintains its principal place of business has adopted this article or a
substantially similar law governing managing general agents, the managing general agent may declare
another state in which it conducts business to be its 'home state'.
__(c) 'Insurer' means any person, firm, association or corporation duly licensed in this state as
an insurance company pursuant to article three of this chapter. Insurer includes, but is not limited to,
any domestic insurer as defined in section six, article one of this chapter and any foreign insurer as
defined in section seven of said article, including any stock insurer, mutual insurer, reciprocal insurer,
farmers' mutual fire insurance company, fraternal benefit society, hospital service corporation, medical
service corporation, dental service corporation, health service corporation, health care corporation,
health maintenance organization, captive insurance company or risk retention group.
__(d) 'Managing general agent' (MGA) means any person, firm, association or corporation who:
__(1) Manages all or part of the insurance business of an insurer (including the management of
a separate division, department or underwriting office); and
__(2) Acts as an agent for such insurer whether known as a managing general agent, manager or
other similar term who, with or without the authority, either separately or together with affiliates,
produces, directly or indirectly, and underwrites an amount of gross direct written premium equal to
or more than five percent of the policyholder surplus as reported in the last annual statement of the
insurer in any one quarter or year together with one or more of the following activities related to the
business produced:
__(A) Adjusts or pays claims in excess of ten thousand dollars per claim; or
__(B) Negotiates reinsurance on behalf of the insurer.
__(3) Notwithstanding the above, the following persons are not considered managing general
agents for the purposes of this article:
__(A) An employee of the insurer;
__(B) A U. S. manager of the United States branch of an alien insurer;
__(C) An underwriting manager which, pursuant to contract, manages all or part of the insurance
operations of the insurer, is under common control with the insurer, subject to the holding company
regulatory act, and whose compensation is not based on the volume of premiums written; and
__(D) The attorney-in-fact authorized by and acting for the subscribers of a reciprocal insurer or
interinsurance exchange under powers of attorney.
__(e) 'Person' means an individual or a business entity.
__(d) (f) 'Underwrite' means the authority to accept or reject risk on behalf of the insurer. as
authorized by the insurer
§33-37-2. Licensure.
(a) Any person, or a person working for a firm, association or corporation, shall not act in the
capacity of a managing general agent with respect to risks located in this state for an insurer licensed
in this state unless such person is licensed and appointed as an agent of the insurer in this state.
(b) Any person, or a person working for a firm, association or corporation, shall not act in the
capacity of a managing general agent representing an insurer domiciled in this state with respect to
risks located outside this state unless such person is licensed and appointed as an agent of the insurer
in this state. The license held by such person may be a nonresident license.
(c) The commissioner may require a bond in an amount acceptable to him or her for the
protection of the insurer.
(d) The commissioner may require the managing general agent to maintain an errors and
omissions policy of liability insurance.
(a) No domestic insurer may permit a person to act, and no person may act, in the capacity of
a managing general agent for an insurer domiciled in this state unless such person is licensed in this
state to act as a managing general agent.
__(b) No foreign or alien insurer may permit a person to act, and no person may act, in the
capacity of a managing general agent representing an insurer unless the person is licensed in this state
to act as a managing general agent.
__(c) No person may act in the capacity of a managing general agent with respect to risks located
in this state for an insurer licensed in this state unless the person is a licensed insurance producer in
this state.
__(d) The commissioner may license as a managing general agent any individual or business
entity that has complied with the requirements of this article and any regulations concerning licensure
that may be promulgated by the commissioner. The commissioner may refuse to issue a license,
subject to the right of the applicant to demand a hearing on the application, if the commissioner
believes the applicant, any person named on the application or any member, principal, officer or
director of the applicant is not trustworthy or competent to act as a managing general agent, or that any
of the foregoing has given cause for revocation or suspension of such license, or has failed to comply
with any prerequisite for issuance of such license.
__(e) Any person seeking a license pursuant to subsection (d) of this section shall apply for the
license in a form acceptable to the commissioner and shall pay to the commissioner a nonrefundable
application fee in an amount prescribed by the commissioner. The application fee shall be not less
than five hundred dollars nor more than one thousand dollars. Every licensed managing general agent
shall pay to the commissioner a nonrefundable annual renewal fee in an amount prescribed by the
commissioner. The renewal fee shall be not less than two hundred dollars nor more than one thousand dollars. Between the first day of May and the first day of June of the renewal year, each licensed
managing general agent shall submit to the commissioner the renewal fee and a renewal application
form as prescribed by the commissioner. All fees shall be collected by the commissioner, paid into the
state treasury and placed to the credit of the special revenue account provided for in section thirteen,
article three of this chapter. Each license issued pursuant to this article expires at midnight on the
thirtieth day of June next following the day of issuance.
__(f) The commissioner may require a bond in an amount acceptable to him or her for the
protection of the insurer.
__(g) The commissioner may require a managing general agent to maintain an errors and
omissions policy that is acceptable to the commissioner.
__(h) Except where prohibited by state or federal law, by submitting an application for license,
the applicant shall be deemed to have appointed the secretary of state as the agent for service of
process on the applicant in any action or proceeding arising in this state out of or in connection with
the exercise of the license. The appointment of the secretary of state as agent for service of process
shall be irrevocable during the period within which a cause of action against the applicant may arise
out of transactions with respect to subjects of insurance in this state. Service of process on the
secretary of state shall conform to the provisions of section twelve, article four of this chapter.
__(i) A person seeking licensure shall provide evidence, in a form acceptable to the
commissioner, of its appointments or contracts as a managing general agent. The commissioner may
refuse to renew the license of a person that has not been appointed by, or otherwise authorized to act
for, an insurer as a managing general agent.
§33-37-3. Required contract provisions.
Any No person, or a person working for a firm, association or corporation acting in the capacity
of a managing general agent shall not may place business with an insurer unless there is in force a
written contract between the parties which sets forth the responsibilities of each party and whereby
where both parties share responsibility for a particular function, which specifies the division of such
responsibilities and which contains the following minimum provisions:
(a) The insurer may terminate the contract for cause upon written notice to the managing
general agent. The insurer may suspend the underwriting authority of the managing general agent
during the pendency of any dispute regarding the cause for termination.
(b) The managing general agent will render accounts to the insurer detailing all transactions
and remit all funds due under the contract to the insurer on not less than a monthly basis.
(c) All funds collected for the account of an insurer will be held by the managing general agent
in a fiduciary capacity in a bank which is a member of the federal reserve system with an FDIC-
insured financial institution. This account shall be used for all payments on behalf of the insurer. The
managing general agent may retain no more than three months estimated claims payments and
allocated loss adjustment expenses.
(d) The managing general agent shall maintain separate records of business that he or she
writes. The insurer shall have access to and the right to copy all accounts and records related to its
business, in a form usable by it. The commissioner shall have access to all books, bank accounts and
records of the managing general agent in a form usable to him or her.
(d) Separate records of business written by the managing general agent shall be maintained.
The insurer shall have access and right to copy all accounts and records related to its business in a form
usable by the insurer. The commissioner shall have access to all books, bank accounts and records of
the managing general agent in a form usable to the commissioner.
(e) The contract may not be assigned, in whole or part, by the managing general agent.
(f) The contract shall contain appropriate underwriting guidelines including:
(1) The maximum annual premium volume;
(2) The basis of the rates to be charged;
(3) The types of risks which may be written;
(4) Maximum limits of liability;
(5) Applicable exclusions;
(6) Territorial limitations;
(7) Policy cancellation provisions; and
(8) The maximum policy period.
The insurer shall have the right to cancel or nonrenew any policy of insurance subject to the
applicable laws and rules concerning the cancellation and nonrenewal of insurance policies.
(g) If the contract permits the managing general agent to settle claims on behalf of the insurer:
(1) All claims must be reported to the company in a timely manner; and
(2) A copy of the claim file will be sent to the insurer at its request or as soon as it becomes
known that the claim:
(A) Has the potential to exceed an amount determined by the commissioner or exceeds the limit
set by the company, whichever is less;
(B) Involves a coverage dispute;
(C) May exceed the managing general agents claims settlement authority;
(D) Is open for more than six months; or
(E) Is closed by payment of an amount set by the commissioner or an amount set by the
company, whichever is less.
(3) All claims files will be the joint property of the insurer and managing general agent.
However, upon an order of liquidation of the insurer, such files shall become the sole property of the
insurer or its estate. The managing general agent shall have reasonable access to and the right to copy
the files on a timely basis.
(4) Any settlement authority granted to the managing general agent may be terminated for cause
upon the insurer's written notice to the managing general agent or upon the termination of the contract.
The insurer may suspend the settlement authority during the pendency of any dispute regarding the
cause for termination.
(h) If Where electronic claims files are in existence, the contract must address the timely
transmission of the data
contained in such files.
(i) If the contract provides for a sharing of interim profits by the managing general agent and
the managing general agent has the authority to determine the amount of the interim profits by
establishing loss reserves or controlling claim payments, or in any other manner, interim profits will
not be paid to the managing general agent until one year after they are earned for property insurance
business and five years after they are earned on casualty business and not until the profits have been
verified pursuant to section four of this article.
(j) The managing general agent may use only advertising material pertaining to the business
issued by an insurer that has been approved in writing by the insurer in advance of its use.
__(j) (k) The managing general agent shall may not:
(1) Bind reinsurance or retrocessions on behalf of the insurer, except that the managing general
agent may bind facultative reinsurance contracts pursuant to obligatory facultative agreements if the
contract with the insurer contains reinsurance underwriting guidelines including, for both reinsurance assumed and ceded, a list of reinsurers with which such automatic agreements are in effect, the
coverages and amounts or percentages that may be reinsured and commission schedules;
(2) Commit the insurer to participate in insurance or reinsurance syndicates;
(3) Appoint any agent individual insurance producer without assuring that the agent individual
insurance producer is lawfully licensed to transact the type of insurance for which he or she is
appointed;
(4) Without prior approval of the insurer, pay or commit the insurer to pay a claim over a
specified amount, net of reinsurance, which shall not exceed one percent of the insurer's policyholder's
surplus as of the thirty-first day of December of the last completed calendar year;
(5) Collect any payment from a reinsurer or commit the insurer to any claim settlement with
a reinsurer without prior approval of the insurer. If prior approval is given, a report must be promptly
forwarded to the insurer;
(6) Permit its subproducer to serve on the insurer's board of directors;
(6) Except as provided in subsection (g), section four of this article, permit its subproducer to
serve on the insurer's board of directors;
(7) Jointly employ an individual who is employed with the insurer; or
(8) Appoint a sub managing general agent.
§33-37-4. Duties of insurers.
(a) The insurer shall have on file an independent financial examination, in a form acceptable
to the commissioner, of each managing general agent with which it has done business.
(a) The insurer shall have on file an independent audited financial statement or reports for the
two most recent fiscal years that provide that the managing general agent has a positive net worth. If
the managing general agent has been in existence for less than two fiscal years the managing general agent shall include financial statements or reports, certified by an officer of the managing general agent
and prepared in accordance with generally accepted accounting procedures, for any completed fiscal
years, and for any month during the current fiscal year for which financial statements or reports have
been completed. An audited financial/annual report prepared on a consolidated basis shall include a
columnar consolidating or combining worksheet that shall be filed with the report and include the
following:
__(1) Amounts shown on the consolidated audited financial report shall be shown on the
worksheet;
(2) Amounts for each entity shall be stated separately; and
__(3) Explanations of consolidating and eliminating entries shall be included.
(b) If a managing general agent establishes loss reserves, the insurer shall annually obtain the
opinion of an actuary in a form consistent with the requirements for actuarial certifications as imposed
upon the insurer by statute or rule of the commissioner attesting to the adequacy of loss reserves
established for losses incurred and outstanding on business produced by the managing general agent.
This required actuary's opinion is in addition to any other required loss reserve certification.
(c) The insurer shall at least semiannually conduct an on-site review of the underwriting and
claims processing operations of the managing general agent.
(d) Binding authority for all reinsurance contracts or participation in insurance or reinsurance
syndicates shall rest with an officer of the insurer who shall not be affiliated with the managing general
agent.
(e) Within thirty days of entering into or terminating a contract with a managing general agent,
the insurer shall provide written notification of such appointment or termination to the commissioner.
A notice of appointment of a managing general agent shall include a statement of duties which such agent is expected to perform on behalf of the insurer, the lines of insurance for which such agent is to
be authorized to act, and any other information the commissioner may request.
(e) Within thirty days of entering into or terminating a contract with a managing general agent,
the insurer shall provide written notification to the commissioner. Notices of entering into a contract
with a managing general agent shall include a statement of duties which the applicant is expected to
perform on behalf of the insurer, the lines of insurance for which the applicant is to be authorized to
act and any other information the commissioner may request.
(f) An insurer shall review its books and records each quarter to determine if any producer as
defined by subsection (c), section one of this article has become, by operation of that subsection (d)
of said section, a managing general agent as defined therein in that subsection. If the insurer
determines that a producer has become a managing general agent as defined in subsection (c), section
one pursuant to the above, the insurer shall promptly notify the producer and the commissioner of such
determination and the insurer and producer must fully comply with the provisions of this article within
thirty days thereafter.
(g) An insurer shall not appoint to its board of directors an officer, director, employee,
subproducer or controlling shareholder of its managing general agents. This subsection shall does not
apply to relationships governed by the Insurance Holding Company Systems Regulatory Act or the
Business Transacted with Producer Controlled Property/Casualty Insurer Act.
§33-37-6. Penalties and liabilities.
(a) If the commissioner finds after a hearing conducted in accordance with section thirteen,
article two of this chapter that any person has violated any provision of this article, the commissioner
may order:
(a) If the commissioner finds that the managing general agent or any other person has violated
any provision of this article, or any rule or order promulgated thereunder, after a hearing conducted
in accordance with section thirteen, article two of this chapter, the commissioner may order:
(1) For each separate violation, a penalty in an amount of one thousand dollars not exceeding
ten thousand dollars;
(2) Revocation or suspension of the producer's license; and
(3) Reimbursement by the managing general agent of the insurer, the rehabilitator or liquidator
of the insurer for any losses incurred by the insurer and its policyholders and creditors caused by a
violation of this article committed by the managing general agent; and
__(4) If it was found that because of any such violation that the insurer has suffered any loss or
damage, the commissioner may maintain a civil action brought by or on behalf of the insurer and its
policyholders and creditors for recovery of compensatory damages for the benefit of the insurer and
its policyholders and creditors or other appropriate relief.
__(b) If an order of rehabilitation or liquidation of the insurer has been entered pursuant to article
ten of this chapter and the receiver appointed under that order determines that the managing general
agent or any other person has not materially complied with this article, or any rule or order
promulgated thereunder, and the insurer suffered any loss or damage therefrom, the receiver may
maintain a civil action for recovery of damages or other appropriate sanctions for the benefit of the
insurer.
(c) Nothing contained in this section shall affect the right of the commissioner to impose any
other penalties provided for in this chapter.
(d) Nothing contained in this article is intended to or shall in any manner limit or restrict the
rights of policyholders, claimants and creditors.
(b) (e) The decision, determination or order of the commissioner pursuant to subsection (a) of
this section shall be subject to judicial review pursuant to section fourteen, article two of this chapter.
§33-37-7. Rules and regulations.
The commissioner is thereby authorized to promulgate reasonable rules for the implementation
and administration of the provisions of this article pursuant to chapter twenty-nine-a of this code.
§33-37-8. Effective date.
This article shall take effect on the first day of July, two thousand four. No insurer may
continue to use the services of a managing general agent on and after the first day of July, two
thousand four, unless such utilization is except in compliance with this article."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 660), 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. 4303) 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. 4388, Creating new misdemeanor and felony offenses and associated
penalties related to the possession, creation and use of original, duplicated, altered or counterfeit retail
sales receipts and universal product code labels with the intent to defraud.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-56. Possession of bogus receipts or universal product codes with intent to defraud;
penalties.
Any person who, with intent to defraud, possesses fifteen or more fraudulently obtained or
counterfeit sales receipts or fraudulently obtained or counterfeit universal product codes, or possesses
a device the purpose of which is to manufacture counterfeit retail sales receipts or counterfeit universal
product code labels, is guilty of a felony and, upon conviction thereof, shall be fined not less than five
hundred dollars nor more than five thousand dollars or imprisoned in a state correctional facility not
less than one year nor more than three years, or both."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4388 - "A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §61-3-56, relating to creating the criminal offense of
possession of fraudulently obtained or counterfeit sales receipts or universal product codes or devices
to produce counterfeit sales receipts or universal product codes with the intent to cheat or defraud;
creating new felony offense for such illegal activity; and establishing 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. 661), 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. 4388) 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. 4516, Relating to the state conservation committee and conservation
districts.
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 after the enacting section and inserting in lieu thereof
the following:
ARTICLE 21A. CONSERVATION DISTRICTS.
§19-21A-4. State conservation committee; continuation.
(a) The state conservation committee is continued. It is to serve serves as an agency of the state
and is to perform the functions conferred upon it in this article. The committee shall consist of nine
consists of the following ten members:
(1) Four citizen members;
__(2) The following shall serve ex officio as members: of the committee
(A) The director of the state cooperative extension service;
(B) The director of the state agricultural and forestry experiment station;
(C) the director The secretary of the division department of environmental protection;
(D) The state commissioner of agriculture, who shall be chairman is the chairperson of the
committee; and
(E) The director of the division of forestry; and
__(F) The president of the West Virginia association of conservation districts.
__(b) The governor shall appoint, by and with the consent of the Senate, as additional members
of the committee four representative citizens members. Members will shall be appointed for four-year
terms, which are staggered in accordance with the initial appointments under prior enactment of this
act section. In the event of a vacancy, the appointment shall be is for the unexpired term.
(c) The committee may invite the secretary of agriculture of the United States of America to
appoint one person to serve with the committee as an advisory member.
(d) The committee shall keep a record of its official actions, shall adopt a seal, which seal shall
be judicially noticed, and may perform such those acts, hold such public hearings and promulgate such
adopt or propose for legislative approval rules as may be necessary for the execution of its functions
under this article.
(b) (e) The state conservation committee may employ an administrative officer, and such
technical experts and such other agents and employees, permanent and temporary, as it may require
requires. and The administrative officer and support staff shall be known as the West Virginia
conservation agency. The committee shall determine their qualifications, duties and compensation. The committee may call upon the attorney general of the state for such legal services as it may require
requires. It shall have authority to may delegate to its chairman chairperson, to one or more of its
members, or to one or more agents or employees, such powers and duties as it may deem considers
proper. The committee is empowered to may secure necessary and suitable office accommodations
and the necessary supplies and equipment. Upon request of the committee, for the purpose of carrying
out any of its functions, the supervising officer of any state agency or of any state institution of
learning shall, insofar as may be possible, under available appropriations and having due regard to the
needs of the agency to which the request is directed, assign or detail to the committee, members of the
staff or personnel of such the agency or institution of learning and make such special reports, surveys
or studies as required by the committee may request.
(c) (f) A member of the committee shall hold holds office so long as he or she shall retain
retains the office by virtue of which he or she shall be is serving on the committee. A majority of the
committee shall constitute is a quorum and the concurrence of a majority in any matter within their
duties shall be is required for its determination. The chairman chairperson and members of the
committee shall may receive no compensation for their services on the committee, but shall be are
entitled to reimbursement of expenses, including traveling expenses necessarily incurred in the
discharge of their duties on the committee. The committee shall:
(1) provide for Require the execution of surety bonds for all employees and officers who shall
be are entrusted with funds or property;
(2) shall Provide for the keeping of a full and accurate public record of all proceedings and of
all resolutions, rules and orders issued or adopted; and
(3) shall Provide for an annual audit of the accounts of receipts and disbursements.
(d) (g) In addition to the other duties and powers hereinafter conferred upon the state
conservation committee, it shall have the following duties and powers may:
(1) To offer such Offer appropriate assistance as may be appropriate to the supervisors of
conservation districts, organized as provided hereinafter in this article, in the carrying out of any of
their powers and programs;
(2) To keep Keep the supervisors of each of the several districts, organized under the provisions
of this article, informed of the activities and experience of all other districts organized hereunder under
this article and to facilitate an interchange of advice and experience between such the districts and
cooperation between them;
(3) To coordinate Coordinate the programs of the several conservation districts organized
hereunder so far as this may be done by advice and consultation;
(4) To secure Secure the cooperation and assistance of the United States and any of its agencies
and of agencies of this state in the work of such the districts;
(5) To disseminate Disseminate information throughout the state concerning the activities and
programs of the conservation districts organized hereunder and to encourage the formation of such the
districts in areas where their organization is desirable;
(6) To accept Accept and receive donations, gifts, contributions, grants and appropriations in
money, services, materials or otherwise from the United States or any of its agencies, from the state
of West Virginia or from other sources and to use or expend such the money, services, materials or
other contributions in carrying out the policy and provisions of this article, including the right to
allocate such the money, services or materials in part to the various conservation districts created by
this article in order to assist them in carrying on their operations; and
(7) To obtain Obtain options upon and to acquire by purchase, exchange, lease, gift, grant,
bequest, devise or otherwise any property, real or personal, or rights or interests therein to in the
property; maintain, administer, operate and improve any properties acquired; to receive and retain
income from such the property and to expend such the income as required for operation, maintenance,
administration or improvement of such the properties or in otherwise carrying out the purposes and
provisions of this article; and to sell, lease or otherwise dispose of any of its property or interests
therein in the property in furtherance of the purposes and the provisions of this article. Money received
from the sale of land acquired in the small watershed program shall be deposited in the special account
of the state conservation committee and expended as herein provided in this article.
§19-21A-7. Supervisors to constitute governing body of district; qualifications and terms of
supervisors; powers and duties.
(a) The governing body of the district shall consist consists of the supervisors, appointed or
elected, as provided in this article. The two supervisors appointed by the committee shall be persons
who are by training and experience qualified to perform the specialized skilled services which will be
are required of them in the performance of their duties under this section and must shall be legal
residents and landowners of in the district.
(b) The supervisors shall designate a chairman chairperson and may, from time to time, change
the designation. The term of office of each supervisor is three years. A supervisor shall hold holds
office until his or her successor has been elected or appointed. In case a new county or portion of a
county is added to a district, the committee may appoint a supervisor to represent it until such time as
the next regular election of supervisors for the district takes place. In case If a vacancy occurs among
the elected supervisors of a district, the committee shall appoint a successor from the same county to fill the unexpired term. The appointment shall be made from a name or list of names submitted by
local farm organizations and agencies.
(c) When any county or portion of a county lying within the boundaries of a district has in
effect eight hundred or more signed agreements of cooperation with occupiers of land located within
the county, then at the next regular election of supervisors the land occupiers within the county or
portion of the county are entitled to elect two supervisors to represent the county instead of one for the
term and in the manner prescribed in this section. A majority of the supervisors constitutes a quorum
and the concurrence of a majority in any matter within their duties shall be is required for its
determination.
(d) A supervisor is entitled to expenses and a per diem not to exceed twenty thirty dollars when
engaged in the performance of his or her duties.
(e) The supervisors may, with the approval of the state committee, employ a secretary, technical
experts and any other officers, agents and employees, permanent and temporary, as they may require
and shall determine their qualifications, duties and compensation. The supervisors may delegate to
their chairman chairperson, to one or more supervisors or to one or more agents, or employees, those
administrative powers and duties they consider proper. The supervisors shall furnish to the state
conservation committee, upon request, copies of the ordinances, rules, regulations, orders, contracts,
forms and other documents they adopt or employ and any other information concerning their activities
as it may require required in the performance of its state conservation committee's duties under this
article.
(f) The supervisors shall: provide for
__(1) Require the execution of surety bonds for all employees and officers who shall be are
entrusted with funds or property;
(2) shall Provide for the keeping of a full and accurate record of all proceedings and of all
resolutions, regulations rules and orders issued or adopted; and
(3) shall Provide for an annual audit of the accounts of receipts and disbursements.
(g) Any supervisor may be removed by the state conservation committee upon notice and
hearing for neglect of duty or malfeasance in office, but for no other reason.
(h) The supervisors may invite the legislative body of any municipality or county located near
the territory comprised within the district to designate a representative to advise and consult with the
supervisors of a district on all questions of program and policy which may affect the property, water
supply or other interests of the municipality or county."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4516 - "A Bill to amend and reenact §19-21A-4 and §19-21A-7 of the
code of West Virginia, 1931, as amended, all relating to the state conservation committee and
conservation districts; adding a member to the state conservation committee; designating the
administrative officer and the support staff as the West Virginia conservation agency; and increasing
the per diem rate for conservation supervisors."
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. 662), 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: Campbell and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4516) 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. 4553, Relating to standards for awarding certificates to teach in the public
schools.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL
DEVELOPMENT.
§18A-3-1. Teacher preparation programs; program approval and standards; authority to issue
teaching certificates.
(a) The education of professional educators in the state shall be under the general direction and
control of the state board of education after consultation with the secretary of education and the arts
and the chancellor of the for higher education policy commission, who shall represent the interests of
teacher preparation programs within the institutions of higher education in this state as those
institutions are defined in section two, article one, chapter eighteen-b of this code.
The education of professional educators in the state includes all programs leading to
certification to teach or serve in the public schools including: (1) Those programs in all institutions
of higher education, including student teaching in the public schools; (2) beginning teacher internship programs; (3) the granting of West Virginia certification to persons who received their preparation to
teach outside the boundaries of this state, except as provided in subsection (b) of this section; (4) any
alternative preparation programs in this state leading to certification, including programs established
pursuant to the provisions of section one-a of this article and programs which are in effect on the
effective date of this section; and (5) any continuing professional education, professional development
and in-service training programs for professional educators employed in the public schools in the state.
(b) The state board of education, after consultation with the secretary of education and the arts
and the chancellor of the for higher education policy commission, who shall represent the interests of
teacher preparation programs within the institutions of higher education in this state as those
institutions are defined in section two, article one, chapter eighteen-b of this code, shall adopt
standards for the education of professional educators in the state and for the awarding of certificates
valid in the public schools of this state subject to the following conditions:
(1) The standards approved by the board for teacher preparation shall include a provision for
the study of multicultural education. As used in this section, multicultural education means the study
of the pluralistic nature of American society including its values, institutions, organizations, groups,
status positions and social roles;
(2) Effective the first day of January, one thousand nine hundred ninety-three, the standards
approved by the board shall also include a provision for the study of classroom management
techniques and shall include methods of effective management of disruptive behavior which shall
include societal factors and their impact on student behavior; and
______________(3) Effective on the effective date of this section, any teacher who has graduated from a teacher
preparation program at a regionally accredited institution of higher education and who holds a valid
teaching certificate or certificates issued by another state shall be, upon application, awarded a teaching certificate or certificates for the same grade level or levels and subject area or areas valid in the public
schools of this state, subject only to the provisions of section ten of this article.
(c) To give prospective teachers the teaching experience needed to demonstrate competence
as a prerequisite to certification, the state board of education may enter into an agreement with county
boards for the use of the public schools. Such agreement shall recognize student teaching as a joint
responsibility of the teacher preparation institution and the cooperating public schools and shall
include: (1) The minimum qualifications for the employment of public school teachers selected as
supervising teachers; (2) the remuneration to be paid public school teachers by the state board, in
addition to their contractual salaries, for supervising student teachers; and (3) minimum standards to
guarantee the adequacy of the facilities and program of the public school selected for student teaching.
The student teacher, under the direction and supervision of the supervising teacher, shall exercise the
authority of a substitute teacher.
(d) The state superintendent of schools may issue certificates to graduates of teacher education
programs and alternative teacher education programs approved by the state board of education and in
accordance with this section and rules adopted by the state board after consultation with the secretary
of education and the arts and the chancellor of the for higher education. policy commission. A
certificate to teach shall not be granted to any person who is not a citizen of the United States, is not
of good moral character and physically, mentally and emotionally qualified to perform the duties of
a teacher and who has not attained the age of eighteen years on or before the first day of October of
the year in which his or her certificate is issued; except that an exchange teacher from a foreign
country, or an alien person who meets the requirements to teach, may be granted a permit to teach
within the public schools of the state.
(e) In consultation with the secretary of education and the arts and the chancellor of the for
higher education, policy commission institutions of higher education approved for teacher preparation
may cooperate with each other, with the center for professional development and with one or more
county boards in the organization and operation of centers to provide selected phases of the teacher
preparation program such as student teaching, beginning teacher internship programs, instruction in
methodology and seminar programs for college students, teachers with provisional certification,
professional support team members and supervising teachers.
The institutions of higher education, the center for professional development and county boards
may by mutual agreement budget and expend funds for the operation of the centers through payments
to the appropriate fiscal office of the participating institutions, the center for professional development
and the county boards.
(f) The provisions of this section shall not be construed to require the discontinuation of an
existing student teacher training center or school which meets the standards of the state board of
education.
(g) All institutions of higher education approved for teacher preparation in the school year of
one thousand nine hundred sixty-two--sixty-three shall continue to hold that distinction so long as they
meet the minimum standards for teacher preparation. Nothing contained herein shall infringe upon
the rights granted to any institution by charter given according to law previous to the adoption of this
code."
And,
By amending the title of the bill to read as follows:
H. B. 4553 - "A Bill to amend and reenact §18A-3-1 of the code of West Virginia, 1931, as
amended, relating to standards for awarding certificates to teach in the public schools; and establishing
condition on award of certificates to teachers certified by another state."
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. 663), 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: Campbell 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. 4553) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 664), 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: Campbell and 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. 4553) 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, a bill of the
House of Delegates as follows:
H. B. 4567, Relating to the motor carrier road tax and international fuel tax agreement.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page three, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 14A. MOTOR CARRIER ROAD TAX.
§11-14A-2. Definitions.
For purposes of this article:
(1) 'Average fuel consumption factor' means the miles driven by the fleet of motor carriers for
each gallon of motor fuel consumed in that activity (miles per gallon), and is calculated by dividing
the total distance driven in all jurisdictions during the reporting period by the total quantity of motor
fuel consumed in the operation of the motor carrier in all jurisdictions during the same reporting
period.
______________(1) (2) 'Commissioner' or 'tax commissioner' means the tax commissioner of the state of West
Virginia or his or her duly authorized agent.
(3) 'Fleet' means, for purposes of administering the tax imposed by this article, one or more
motor carriers operated by the same person.
______________(2) (4) 'Gallon' means two hundred thirty-one cubic inches of liquid measurement, by volume:
Provided, That the commissioner may by rule prescribe other measurement or definition of gallon.
(3) (5) 'Gasoline' means any product commonly or commercially known as gasoline, regardless
of classification, suitable for use as fuel in an internal combustion engine, except special fuel as
hereinafter defined: Provided, That effective the first day of January, two thousand four in the event
there is a question as to the proper classification of any product, 'gasoline' shall have has the same
meaning as in article fourteen-c of this chapter.
(4) (6) 'Highway' means every way or place of whatever nature open to the use of the public
as a matter of right for the purpose of vehicular travel, which is maintained by this state or some taxing
subdivision or unit thereof or the federal government or any of its agencies.
(7) 'Household goods carrier' means a person that uses a motor carrier for the movement of
another's household goods.
______________(5) (8) 'Identification marker' means the decal issued by the commissioner for display upon
a particular motor carrier and authorizing a person to operate or cause to be operated a motor carrier
upon any highway of the state: Provided, That an identification marker shall include decals issued
under the authority of article fourteen-b of this chapter to persons licensed thereunder: Provided,
however, That said decals shall comply with the international fuel tax agreement requirements
referenced under the said article fourteen-b.
______________(9) 'Independent contractor' means a person that uses its motor carrier or motor carriers in its
own or another person's business for the purpose of transporting passengers or the goods of a third
party.
______________(6) (10) 'Lease' means any oral or written contract for valuable consideration granting the use
of a motor carrier.
(7) (11) 'Motor carrier' means any vehicle used, designed or maintained for the transportation
of persons or property and having two axles and a gross vehicle weight exceeding twenty-six thousand
pounds or eleven thousand seven hundred ninety-seven kilograms, or having three or more axles
regardless of weight, or is used in combination when the weight of the combination exceeds twenty-six
thousand pounds or eleven thousand seven hundred ninety-seven kilograms gross vehicle weight or
registered gross vehicle weight. Provided, That the gross vehicle weight rating of the vehicles being towed is in excess of ten thousand pounds. The term motor carrier does not include any type of
recreational vehicle.
(8) (12) 'Motor fuel' means motor fuel as defined in article fourteen-c of this chapter effective
the first day of January, two thousand four.
(9) (13) 'Operation' means any operation of any motor carrier, whether loaded or empty,
whether for compensation or not, and whether owned by or leased to the person who operates or causes
to be operated any motor carrier.
(10) (14) 'Person' means and includes any individual, firm, partnership, limited partnership,
joint venture, association, company, corporation, organization, syndicate, receiver, trust or any other
group or combination acting as a unit, in the plural as well as the singular number, and means and
includes the officers, directors, trustees or members of any firm, partnership, limited partnership, joint
venture, association, company, corporation, organization, syndicate, receiver, trust or any other group
or combination acting as a unit, in the plural as well as the singular number, unless the intention to give
a more limited meaning is disclosed by the context.
(11) (15) 'Pool operation' means any operation whereby two or more taxpayers combine to
operate or cause to be operated a motor carrier or motor carriers upon any highway in this state.
(12) (16) 'Purchase' means and includes any acquisition of ownership of property or of a
security interest for a consideration.
(13) (17) 'Recreational vehicles' means vehicles such as motor homes, pickup trucks with
attached campers and buses, when used exclusively for personal pleasure by an individual. In order
to qualify as a recreational vehicle, the vehicle shall not be used in connection with any business
endeavor.
(14) (18) 'Road tractor' means every motor carrier designed and used for drawing other
vehicles and not constructed as to carry any load thereon either independently or any part of the weight
of a vehicle or load so drawn.
(15) (19) 'Sale' means any transfer, exchange, gift, barter or other disposition of any property
or security interest for a consideration.
(16) (20) 'Special fuel' means any gas or liquid, other than gasoline, used or suitable for use
as fuel in an internal combustion engine. The term 'special fuel' includes products commonly known
as natural or casing-head gasoline but shall not include any petroleum product or chemical compound
such as alcohol, industrial solvent, heavy furnace oil, lubricant, etc., not commonly used nor
practicably suited for use as fuel in an internal combustion engine: Provided, That effective the first
day of January, two thousand four in the event there is a question as to the proper classification of any
gas or liquid, 'special fuel' has the same meaning as in article fourteen-c of this chapter.
(17) (21) 'Tax' includes, within its meaning, interest, additions to tax and penalties, unless the
intention to give it a more limited meaning is disclosed by the context.
(18) (22) 'Taxpayer' means any person liable for any tax, interest, additions to tax or penalty
under the provisions of this article.
(19) (23) 'Tractor truck' means every motor carrier designed and used primarily for drawing
other vehicles and not constructed as to carry a load other than a part of the weight of the vehicle and
load so drawn.
(20) (24) 'Truck' means every motor carrier designed, used or maintained primarily for the
transportation of property and having more than two axles.
§11-14A-3a. Leased motor carriers, household goods carriers, and independent contractors.
(a) Motor carriers.
_____(a) (1) Motor carriers leased for less than thirty days. -- A lessor of motor carriers who is
regularly engaged in the business of leasing or renting motor carriers with or without drivers to
licensees or other lessees for a period of less than thirty days is primarily liable for payment of the
taxes and fees imposed by this article unless:
_____(A) The lessor has a written lease contract that designates the lessee as the party liable for
reporting and paying the tax imposed by this article; and
_____(B) If the lessee is subject to article fourteen-b of this chapter, the lessor has a copy of the
lessee's license issued thereunder and the license is valid for the term of the lease.
(b) (2) Motor carriers leased for thirty days or more. -- A licensee or other lessee who leases
or rents a motor carrier with or without drivers for a period of thirty days or more is primarily liable
for payment of the taxes and fees imposed by this article.
(b) Household goods carriers.
_____(1) Each household goods carrier operating only in West Virginia that uses its own motor
carriers or that leases a motor carrier or motor carriers, with or without drivers, from independent
contractors or others under intermittent leases for periods of thirty days or more is liable for the tax
imposed by this article: Provided, That the lessor is liable for the tax imposed by this article when the
lease periods are for less than thirty days.
_____(2) Each household goods carrier subject to article fourteen-b of this chapter that uses its own
motor carriers or that leases a motor carrier or motor carriers, with or without drivers, from
independent contractors or others under intermittent leases is liable for the tax imposed by this article
when the motor carrier is operated under the lessee's jurisdictional operating authority: Provided, That
when the motor carrier is operated under the lessors jurisdictional operating authority, the lessor is
liable for the tax imposed by this article.
(c) Independent contractors.
_____(1) An independent contractor operating only in West Virginia, when leased to a person also
operating only in West Virginia, and the lease is for a period of less than thirty days is liable for the
tax imposed by this article: Provided, That if the lease is for a period of thirty days or more, the lessee
is responsible for the tax imposed by this article.
_____(2) A person subject to article fourteen-b of this chapter that leases an independent contractor
for thirty days or more is responsible for the tax imposed by this article unless there is a written
contract stating that the lessor is liable for the tax imposed by this article.
_____(b) (d) The provision of subsections (a), (b) and (c) of this section shall govern the primary
liability of lessors and licensees or other lessees of motor carriers. If a lessor or licensee or other lessee
primarily liable fails, in whole or in part, to discharge his or her liability, such the failing party and
other party to the transaction, whether denominated as a lessor, licensee or other lessee, shall be is
jointly and severally responsible and liable for compliance with the provisions of this article and for
payment of any tax or fees due under this article: Provided, That the aggregate of taxes and fees
collected by the commissioner shall not exceed the total amount or amounts of taxes and fees due
under this article on account of the transactions in question plus such interest, additions to tax, other
penalties and costs, if any, that may be imposed: Provided, however, That no person, other than the
person primarily responsible for the taxes and fees under this article, may be assessed penalties or
additions to tax resulting from the failure of the party primarily liable for such taxes and fees to pay:
Provided further, That once such the other party to the transaction who is not primarily liable for the
taxes under this article but who is made jointly and severally liable under this subsection for such taxes
is assessed for those taxes and fees and fails to discharge such the assessment within the time
prescribed therefor, or within thirty days after receiving such the assessment if no time is so prescribed, nothing herein shall prohibit the commissioner from imposing additions to tax or penalties upon that
person for failing to pay the assessment issued in his or her name.
§11-14A-4. Computation of tax.
Computation of the tax is based upon the amount of gallons of gasoline or special motor fuel
used in the operation of any motor carrier within this state and shall be in such proportion of the total
amount of such gasoline or special fuel used in any person's operations within and without this State
as the total number of miles traveled within this State bears to the total number of highway miles
traveled within and without this State calculated by dividing the total number of taxable miles traveled
in this state during the reporting period by the average fuel consumption factor calculated for that same
reporting period.
§11-14A-5. Reports of carriers; joint reports; records; examination of records; subpoenas and
witnesses.
(a) Every taxpayer subject to the tax imposed by this article, or by article fourteen-c of this
chapter, except as provided, in subsections (b) and (c) of this section, shall on or before the twenty-
fifth last day of January, April, July and October of every calendar year make to the commissioner
reports of its operations during the quarter ending the last day of the preceding month as the
commissioner requires and other reports from time to time as the commissioner considers necessary.
For good cause shown, the commissioner may extend the time for filing the reports for a period not
exceeding thirty days.
(b) Every motor carrier which operates exclusively in this state during a fiscal year that begins
on the first day of July of one calendar year and ends on the thirtieth day of June of the next succeeding
calendar year and during the fiscal year consumes in its operation only gasoline or special motor fuel
upon which the tax imposed by article fourteen of this chapter has been paid shall, in lieu of filing the quarterly reports required by subsection (a) of this section, file an annual report for the fiscal year on
or before the last day of July each calendar year: Provided, That effective the first day of January, two
thousand four, every motor carrier which operates exclusively in this state during a fiscal year that
begins on the first day of July of one calendar year and ends on the thirtieth day of June of the next
succeeding calendar year and during the fiscal year consumes in its operation only motor fuel upon
which the tax imposed by article fourteen-c of this chapter has been paid shall, in lieu of filing the
quarterly reports required by subsection (a) of this section, file an annual report for the fiscal year on
or before the last day of July of each calendar year: Provided, however, That effective the first day
of January, two thousand five, every motor carrier which operates exclusively in this state and during
the calendar year consumes in its operation only motor fuel upon which the tax imposed by article
fourteen-c of this chapter has been paid shall, in lieu of filing the quarterly reports required by
subsection (a) of this section, file before the last day of January an annual report for the calendar year
ending on the last day of the immediately preceding December. For good cause shown, the
commissioner may extend the time for filing the report for a period of thirty days.
(c) Two or more taxpayers regularly engaged in the transportation of passengers on through
buses on through tickets in pool operation may, at their option and upon proper notice to the
commissioner, make joint reports of their entire operations in this state in lieu of the separate reports
required by subsection (a) of this section. The taxes imposed by this article are calculated on the basis
of the joint reports as though the taxpayers were a single taxpayer; and the taxpayers making the
reports are jointly and severally liable for the taxes shown to be due. The joint reports shall show the
total number of highway miles traveled in this state and the total number of gallons of gasoline or
special motor fuel purchased in this state by the reporting taxpayers. Credits to which the taxpayers
making a joint return are entitled are not allowed as credits to any other taxpayer; but taxpayers filing joint reports shall permit all taxpayers engaged in this state in pool operations with them to join in
filing joint reports.
(d) (1) A taxpayer shall keep records necessary to verify the highway total miles traveled within
and without the state of West Virginia, the number of gallons of gasoline and special motor fuel used
and purchased within and without West Virginia and any other records which the commissioner by
regulation may prescribe. A finding by the tax commissioner on the basis of the best information
available that the taxpayer has failed to maintain records prescribed by the tax commissioner, or that
the taxpayer refused to make available upon written request the records prescribed by the tax
commissioner, is sufficient cause for the commissioner of motor vehicles to revoke the identification
markers issued to the taxpayer: Provided, That upon request of the taxpayer, a hearing shall be
provided, under the authority of articles ten and ten-a of this chapter prior to the revocation becoming
final.
__(2) If the tax commissioner determines that a taxpayer used an incorrect average fuel
consumption factor resulting in the filing of incorrect returns, the tax commissioner shall determine
the correct average fuel consumption factor, calculate the correct amount of tax due under this article,
and under the authority of article ten of this chapter issue an assessment for the amount of tax, interest,
penalties and additions due and owing: Provided, That absent adequate information to the contrary,
the average fuel consumption factor is four miles per gallon (one and seven tenths kilometers per liter).
(e) In addition to the tax commissioner's powers set forth in sections five-a and five-b, article
ten of this chapter, the commissioner may inspect or examine the records, books, papers, storage tanks,
meters and any equipment records or records of highway miles traveled within and without West
Virginia and the records of any other person to verify the truth and accuracy of any statement or report
to ascertain whether the tax imposed by this article has been properly paid.
(f) In addition to the tax commissioner's powers set forth in sections five-a and five-b, article
ten of this chapter, and as a further means of obtaining the records, books and papers of a taxpayer or
any other person and ascertaining the amount of taxes and reports due under this article, the
commissioner has the power to examine witnesses under oath; and if any witness shall fail or refuse
at the request of the commissioner to grant access to the books, records and papers, the commissioner
shall certify the facts and names to the circuit court of the county having jurisdiction of the party and
the court shall thereupon issue a subpoena duces tecum to the party to appear before the commissioner,
at a place designated within the jurisdiction of the court, on a day fixed.
§11-14A-6. Payment of tax.
The tax hereby imposed by this article shall be paid by each taxpayer quarterly annually to the
tax commissioner on or before the last day of January April, July and October of each calendar year,
and calculated upon the amount of gasoline or special motor fuel used as fuel in the operation of each
motor carrier operated or caused to be operated by said the taxpayer during the quarter year ending
with the last day of the preceding month: Provided, That each person subject to the provisions of
article fourteen-b of this chapter shall pay quarterly to the tax commissioner on or before the last day
of January, April, July and October of each calendar year, the correct amount of motor fuel use taxes
imposed by each state on motor carriers using the highways of those states during the quarter ending
with the last day of the preceding month, the taxes to be calculated in accordance with the instructions
provided by those respective states.
§11-14A-7. Identification markers; fees; civil penalties; criminal penalties.
(a) Registration of motor carriers. -- No person may operate, or cause to be operated, in this
state any motor carrier subject to this article without first securing from the commissioner of motor
vehicles an identification marker for each such motor carrier, except as provided in subsection (b) or (c) of this section. Each identification marker for a particular motor carrier shall bear a number. This
identification marker shall be displayed on the driver's side of the motor carrier as required by the
commissioner. The commissioner, after issuance of any identification marker to a motor carrier, shall
cause an internal cross-check to be made in his office as to any state tax which he administers, to aid
in determination of any noncompliance in respect to failure to file returns or payment of tax liabilities.
The identification markers herein provided for shall be valid for the period of one year, ending
December thirty-first of each year. A fee of five dollars shall be paid to the commissioner for issuing
each identification marker which is reasonably related to the commissioner's costs of issuing such
identification. All tax or reports due under this article shall be paid or reports filed before the issuance
of a new identification marker. Failure by a taxpayer to file the returns or pay the taxes imposed by this
article shall give cause to the commissioner to revoke or refuse to renew the identification marker
previously issued. A person who operates, or causes to be operated, in this state more than one motor
carrier may obtain an identification marker for each motor carrier: Provided, That such person may
also obtain an additional number of identification markers equal to twenty-five percent of the total
number of motor carriers in the person's fleet of motor carriers that require identification markers.
__(1) Each identification marker for a particular motor carrier shall bear a number. This
identification marker shall be displayed on the driver's side of the motor carrier as required by the
commissioner of motor vehicles: Provided, That the identification markers issued under the authority
of article fourteen-b of this chapter shall be displayed on the exterior portion of both sides of the motor
carrier.
__(2) The tax commissioner, after issuance of any identification marker to a motor carrier, shall
cause an internal cross-check to be made in his or her office as to any state tax which he or she
administers, to aid in determination of any noncompliance in respect to failure to file returns or payment of tax liabilities. If the tax commissioner determines the motor carrier is not in compliance
with the requirement to file any tax return or pay any tax liability required by any tax governed by
article ten of this chapter, the identification markers issued to that motor carrier by the commissioner
of motor vehicles shall be revoked until all the returns are filed and payments made.
__(3) The identification markers provided for in this section are valid for a period of one year,
ending the thirty-first day of December each year. A fee of five dollars shall be paid to the
commissioner of motor vehicles for issuing each identification marker which is reasonably related to
the commissioner of motor vehicles' costs of issuing each identification marker.
__(4) All tax or returns due under this article shall be paid or returns filed before the issuance of
a new identification marker. If the tax commissioner determines that a person subject to the
requirements of this article has failed to file any return or pay the taxes imposed by this article, the
commissioner of motor vehicles shall revoke each identification marker previously issued to that
person and shall refuse to issue a new identification marker to that person until all returns are filed and
all taxes imposed by this article paid.
__(5) Each identification marker shall be removed from a motor carrier:
__(A) Prior to the motor carrier being sold or traded in for a different motor carrier;
__(B) When a motor carrier registered under subsection (a) of this section ceases doing business
in this state, or requests cancellation of the account authorized under article fourteen-b of this chapter;
or
__(C) When the identification marker issued under subsection (a) of this section is revoked.
__(6) Each identification marker so removed and any additional identification markers issued
under the authority of subsection (a) of this section shall within thirty days of removal be returned to
the commissioner of motor vehicles.
(b) Trip permit. -- A motor carrier that does not have a motor carrier identification marker
issued under subsection (a) of this section may obtain a trip permit which authorizes the motor carrier
specified therein to be operated in this state without an identification marker for a period of not more
than ten consecutive days beginning and ending on the dates specified on the face of the permit:
Provided, That if a motor carrier's identification marker, whether issued by this state or another
jurisdiction, has been revoked, the motor carrier may not be issued a trip permit. The fee for this
permit shall be is twenty-four dollars.
(1) Fees for trip permits shall be in lieu of the tax otherwise due under this article on account
of the vehicles specified in the permit operating in this state during the period of the permit, and no
reports of mileage shall be required with respect to that vehicle.
(2) A trip permit shall be carried in the cab of the motor vehicle for which it was issued at all
times while it is in this state.
(3) A trip permit may be obtained from the commissioner of motor vehicles or from wire
services authorized by the commissioner to issue such trip permits. The cost of the telegram or similar
transmissions shall be is the responsibility of the motor carrier requesting the trip permit.
(c) Transportation permit. -- The commissioner of motor vehicles is hereby authorized to grant,
in his or her discretion, a special permit to a new motor vehicle dealer for use on new motor vehicles
driven under their own power from the factory or distributing place of a manufacturer, or other dealer,
to a place of business of the new vehicle dealer, or from the place of business of a new vehicle dealer
to a place of business of another dealer, or when delivered from the place of business of the new
vehicle dealer to the place of business of a purchaser to whom title passes on delivery. A transporter's
permit must be carried in the cab of the motor vehicle being transported. A person to whom a
transporter's permit is issued shall file the reports required by section five of this article and pay any tax due. The fee for such a transporter's permit shall be is fifteen dollars and a transporter's permit
is valid for the fiscal year for which it is issued unless surrendered or revoked by the tax commissioner.
(d) Civil penalties. -- Upon a finding by the tax commissioner based upon the best evidence
available that a taxpayer, whether the owner, licensee or lessee, or the employee, servant or agent
thereof, has performed any of the following acts, the commissioner of motor vehicles shall revoke and
refuse to renew the taxpayer's identification marker or trip permit until the cause for the revocation
is corrected:
(1) Maintains inaccurate or incomplete records;
__(2) Fails to respond to written requests for information;
__(3) Fails to make records available upon request;
__(4) Falsified application for identification markers or trip permit;
__(5) Has a prior revocation of identification markers in another jurisdiction without
reinstatement in that jurisdiction;
__(6) Is delinquent in payment of taxes, but only after the assessment of those taxes is finalized;
__(7) Transfers or sells an identification marker or trip permit; or
__(8) Receives or purchases from any person not the commissioner of motor vehicles an
identification marker or trip permit.
__Upon request of the taxpayer, a hearing shall be provided, under the authority of articles ten
and ten-a of this chapter prior to the revocation becoming final.
__(d) (e) Criminal penalty penalties. --
(1) Any person, whether such the person be the owner, licensee or lessee, or the employee,
servant or agent thereof, who operates or causes to be operated in this state, a motor carrier in violation
of this section, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred dollars; and each day such the violation continues or reoccurs shall
constitute constitutes a separate offense.
(2) Any person, whether the person be the owner, licensee or lessee, or the employee, servant
or agent thereof, who transfers or sells an identification marker or trip permit is guilty of a felony and,
upon conviction thereof, shall be fined not less than five thousand dollars nor more than ten thousand
dollars.
__(3) Any person, whether the person be the owner, licensee or lessee, or the employee, servant
or agent thereof, who receives or purchases from any person not the commissioner of motor vehicles
an identification marker or trip permit is guilty of a felony and, upon conviction thereof, shall be fined
not less than five thousand dollars nor more than ten thousand dollars.
__(e) (f) Notwithstanding the provisions of section five-d, article ten of this chapter, the tax
commissioner shall deliver to or receive from the commissioner of the division of motor vehicles and
the commissioner of the public service commission, the information contained in the application filed
by a motor carrier for a trip permit under this section, when the information is used to administer a
combined trip permit registration program for motor carriers operating in this state, which program
may be administered by one agency or any combination of the three agencies, as embodied in a written
agreement executed by the head of each agency participating in the program. Such The agencies have
authority to enter into such an agreement notwithstanding any provision of this code to the contrary;
and the fee for such a combined trip permit shall be is twenty-four dollars, which shall be in lieu of
the fee set forth in subsection (b) of this section.
§11-14A-9. Credits against tax.
Every taxpayer subject to the road tax herein imposed in this article is entitled to a credit on
the tax equivalent to the amount of tax per gallon of gasoline or special fuel imposed by article fourteen of this chapter on all gasoline or special fuel purchased by the taxpayer for fuel in each motor
carrier which it operates or causes to be operated within this state, and upon which gasoline or special
fuel the tax imposed by the laws of this state has been paid: Provided, That the credit is not allowed
for any gasoline or special fuel taxes for which any taxpayer has applied or received a refund of
gasoline or special fuel tax under article fourteen of this chapter: Provided, however, That effective
the first day of January, two thousand four, every taxpayer subject to the said road tax herein imposed
is entitled to a credit against the tax equivalent to the amount of the flat rate of tax per gallon of motor
fuel imposed by article fourteen-c of this chapter on all motor fuel purchased by the taxpayer and used
as motor fuel in motor carriers which it operates or causes to be operated within this state, and upon
which the motor fuel tax imposed by the laws of this state has been paid: Provided further, That no
credit is allowed for any motor fuel taxes for which the taxpayer has applied or received a refund of
motor fuel tax under article fourteen-c of this chapter. Evidence of the payment of the tax in the form
as required by the commissioner shall be furnished by the taxpayer claiming the credit allowed in this
section. When the amount of the credit provided, for in this section exceeds the amount of the tax for
which the taxpayer is liable in the same quarter, the excess, if less than twenty dollars, shall upon
written request by the taxpayer, be allowed as used as a credit on the tax for which the taxpayer would
be otherwise liable for any of the four eight succeeding quarters: And provided further, That if the
taxpayer has ceased to do business in this state under either this article or article fourteen-b of this
chapter, the amount of the credit shall be refunded in accordance with section eleven of this article:
And provided further, That if the amount of the credit provided in this section exceeds by twenty
dollars or more the amount of the tax for which the taxpayer is liable in the same quarter, the entire
amount, upon the written request by the taxpayer, shall be allowed as a credit on the tax for which the
taxpayer would otherwise be liable for any of the succeeding eight quarters: And provided further, That any credit not used within the eight succeeding quarters after the credit is established shall be
forfeited.
§11-14A-11. Refunds authorized; claim for refund and procedure thereon; surety bonds and
cash bonds.
(a) The commissioner is hereby authorized to refund from the funds collected under the
provisions of this article and article fourteen of this chapter, the amount of the credit accrued for
gallons of gasoline or special motor fuel purchased in this state but consumed outside of this state, if
the taxpayer by duly filed claim requests the commissioner to issue a refund and if the commissioner
is satisfied that the taxpayer is entitled to the refund and that the taxpayer has not applied for a refund
of the tax imposed by article fourteen of this chapter: Provided, That effective the first day of January,
two thousand four, the refunds authorized in this section shall be made from the funds collected under
the provisions of this article and from the flat rate of tax imposed under section five, article fourteen-c
of this chapter: Provided, however, That unless the taxpayer has ceased doing business in this state
under either this article or article fourteen-b of this chapter, any amount less than twenty dollars may
not be refunded but shall be used as a credit in accordance with the provisions of section nine of this
article: Provided further, That the commissioner shall not approve a claim for refund when the claim
for a refund is filed after thirteen months from the close of the quarter in which the tax was paid or the
credit, as provided for in section nine of this article, was allowed: Provided, And provided further,
That effective the first day of April, two thousand four, the commissioner shall not approve a claim
for refund when the claim for refund is filed after eight quarters from the close of the quarter in which
the tax was paid or the credit, as provided in section nine of this article, was allowed: And provided
further, That any refund or credit due a taxpayer subject to article fourteen-b of this chapter shall be
withheld if the taxpayer is delinquent on any fuel taxes due any other state: the refund shall not be made until after audit of the claimant's records by the commissioner or until after a continuous surety
bond or cash bond has been furnished by the claimant, as hereinafter provided in an amount fixed by
the commissioner, conditioned to pay all road taxes due hereunder: And provided further, That the
credit or refund shall in no case be allowed to reduce the amount of tax to be paid by a taxpayer below
the amount due as tax on gasoline or special fuel used as fuel in this state as provided by article
fourteen of this chapter: And provided further, That effective the first day of January, two thousand
four, the credit or refund shall in no case be allowed to reduce the amount of tax to be paid by a
taxpayer below the amount due as tax on motor fuel used in this state as provided by article fourteen-c
of this chapter. The right to receive any refund under the provisions of this article is not assignable
and any attempt at assignment thereof is void and of no effect. The claim for refund or credit shall also
be subject to the provisions of section fourteen, article ten of this chapter.
A taxpayer shall furnish a continuous surety bond or a cash bond in an amount fixed by the
commissioner, but the amount shall not be less than the total refunds due or to be paid within one year:
Provided, That if a continuous surety bond is filed, an annual notice of renewal shall be filed
thereafter: Provided, however, That if the continuous surety bond includes the requirement that the
commissioner is to be notified of cancellation at least sixty days prior to the surety bond being
canceled, an annual notice of renewal is not required. The bond, whether a continuous surety bond or
a cash bond, is conditioned upon compliance with the requirements of this article and shall be payable
to this state in the form required by the commissioner.
(b) The surety must be authorized to engage in business within this state. The cash bond or the
continuous surety bond is conditioned upon faithful compliance with the provisions of this article,
including the filing of the returns and payment of all tax prescribed by this article. The cash bond or
the continuous surety bond shall be approved by the commissioner as to sufficiency and form, and shall indemnify the state against any loss arising from the failure of the taxpayer to pay for any cause
whatever the motor carrier road tax or the motor fuel excise tax imposed by article fourteen-c of this
chapter. Any surety on a continuous surety bond furnished hereunder shall be relieved, released and
discharged from all liability accruing on the bond after the expiration of sixty days from the date the
surety shall have lodged, by certified mail, with the commissioner a written request to be discharged.
Discharge from a continuous surety bond shall not relieve, release or discharge the surety from liability
already accrued, or which shall accrue before the expiration of the sixty-day period. Whenever any
surety seeks discharge as provided in this section, it is the duty of the principal of the bond to supply
the commissioner with another continuous surety bond or a cash bond prior to the expiration of the
original bond. Failure to provide such other bond results in no refund being paid until after completion
of an audit of the taxpayer's records as provided in subsection (a) of this section and the commissioner
may cancel any registration card and identification marker previously issued to the person.
(c) Any taxpayer that has furnished a cash bond shall be relieved, released and discharged from
all liability accruing on the cash bond after the expiration of sixty days from the date the taxpayer shall
have lodged, by certified mail, with the commissioner a written request to be discharged and the
amount of the cash bond refunded: Provided, That the commissioner may retain all or part of the bond
until the commissioner may perform an audit of the taxpayer's business or three years, whichever first
occurs. Discharge from the cash bond shall not relieve, release or discharge the taxpayer from liability
already accrued, or which shall accrue before the expiration of the sixty-day period. Whenever any
taxpayer seeks discharge as provided in this section, it is the duty of the taxpayer to provide the
commissioner with another cash bond or a continuous surety bond prior to the expiration of the
original cash bond. Failure to provide another bond results in no refund being paid until after
completion of an audit of the taxpayer's records as provided in subsection (a) of this section.
§11-14A-13. Disposition of tax collected.
All tax collected under the provisions of this article shall be paid into the state treasury and
shall be used only for the purpose of construction, reconstruction, maintenance and repair of highways,
and payment of the interest and sinking fund obligations on state bonds issued for highway purposes:
Provided, That the taxes collected under the provisions of this article but for the purposes of article
fourteen-b of this chapter shall be disposed of in accordance with the provisions of section eleven,
article fourteen-b of this chapter.
Unless necessary for such the bond requirements, five fourteenths of the tax collected under
the provisions of this article shall be used for feeder and state local service highway purposes.
§11-14A-16. Civil penalty for failure to file required return when no tax due.
In the case of any failure to make or file a return when no tax is due, as required by this article,
on the date prescribed therefor, unless it can be shown that such the failure is due to reasonable cause
and not due to willful neglect, there shall be collected a civil penalty of twenty-five fifty dollars or ten
percent of the net tax due, whichever is greater, for each month of such the failure or fraction thereof.
The civil penalty prescribed under this section shall be assessed, collected and paid in the same manner
as the motor carrier road tax.
§11-14A-27. General procedure and administration.
Each and every provision of the 'West Virginia Tax Procedure and Administration Act' set
forth in article ten of this chapter shall apply to the motor carrier road tax imposed by this article
fourteen-a with like effect as if said act were applicable only to such the motor carrier road tax
imposed by this article fourteen-a and were set forth with respect thereto in extenso in this article
fourteen-a: Provided, That for purposes of the tax imposed by this article and notwithstanding sections
seventeen and seventeen-a, article ten of this chapter, the annual rate of interest in effect at the time of assessment or when the payment of delinquent tax is made shall be one percent per month,
calculated for each month or part thereof from the date prescribed for payment to the date the payment
is made.
§11-14A-28. Effective date.
The provisions of this act article shall take effect on the first day of April, one thousand nine
hundred eighty-nine: Provided, That the amendments to this article made during the two thousand four
legislative session shall be effective the first day of July, two thousand four.
ARTICLE 14B. INTERNATIONAL FUEL TAX AGREEMENT.
§11-14B-1. Purpose.
This article is enacted to conform laws of this state relating to registration of motor carriers and
reporting and payment of motor fuel use taxes with requirements of the 'Intermodal Surface
Transportation and Efficiency Act of 1991', Public Law 102-240. More specifically:
(1) Section 4005 of that said act requires establishment of a single state registration system for
commercial motor carriers. Under this system, a motor carrier is required to register annually only with
one state. Single state registration is deemed considered to satisfy the registration requirements of all
other states.
(2) Section 4008 of that said act mandates state participation in the international registration
plan and adoption of the international fuel tax agreement by providing that after the thirtieth day of
September, one thousand nine hundred ninety-six:
(A) No state, (other than a state participating in the international registration plan), may
establish, maintain or enforce any commercial motor vehicle carrier registration law, regulation or
agreement which limits the operation of any commercial motor vehicle carrier within its borders which is not registered under the laws of the state if the vehicle motor carrier is registered under the laws of
any other state participating in the international registration plan;
(B) No state may establish, maintain or enforce any law or regulation which has fuel use tax
reporting requirements (including tax reporting forms) which are not in conformity with the
international fuel tax agreement; and
(C) No state may establish, maintain or enforce any law or regulation which provides for the
payment of a fuel use tax unless such the law or regulation is in conformity with the international fuel
tax agreement with respect to collection of such tax by a single base state jurisdiction and proportional
sharing of such fuel use taxes charged among the states in which a commercial motor vehicle carrier
is operated.
§11-14B-2. Definitions.
For purposes of this article:
__(a) 'Base jurisdiction' means the member jurisdiction where a motor carrier is based for vehicle
registration purposes and:
__(1) Where the operational control and operational records of the licensee's motor carriers are
maintained or can be made available; and
__(2) Where some travel is accrued by motor carriers within the fleet.
__(a) 'Commercial motor vehicle'
(1) As used with respect to the international registration plan, has the meaning the term
'apportionable vehicle' has under that plan; and
(2) As used with respect to the international fuel tax agreement, has the meaning the term
'qualified motor vehicle' has under that agreement.
(b) 'Fuel use tax' means a tax imposed on or measured by the consumption of fuel in a motor
vehicle carrier.
__(c) 'Gasoline' has the same meaning as the term is defined in article fourteen-c of this chapter.
(d) (c) 'International fuel tax agreement' means the international agreement for the collection
and distribution of fuel use taxes paid by motor carriers, developed under the auspices of the national
governors' association: Provided, That this term includes amendments to the international fuel tax
agreement.
__(e) (d) 'International registration plan' means the interstate agreement for the apportionment
of vehicle registration fees paid by motor carriers developed by the American association of motor
vehicle administrators.
(e) 'Licensee' means a person who holds an uncancelled license issued by a base jurisdiction
in accordance with the international fuel tax agreement.
__(f) 'Motor carrier':
__(1) As used with respect to the international registration plan, has the meaning the term
'apportionable vehicle' has under that plan; and
__(2) As used with respect to the international fuel tax agreement, has the meaning the term
'qualified motor vehicle' has under that agreement.
__(g) 'Motor fuel' means motor fuel as defined in article fourteen-c of this chapter.
__(f) (h) 'Motor fuel use taxes imposed by this state' means the aggregate amount of taxes,
expressed in cents per gallon, imposed by this state, under articles fourteen-a and fifteen-a of this
chapter, on gasoline or special motor fuel consumed in this state by a motor carrier.
(g) 'Special fuel' has the same meaning as the term is defined in article fourteen-c of this
chapter.
(h) (i) 'State' means any of the forty-eight contiguous states and the District of Columbia, and
any other jurisdiction which imposes a motor fuel use tax and is a member of the international fuel tax
agreement.
§11-14B-3. Registration of motor carriers.
(a) To facilitate adoption of the single point registration system in this state, the powers, duties
and responsibilities of the tax commissioner under section seven, article fourteen-a of this chapter, are
transferred to the commissioner of the division of motor vehicles effective with the registration year
that begins the first day of July, one thousand nine hundred ninety-five: Provided, That no registration
identification marker or trip permit shall be is required under section seven, article fourteen-a of this
chapter of a motor carrier based in another state which is a member of the international fuel tax
agreement.
(b) Beginning with the registration year specified in subsection (a) of this section, the
commissioner of motor vehicles shall furnish the tax commissioner with motor carrier registration
information and information pertaining to the trip permit registration program for use by the tax
commissioner in collecting motor fuel taxes.
(c) Also beginning with the registration year specified in subsection (a) of this section, the tax
commissioner shall furnish the commissioner of motor vehicles with the taxpayer identity information
for any motor carrier which fails to file required returns or report for, or to pay, the motor fuel use
taxes imposed by this state. This information may give the commissioner of motor vehicles sufficient
cause to revoke or refuse to renew the identification marker previously issued under section seven,
article fourteen-a of this chapter.
(d) Information exchanged pursuant to this section shall be used solely for tax administration
and motor carrier registration purposes and shall be treated as confidential information for all other
purposes as provided in article ten of this chapter.
§11-14B-5. Scope of agreement.
An international fuel tax agreement may provide for:
(a) Determining the base state jurisdiction of motor carriers;
(b) Making and retaining of records by motor carriers;
(c) Auditing the books and records of motor carriers and auditing procedures;
(d) Exchanging information for purposes of motor fuel use tax administration and collection;
(e) Determining persons eligible for a motor carrier tax license or registration;
(f) Defining qualified motor vehicles carriers;
(g) Determining if or when bonding is required;
(h) Specify reporting requirements and periods;
(i) Specifying uniform penalty and interest rates for late reporting and payment of motor fuel
use taxes;
(j) Determining methods for collecting and forwarding of motor fuel use taxes and penalties
to another jurisdiction; and
(k) Any other provision which the parties to the agreement believe will facilitate administration
of the agreement and collection of motor fuel use taxes from interstate motor carriers.
§11-14B-6. Effect of international fuel tax agreement on the administration or application of
motor fuel use taxes imposed by this state.
(a) The reporting requirements provided in the international fuel tax agreement shall take
precedence over the reporting requirements provided in article fourteen-a of this chapter.
(b) Where the international fuel tax agreement and the provisions of article fourteen-a of this
chapter and any amendments thereto subsequently made address the same matters, the provisions of
the international fuel tax agreement shall take precedence.
(a) Even though the state of West Virginia is a member of the international fuel tax agreement,
the state of West Virginia retains substantive authority to determine when the motor fuel use taxes
imposed by this state apply, the applicable rate of tax, the applicable interest rate, and any other
substantive tax issues related to the administration or application of those taxes.
__(b) The provisions of article fourteen-a of this chapter shall apply to every licensee that is
subject to the provisions of this article: Provided, That, (c) The amount of international fuel tax
agreement taxes reported as due and owing by a motor carrier based in this state shall for purposes of
articles nine and ten of this chapter be treated as taxes due and owing to the state of West Virginia:
and,
__(d) Interstate motor fuel users (c) Every motor carrier that is not a licensee, every motor carrier
based in another state which is not a member of the international fuel tax agreement and every West
Virginia intrastate motor carrier shall continue to be subject to the provisions of article fourteen-a of
this chapter, and any subsequent amendments thereto.
§11-14B-10. Audits.
(a) The international fuel tax agreement may provide for provides that each state base
jurisdiction to audit the records of motor carriers based in that state jurisdiction to determine if the
motor fuel taxes due each state all other base jurisdictions are properly reported and paid. When a base
state jurisdiction performs a motor fuel use tax audit on an interstate motor carrier based in that state
jurisdiction, it shall forward the findings of such the audit to each state base jurisdiction in which the
interstate motor carrier has taxable use of motor fuels.
(b) The tax commissioner is authorized to participate in auditing motor carriers in other base
jurisdictions to determine if the motor fuel taxes due this state are properly reported and paid:
Provided, That any other base jurisdiction may participate with the tax commissioner in auditing motor
carriers based in this state to determine if motor fuel taxes due that base jurisdiction are properly
reported and paid.
__(b) (c) No international fuel tax agreement entered into under this article may preclude the tax
commissioner from auditing the records of any person covered by the provisions of this article.
§11-14B-14. General procedure and administration.
(a) All of the provisions of the 'West Virginia Tax Procedure and Administration Act' set forth
in article ten of this chapter, including amendments thereto, apply to motor fuel taxes collected under
an international fuel tax agreement.
(b) In the event of any inconsistency between the provisions of article ten of this chapter and
the terms of the international fuel tax agreement, the terms of the international fuel tax agreement shall
said article ten control."
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. 665), 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: Campbell 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. 4567) 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. 4605, Clarifying certain provisions of the West Virginia Code as they
relate to domestic violence offenses and related protective orders that are issued by various courts.
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 after the enacting clause and inserting in lieu thereof
the following:
"That §48-5-509 and §48-5-608 of the code of West Virginia, 1931, as amended, be amended
and reenacted; that §48-27-401, §48-27-902, §48-27-903, §48-27-1001 and §48-27-1102 of said code
be amended and reenacted; that §61-2-9 and §61-2-28 of said code be amended and reenacted; and that
§61-7-4 and §61-7-7 of said code be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 5. DIVORCE.
PART 5. TEMPORARY RELIEF DURING PENDENCY OF ACTION FOR DIVORCE.
§48-5-509. Enjoining abuse, emergency protective order.
(a) The court may enjoin the offending party from molesting or interfering with the other, or
otherwise imposing any restraint on the personal liberty of the other, or interfering with the custodial
or visitation rights of the other. This order may enjoin the offending party from:
(1) Entering the school, business or place of employment of the other for the purpose of
molesting or harassing the other;
(2) Contacting the other, in person or by telephone, for the purpose of harassment or threats;
or
(3) Harassing or verbally abusing the other in a public place.
(b) Any order entered by the court to protect a party from abuse may grant any other relief that
may be appropriate for inclusion under the provisions of article twenty-seven of this chapter authorized
by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established
the grounds for that relief as required by the provisions of said article.
(c) The court, in its discretion, may enter a protective order, as provided in article twenty-seven
of this chapter, as part of the final relief granted in a divorce action, either as a part of an order for
temporary relief or as part of a separate order. Notwithstanding the provisions of section five hundred
five of said article, a protective order entered pursuant to the provisions of this subsection shall remain
in effect until a final order is entered in the divorce, unless otherwise ordered by the judge.
PART 6. JUDGMENT ORDERING DIVORCE.
§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court shall enjoin the offending party from
molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of
the other or interfering with the custodial or visitation rights of the other. The order may permanently
enjoin the offending party from entering the school, business or place of employment of the other for
the purpose of molesting or harassing the other; or from contacting the other, in person or by
telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in
a public place.
(b) Any order entered by the court to protect a party from abuse may grant relief pursuant to
the provisions of article twenty-seven of this chapter any other relief authorized to be awarded by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established the
grounds for that relief as required by the provisions of said article.
(c) The court, in its discretion, may enter a protective order, as provided by the provisions of
article twenty-seven of this chapter, as part of the final relief in a divorce action, either as a part of a
order for final relief or in a separate order.
A protective order entered pursuant to the provisions of
this subsection shall remain in effect for the period of time ordered by the court not to exceed one
hundred eighty days: Provided, That if the court determines that a violation of a domestic violence
protective order entered during or extended by the divorce action has occurred, it may extend the
protective order for whatever period the court deems necessary to protect the safety of the petitioner
and others threatened or at risk.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
PART 4. COORDINATION WITH PENDING COURT ACTIONS.
§48-27-401. Interaction between domestic proceedings.
(a) During the pendency of a divorce action, a person may file for and be granted relief
provided by this article until an order is entered in the divorce action pursuant to part 5-501, et seq.,
(b) If a person who has been granted relief under this article should subsequently become a
party to an action for divorce, separate maintenance or annulment, such person shall remain entitled
to the relief provided under this article including the right to file for and obtain any further relief, so
long as no temporary order has been entered in the action for divorce, annulment and separate
maintenance, pursuant to part 5-501, et seq.,
(c) Except as provided in section 5-509 of this chapter and section 27-402 of this article for a
petition and a temporary emergency protective order, no person who is a party to a pending action for
divorce, separate maintenance or annulment in which an order has been entered pursuant to part 5-501, et seq., of this chapter, shall be entitled to file for or obtain relief against another party to that action
under this article until after the entry of a final order which grants or dismisses the action for divorce,
annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section 27-505, any order issued pursuant to this
article where a subsequent when an action is filed seeking a divorce, an annulment or separate
maintenance, the allocation of custodial responsibility or a habeas corpus action to establish custody,
the establishment of paternity, the establishment or enforcement of child support, or other relief under
the provisions of this chapter is filed or is reopened by petition, motion or otherwise, then any order
issued pursuant to this article which is in effect on the day the action is filed or reopened shall remain
in full force and effect by operation of this statute until: (1) a A temporary or final order is entered
pursuant to the provisions of part 5-501, et seq. or part 6-601 et seq. of this chapter; or (2) an order is
entered modifying such order issued pursuant to this article; or (3) the entry of a final order is entered
granting or dismissing the action.
PART 9. SANCTIONS.
§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children, or both, or is physically present
at any location in knowing and willful violation of the terms of an emergency or final protective order
under the provisions of this article or section sections 5-509 or 5-608 of this chapter granting the relief
pursuant to the provisions of this article, any person authorized to file a petition pursuant to the
provisions of section 27-305 or the legal guardian or guardian ad litem may file a petition for civil
contempt as set forth in section 27-901.
(b) When any such violation of a valid order has occurred, the petitioner may file a criminal
complaint. If the court finds probable cause upon the complaint, the court shall issue a warrant for
arrest of the person charged.
§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 section sections 5-509 or 5-608 of this chapter
granting the relief pursuant to the provisions of this article; or (2) a condition of bail, probation or
parole which has the express intent or effect of protecting the personal safety of a particular person or
persons 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 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.
PART 10. ARRESTS.
§48-27-1001. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent abuse the petitioner or minor
children or the respondent's physical presence at any location in knowing and willful violation of the
terms of an emergency or final protective order issued under the provisions of this article or section
5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, he or she
shall immediately arrest the respondent.
(b) When a family or household member is alleged to have committed a violation of the
provisions of section 27-903, a law-enforcement officer may arrest the perpetrator for said offense
where:
(1) The law-enforcement officer has observed credible corroborative evidence, as defined in
subsection 27-1002(b), that the offense has occurred; and
(2) The law-enforcement officer has received, from the victim or a witness, a verbal or written
allegation of the facts constituting a violation of section 27-903; or
(3) The law-enforcement officer has observed credible evidence that the accused committed
the offense.
(c) Any person who observes a violation of a protective order as described in this section, or
the victim of such abuse or unlawful presence, may call a local law-enforcement agency, which shall
verify the existence of a current order, and shall direct a law-enforcement officer to promptly
investigate the alleged violation.
(d) Where there is an arrest, the officer shall take the arrested person before a circuit court or
a magistrate and, upon a finding of probable cause to believe a violation of an order as set forth in this
section has occurred, the court or magistrate shall set a time and place for a hearing in accordance with
the West Virginia rules of criminal procedure.
PART 11. MISCELLANEOUS PROVISIONS.
§48-27-1102. Authorization for the promulgation of legislative rules.
The governor's committee on crime, delinquency and correction shall develop and promulgate
rules for state, county and municipal law-enforcement officers, and law-enforcement agencies and
communications and emergency operations centers which dispatch law-enforcement officers with
regard to domestic violence: Provided, That such rules and procedures must be consistent with the
priority criteria prescribed by generally applicable department procedures. The notice of the public
hearing on the rules shall be published before the first day of July, one thousand nine hundred ninety-
one. Prior to the publication of the proposed rules, the governor's committee on crime, delinquency
and correction shall convene a meeting or meetings of an advisory committee to assist in the
development of the rules. The advisory committee shall be composed of persons invited by the
committee to represent state, county and local law-enforcement agencies and officers, to represent
magistrates and court officials, to represent victims of domestic violence, to represent shelters
receiving funding pursuant to article 26-101, et seq., of this chapter, to represent communications and
emergency operations centers that dispatch law enforcement officers and to represent other persons
or organizations who, in the discretion of the committee, have an interest in the rules. The rules and
the revisions thereof as provided in this section shall be promulgated as legislative rules in accordance
with chapter twenty-nine-a of this code. Following the promulgation of said rules, the The committee
shall meet at least annually to review the rules and to propose revisions as a result of changes in law
or policy.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9. Malicious or unlawful assault; assault; battery; penalties.
(a) If any person maliciously shoot, stab, cut or wound any person, or by any means cause him
bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise
provided, be guilty of a felony and, upon conviction, shall be punished by confinement in the
penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not
maliciously, with the intent aforesaid, the offender shall be guilty of a felony and, upon conviction,
shall, in the discretion of the court, either be confined in the penitentiary not less than one nor more
than five years, or be confined in jail not exceeding twelve months and fined not exceeding five
hundred dollars.
(b) Assault. -- If any person unlawfully attempts to commit a violent injury to the person of
another or unlawfully commits an act which places another in reasonable apprehension of immediately
receiving a violent injury, he shall be guilty of a misdemeanor and, upon conviction, shall be confined
in jail for not more than six months, or fined not more than one hundred dollars, or both such fine and
imprisonment.
(c) Battery. -- If any person unlawfully and intentionally makes physical contact of an insulting
or provoking nature with the person of another or unlawfully and intentionally causes physical harm
to another person, he shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail
for not more than twelve months, or fined not more than five hundred dollars, or both such fine and
imprisonment.
(d) Any person convicted of a violation of subsection (b) or (c) of this section who has, in the
ten years prior to said conviction, been convicted of a violation of either subsection (b) or (c) of this
section where the victim was a current or former spouse, current or former sexual or intimate partner,
a person with whom the defendant has a child in common, a person with whom the defendant cohabits
or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or convicted of a violation of section twenty-eight of this article
or has served a period of pretrial diversion for an alleged violation of subsection (b) or (c) of this
section or section twenty-eight of this article when the victim has such present or past relationship shall
upon conviction be subject to the penalties set forth in said section for a second violation or offense.
§61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact
of an insulting or provoking nature with his or her family or household member current or former
spouse, current or former sexual or intimate partner, a person with whom the defendant has a child in
common, a person with whom the defendant cohabits or has cohabited, a parent or a guardian, the
defendant's child or ward or a member of the defendant's household at the time of the offense or
unlawfully and intentionally causes physical harm to his or her family or household member such
person, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or
regional jail for not more than twelve months, or fined not more than five hundred dollars, or both.
(b) Domestic assault. -- Any person who unlawfully attempts to commit a violent injury against
his or her family or household member a current or former spouse, current or former sexual or intimate
partner, a person with whom the defendant has a child in common, a person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the
defendant's household at the time of the offense or unlawfully commits an act which places his or her
family or household member such person in reasonable apprehension of immediately receiving a
violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county
or regional jail for not more than six months, or fined not more than one hundred dollars, or both.
(c) Second offense. -- Any person who has previously been convicted of a violation of
subsection (a) or (b) of this section, a violation of the provisions of subsection (b) or (c), section nine of this article where the victim was his or her family or household member current or former spouse,
current or former sexual or intimate partner, person with whom the defendant has a child in common,
person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child
or ward or a member of the defendant's household at the time of the offense or who has previously
been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter
for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article
where the victim was his or her family or household member a current or former spouse, current or
former sexual or intimate partner, person with whom the defendant has a child in common, person with
whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or
a member of the defendant's household at the time of the offense shall be guilty of a misdemeanor. A
person convicted of a violation of subsection (a) of this section after having been previously convicted
of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of
subsection (b) or (c), section nine of this article where the victim was his or her family or household
member current or former spouse, current or former sexual or intimate partner, person with whom the
defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent
or guardian, the defendant's child or ward or a member of the defendant's household at the time of the
offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-
two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection
(b) or (c), section nine of this article where the victim was his or her family or household member a
current or former spouse, current or former sexual or intimate partner, person with whom the defendant
has a child in common, person with whom the defendant cohabits or has cohabited, a parent or
guardian, the defendant's child or ward or a member of the defendant's household at the time of the
offense shall be confined in a county or regional jail for not less than sixty days nor more than one year, or fined not more than one thousand dollars, or both. A person convicted of a violation of
subsection (b) of this section after having been previously convicted of a violation of subsection (a)
or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine
of this article where the victim was his or her family or household member a current or former spouse,
current or former sexual or intimate partner, person with whom the defendant has a child in common,
person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child
or ward or a member of the defendant's household at the time of the offense or having previously been
granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for
a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article
where the victim was his or her family or household member a current or former spouse, current or
former sexual or intimate partner, person with whom the defendant has a child in common, person with
whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or
a member of the defendant's household at the time of the offense shall be confined in a county or
regional jail for not less than thirty days nor more than six months, or fined not more than five hundred
dollars, or both.
(d) Third offense. -- Any person who has been convicted of a third or subsequent violation of
the provisions of subsection (a) or (b) of this section, a third or subsequent violation of the provisions
of section nine of this article where the victim is a family or household member was a current or
former spouse, current or former sexual or intimate partner, person with whom the defendant has a
child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the
defendant's child or ward or a member of the defendant's household at the time of the offense or who
has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven
of this chapter for a violation of subsection (a) or (b) of this section or a violation of the provisions of section nine of this article where in which the victim is a family or household member was a current
or former spouse, current or former sexual or intimate partner, person with whom the defendant has
a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian,
the defendant's child or ward or a member of the defendant's household at the time of the offense, or
any combination of convictions or diversions for these offenses, is guilty of a felony if the offense
occurs within ten years of a prior conviction of any of these offenses and, upon conviction thereof,
shall be confined in a state correctional facility not less than one nor more than five years or fined not
more than two thousand five hundred dollars, or both.
(e) A person charged with a violation of this section may not also be charged with a violation
of subsection (b) or (c), section nine of this article for the same act.
(f) No law-enforcement officer may be subject to any civil or criminal action for false arrest
or unlawful detention for effecting an arrest pursuant to this section or pursuant to 48-27-1002 of this
code.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-4. License to carry deadly weapons; how obtained.
(a) Except as provided in subsection (h) of this section, any person desiring to obtain a state
license to carry a concealed deadly weapon shall apply to the sheriff of his or her county for such
license, and shall pay to the sheriff, at the time of application, a fee of seventy-five dollars, of which
fifteen dollars of that amount shall be deposited in the courthouse facilities improvement fund created
by section six, article twenty-six, chapter twenty-nine of this code. Concealed weapons permits may
only be issued for pistols or revolvers. Each applicant shall file with the sheriff, a complete
application, as prepared by the superintendent of the West Virginia state police, in writing, duly
verified, which sets forth only the following licensing requirements:
(1) The applicant's full name, date of birth, social security number and a description of the
applicant's physical features;
(2) That, on the date the application is made, the applicant is a bona fide resident of this state
and of the county in which the application is made and has a valid driver's license or other state-issued
photo identification showing such residence;
(3) That the applicant is twenty-one years of age or older: Provided, That any individual who
is less than twenty-one years of age and possesses a properly issued concealed weapons license as of
the effective date of this article shall be licensed to maintain his or her concealed weapons license
notwithstanding the provisions of this section requiring new applicants to be at least twenty-one years
of age: Provided, however, That upon a showing of any applicant who is eighteen years of age or older
that he or she is required to carry a concealed weapon as a condition for employment, and presents
satisfactory proof to the sheriff thereof, then he or she shall be issued a license upon meeting all other
conditions of this section. Upon discontinuance of employment that requires the concealed weapons
license, if the individual issued the license is not yet twenty-one years of age, then the individual issued
the license is no longer eligible and must return his or her license to the issuing sheriff;
(4) That the applicant is not addicted to alcohol, a controlled substance or a drug and is not an
unlawful user thereof;
(5) That the applicant has not been convicted of a felony or a misdemeanor offense of domestic
violence in violation of the provisions of subsection (b) or (c), section nine, article two of this chapter,
section twenty-eight of said article two in which the victim is a current or former spouse, current or
former sexual or intimate partner, person with whom the defendant has a child in common, person with
whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or
a member of the defendant's household at the time of the offense or an offense with similar essential elements in a jurisdiction other than this state or of an act of violence involving the misuse of a deadly
weapon;
(6) That the applicant has no criminal charges pending and is not under indictment for a felony
offense or is not currently serving a sentence of confinement, parole, probation or other court-ordered
supervision because of a charge of domestic violence as provided for in section twenty-eight, article
two of this chapter imposed by a court of any jurisdiction or is the subject of a restraining order as a
result of a domestic violence act as defined in that section, or because of in response to a verified
petition of domestic violence as provided for in article two-a, chapter forty-eight of this code or is
subject to a protective order as provided for in that article an emergency or temporary domestic
violence protective order or is the subject of a final domestic violence protective order entered by a
court of any jurisdiction;
(7) That the applicant is physically and mentally competent to carry such weapon;
(8) That the applicant has not been adjudicated to be mentally incompetent;
(9) That the applicant has qualified under the minimum requirements set forth in subsection
(d) of this section for handling and firing such weapon: Provided, That this requirement shall be
waived in the case of a renewal applicant who has previously qualified;
(10) That the applicant authorizes the sheriff of the county, or his or her designee, to conduct
an investigation relative to the information contained in the application.
(b) The sheriff shall conduct an investigation which shall verify that the information required
in subdivisions (1), (2), (3), (5), (6), (8) and (9), subsection (a) of this section are true and correct.
(c) Sixty dollars of the application fee and any fees for replacement of lost or stolen licenses
received by the sheriff shall be deposited by the sheriff into a concealed weapons license
administration fund. Such fund shall be administered by the sheriff and shall take the form of an interest bearing account with any interest earned to be compounded to the fund. Any funds deposited
in this concealed weapon license administration fund are to be expended by the sheriff to pay for the
costs associated with issuing concealed weapons licenses. Any surplus in the fund on hand at the end
of each fiscal year may be expended for other law-enforcement purposes or operating needs of the
sheriff's office, as the sheriff may consider appropriate.
(d) All persons applying for a license must complete a training course in handling and firing
a handgun. The successful completion of any of the following courses fulfills this training
requirement:
(1) Any official national rifle association handgun safety or training course;
(2) Any handgun safety or training course or class available to the general public offered by
an official law-enforcement organization, community college, junior college, college or private or
public institution or organization or handgun training school utilizing instructors duly certified by such
institution;
(3) Any handgun training or safety course or class conducted by a handgun instructor certified
as such by the state or by the national rifle association;
(4) Any handgun training or safety course or class conducted by any branch of the United States
military, reserve or national guard.
A photocopy of a certificate of completion of any of the courses or classes or an affidavit from
the instructor, school, club, organization or group that conducted or taught said course or class attesting
to the successful completion of the course or class by the applicant or a copy of any document which
shows successful completion of the course or class shall constitute evidence of qualification under this
section.
(e) All concealed weapons license applications must be notarized by a notary public duly
licensed under article four, chapter twenty-nine of this code. Falsification of any portion of the
application constitutes false swearing and is punishable under the provisions of section two, article
five, chapter sixty-one of this code. (f) If the information in the application is found to be true and
correct, the sheriff shall issue a license. The sheriff shall issue or deny the license within forty-five
days after the application is filed if all required background checks authorized by this section are
completed.
(g) Before any approved license shall be issued or become effective, the applicant shall pay to
the sheriff a fee in the amount of fifteen dollars which the sheriff shall forward to the superintendent
of the West Virginia state police within thirty days of receipt. Any such license shall be valid for five
years throughout the state, unless sooner revoked.
(h) All persons holding a current and valid concealed weapons license as of the sixteenth day
of December, one thousand nine hundred ninety-five, shall continue to hold a valid concealed weapons
license until his or her license expires or is revoked as provided for in this article: Provided, That all
reapplication fees shall be waived for applications received by the first day of January, one thousand
nine hundred ninety-seven, for any person holding a current and valid concealed weapons license as
of the sixteenth day of December, one thousand nine hundred ninety-five, which contains use
restrictions placed upon the license as a condition of issuance by the issuing circuit court. Any licenses
reissued pursuant to this subsection will be issued for the time period of the original license.
(i) Each license shall contain the full name, social security number and address of the licensee
and a space upon which the signature of the licensee shall be signed with pen and ink. The issuing
sheriff shall sign and attach his or her seal to all license cards. The sheriff shall provide to each new licensee a duplicate license card, in size similar to other state identification cards and licenses, suitable
for carrying in a wallet, and such license card is deemed a license for the purposes of this section.
(j) The superintendent of the West Virginia state police shall prepare uniform applications for
licenses and license cards showing that such license has been granted and shall do any other act
required to be done to protect the state and see to the enforcement of this section.
(k) In the event an application is denied, the specific reasons for the denial shall be stated by
the sheriff denying the application. Any person denied a license may file, in the circuit court of the
county in which the application was made, a petition seeking review of the denial. Such petition shall
be filed within thirty days of the denial. The court shall then determine whether the applicant is
entitled to the issuance of a license under the criteria set forth in this section. The applicant may be
represented by counsel, but in no case shall the court be required to appoint counsel for an applicant.
The final order of the court shall include the court's findings of fact and conclusions of law. If the
final order upholds the denial, the applicant may file an appeal in accordance with the rules of
appellate procedure of the supreme court of appeals.
(l) In the event a license is lost or destroyed, the person to whom the license was issued may
obtain a duplicate or substitute license for a fee of five dollars by filing a notarized statement with the
sheriff indicating that the license has been lost or destroyed.
(m) The sheriff shall, immediately after the license is granted as aforesaid, furnish the
superintendent of the West Virginia state police a certified copy of the approved application. It shall
be the duty of the sheriff to furnish to the superintendent of the West Virginia state police at any time
so requested a certified list of all such licenses issued in the county. The superintendent of the West
Virginia state police shall maintain a registry of all persons who have been issued concealed weapons
licenses.
(n) All licensees must carry with them a state-issued photo identification card with the
concealed weapons license whenever the licensee is carrying a concealed weapon. Any licensee who
fails to have in his or her possession a state-issued photo identification card and a current concealed
weapons license while carrying a concealed weapon shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than fifty or more than two hundred dollars for each offense.
(o) The sheriff shall deny any application or revoke any existing license upon determination
that any of the licensing application requirements established in this section have been violated by the
licensee.
(p) No person who is engaged in the receipt, review or in the issuance or revocation of a
concealed weapon license shall incur any civil liability as the result of the lawful performance of his
or her duties under this article.
(q) Notwithstanding the provisions of subsection (a) of this section, with respect to application
by a former law-enforcement officer honorably retired from agencies governed by article fourteen,
chapter seven of this code; article fourteen, chapter eight of this code; article two, chapter fifteen of
this code; and article seven, chapter twenty of this code, an honorably retired officer is exempt from
payment of fees and costs as otherwise required by this section, and the application of the honorably
retired officer shall be granted without proof or inquiry by the sheriff as to those requirements set forth
in subdivision (9), subsection (a) of this section, if the officer meets the remainder of the requirements
of this section and has the approval of the appropriate chief law-enforcement officer.
§61-7-7. Persons prohibited from possessing firearms; classifications; reinstatement of rights
to possess; offenses; penalties.
(a) Except as provided for in this section, no person shall possess a firearm as such is defined
in section two of this article who:
(1) Has been convicted in any court of a crime punishable by imprisonment for a term
exceeding one year;
(2) Is addicted to alcohol;
(3) Is an unlawful user of or addicted to any controlled substance;
(4) Has been adjudicated as a mental defective or who has been involuntarily committed to a
mental institution;
(5) Being an alien is illegally or unlawfully in the United States;
(6) Has been discharged from the armed forces under dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such person received actual notice and at which such
person had an opportunity to participate;
(B) Restrains such person from harassing, stalking or threatening an intimate partner of such
person or child of such intimate partner or person, or engaging in other conduct that would place an
intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) Includes a finding that such person represents a credible threat to the physical safety of
such intimate partner or child; or
(ii) By its terms explicitly prohibits the use, attempted use or threatened use of physical force
against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(8) Has been convicted of a violation of section twenty-eight, article two of this chapter or has
been convicted of a violation of the provisions of subsection (b) or (c), section nine of said article,
where the victim was a current or former spouse, current or former sexual or intimate partner, person
with whom the defendant has a child in common, person with whom the defendant cohabits or has
cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or has been convicted in any court of any jurisdiction of a
comparable misdemeanor crime of domestic violence.
Any person who violates the provisions of this subsection shall be guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand
dollars or confined in the county jail for not less than ninety days nor more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this section, any person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence
against the person of another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other jurisdiction of a felony controlled
substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or
a Schedule III controlled substance as such are defined in sections two hundred four, two hundred five
and two hundred six, article two, chapter sixty-a of this code and who possesses a firearm as such is
defined in section two of this article shall be guilty of a felony and, upon conviction thereof, shall be
confined in a state correctional facility for not more than five years or fined not more than five
thousand dollars, or both. The provisions of subsection (c) of this section shall not apply to persons
convicted of offenses referred to in this subsection or to persons convicted of a violation of this
subsection.
(c) Any person prohibited from possessing a firearm by the provisions of subsection (a) of this
section may petition the circuit court of the county in which he or she resides to regain the ability to
possess a firearm and if the court finds by clear and convincing evidence that the person is competent
and capable of exercising the responsibility concomitant with the possession of a firearm, the court
may enter an order allowing the person to possess a firearm if such possession would not violate any
federal law."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4605 - "A Bill to amend and reenact §48-5-509 and §48-5-608 of the
code of West Virginia, 1931, as amended; to amend and reenact §48-27-401, §48-27-902, §48-27-903,
§48-27-1001 and §48-27-1102 of said code; to amend and reenact §61-2-9 and §61-2-28 of said code;
and to amend and reenact §61-7-4 and §61-7-7 of said code, all relating to domestic violence
generally; clarifying the relationship between temporary and final domestic violence protective orders
and the provisions of protective measures reflected in temporary or final divorce orders entered in
divorce proceedings or other types of domestic proceedings; making the violation of emergency or
final protective orders issued by injunctive relief or protective order in a divorce proceeding a
misdemeanor; clarifying provisions related to the arrest and criminal enforcement of protective order
violations; clarifying the penalties which may be imposed for the first and subsequent violation of such
protective orders; authorizing the governor's committee on crime, delinquency and correction to
develop and promulgate rules regarding the procedures for the dispatch of matters involving domestic
violence; relating to prohibitions against the issuance of licenses and permits to carry concealed
weapons and the possession of firearms as they pertain to persons who have been convicted of
domestic violence offenses and/or are subject to domestic violence protection orders; and clarifying
who is proscribed from possessing a firearm due to domestic violence convictions."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
with amendment, as follows:
On page one, line one, by striking out everything after the enacting clause and inserting in lieu
thereof the following:
"That §48-5-509 and §48-5-608 of the code of West Virginia, 1931, as amended, be amended
and reenacted; that §48-27-401, §48-27-902, §48-27-903, §48-27-1001 and §48-27-1102 of said code
be amended and reenacted; that §61-2-9 and §61-2-28 of said code be amended and reenacted; and that
§61-7-4 and §61-7-7 of said code be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 5. DIVORCE.
PART 5. TEMPORARY RELIEF DURING PENDENCY OF ACTION FOR DIVORCE.
§48-5-509. Enjoining abuse, emergency protective order.
(a) The court may enjoin the offending party from molesting or interfering with the other, or
otherwise imposing any restraint on the personal liberty of the other, or interfering with the custodial
or visitation rights of the other. This order may enjoin the offending party from:
(1) Entering the school, business or place of employment of the other for the purpose of
molesting or harassing the other;
(2) Contacting the other, in person or by telephone, for the purpose of harassment or threats;
or
(3) Harassing or verbally abusing the other in a public place.
(b) Any order entered by the court to protect a party from abuse may grant any other relief that
may be appropriate for inclusion under the provisions of article twenty-seven of this chapter authorized
by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established
the grounds for that relief as required by the provisions of said article.
(c) The court, in its discretion, may enter a protective order, as provided in article twenty-seven
of this chapter, as part of the final relief granted in a divorce action, either as a part of an order for
temporary relief or as part of a separate order. Notwithstanding the provisions of section five hundred five of said article, a protective order entered pursuant to the provisions of this subsection shall remain
in effect until a final order is entered in the divorce, unless otherwise ordered by the judge.
PART 6. JUDGMENT ORDERING DIVORCE.
§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court shall enjoin the offending party from
molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of
the other or interfering with the custodial or visitation rights of the other. The order may permanently
enjoin the offending party from entering the school, business or place of employment of the other for
the purpose of molesting or harassing the other; or from contacting the other, in person or by
telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in
a public place.
(b) Any order entered by the court to protect a party from abuse may grant relief pursuant to
the provisions of article twenty-seven of this chapter any other relief authorized to be awarded by the
provisions of article twenty-seven of this chapter, if the party seeking the relief has established the
grounds for that relief as required by the provisions of said article.
(c) The court, in its discretion, may enter a protective order, as provided in by the provisions
of article twenty-seven of this chapter, as part of the final relief in a divorce action, either as a part of
a order for final relief or in a separate order.
A protective order entered pursuant to the provisions of
this subsection shall remain in effect for the period of time ordered by the court not to exceed one
hundred eighty days: Provided, That if the court determines that a violation of a domestic violence
protective order entered during or extended by the divorce action has occurred, it may extend the
protective order for whatever period the court deems necessary to protect the safety of the petitioner
and others threatened or at risk.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
PART 4. COORDINATION WITH PENDING COURT ACTIONS.
§48-27-401. Interaction between domestic proceedings.
(a) During the pendency of a divorce action, a person may file for and be granted relief
provided by this article until an order is entered in the divorce action pursuant to part 5-501, et seq.,
(b) If a person who has been granted relief under this article should subsequently become a
party to an action for divorce, separate maintenance or annulment, such person shall remain entitled
to the relief provided under this article including the right to file for and obtain any further relief, so
long as no temporary order has been entered in the action for divorce, annulment and separate
maintenance, pursuant to part 5-501, et seq.,
(c) Except as provided in section 5-509 of this chapter and section 27-402 of this article for a
petition and a temporary emergency protective order, no person who is a party to a pending action for
divorce, separate maintenance or annulment in which an order has been entered pursuant to part 5-501,
et seq., of this chapter, shall be entitled to file for or obtain relief against another party to that action
under this article until after the entry of a final order which grants or dismisses the action for divorce,
annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section 27-505, any order issued pursuant to this
article where a subsequent when an action is filed seeking a divorce, an annulment or separate
maintenance, the allocation of custodial responsibility or a habeas corpus action to establish custody,
the establishment of paternity, the establishment or enforcement of child support, or other relief under
the provisions of this chapter is filed or is reopened by petition, motion or otherwise, then any order
issued pursuant to this article which is in effect on the day the action is filed or reopened shall remain
in full force and effect by operation of this statute until: (1) a A temporary or final order is entered pursuant to the provisions of part 5-501, et seq. or part 6-601 et seq. of this chapter; or (2) an order is
entered modifying such order issued pursuant to this article; or (3) the entry of a final order is entered
granting or dismissing the action.
PART 9. SANCTIONS.
§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children, or both, or is physically present
at any location in knowing and willful violation of the terms of an emergency or final protective order
under the provisions of this article or section sections 5-509 or 5-608 of this chapter granting the relief
pursuant to the provisions of this article, any person authorized to file a petition pursuant to the
provisions of section 27-305 or the legal guardian or guardian ad litem may file a petition for civil
contempt as set forth in section 27-901.
(b) When any such violation of a valid order has occurred, the petitioner may file a criminal
complaint. If the court finds probable cause upon the complaint, the court shall issue a warrant for
arrest of the person charged.
§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 section sections 5-509 or 5-608 of this chapter
granting the relief pursuant to the provisions of this article; or (2) a condition of bail, probation or
parole which has the express intent or effect of protecting the personal safety of a particular person or
persons 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 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.
PART 10. ARRESTS.
§48-27-1001. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent abuse the petitioner or minor
children or the respondent's physical presence at any location in knowing and willful violation of the
terms of an emergency or final protective order issued under the provisions of this article or section
5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, he or she
shall immediately arrest the respondent.
(b) When a family or household member is alleged to have committed a violation of the
provisions of section 27-903, a law-enforcement officer may arrest the perpetrator for said offense
where:
(1) The law-enforcement officer has observed credible corroborative evidence, as defined in
subsection 27-1002(b), that the offense has occurred; and
(2) The law-enforcement officer has received, from the victim or a witness, a verbal or written
allegation of the facts constituting a violation of section 27-903; or
(3) The law-enforcement officer has observed credible evidence that the accused committed
the offense.
(c) Any person who observes a violation of a protective order as described in this section, or
the victim of such abuse or unlawful presence, may call a local law-enforcement agency, which shall
verify the existence of a current order, and shall direct a law-enforcement officer to promptly
investigate the alleged violation.
(d) Where there is an arrest, the officer shall take the arrested person before a circuit court or
a magistrate and, upon a finding of probable cause to believe a violation of an order as set forth in this
section has occurred, the court or magistrate shall set a time and place for a hearing in accordance with
the West Virginia rules of criminal procedure.
PART 11. MISCELLANEOUS PROVISIONS.
§48-27-1102. Authorization for the promulgation of legislative rules.
The governor's committee on crime, delinquency and correction shall develop and promulgate
rules for state, county and municipal law-enforcement officers, and law-enforcement agencies and
communications and emergency operations centers which dispatch law-enforcement officers with
regard to domestic violence: Provided, That such rules and procedures must be consistent with the
priority criteria prescribed by generally applicable department procedures. The notice of the public
hearing on the rules shall be published before the first day of July, one thousand nine hundred ninety-
one. Prior to the publication of the proposed rules, the governor's committee on crime, delinquency
and correction shall convene a meeting or meetings of an advisory committee to assist in the
development of the rules. The advisory committee shall be composed of persons invited by the committee to represent state, county and local law-enforcement agencies and officers, to represent
magistrates and court officials, to represent victims of domestic violence, to represent shelters
receiving funding pursuant to article 26-101, et seq., of this chapter, to represent communications and
emergency operations centers that dispatch law enforcement officers and to represent other persons
or organizations who, in the discretion of the committee, have an interest in the rules. The rules and
the revisions thereof as provided in this section shall be promulgated as legislative rules in accordance
with chapter twenty-nine-a of this code. Following the promulgation of said rules, the The committee
shall meet at least annually to review the rules and to propose revisions as a result of changes in law
or policy.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9. Malicious or unlawful assault; assault; battery; penalties.
(a) If any person maliciously shoot, stab, cut or wound any person, or by any means cause him
bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise
provided, be guilty of a felony and, upon conviction, shall be punished by confinement in the
penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not
maliciously, with the intent aforesaid, the offender shall be guilty of a felony and, upon conviction,
shall, in the discretion of the court, either be confined in the penitentiary not less than one nor more
than five years, or be confined in jail not exceeding twelve months and fined not exceeding five
hundred dollars.
(b) Assault. -- If any person unlawfully attempts to commit a violent injury to the person of
another or unlawfully commits an act which places another in reasonable apprehension of immediately
receiving a violent injury, he shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than six months, or fined not more than one hundred dollars, or both such fine and
imprisonment.
(c) Battery. -- If any person unlawfully and intentionally makes physical contact of an insulting
or provoking nature with the person of another or unlawfully and intentionally causes physical harm
to another person, he shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail
for not more than twelve months, or fined not more than five hundred dollars, or both such fine and
imprisonment.
(d) Any person convicted of a violation of subsection (b) or (c) of this section who has, in the
ten years prior to said conviction, been convicted of a violation of either subsection (b) or (c) of this
section where the victim was a current or former spouse, current or former sexual or intimate partner,
a person with whom the defendant has a child in common, a person with whom the defendant cohabits
or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's
household at the time of the offense or convicted of a violation of section twenty-eight of this article
or has served a period of pretrial diversion for an alleged violation of subsection (b) or (c) of this
section or section twenty-eight of this article when the victim has such present or past relationship shall
upon conviction be subject to the penalties set forth in section twenty-eight of this article for a second,
third or subsequent criminal act of domestic violence offense, as appropriate.
§61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact
of an insulting or provoking nature with his or her family or household member or unlawfully and
intentionally causes physical harm to his or her family or household member, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more
than twelve months, or fined not more than five hundred dollars, or both.
(b) Domestic assault. -- Any person who unlawfully attempts to commit a violent injury against
his or her family or household member or unlawfully commits an act which places his or her family
or household member in reasonable apprehension of immediately receiving a violent injury, is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not
more than six months, or fined not more than one hundred dollars, or both.
(c) Second offense. -- Domestic Assault or Domestic Battery Any person who has previously
been convicted of a violation of subsection (a) or (b) of this section, a violation of the provisions of
subsection (b) or (c), section nine of this article where the victim was his or her family or household
member, or who has previously been granted a period of pretrial diversion pursuant to section twenty-
two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection
(b) or (c), section nine of this article where the victim was his or her family or household member
A person convicted of a violation of subsection (a) of this section after having been previously
convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a
violation of subsection (b) or (c), section nine of this article where the victim was his or her family or
household member current or former spouse, current or former sexual or intimate partner, person with
whom the defendant has a child in common, person with whom the defendant cohabits or has
cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's
household at the time of the offense or who has previously been granted a period of pretrial diversion
pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of
this section, or a violation of subsection (b) or (c), section nine of this article where the victim was his
or her family or household member a current or former spouse, current or former sexual or intimate
partner, person with whom the defendant has a child in common, person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense shall guilty of a misdemeanor, and upon conviction
thereof, be confined in a county or regional jail for not less than sixty days nor more than one year, or
fined not more than one thousand dollars, or both.
A person convicted of a violation of subsection (b) of this section after having been previously
convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a
violation of subsection (b) or (c), section nine of this article where the victim was his or her family or
household member a current or former spouse, current or former sexual or intimate partner, person
with whom the defendant has a child in common, person with whom the defendant cohabits or has
cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's
household at the time of the offense or having previously been granted a period of pretrial diversion
pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of
this section or subsection (b) or (c), section nine of this article where the victim was his or her family
or household member a current or former spouse, current or former sexual or intimate partner, person
with whom the defendant has a child in common, person with whom the defendant cohabits or has
cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's
household at the time of the offense shall be confined in a county or regional jail for not less than thirty
days nor more than six months, or fined not more than five hundred dollars, or both.
(d) Third offense. -- Any person who has been convicted of a third or subsequent violation of
the provisions of subsection (a) or (b) of this section, a third or subsequent violation of the provisions
of section nine of this article where the victim is a family or household member was a current or
former spouse, current or former sexual or intimate partner, person with whom the defendant has a
child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the
defendant's child or ward or a member of the defendant's household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven
of this chapter for a violation of subsection (a) or (b) of this section or a violation of the provisions of
section nine of this article where in which the victim is a family or household member was a current
or former spouse, current or former sexual or intimate partner, person with whom the defendant has
a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian,
the defendant's child or ward or a member of the defendant's household at the time of the offense, or
any combination of convictions or diversions for these offenses, is guilty of a felony if the offense
occurs within ten years of a prior conviction of any of these offenses and, upon conviction thereof,
shall be confined in a state correctional facility not less than one nor more than five years or fined not
more than two thousand five hundred dollars, or both.
(e) As used in this section, 'family or household member' means 'family or household member'
as defined in 48-27-203 48-27-204 of this code.
(f) A person charged with a violation of this section may not also be charged with a violation
of subsection (b) or (c), section nine of this article for the same act.
(g) No law-enforcement officer may be subject to any civil or criminal action for false arrest
or unlawful detention for effecting an arrest pursuant to this section or pursuant to 48-27-1002 of this
code.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-4. License to carry deadly weapons; how obtained.
(a) Except as provided in subsection (h) of this section, any person desiring to obtain a state
license to carry a concealed deadly weapon shall apply to the sheriff of his or her county for such
license, and shall pay to the sheriff, at the time of application, a fee of seventy-five dollars, of which
fifteen dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code. Concealed weapons permits may
only be issued for pistols or revolvers. Each applicant shall file with the sheriff, a complete
application, as prepared by the superintendent of the West Virginia state police, in writing, duly
verified, which sets forth only the following licensing requirements:
(1) The applicant's full name, date of birth, social security number and a description of the
applicant's physical features;
(2) That, on the date the application is made, the applicant is a bona fide resident of this state
and of the county in which the application is made and has a valid driver's license or other state-issued
photo identification showing such residence;
(3) That the applicant is twenty-one years of age or older: Provided, That any individual who
is less than twenty-one years of age and possesses a properly issued concealed weapons license as of
the effective date of this article shall be licensed to maintain his or her concealed weapons license
notwithstanding the provisions of this section requiring new applicants to be at least twenty-one years
of age: Provided, however, That upon a showing of any applicant who is eighteen years of age or older
that he or she is required to carry a concealed weapon as a condition for employment, and presents
satisfactory proof to the sheriff thereof, then he or she shall be issued a license upon meeting all other
conditions of this section. Upon discontinuance of employment that requires the concealed weapons
license, if the individual issued the license is not yet twenty-one years of age, then the individual issued
the license is no longer eligible and must return his or her license to the issuing sheriff;
(4) That the applicant is not addicted to alcohol, a controlled substance or a drug and is not an
unlawful user thereof;
(5) That the applicant has not been convicted of a felony or of an act of violence involving the
misuse of a deadly weapon;
(6) That the applicant has not been convicted of a misdemeanor offense of assault or battery
either under the provisions of section twenty-eight, article two of this chapter or the provisions of
subsection (b) or (c), section nine, article two of this chapter in which the victim was a current or
former spouse, current or former sexual or intimate partner, person with whom the defendant has a
child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the
defendant's child or ward or a member of the defendant's household at the time of the offense; or a
misdemeanor offense with similar essential elements in a jurisdiction other than this state
__________(6) (7) That the applicant has no criminal charges pending and is not under indictment for a
felony offense or is not currently serving a sentence of confinement, parole, probation or other court-
ordered supervision because of a charge of domestic violence as provided for in section twenty-eight,
article two of this chapter imposed by a court of any jurisdiction or is the subject of a restraining order
as a result of a domestic violence act as defined in that section, or because of in response to a verified
petition of domestic violence as provided for in article two-a, chapter forty-eight of this code or is
subject to a protective order as provided for in that article an emergency or temporary domestic
violence protective order or is the subject of a final domestic violence protective order entered by a
court of any jurisdiction;
(7) (8) That the applicant is physically and mentally competent to carry such weapon;
(8) (9) That the applicant has not been adjudicated to be mentally incompetent;
(9) (10) That the applicant has qualified under the minimum requirements set forth in
subsection (d) of this section for handling and firing such weapon: Provided, That this requirement
shall be waived in the case of a renewal applicant who has previously qualified;
(10) (11) That the applicant authorizes the sheriff of the county, or his or her designee, to
conduct an investigation relative to the information contained in the application.
(b) The sheriff shall conduct an investigation which shall verify that the information required
in subdivisions (1), (2), (3), (5), (6), (8) and (9), subsection (a) of this section are true and correct.
(c) Sixty dollars of the application fee and any fees for replacement of lost or stolen licenses
received by the sheriff shall be deposited by the sheriff into a concealed weapons license
administration fund. Such fund shall be administered by the sheriff and shall take the form of an
interest bearing account with any interest earned to be compounded to the fund. Any funds deposited
in this concealed weapon license administration fund are to be expended by the sheriff to pay for the
costs associated with issuing concealed weapons licenses. Any surplus in the fund on hand at the end
of each fiscal year may be expended for other law-enforcement purposes or operating needs of the
sheriff's office, as the sheriff may consider appropriate.
(d) All persons applying for a license must complete a training course in handling and firing
a handgun. The successful completion of any of the following courses fulfills this training requirement:
(1) Any official national rifle association handgun safety or training course;
(2) Any handgun safety or training course or class available to the general public offered by
an official law-enforcement organization, community college, junior college, college or private or
public institution or organization or handgun training school utilizing instructors duly certified by such
institution;
(3) Any handgun training or safety course or class conducted by a handgun instructor certified
as such by the state or by the national rifle association;
(4) Any handgun training or safety course or class conducted by any branch of the United States
military, reserve or national guard.
A photocopy of a certificate of completion of any of the courses or classes or an affidavit from
the instructor, school, club, organization or group that conducted or taught said course or class attesting to the successful completion of the course or class by the applicant or a copy of any document which
shows successful completion of the course or class shall constitute evidence of qualification under this
section.
(e) All concealed weapons license applications must be notarized by a notary public duly
licensed under article four, chapter twenty-nine of this code. Falsification of any portion of the
application constitutes false swearing and is punishable under the provisions of section two, article
five, chapter sixty-one of this code.
(f) If the information in the application is found to be true and correct, the sheriff shall issue
a license. The sheriff shall issue or deny the license within forty-five days after the application is filed
if all required background checks authorized by this section are completed.
(g) Before any approved license shall be issued or become effective, the applicant shall pay to
the sheriff a fee in the amount of fifteen dollars which the sheriff shall forward to the superintendent
of the West Virginia state police within thirty days of receipt. Any such license shall be valid for five
years throughout the state, unless sooner revoked.
(h) All persons holding a current and valid concealed weapons license as of the sixteenth day
of December, one thousand nine hundred ninety-five, shall continue to hold a valid concealed weapons
license until his or her license expires or is revoked as provided for in this article: Provided, That all
reapplication fees shall be waived for applications received by the first day of January, one thousand
nine hundred ninety-seven, for any person holding a current and valid concealed weapons license as
of the sixteenth day of December, one thousand nine hundred ninety-five, which contains use
restrictions placed upon the license as a condition of issuance by the issuing circuit court. Any licenses
reissued pursuant to this subsection will be issued for the time period of the original license.
(i) Each license shall contain the full name, social security number and address of the licensee
and a space upon which the signature of the licensee shall be signed with pen and ink. The issuing
sheriff shall sign and attach his or her seal to all license cards. The sheriff shall provide to each new
licensee a duplicate license card, in size similar to other state identification cards and licenses, suitable
for carrying in a wallet, and such license card is deemed a license for the purposes of this section.
(j) The superintendent of the West Virginia state police shall prepare uniform applications for
licenses and license cards showing that such license has been granted and shall do any other act
required to be done to protect the state and see to the enforcement of this section.
(k) In the event an application is denied, the specific reasons for the denial shall be stated by
the sheriff denying the application. Any person denied a license may file, in the circuit court of the
county in which the application was made, a petition seeking review of the denial. Such petition shall
be filed within thirty days of the denial. The court shall then determine whether the applicant is
entitled to the issuance of a license under the criteria set forth in this section. The applicant may be
represented by counsel, but in no case shall the court be required to appoint counsel for an applicant.
The final order of the court shall include the court's findings of fact and conclusions of law. If the
final order upholds the denial, the applicant may file an appeal in accordance with the rules of
appellate procedure of the supreme court of appeals.
(l) In the event a license is lost or destroyed, the person to whom the license was issued may
obtain a duplicate or substitute license for a fee of five dollars by filing a notarized statement with the
sheriff indicating that the license has been lost or destroyed.
(m) The sheriff shall, immediately after the license is granted as aforesaid, furnish the
superintendent of the West Virginia state police a certified copy of the approved application. It shall
be the duty of the sheriff to furnish to the superintendent of the West Virginia state police at any time so requested a certified list of all such licenses issued in the county. The superintendent of the West
Virginia state police shall maintain a registry of all persons who have been issued concealed weapons
licenses.
(n) All licensees must carry with them a state-issued photo identification card with the
concealed weapons license whenever the licensee is carrying a concealed weapon. Any licensee who
fails to have in his or her possession a state-issued photo identification card and a current concealed
weapons license while carrying a concealed weapon shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than fifty or more than two hundred dollars for each offense.
(o) The sheriff shall deny any application or revoke any existing license upon determination
that any of the licensing application requirements established in this section have been violated by the
licensee.
(p) No person who is engaged in the receipt, review or in the issuance or revocation of a
concealed weapon license shall incur any civil liability as the result of the lawful performance of his
or her duties under this article.
(q) Notwithstanding the provisions of subsection (a) of this section, with respect to application
by a former law-enforcement officer honorably retired from agencies governed by article fourteen,
chapter seven of this code; article fourteen, chapter eight of this code; article two, chapter fifteen of
this code; and article seven, chapter twenty of this code, an honorably retired officer is exempt from
payment of fees and costs as otherwise required by this section, and the application of the honorably
retired officer shall be granted without proof or inquiry by the sheriff as to those requirements set forth
in subdivision (9), subsection (a) of this section, if the officer meets the remainder of the requirements
of this section and has the approval of the appropriate chief law-enforcement officer.
§61-7-7. Persons prohibited from possessing firearms; classifications; reinstatement of rights
to possess; offenses; penalties.
(a) Except as provided for in this section, no person shall possess a firearm as such is defined
in section two of this article who:
(1) Has been convicted in any court of a crime punishable by imprisonment for a term
exceeding one year;
(2) Is addicted to alcohol;
(3) Is an unlawful user of or addicted to any controlled substance;
(4) Has been adjudicated as a mental defective or who has been involuntarily committed to a
mental institution;
(5) Being an alien is illegally or unlawfully in the United States;
(6) Has been discharged from the armed forces under dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such person received actual notice and at which such
person had an opportunity to participate;
(B) Restrains such person from harassing, stalking or threatening an intimate partner of such
person or child of such intimate partner or person, or engaging in other conduct that would place an
intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) Includes a finding that such person represents a credible threat to the physical safety of
such intimate partner or child; or
(ii) By its terms explicitly prohibits the use, attempted use or threatened use of physical force
against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(8) Has been has been convicted of a misdemeanor offense of assault or battery either under
the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b)
or (c), section nine, article two of this chapter in which the victim was a current or former spouse,
current or former sexual or intimate partner, person with whom the defendant has a child in common,
person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child
or ward or a member of the defendant's household at the time of the offense or has been convicted in
any court of any jurisdiction of a comparable misdemeanor crime of domestic violence.
Any person who violates the provisions of this subsection shall be guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand
dollars or confined in the county jail for not less than ninety days nor more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this section, any person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence
against the person of another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other jurisdiction of a felony controlled
substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or
a Schedule III controlled substance as such are defined in sections two hundred four, two hundred five
and two hundred six, article two, chapter sixty-a of this code and who possesses a firearm as such is
defined in section two of this article shall be guilty of a felony and, upon conviction thereof, shall be
confined in a state correctional facility for not more than five years or fined not more than five
thousand dollars, or both. The provisions of subsection (c) of this section shall not apply to persons
convicted of offenses referred to in this subsection or to persons convicted of a violation of this
subsection.
(c) Any person prohibited from possessing a firearm by the provisions of subsection (a) of this
section may petition the circuit court of the county in which he or she resides to regain the ability to
possess a firearm and if the court finds by clear and convincing evidence that the person is competent
and capable of exercising the responsibility concomitant with the possession of a firearm, the court
may enter an order allowing the person to possess a firearm if such possession would not violate any
federal law."
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. 666), 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: Campbell and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4605) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Special Calendar
Third Reading
S. B. 636, Relating to employment of members of teachers defined benefit retirement system
;
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. 667), 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: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 636) 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:
S. B. 636 - "A Bill to amend and reenact §18-7A-13a and §18-7A-17 of the code of West
Virginia, 1931, as amended, relating to employment of members of the teachers' defined benefit
retirement system by institutions of higher education following the retirement of the member; and
including certain compensation of certain members in determination of benefits if certain conditions
are met."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B 719, Increasing tax on providers of nursing facility services; 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. 668), and there were--yeas
86, nays 12, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Duke, Ellem, Faircloth, Hamilton, Howard, Overington, Sobonya,
Sumner, Walters and Webb.
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 719) passed.
On motion of Mr. Speaker, Mr. Kiss, and Delegate Michael, the title of the bill was amended
to read as follows:
S. B. 719 - "A Bill to amend and reenact §11-27-11 of the code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new section, designated §11-27-37, relating to
increasing the health care provider tax imposed on gross receipts of providers of nursing facility
services and establishing a contingent provider tax increase if certain conditions occur; specifying
condition precedent to tax increase; study panel and setting forth effective date."
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. 161, Creating Model Health Plan for Uninsurable Individuals Act; 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. 669), and there were--yeas
86, nays 11, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Border, Carmichael, Ellem, Hamilton, Leggett, Schoen, Sumner, Trump,
Walters and Webb.
Absent And Not Voting: Campbell, Coleman and Hall.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 161) 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:
Com. Sub. for S. B. 161 - "A Bill to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §33-47-1, §33-47-2, §33-47-3, §33-47-4, §33-47-5, §33-47-6,
§33-47-7, §33-47-8, §33-47-9, §33-47-10, §33-47-11 and §33-47-12, all relating to creating a West
Virginia insurance plan; defining terms; creating a body corporate and politic to be known as the West
Virginia health insurance plan; providing for its supervision and control by a board of directors to be appointed by the governor; providing the board of directors administrative requirements; requiring a
plan of operation to be approved by the insurance commissioner; requiring the plan to be operated so
as to qualify as an acceptable alternative mechanism under the federal Health Insurance Portability and
Accountability Act and as an option to provide health insurance coverage for individuals eligible for
the federal Health Care Tax Credit; describing procedural requirements for the plan; describing powers
of the plan; requiring the board to annually report to the governor summarizing preceding year
activities; shielding the board and its employees from any liability resulting from obligations of the
plan; authorizing the board of directors to promulgate rules to implement the act; defining eligibility
for persons seeking coverage from the plan and when such coverage shall cease; making it an unfair
trade practice to arrange for an employee to apply for coverage with the plan for the purpose of
separating that employee from group health insurance coverage provided in connection with the
employee's employment; providing for the selection of a plan administrator; providing for funding for
the plan; defining the benefits to be offered; providing that participation in the plan by an insurer is
not the basis of any legal action against the participating insurer; providing that the plan is exempt
from taxes and providing an effective date."
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 670), and there were--yeas 95, nays
1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Schoen.
Absent And Not Voting: Campbell, Caputo, Coleman and Hall.
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. 161) takes effect July 1 ,2004.
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. 204, Relating to strategic research and development tax credit; 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. 671), and there were--yeas
88, nays 5, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Border, Fleischauer, Hamilton, Leggett and Trump.
Absent And Not Voting: Campbell, Coleman, Doyle, Foster, Hall, Perdue and Schoen.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 204) 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:
Com. Sub. for S. B. 204 - "A Bill to amend and reenact §11-13R-6, §11-13R-11 and §11-
13R-12 of the code of West Virginia, 1931, as amended, all relating to the strategic research and
development tax credit; providing that the credit may be refundable for small qualified research and
development companies; specifying limitations on credit; requiring certain reporting and providing an
effective date."
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 672), and there were--yeas 94, nays
none, absent and not voting 6, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman, Doyle, Foster, Hall and Perdue.
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. 204) takes effect July 1, 2004.
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. 260, Allowing design-build board to be reimbursed for certain expenses;
on third reading, coming up in regular order, was reported by the Clerk and, at the request of Delegate
Staton, and by unanimous consent, laid at the foot of the calendar.
Com. Sub. for S. B. 271, Relating to racial profiling data collection; 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. 673), and there were--yeas
88, nays 9, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Azinger, Border, Carmichael, Ellem, Hamilton, Leggett, Overington, Romine and
Wakim.
Absent And Not Voting: Campbell, Coleman and Hall.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 271) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 271 - "A Bill to amend the code of West Virginia, 1931, as amended, by
adding thereto a new chapter, designated §17F-1-1, §17F-1-2, §17F-1-3, §17F-2-1, §17F-2-2 and
§17F-2-3, all relating to racial profiling data collection; defining terms; requiring all state law-
enforcement officers to collect certain data during traffic stops; requiring the division of motor vehicles
to develop forms and compile the data collected; establishing penalties for agencies which fail to
comply; providing limited civil liability protection for officers collecting data; providing form content;
providing consultation with law enforcement organizations relating to developing forms; requiring director of the governor's committee on crime, delinquency and correction to conduct analysis and
distribute data; requiring promulgation of emergency and legislative rules; providing effective date for
requiring collection of data; providing for annual report to the legislature; and expiring data collection
requirements."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 316, Providing procedures for determining daily cost for certain inmates; 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. 674), 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: Campbell, Coleman and Hall.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 316) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 675), 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: Campbell, Coleman, Hall and Leggett.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 316) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 319, Relating to centers for housing young adult offenders; 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. 676), 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: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 319) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 402, Relating to authority of board of risk and insurance management to promulgate
certain legislative rules; 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. 677), and there were--yeas
97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Ellem.
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 402) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 456, Requiring state agencies administering funds or grants notify grantee
in certain cases; 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. 678), 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: Campbell 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. 456) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 460, Relating to regulating surveyors and underground surveyors; on third
reading, coming up in regular order, was reported by the Clerk.
Delegate Beane requested and obtained unanimous consent to offer an amendment to the bill
on third reading.
On motion of Delegate Beane, the bill was amended on page forty-four, section twenty-six, line
eighteen, by striking out subsection (d) in its entirety and inserting a new item (d) as follows:
"(d) A licensee, endorsee, an exempt person under section thirty-six of this article or persons
under the direct supervision of a licensee, endorsee or exempt person shall physically go to the land
and perform the survey."
And,
On page sixty-six, section thirty-six, line three, by striking out items (1) and (2) in their entirety
and inserting new items (1) and (2) as follows:
"(1) Any employee or agent of a person, firm, association or corporation, when such employee
or agent is engaged in the practice of land surveying exclusively for the person, firm, association or
corporation by which employed, or, if a corporation, its parents, affiliates or subsidiaries, and such
person firm, association or corporation does not hold himself, herself or itself out to the public as being
engaged in the business of land surveying.
(2) Any employee or officer of the United States, this state or any political subdivision thereof,
or their agents, when such employee is engaged in the practice of land surveying exclusively for such
governmental unit."
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 679), 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: Campbell 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. 460) 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. 480, Exempting nonprofit licensed nursing homes from registration under solicitation of
charitable funds act; 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. 680), 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: Campbell, Coleman and Mezzatesta.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 480) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 508, Relating to commission on arts; 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. 681), 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: Campbell 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. 508) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 682), 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: Campbell and Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 508) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 512, Authorizing rules of higher education policy commission; 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. 683), 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: Campbell, Coleman and Hrutkay.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 512) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 684), and there were--yeas 96, nays
1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Perdue.
Absent And Not Voting: Campbell, Coleman and Hrutkay.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 512) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The Clerk announced that, pursuant to House Rule 70a, the following request had been filed
with him for the removal of bills from the Consent Calendar to the House Calendar:
Com. Sub. for S. B. 71, on second reading, Consent Calendar, to the House Calendar, by
Delegate Varner
(Speaker Pro Tempore Pino in the Chair.)
Conference Committee Report
Delegate Mahan, from the Committee of Conference on matters of disagreement between the
two houses, as to
Com. Sub. for H. B. 4377, Assessing a penalty on those physicians who fail to pay the special
assessment,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendments of the Senate to Com. Sub. for H. B. 4377 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 amendments of the Senate,
striking out everything following the enacting clause and inserting new language, and agree to the
same as follows:
That §30-3-12
of the code of West Virginia, 1931, as amended, be amended and reenacted; that
§30-14-10 of said code be amended and reenacted; and that §33-20F-4, §33-20F-5 and §33-20F-7 of
said code be amended and reenacted, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-12. Biennial renewal of license to practice medicine and surgery or podiatry; continuing
education; rules; fee; inactive license.
(a) A license to practice medicine and surgery or podiatry in this state is valid for a term of two
years and shall be renewed upon a receipt of a reasonable fee, as set by the board, submission of an
application on forms provided by the board and, beginning with the biennial renewal application forms
completed by licensees and submitted to the board in one thousand nine hundred ninety-three, a
certification in accordance with rules and regulations promulgated by the board in accordance with
chapter twenty-nine-a of this code of participation in and successful completion of a minimum of fifty
hours of continuing medical or podiatric education satisfactory to the board, as appropriate to the
particular license, during the preceding two-year period. Continuing medical education satisfactory
to the board is continuing medical education designated as Category I by the American Medical
Association or the Academy of Family Physicians and continuing podiatric education satisfactory to
the board is continuing podiatric education approved by the council on podiatric education.
In addition, the Legislature hereby finds and declares that it is in the public interest to
encourage alternate categories of continuing education satisfactory to the board for physicians and
podiatrists. In order to provide adequate notice of the same to physicians and podiatrists, no later than
the first day of June, one thousand nine hundred ninety-one, the board shall file rules under the
provisions of section fifteen, article three, chapter twenty-nine-a of this code, delineating any alternate categories of continuing medical or podiatric education which may be considered satisfactory to the
board and any procedures for board approval of such continuing education.
Notwithstanding any provision of this chapter to the contrary, failure to timely submit to the
board a certification in accordance with rules and regulations promulgated by the board in accordance
with chapter twenty-nine-a of this code of successful completion of a minimum of fifty hours of
continuing medical or podiatric education satisfactory to the board, as appropriate to the particular
license, shall, beginning the first day of July, one thousand nine hundred ninety-three, result in the
automatic suspension of any license to practice medicine and surgery or podiatry until such time as the
certification in accordance with rules and regulations promulgated by the board in accordance with
chapter twenty-nine-a of this code, with all supporting written documentation, is submitted to and
approved by the board.
Any individual who accepts the privilege of practicing medicine and surgery or podiatry in this
state is required to provide supporting written documentation of the continuing education represented
as received within thirty days of receipt of a written request to do so by the board. If a licensee fails
or refuses to provide supporting written documentation of the continuing education represented as
received as required in this section, such failure or refusal to provide supporting written documentation
is prima facie evidence of renewing a license to practice medicine and surgery or podiatry by
fraudulent misrepresentation.
(b) The board may renew, on an inactive basis, the license of a physician or podiatrist who is
currently licensed to practice medicine and surgery or podiatry in, but is not actually practicing,
medicine and surgery or podiatry in this state. A physician or podiatrist holding an inactive license
shall not practice medicine and surgery or podiatry in this state. His or her inactive license may be
converted by the board to an active one upon a written request to the board that accounts for his or her period of inactivity to the satisfaction of the board: Provided, That beginning on the first day of July,
one thousand nine hundred ninety-three, such licensee submits written documentation of participation
in and successful completion of a minimum of fifty hours of continuing medical or podiatric education
satisfactory to the board, as appropriate to the particular license, during each preceding two-year
period. An inactive license may be obtained upon receipt of a reasonable fee, as set by the board, and
submission of an application on forms provided by the board on a biennial basis.
(c) The board shall not require any physician or podiatrist who is retired or retiring from the
active practice of medicine and surgery or the practice of podiatry and who is voluntarily surrendering
their license to return to the board the license certificate issued to them by the board.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-10. Annual renewal of license; fee; refresher training a prerequisite; effect of failure
to renew; reinstatement.
(a) All holders of certificates of license to practice as osteopathic physicians and surgeons in
this state shall renew them biennially on or before the first day of July, by the payment of a reasonable
renewal fee, the amount of such reasonable fee to be set by the board rules to the secretary of the
board. The secretary of the board shall notify each certificate holder by mail of the necessity of
renewing his or her certificate at least thirty days prior to the first day of July of each year.
(b) As a prerequisite to renewal of a certificate of license issued by the board, each holder of
such a certificate shall furnish biennially to the secretary of the board satisfactory evidence of having
completed thirty-two hours of educational refresher course training, of which the total amount of
hours must be AOA approved, and fifty percent of the required thirty-two hours shall be category (1).
(c) The failure to renew a certificate of license shall operate as an automatic suspension of the
rights and privileges granted by its issuance. The board may propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine-a of this code, providing that an
osteopathic physician may renew a certificate of license on an inactive basis.
__(d) A certificate of license suspended by a failure to make a biennial renewal thereof may be
reinstated by the board upon compliance of the certificate holder with the following requirements:
(a) (1) presentation to the board of satisfactory evidence of educational refresher training of
quantity and standard approved by the board for the previous two years;
(b) (2) payment of all fees for the previous two years that would have been paid had the
certificate holder maintained his or her certificate in good standing; and
(c) (3) payment to the board of a reasonable reinstatement fee, the amount of such reasonable
fee to be set by the board rules.
CHAPTER 33. INSURANCE.
ARTICLE 20F. PHYSICIAN' MUTUAL INSURANCE COMPANY.
§33-20F-4. Authorization for creation of company; requirements and limitations.
(a) Subject to the provisions of this article, a physicians' mutual insurance company may be
created as a domestic, private, nonstock, nonprofit corporation. As an incentive for its creation, the
company may be eligible for funds from the Legislature in accordance with the provisions of section
seven of this article. The company must remain for the duration of its existence a domestic mutual
insurance company owned by its policyholders and may not be converted into a stock corporation, a
for-profit corporation or any other entity not owned by its policyholders. The company may not
declare any dividend to its policyholders; sell, assign or transfer substantial assets of the company; or
write coverage outside this state, except for counties adjoining this state, until after any and all debts
owed by the company to the state have been fully paid.
(b) For the duration of its existence, the company is not and may not be considered a
department, unit, agency, or instrumentality of the state for any purpose. All debts, claims, obligations,
and liabilities of the company, whenever incurred, shall be the debts, claims, obligations, and liabilities
of the company only and not of the state or of any department, unit, agency, instrumentality, officer,
or employee of the state.
(c) The moneys of the company are not and may not be considered part of the general revenue
fund of the state. The debts, claims, obligations, and liabilities of the company are not and may not
be considered a debt of the state or a pledge of the credit of the state.
(d) The company is not subject to provisions of article nine-a, chapter six of this code or the
provisions of article one, chapter twenty-nine-b of this code.
(e)(1) All premiums collected by the company are subject to the premium taxes, additional
premium taxes, additional fire and casualty insurance premium taxes and surcharges contained in
sections fourteen, and fourteen-a, fourteen-d and thirty-three, article three of this chapter: Provided,
That while the loan to the company of moneys from the West Virginia tobacco settlement medical trust
fund pursuant to section nine of this article remains outstanding, the commissioner may waive the
company's premium taxes, and surcharges additional premium taxes and additional fire and casualty
insurance premium taxes if payment would render the company insolvent or otherwise financially
impaired.
(2) On and after the first day of July, two thousand and three, any premium taxes and
additional premium taxes and surcharges paid by the company and by any insurer on its medical
malpractice line pursuant to sections fourteen and fourteen-a, article three of this chapter, shall be
temporarily applied toward replenishing the moneys appropriated from the West Virginia tobacco settlement medical trust fund pursuant to subsection (c), section two, article eleven-a, chapter four of
this code pending repayment of the loan of such moneys by the company.
(3) The state treasurer shall notify the commissioner when the moneys appropriated from the
West Virginia tobacco settlement medical trust have been fully replenished, at which time the
commissioner shall resume depositing premium taxes and additional premium taxes and surcharges
diverted pursuant to subdivision (2) of this subsection in accordance with the provisions of sections
fourteen and fourteen-a, article three of this chapter.
(4) Payments received by the treasurer from the company in repayment of any outstanding loan
made pursuant to section nine of this article shall be deposited in the West Virginia tobacco settlement
medical trust fund and dedicated to replenishing the moneys appropriated therefrom under subsection
(c), section two, article eleven-a, chapter four of this code. Once the moneys appropriated from the
West Virginia tobacco settlement medical trust fund have been fully replenished, the treasurer shall
deposit any payments from the company in repayment of any outstanding loan made pursuant to
section nine of this article in said fund and transfer a like amount from said fund to the commissioner
for disbursement in accordance with the provisions of sections fourteen and fourteen-a, article three
of this chapter.
§33-20F-5. Governance and organization.
(a)(1) The board of risk and insurance management shall implement the initial formation and
organization of the company as provided by this article.
(2) From the first day of July, two thousand three, until the thirtieth day of June, two thousand
four, the company shall be governed by a provisional board of directors consisting of the members of
the board of risk and insurance management, the dean of the West Virginia University School of
Medicine or a physician representative designated by him or her, and five physician directors, elected by the policyholders whose policies are to be transferred to the company pursuant to section nine of
this article.
(3) Only physicians who are licensed to practice medicine in this state pursuant to article three
or article fourteen, chapter thirty of this code and who have purchased medical professional liability
coverage from the board of risk and insurance management are eligible to serve as physician directors
on the provisional board of directors. One of the physician directors shall be selected from a list of
three physicians nominated by the West Virginia Medical Association. The board of risk and insurance
management shall develop procedures for the nomination of the remaining physician directors and for
the conduct of the election, to be held no later than the first day of June, two thousand three, of all of
the physician directors, including, but not limited to, giving notice of the election to the policyholders.
These procedures shall be exempt from the provisions of article three, chapter twenty-nine twenty-
nine-a of this code.
(b) From the first day of July, two thousand four, the company shall be governed by a board
of directors consisting of eleven directors, as follows:
(1) Five directors who are physicians licensed to practice medicine in this state by the board
of medicine or the board of osteopathy, including at least one general practitioner and one specialist:
Provided, That only physicians who have purchased medical professional liability coverage from the
board of risk and insurance management are eligible to serve as physician representatives on the
company's first board of directors;
(2) Three directors who have substantial experience as an officer or employee of a company
in the insurance industry;
(3) Two directors with general knowledge and experience in business management who are
officers and employees of the company and are responsible for the daily management of the company;
and
(4) One director who is a dean of a West Virginia school of medicine or osteopathy or his or
her designated physician representative. This director's position shall rotate annually among the dean
of the West Virginia University School of Medicine, the dean of the Marshall University Joan C.
Edwards School of Medicine and the dean of the West Virginia School of Osteopathic Medicine. This
director shall serve until such time as the moneys loaned to the company from the West Virginia
tobacco settlement medical trust fund have been replenished as provided in subsection (e), section four
of this article. After the moneys have been replenished to the West Virginia tobacco settlement
medical trust fund, this director shall be a physician licensed to practice medicine in this state by the
board of medicine or the board of osteopathy.
(c) In addition to the eleven directors required by subsection (b) of this section, the bylaws of
the company may provide for the addition of at least two directors who represent an entity or
institution which lends or otherwise provides funds to the company.
(d) The directors and officers of the company are to be chosen in accordance with the articles
of incorporation and bylaws of the company. The initial board of directors selected in accordance with
the provisions of subdivision (3), subsection (a) of this section shall serve for the following terms: (1)
Three for four-year terms; (2) three for three-year terms; (3) three for two-year terms; and (4) two for
one-year terms. Thereafter, the directors shall serve staggered terms of four years. If an additional
director is added to the board as provided in subsection (c) of this section, his or her initial term shall
be for four years. No director chosen pursuant to subsection (b) of this section may serve more than
two consecutive terms.
(e) The incorporators are to prepare and file articles of incorporation and bylaws in accordance
with the provisions of this article and the provisions of chapters thirty-one, and thirty-three of this
code.
§33-20F-7. Initial capital and surplus; special assessment; failure to pay assessment; ________
__disposition of civil penalty collected
(a) There is hereby created in the state treasury a special revenue account designated as the
"Board of Risk and Insurance Management Physicians' Mutual Insurance Company Account" solely
for the purpose of receiving moneys transferred from the West Virginia Tobacco Medical Trust Fund
pursuant to sub- section (c), section two, article eleven-a, chapter four of this code for the company's
use as initial capital and surplus.
(b) On the first day of July, two thousand three, a special one-time assessment, in the amount
of one thousand dollars, shall be imposed on every physician licensed by the board of medicine or by
the board of osteopathy for the privilege of practicing medicine in this state: Provided, That the
following physicians shall be exempt from the assessment:
(1) A faculty physician who meets the criteria for full-time faculty under subsection (f), section
one, article eight, chapter eighteen-b of this code, who is a full-time employee of a school of medicine
or osteopathic medicine in this state, and who does not maintain a private practice;
(2) A resident physician who is a graduate of a medical school or college of osteopathic
medicine enrolled and who is participating in an accredited full- time program of post-graduate
medical education in this state;
(3) A physician who has presented suitable proof that he or she is on active duty in armed
forces of the United States and who will not be reimbursed by the armed forces for the assessment;
(4) A physician who receives more than fifty percent of his or her practice income from
providing services to federally qualified health center as that term is defined in 42 U.S.C. §
1396d(l)(2); and
(5) A physician who practices solely under a special volunteer medical license authorized by
section ten-a, article three or section twelve-b, article fourteen, chapter thirty of this code. The
assessment is to be imposed and collected by the board of medicine and the board of osteopathy on
forms prescribed by each licensing board; and
__(6) A physician who is licensed on an inactive basis pursuant to subsection (b), section twelve,
article three, chapter thirty of this code or section ten, article fourteen, chapter thirty or a physician who
voluntarily surrenders his license: Provided, That a retired osteopathic physician, who submits to the
board of osteopathy an affidavit asserting that he or she receives no monetary remuneration for any
medical services provided, executed under the penalty of perjury and if executed outside the state of
West Virginia, verified, may be considered to be licensed on an inactive basis: Provided, however,
That if a physician elects to resume an active license to practice in the state and the physician has never
paid the assessment, then as a condition of receiving an active status license, the physician must pay
the special one-time assessment.
(c) The entire proceeds of the special assessment collected pursuant to subsection (b) of this
section shall be dedicated to the company. The board of medicine and the board of osteopathy shall
promptly pay over to the company all amounts collected pursuant to this section to be used as
policyholder surplus for the company.
(d) Any physician who applies to purchase insurance from the company and who has not paid
the assessment pursuant to subsection (b) of this section shall pay one thousand dollars to the company
as a condition of obtaining insurance from the company.
(e) A physician who fails to pay the special one-time assessment imposed on the first day of
July, two thousand three, pursuant to subsection (b) of this section, on or before thirtieth day of June,
two thousand four, or when the license is due for renewal, whichever is earlier, and has received
written notice of the assessment and option to elect inactive status, at least thirty days before the
licensure renewal date or by thirtieth day of May, two thousand four, is subject to a civil penalty in the
amount of two hundred fifty dollars payable to either the board of medicine or the board of osteopathy.
Furthermore, and notwithstanding any provision of chapter thirty to the contrary, the board of medicine
or the board of osteopathy shall immediately suspend the license to practice medicine or podiatry of
any physician who received notice and failed to pay the special assessment by the first day of July, two
thousand four. Any license to practice medicine suspended pursuant to this section shall remain
suspended until both the special assessment and the civil penalty are paid in full.
__(f) The entire proceeds of the civil penalty collected pursuant to subsection (e) of this section
shall be dedicated to the company. The board of medicine and the board of osteopathy shall promptly
pay over to the company all amounts collected pursuant to subsection (e) of this section to be used as
policyholder surplus for the company.
__(g) The requirements of subsection (b), (c), (d), (e) and (f) of this section shall terminate on
January 1, 2008 unless continued or reestablished.
And,
That both houses recede from their respective positions as to the title of the bill and agree to
the same as follows:
Com. Sub. for H. B. 4377 - "A Bill to amend and reenact §30-3-12 of the code of West
Virginia, 1931, as amended; to amend and reenact §30-14-10 of said code; and to amend and reenact
§33-20F-4, §33-20F-5 and §33-20F-7 of said code, all relating to physicians generally; permitting a physician who allows his or her medical license to expire upon retirement to retain the license
certificate issued by the board of medicine; requiring the board of osteopathy to propose legislative
rules; clarifying and correcting the premium taxes that the physicians' mutual insurance company will
be subject to; physicians exempt from the special assessment; providing for suspension and a civil
penalty for failure to pay the special assessment; and sunset provision."
Respectfully submitted,
Virginia Mahan, Jeffrey V. Kessler,
Bonnie Brown, Evan H. Jenkins,
John Ellem, Steve Harrison,
(Did not sign)
Conferees on the part of Conferees on the part of
the House of Delegates. the Senate.
On motion of Delegate Mahan, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 685), and there were--yeas
89, nays none, absent and not voting 11, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman, Doyle, Fleischauer, Foster, Hall, Kominar,
Perdue, R. M. Thompson, Varner and Mr. Speaker, Mr. Kiss.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4377) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 686), and there were--yeas 88, nays
none, absent and not voting 12, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Campbell, Coleman, Doyle, Fleischauer, Foster, Hall,
Kominar, Perdue, R. M. Thompson, Varner and Mr. Speaker, Mr. Kiss.
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. 4377) 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.
Miscellaneous Business
Delegate Webster announced that she was absent on today when the votes were taken on Roll
Nos. 651 and 652, and that had she been present, she would have voted "Yea" thereon.
Delegate Schoen announced that she was absent on today when the votes were taken on Roll
Nos. 651, 652 and 671, and that had she been present, she would have voted "Yea" thereon.
Delegate Craig asked and obtained unanimous consent that the remarks of Delegate Morgan
regarding the football teams of West Virginia University and Marshall University be printed in the
Appendix to the Journal.
(Mr. Speaker, Mr. Kiss, in the Chair)
At 4:37 p.m., on motion of Delegate Staton, the House of Delegates recessed until 6:30 p.m.,
and reconvened at that time.
* * * * * * * * * *
Evening Session
* * * * * * * * * *
Senate Messages
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had insisted on its amendment to
Com. Sub. for H. B. 2200, Creating the felony offense of destruction of property.
On motion of Delegate Staton, the House of Delegates then concurred in the Senate amendment
with amendment, as follows:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-30. Removal, injury to or destruction of property, monuments designating land
boundaries and of certain no trespassing signs; penalties.
(a) If any person unlawfully, but not feloniously, take and carry away, or destroy, injure or
deface takes and carries away, or destroys, injures or defaces any property, real or personal, not his
own of another, he shall be or she is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than five hundred dollars, or imprisoned confined in the county or regional jail not
more than one year, or both fined and imprisoned.
(b) Any person who unlawfully, willfully and intentionally destroys, injures or defaces the real
or personal property of one or more other persons or entities during the same act, series of acts or
course of conduct causing a loss in the value of the property in an amount of two thousand five
hundred dollars or more, is guilty of the felony offense of destruction of property and, upon conviction
thereof, shall be fined not more than two thousand five hundred dollars or imprisoned in the state
correctional facility for not less than one year nor more than ten years, or in the discretion of the court,
confined in the county or regional jail not more than one year, or both fined and imprisoned.
__(c) If any person shall break down, destroy, injure, deface or remove breaks down, destroys,
injures, defaces or removes any monument erected for the purpose of designating the boundaries of
a municipality, tract or lot of land, or any tree marked for that purpose, or any sign or notice upon
private property designating no trespassing upon such the property, except signs or notices posted in
accordance with the provisions and purposes of sections seven, eight and ten, article two, chapter
twenty of this code, he shall be or she 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 the
county or regional jail not less than one nor more than six months, or both fined and imprisoned.
Justices of the peace and magistrates shall Magistrates have concurrent jurisdiction of all offenses
arising under the provisions of this section. The provisions of this paragraph shall do not apply to the
owner, or his or her agent, of the lands on which such signs or notices are posted."
The bill, as amended by the Senate, and as further amended by the House of Delegates, was
then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 689), 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 Martin.
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. 2200) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegate Martin announced that he was absent when the vote was taken on Roll No. 689, and
that had he been present, he would have voted "Yea" thereon.
A message from the Senate, by
The Clerk of the Senate, announced the concurrence by the Senate as to the changed effective
date, to take effect from passage, of
Com. Sub. for H. B. 2268, Teachers and substitute teachers as professional educators and
addressing the critical need and shortage thereof.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had receded from its amendments to, and
again passed
H. B. 2991, Relating to the fee charged by fiduciary commissioners in settling an estate.
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. 3150, Barring state officers, agencies or entities from requiring that surety, payment,
performance or bid bonds be obtained from any particular company.
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 all of section one and inserting in lieu thereof a new section one,
to read as follows:
"§5-22-1. Bidding required; government construction contracts to go to lowest qualified
responsible bidder; procedures to be followed in awarding government
construction projects; penalties for violation of procedures and requirements
debarment; exceptions.
(a) This section and the requirements set forth in this section may be referred to as the 'West
Virginia Fairness In Competitive Bidding Act'.
__(a) (b) As used in this section:
__(1) 'Lowest qualified responsible bidder' means the bidder that bids the lowest price and that
meets, as a minimum, all the following requirements in connection with the bidder?s response to the
bid solicitation. The bidder must certify that it:
__(A) Is ready, able and willing to timely furnish the labor and materials required to complete the
contract;
__(B) Is in compliance with all applicable laws of the state of West Virginia; and
__(C) Has supplied a valid bid bond or other surety authorized or approved by the contracting
public entity.
__(2) 'The state and its subdivisions' means the state of West Virginia, every political subdivision
thereof, every administrative entity that includes such a subdivision, all municipalities and all county
boards of education.
(b) (c) The state and its subdivisions shall, except as provided in this section, solicit
competitive bids for every construction project exceeding twenty-five thousand dollars in total cost:
Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a
through thirty-three-f, inclusive, article three, chapter five-a of this code may not bid on or be awarded
a contract under this section. All bids submitted pursuant to this chapter shall include a valid bid bond
or other surety as approved by the state of West Virginia or its subdivisions.
(c) (d) Following the solicitation of such bids, the construction contract shall be awarded to the
lowest qualified responsible bidder who shall furnish a sufficient performance and payment bond:
Provided, That the state and its subdivisions may reject all bids and solicit new bids on said the
project.
__(e) The contracting public entity may not award the contract to a bidder which fails to meet the
minimum requirements set out in this section. As to any prospective low bidder which the contracting
public entity determines not to have met any one or more of the requirements of this section or other
requirements as determined by the public entity in the written bid solicitation, prior to the time a
contract award is made, the contracting public entity shall document in writing and in reasonable detail
the basis for the determination and shall place the writing in the bid file. After the award of a bid
under this section, the bid file of the contracting
public agency and all bids submitted in response to
the bid solicitation shall be open and available for public inspection.
__(f) Any public official or other person who individually or together with others knowingly
makes an award of a contract under this section in violation of the procedures and requirements of this
section is subject to the penalties set forth in section twenty-nine, article three, chapter five-a of the
code of West Virginia.
__(g) No officer or employee of this state or of any public agency, public authority, public
corporation or other public entity and no person acting or purporting to act on behalf of such officer
or employee or public entity shall require that any performance bond, payment bond or surety bond
required or permitted by this section be obtained from any particular surety company, agent, broker
or producer.
__(d) (h) All bids shall be opened open in accordance with the provisions of section two of this
article, except design-build projects which are governed by article twenty-two-a of this chapter and are
exempt from these provisions.
(e) (i) Nothing in this section shall apply to:
(1) Work performed on construction or repair projects by regular full-time employees of the
state or its subdivisions;
(2) Prevent students enrolled in vocational educational schools from being utilized in
construction or repair projects when such the use is a part of the student?s training program;
(3) Emergency repairs to building components and systems. For the purpose of this
subdivision, the term emergency repairs means repairs that if not made immediately will seriously
impair the use of such building components and systems or cause danger to those persons using such
the building components and systems; and
(4) Any situation where the state or a subdivision thereof shall come to reaches an agreement
with volunteers, or a volunteer group, whereby the governmental body will provide construction or
repair materials, architectural, engineering, technical or any other professional services and the
volunteers will provide the necessary labor without charge to, or liability upon, the governmental
body."
And,
By amending the title of the bill to read as follows:
H. B. 3150 - "A Bill to amend and reenact §5-22-1 of the code of West Virginia, 1931, as
amended; to amend and reenact §5-22A-10 of said code; to amend and reenact section §7-11B-14 of
said code; and to amend and reenact §38-2-39 of said code, all relating to establishing the West
Virginia fairness in competitive bidding act; definitions; establishing procedures and requirements for
awarding contracts for government construction projects; requirements for performance, payment, bid
and surety bonds; and 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. 690), 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. 3150) 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 receded from its amendments to, and
again passed
Com. Sub. for H. B. 4043, Establishing the priority for early childhood education in the basic
skills of reading, mathematics and English language arts.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had again agreed to the appointment of a
committee of conference of five on the disagreeing votes of the two houses as to
H. B. 4084, West Virginia Pharmaceutical Availability and Affordability Act.
The message further announced that the President had reappointed as conferees on the part of
the Senate the following:
Senators Prezioso, Unger, McCabe, Ross and Smith.
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. 4148, Allowing bail bondsmen to deliver offenders to county or regional
jails without bailpiece if a magistrate or circuit clerk is inaccessible.
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, after the enacting section, by inserting the following:
"CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 10. PROFESSIONAL BONDSMEN IN CRIMINAL CASES.
§51-10-8. Qualifications of bondsmen; rules to be prescribed by supreme court of appeals; lists
of agents to be furnished; renewal of authority to act; false swearing.
Courts of record regularly exercising criminal jurisdiction in counties of more than two
hundred thousand population shall, and in counties of two hundred thousand population or less such
courts may, provide
__(a) The supreme court of appeals shall under reasonable rules, and regulations specify the
qualifications of persons and corporations applying for authority to engage in the bonding business in
criminal cases in the state of West Virginia, and the terms and conditions upon which such the
business shall may be carried on. and After the first day of September, two thousand four, no person
or corporation shall may, either as principal, or as agent, clerk, or representative of another, engage in
the bonding business in any court regularly exercising criminal jurisdiction until he shall by order of
such court of record be authorized to do so. Such courts of record qualified pursuant to the rules. The
supreme court of appeals, in making such the rules, and regulations and in granting authority to
persons to engage in the bonding business, shall take into consideration both the financial
responsibility and the moral qualities of the person so applying, and no person shall may be permitted
to engage, either as principal or agent, in the business of becoming surety upon bonds for
compensation in criminal cases, who has ever been convicted of any offense involving moral turpitude,
or who is not known to be a person of good moral character. It shall be the duty of each of said courts
of record to The court shall require every person qualifying to engage in the bonding business as principal to file with said the court a list showing the name, age, and residence of each person
employed by said the bondsman as agent, clerk, or representative in the bonding business, and require
an affidavit from each of said the persons stating that said the person shall will abide by the terms and
provisions of this article. Each of said courts of record The court shall require the authority of each
of said the persons to be renewed from time to time at such periods as the said courts court may by rule
provide. and Before said the authority shall may be renewed the said courts court shall require from
each of said the persons an affidavit that since his or her previous qualifications to engage in the
bonding business he or she has abided by the provisions of this article, and any person swearing falsely
in any of said the affidavits shall be is guilty of false swearing.
(b) Persons authorized to engage in the bonding business in criminal cases in the state of West
Virginia on the effective date of the amendments made to this section during the regular session of the
Legislature in two thousand four may continue to engage in the business until the first day of
September, two thousand four.
CHAPTER 62. CRIMINAL PROCEDURE."
On page two, by amending the enacting section, to read as follows:
"That §51-10-8 of the code of West Virginia, 1931, as amended, be amended and reenacted;
and that §62-1C-14 of said code 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:
Com. Sub. for H. B. 4148 - "A Bill to amend and reenact
§51-10-8 of the code of West
Virginia, 1931, as amended; and to amend and reenact §62-1C-14 of said code, all relating to bail
bondspersons; requiring the supreme court of appeals shall to adopt rules specifying the qualifications of persons and corporations applying for authority to engage in the bonding business in West Virginia;
allowing bail bondsperson to deliver offenders to county and regional jails without bailpiece; setting
requirements; setting forth requirements related to medical treatment of defendant prior to authorities
taking custody pursuant to a bailpiece; providing for certain immunities from liability; and providing
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. 692), 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. 4148) 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 by the Senate in the amendment of the House
of Delegates to the amendment of the Senate, and the passage, as amended, to take effect from passage,
of
Com. Sub. for H. B. 4205, Authorizing the department of health and human resources to
promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates as follows:
Com. Sub. for H. B. 4607, Conferring the duties of the industrial revenue bond allocation
review committee to the board of the West Virginia economic development authority.
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 after the enacting section and inserting in lieu thereof
the following:
"CHAPTER 13. PUBLIC BONDED INDEBTEDNESS.
ARTICLE 2C. INDUSTRIAL DEVELOPMENT AND COMMERCIAL DEVELOPMENT
BOND ACT.
§13-2C-3a. Continuation of industrial revenue bond allocation review committee; appointment,
terms of members; voting; expenses; duties.
(a) There is hereby created continued the West Virginia industrial revenue bond allocation
review committee consisting of five the members of the board of the West Virginia economic
development authority created by article fifteen, chapter thirty-one of this code., as follows: The
secretary of tax and revenue, who shall serve as chair of the committee, and the executive director of
the development office or his or her designee, and three members chosen from the general public as
private members.
(b) The three private members shall be appointed by the governor, with the advice and consent
of the Senate: Provided, That one private member shall be appointed from each congressional district
of the state, in such a manner as to provide a broad geographical distribution of members of the
committee: Provided, however, That at least one private member appointed pursuant to this
subdivision shall have significant experience in economic development. No more than two private
members shall be from the same political party.
(c) Appointment of the three members shall be for staggered terms of three years. Any member
whose term has expired shall serve until a successor has been duly appointed and qualified. Any
member shall be eligible for reappointment. In case of any vacancy in the office of a private member,
such vacancy shall be filled by appointment by the governor for the unexpired term. The governor may
remove any private member in case of incompetency, neglect of duty, gross immorality or malfeasance
in office; and he may declare the office vacant and may appoint a person for such vacancy as provided
in other cases of vacancy.
(d) (b) Members shall are not be entitled to compensation for services performed as members,
but shall be are entitled to reimbursement for all reasonable and necessary expenses actually incurred
in the performance of their duties: Provided, That no member may be eligible for expenses for
meetings of both the board of the West Virginia economic development authority and the West
Virginia industrial revenue bond allocation review committee when the meetings are held on the same
day.
(e) (c) A majority of the members of the committee shall constitute constitutes a quorum for
the purpose of conducting business. The affirmative vote of at least the majority of the members
present is necessary for any action taken by vote of the committee. No vacancy in the membership of
the committee shall impair impairs the right of a quorum to exercise all the rights and perform all the
duties of the committee.
(f) (d) The committee shall review and evaluate all applications for reservation of funds
submitted to the development office by a governmental body pursuant to the provisions of subsections
(d) and (e), section twenty-one of this article, and shall make reservations of the state allocation (as
defined in subdivision (2), subsection (b) of said section twenty-one of this article) pursuant to
subdivision (3), subsection (b) and subsection (c) of said section twenty-one of this article.
CHAPTER 31. CORPORATIONS.
ARTICLE 15. WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY.
§31-15-5. West Virginia economic development authority; composition; appointment; terms;
delegation of authority by chairman; voting; compensation and expenses.
(a) The West Virginia economic development authority heretofore created is hereby continued
as a body corporate and politic, constituting a public corporation and government instrumentality.
(b) The authority shall be composed of a board of members consisting of a chairman, who shall
be the governor, or his or her designated representative, the tax commissioner and seven members who
shall be appointed by the governor, by and with the advice and consent of the Senate, and who shall
be broadly representative of the geographic regions of the state. One member of the House of
Delegates to be appointed by the speaker and one member of the Senate to be appointed by the
president shall serve on the board in an advisory capacity as ex officio, nonvoting members. The board
shall direct the exercise of all the powers given to the authority in this article. The governor shall also
be the chief executive officer of the authority, and shall designate the treasurer and the secretary of the
board.
(c) Upon the effective date of this legislation, the governor shall forthwith appoint seven
members of the board for staggered terms. The terms of the board members first taking office on or
after the effective date of this legislation shall expire as designated by the governor at the time of the
nomination, two at the end of the first year, two at the end of the second year, two at the end of the
third year, and one at the end of the fourth year, after the first day of July, one thousand nine hundred
eighty-nine. As these original appointments expire, each subsequent appointment shall be for a full
four-year term. Any member whose term has expired shall serve until his or her successor has been
duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any member shall be is eligible for reappointment. The term of any person serving as a member
of the board immediately preceding the effective date of this legislation shall cease and otherwise
expire upon such effective date: Provided, That any such member shall be eligible for reappointment.
(d) The governor may, by written notice filed with the secretary of the authority, from time to
time, delegate to any subordinate the power to represent him or her at any meeting of the authority.
In such that case, the subordinate shall have has the same power and privileges as the governor and
may vote on any question.
(e) Members of the authority shall are not be entitled to compensation for services performed
as members, but shall be are entitled to reimbursement for all reasonable and necessary expenses
actually incurred in the performance of their duties.
(f) A majority of the members shall constitute constitutes a quorum for the purpose of
conducting business. Except in the case of a loan or insurance application or unless the bylaws require
a larger number, action may be taken by majority vote of the members present. Approval or rejection
of a loan or insurance application shall be made by majority vote of the full membership of the board.
(g) The board shall manage the property and business of the authority and may prescribe,
amend, adopt and repeal bylaws and rules and regulations governing the manner in which the business
of the authority is conducted.
(h) The board shall, without regard to the provisions of civil service laws applicable to officers
and employees of the state of West Virginia, appoint such any necessary managers, assistant managers,
officers, employees, attorneys and agents as are necessary for the transaction of its business, fix their
compensation, define their duties and provide a system of organization to fix responsibility and
promote efficiency. Any appointee of the board may be removed at the discretion of the board. The authority may reimburse any state spending unit for any special expense actually incurred in providing
any service or the use of any facility to the authority.
(i) In cases of any vacancy in the office of a voting member, such the vacancy shall be filled
by the governor. Any member appointed to fill a vacancy in the board occurring prior to the expiration
of the term for which his or her predecessor was appointed shall be appointed for the remainder of such
the term.
(j) The governor may remove a member in the case of incompetence, neglect of duty, gross
immorality or malfeasance in office, and may declare such the member's office vacant and appoint a
person for such the vacancy as provided in other cases of vacancy.
(k) The secretary of the board shall keep a record of the proceedings of the board and perform
such any other duties as may be determined appropriate by the board. The treasurer shall be custodian
of all funds of the authority and shall be bonded in such the amount as designated by other members
of the board may designate."
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. 693), 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, 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. 4607) 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 by the Senate in the amendment of the House
of Delegates to the amendment of the Senate, and the passage, as amended, to take effect from passage,
of
H. B. 4669, Providing for establishment of special five-year demonstration professional
development school project.
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. 4746, Relating generally to the state treasurer's office.
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, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §12-1-2, §12-1-7, §12-1-12 and §12-1-13 of the code of West Virginia, 1931, as
amended, be amended and reenacted; that §12-2-1 of said code be amended and reenacted; that
§12-3-1 and §12-3-1a of said code be amended and reenacted; that §12-3A-3, §12-3A-4 and §12-3A-6
of said code be amended and reenacted; that §12-5-1 and §12-5-5 of said code be amended and
reenacted; and that §18-30-4 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;
definition of
spending unit.
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 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 considers to be in the best interests of the state, 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 financial institutions
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. Boards, commissions and spending units with authority pursuant to this code to deposit moneys in a financial institution without approval of the state treasurer shall
retain that authority and are not required to have the treasurer designate a financial institution as a
depository: Provided, That boards, commissions and spending units with moneys deposited in
financial institutions not approved for that purpose by the state treasurer shall submit a report on those
moneys annually to the legislative auditor. The provisions of this section 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.
__________As used in this chapter, 'spending unit' means a department, agency, board, commission 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. Boards, commissions and spending units with authority
pursuant to this code to enter into contracts or agreements with financial institution for banking goods and services without approval of the state treasurer shall retain that authority and are not required to
have the treasurer designate a financial institution as a depository. The provisions of this section shall
not apply to trust and investment accounts and activities for 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. 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 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.
__________Spending units with authority to retain interest or earnings on a fund or account may submit
requests to the treasurer to transfer moneys to a specific investment pool of the investment
management board and retain any interest or 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 or account.
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 an 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, 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.
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
'Treasurer's Stale Check Fund,' which is hereby created in the state treasury, 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 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 state treasurer shall competitively bid the selection of vendors needed to provide the necessary
banking, investment and related goods and 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 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 and the state treasurer may establish a state debit card known as the 'West
Virginia Check Card' for recipients of employee payroll or of retirement, 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 and the state 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 and the state 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.
(a) The state treasurer may establish a system for acceptance of credit card and other payment
methods for electronic commerce purchases from spending units. 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.
__________(b) To facilitate electronic commerce, the state treasurer may charge a spending unit for the
banking and other expenses incurred by the treasurer on behalf of the spending unit and for any work
performed, including, without limitation, assisting in the development of a website and utilization of
the treasurer's payment gateway. A special revenue account, entitled the 'Treasurer's Financial
Electronic Commerce Fund,' is created in the state treasury to receive the amounts charged by the
treasurer. The treasurer may expend the funds received in the Treasurer's Financial Electronic
Commerce Fund only for the purposes of this article and for other purposes as determined by the
Legislature.
__________(c) 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 of 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 of 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 chapter all cash received by any state
spending unit intended to serve as security for a legal obligation, whether pursuant to 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's Safekeeping Fund' is established in the state treasury. The treasurer shall
deposit moneys received pursuant to this article in the Treasurer's Safekeeping Fund. The treasurer
is authorized to invest the money in accordance with this code and the restrictions placed on the
money, with earnings accruing to the moneys in the fund. The treasurer shall prescribe the forms and
procedures for processing the moneys.
CHAPTER 18. EDUCATION.
ARTICLE 30. WEST VIRGINIA COLLEGE PREPAID TUITION AND SAVINGS
PROGRAM ACT.
§18-30-4. Creation of program; board; members; terms; compensation;
proceedings generally.
(a) The West Virginia college prepaid tuition and savings program is hereby created continued.
The program consists of a prepaid tuition plan and a savings plan.
(b) The board of trustees of the prepaid tuition trust fund in existence immediately prior to the
effective date of this section shall become the board of the college prepaid tuition and savings program
is continued and all powers, rights and responsibilities of the board of trustees of the prepaid tuition
trust fund are transferred to vested in the board of the college prepaid tuition and savings program.
With the exception of the members of the board appointed pursuant to the provisions of subdivision
(3) of subsection (c) of this section, the members of the board of trustees of the prepaid tuition trust
fund shall become the members of the board of the college prepaid tuition and savings program on the
effective date of this section and shall, for all purposes, serve the same terms that they would have
served had the board of trustees of the prepaid tuition trust fund continued.
(c) The board consists of nine members and includes the following:
(1) The secretary of education and the arts, or his or her designee;
(2) The state treasurer, or his or her designee;
(3) Two representatives of the higher education policy commission, who may or may not be
members of the higher education policy commission, appointed by the commission who serve as
voting members of the board, one of whom shall represent the interests of the universities of West
Virginia and the state colleges and one of whom shall represent the interests of the state colleges and
community and technical colleges of West Virginia; The members appointed pursuant to the provisions of this subdivision shall assume the positions heretofore held by the representatives of the
university system board of trustees and the state college system board of directors in existence prior
to July 1, 2000;
(4) Five other members, appointed by the governor, with knowledge, skill and experience in
an academic, business or financial field, to be appointed as follows:
(A) A Two private citizen citizens not employed by, or an officer of, the state or any political
subdivision of the state appointed from one or more nominees of the speaker of the House of
Delegates;
(B) A private citizen not employed by, or an officer of, the state or any political subdivision
of the state appointed from one or more nominees of the president of the Senate;
(C) One member representing the interests of private institutions of higher education located
in this state appointed from one or more nominees of the West Virginia association of private colleges;
and
(D) (C) Two members representing the public.
(d) The public members and the member representing the interests of private institutions of
higher education are appointed by the governor with the advice and consent of the Senate.
(e) Only state residents are eligible for appointment to the board.
(f) Members appointed by the governor serve a term of five years and are eligible for
reappointment at the expiration of their terms. In the event of a vacancy among appointed members,
the governor shall appoint a person representing the same interests to fill the unexpired term. Of the
initial appointments to the board of trustees of the prepaid tuition trust fund in existence immediately
prior to the effective date of this section, the governor shall appoint one member to a one-year term, one member to a two-year term, one member to a three-year term, one member to a four-year term, and
one member to a five-year term. Thereafter, all terms are five years.
(g) Members of the board serve until the later of the expiration of the term for which the
member was appointed or the appointment of a successor. Members of the board serve without
compensation. The treasurer may pay all expenses, including travel expenses, actually incurred by
board members in the conduct of their official duties. Expense payments are made from the college
prepaid tuition and savings program administrative account, and are made at the same rate paid to state
employees.
(h) The treasurer may provide support staff and office space for the board.
(i) The treasurer is the chairman and presiding officer of the board, and may appoint the
employees the board considers advisable or necessary. A majority of the members of the board
constitute a quorum for the transaction of the business of the board."
And,
By amending the title of the bill to read as follows:
H. B. 4746 - "A Bill to amend and reenact §12-1-2, §12-1-7, §12-1-12 and §12-1-13 of the
code of West Virginia, 1931, as amended; to amend and reenact §12-2-1 of said code; to amend and
reenact §12-3-1 and §12-3-1a of said code; to amend and reenact §12-3A-3, §12-3A-4 and §12-3A-6
of said code; to amend and reenact §12-5-1 and §12-5-5 of said code; and to amend and reenact §18-
30-4 of said code, all relating generally to the state treasurer's office; designating financial institutions
as depositories for state funds; adding state and federal savings and loan associations as candidates for
depository banks; exceptions; defining spending unit for the purposes of chapter twelve of the code;
allowing only the treasurer to enter into contracts for banking goods and services; exceptions; requiring
financial institutions outside the state with state funds to meet the same collateral requirements for other depositories; clarifying that the treasurer may pay for banking goods and services by maintaining
a compensating balance in an account other than only accounts that do not earn interest; adding
electronic funds transfers to the methods the state uses to receive moneys; amending procedures for
stale dated checks and requiring the treasurer to search for the payee; requiring spending units which
have payments in which the checks have become stale to inform the treasurer's office when the stale
dated checks contain federal funds, the amount of the federal funds and which account should receive
the funds; specifying legal effect of documents and electronic signatures; adding the treasurer as
additional administrator of the West Virginia check card; allowing the state treasurer to authorize
spending units to assess and collect fees for electronic commerce receipts; requiring the state treasurer
to issue legislative rules to authorize spending units to assess and collect fees for electronic commerce
receipts; adding cash to the definition of securities; creating fund in treasury to allow for the deposit
of cash into safekeeping and allowing the treasurer to invest the money and to prescribe forms and
procedures for processing the moneys; changing the qualifications for certain members of the West
Virginia college prepaid tuition and savings program and changing the appointment process of two
members of the West Virginia college prepaid tuition and savings program."
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. 694), 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, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4746) 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, without amendment, to take
effect from passage, a bill of the House of Delegates as follows:
H. B. 4760, Supplemental appropriation to the governor's office - office of economic
opportunity.
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:
H. B. 4761, Supplemental appropriation to the department of agriculture - donated food fund.
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:
H. B. 4762, Supplemental appropriation to the department of military affairs and public safety
- office of emergency services.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 93, Suspending Joint Rule No. 5, providing for consideration on third reading of H.
B. 4763.
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:
H. B. 4763, Extending the time for the city council of Dunbar to meet as a levying body for the
purpose of presenting to the voters of the city an election to continue an additional city levy.
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 to
Com. Sub. for S. B. 133, Budget bill.
On motion of Delegate Staton, the House of Delegates refused to recede from its amendment
and requested the Senate to agree to the appointment of a Committee of Conference of six from each
house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Michael, Doyle, Mezzatesta, Leach, Warner and Hall.
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 the adoption by the Senate, with amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 8, Requesting a study on the childhood obesity epidemic in West Virginia in regards
to chronic disease, poor nutrition and inadequate exercise.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the title and inserting in lieu thereof the
following:
"Whereas, About a third of adults in West Virginia are overweight and one in four are obese;
and
Whereas, The United States experienced unprecedented increases in overweight and obesity
in the last decade--reaching epidemic proportions. In 1991, no state had an obesity rate of 20 percent
or higher. As of the year 2000, 22 states reported obesity rates of 20 percent or higher. These
increases cut across all ages, racial and ethnic groups and both genders; and
Whereas, West Virginia ranks first among all states in obesity; and
Whereas, Forty percent of children in West Virginia are either overweight or obese, and this
prevalence has nearly tripled for adolescents in the past two decades; and
Whereas, Obesity is associated with increased mortality and risk for a number of disorders,
including cardiovascular disease, hypertension, stroke, Type II diabetes, osteoarthritis and certain
cancers; and
Whereas, Obesity has a significantly greater effect on the number of chronic conditions than
the effects of current or past smoking or problem drinking; and
Whereas, A study by Obesity Research shows the estimated adult obesity-attributable medical
expenditures in West Virginia are $588 million for the total population, $140 million for the Medicare
population, and $187 million for the Medicaid population; and
Whereas, According to the United States Centers for Disease Control and Prevention (CDC),
if this trend is not reversed, obesity-related health problems and associated costs will soon surpass
those associated with tobacco; and
Whereas, Research supports the conviction that strong, healthy bodies promote learning and
enhance mental and emotional health, social development, self-esteem and overall fitness and that
coupling physical activity with an academic curriculum results in an overall increase in academic
performance among school-age children; and
Whereas, Early detection and treatment of obesity as well as an emphasis on physical and
nutritional education in childhood provides an opportunity for the development of lifelong health and
fitness skills as well as proper eating habits; and
Whereas, Obesity is a preventable and treatable disease that has reached epidemic
proportions; and education, prevention and proper treatment can reduce health care costs and improve
the quality of life for a significant number of adults and children in West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance urges the Governor of the State of West
Virginia, the Legislature of West Virginia, the Department of Health and Human Resources, the Public
Employees Insurance Agency, the Department of Education and other state agencies and institutions
to make the prevention and treatment of obesity a priority and to work to reduce obesity and improve
the health and wellness of the residents of West Virginia through the following measures:
(1) Working collaboratively with federal agencies, such as the United States Centers for
Disease Control and Prevention and with other states to promote guidelines and best practices in the
prevention and treatment of obesity;
(2) Educating the medical community, teachers and school administrators, employers and the
general public about the scope of the problem and ways to prevent and treat obesity in adults and
children;
(3) Providing incentives and promoting the availability of obesity-related treatment in the state
Medicaid program, PEIA and other state-funded insurance programs;
(4) Identifying and implementing strategies to increase the amount of daily quality physical
activity and nutrition education in the curriculum of public schools; and
(5) Providing incentives for workplace initiatives to combat obesity and encourage physical
activity; and, be it
Further Resolved, That the Joint Committee on Government and Finance is requested to study
potential policies and legislation to encourage people to change their lifestyles which would result in
dramatic changes in outcome measures on obesity within five years; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, 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."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The question now before the House being on the adoption of the resolution, as amended, the
same was put and prevailed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendments, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 25, Requesting the three branches of state government to cooperate and encourage
leaders of the state, county and municipal governments to identify and affirmatively address the racial
disparities in various areas of civil rights.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the title and inserting in lieu thereof the
following:
"Whereas, House Concurrent Resolution No. 76, adopted by the West Virginia Legislature
in 2002, recognizes and outlines a number of employment, social, health, educational, criminal justice
and economic problems confronting African Americans and their communities in this state; and
Whereas, Select Committee B on Minority Issues was created by the Joint Committee on
Government and Finance as part of the 2003 legislative interims to consider House Concurrent
Resolution No. 76 and to study and make recommendations and offer solutions to address problems
identified in House Concurrent Resolution No. 76; and
Whereas, According to the 2000 Census, African Americans comprise approximately 3.2
percent of the state's population and more than 5 percent of the population in seven counties; and
Whereas, The West Virginia Legislature should be committed to connecting communities,
exploring strategies for racial and social equality and taking proactive steps to remedy the effects of
past discrimination on African American children, adults and families; and
Whereas, Prevention of discrimination in civil rights, the justice system, education, health
care, economic development, employment, business development, housing and community and family
services is preferable to attempting to remedy the consequences of discrimination; and
Whereas, There is a wide disparity between African American and Caucasian public school
students in West Virginia with regard to standardized testing scores, indicating a significant
achievement gap which widens with tragic consequences for a number of African American students
as they progress in school; and
Whereas, On the 2003 ACT college entrance examination, which is used by the PROMISE
scholarship program to determine eligibility for college scholarships, African American students'
success rate was significantly lower than that of Caucasian students; and
Whereas, African American children have been overrepresented in special education
programs in schools in Kanawha County, the only area of the state for which statistics were provided
to the Committee, and underrepresented in advanced education programs and programs for performing
or gifted students; but the Kanawha County Board of Education has established programs to identify
and include all qualified students, without regard to race, in special programs to enhance performance
and to address the academic achievement gap between African American and Caucasian children at
early stages of the public education process; and
Whereas, The percentage of African American teachers and educational professionals in many
of the state's public schools is disproportionately lower than the African American student population,
to some degree depriving minority students of important African American role models and advocates
in educational settings; and
Whereas, Training assistance and education programs with affirmative outreach to African
Americans combine to help prevent racial discrimination; and
Whereas, African Americans in West Virginia experience a disproportionately higher
incidence of health risk and mortality from cancer, diabetes, hypertension, heart disease and HIV;
African American women tend to be diagnosed with breast cancer at later stages than Caucasian women; and the teen birth rate and the infant mortality rate among African Americans is twice that of
Caucasians; and
Whereas, The percentage of African American children in the care and/or custody of the
Bureau of Children and Families in 2003 was more than twice the percentage of African Americans
in the general West Virginia population; and
Whereas, Business ownership among African Americans in Charleston, West Virginia, the
only area of the state for which statistics were provided to the Committee, is proportionately less than
minority business ownership nationwide; and
Whereas, The unemployment rate of African Americans recently has been about twice the
unemployment rate for Caucasians and significantly higher in some counties with a greater
concentration of African American population; and
Whereas, Statistics provided by the State Equal Employment Opportunity Office indicate that
the percentage of minority employees among the full-time state government employees under the
control of the Department of Administration is approximately the same as the percentage of African
Americans in the state's population as a whole; and
Whereas, The West Virginia Advisory Committee to the United States Commission on Civil
Rights has found continuing reports of racial discrimination in hiring, tension between law-
enforcement officers and African American citizens and hate crimes and violence against minorities,
including reported incidents of harassment of racial and ethnic minorities in schools; and
Whereas, The West Virginia Human Rights Commission reports that two-thirds of the hate
crimes reported between 1992 and 2000 were racially motivated; and
Whereas, The West Virginia Legislative Auditor's Performance Evaluation and Research
Division (PERD) reports that there is a scarcity of minority and female state troopers, especially in upper ranks, with only 16 (2.6 percent) of 606 troopers being female and only 3 (1.3 percent) of 606
troopers being African American; that the percentages of female and African American officers in
county sheriff's departments are even lower; and that the state's 10 largest cities employ, on average,
only 4.6 percent female officers and 3.9 percent African American officers, even though most of those
cities have significantly greater populations of African Americans; and
Whereas, The West Virginia State Police have voluntarily sought to determine and monitor
their own efforts relating to racial profiling sensitivity during routine traffic stops; and
Whereas, According to data voluntarily collected and provided by the West Virginia State
Police, between October, 2002, and March, 2003, motor vehicles operated by minority drivers were
stopped by state troopers at a rate roughly comparable to the percentage of minorities in the general
state population. After being stopped, 63 percent of minority drivers were ticketed or arrested,
compared to 51 percent of Caucasian drivers, and warnings were issued to 37 percent of all minority
drivers, compared to 49 percent of Caucasian drivers; and
Whereas, West Virginia enjoys both a low juvenile crime rate and one of the nation's lowest
juvenile detention rates, yet the percentage of minority youth in the West Virginia juvenile justice
system exceeds the national rate of minority youths in the juvenile justice system; and
Whereas, In West Virginia, African Americans make up only 3.2 percent of the general
population, but account for one third (1/3) of the adult prison population, one fifth (1/5) of the
juveniles placed in detention and admitted to correctional facilities, and over one half (½) of the
juveniles transferred to adult jurisdiction for major felonies; and
Whereas, There is a great and immediate need for comprehensive data collection and analysis
on a multiyear basis and for continuing examination and review of solutions with regard to racial disparities in the areas of civil rights, health, education, housing, social issues, employment, economic
development and criminal and juvenile justice systems; therefore, be it
Resolved by the Legislature of West Virginia:
That the three branches of state government should cooperate and encourage leaders of the state
to identify and affirmatively address minority issues and racial disparities in the areas of civil rights,
health, education, housing, social issues, employment, economic development and criminal and
juvenile justice systems; and, be it
Further Resolved, That county boards of education should be encouraged to aggressively
recruit minority teachers and other professionals to work in the public school system; and, be it
Further Resolved, That the Department of Education and county boards of education be given
greater flexibility to employ teachers who are trained or experienced in working with African
American children and parents; and, be it
Further Resolved, That the Legislature should provide funding for professional development
to improve teachers' effectiveness with African American students and parents; and, be it
Further Resolved, That the Legislature should provide more funding for academic enrichment
programs in locations where there are concentrations of poor and minority students, including more
early preschool programs and after-school programs; and, be it
Further Resolved, That the Department of Health and Human Resources should increase access
to education in welfare-to-work programs and evaluate placement and referral policies; and, be it
Further Resolved, That the Governor continue the mission of the Governor's Minority
Students' Strategies Council to collect and analyze information from other states and organizations
regarding effective policies and strategies for closing the academic achievement gap between
Caucasian and minority students and to prepare an annual report for the Governor, the State Board of Education, the Higher Education Policy Commission, the Legislative Oversight Commission on
Education Accountability and the public, outlining issues, recommendations and strategies to close the
academic achievement gap; and, be it
Further Resolved, That the Department of Education be required to review its Policy No. 2421,
126 CSR 18 (1996) governing peer harassment and violence against minority students, to study the
extent to which the Policy has been implemented in public schools throughout the state and to take
necessary steps to ensure complete implementation of the Policy in all public schools as soon as
reasonably possible; and, be it
Further Resolved, That the Department of Education and county boards of education
themselves, with the input of the local communities, should provide hate crime prevention and
response programs in schools and antibias training and education for students and teachers, including
mechanisms to ensure harassment is reported before problems escalate, and that there are appropriate
responses to incidents of harassment when they do occur; and, be it
Further Resolved, That the Legislature should direct resources to support community-level
partnership and innovation to address racial and ethnic disparities in health care; and, be it
Further Resolved, That all governmental agencies, institutions and corporate bodies at state
and local levels should be encouraged to regularly collect, analyze and report to the Department of
Administration data relating to racial disparities among children, adults and families in West Virginia;
and, be it
Further Resolved, That the Department of Administration should review and, if necessary,
establish or reform state procurement policies and practices to assure that they meet federal and state
requirements and that they effectively encourage meaningful participation of African Americans and other minorities in the process of competing for and awarding of state contracts for goods and services;
and, be it
Further Resolved, That the State should continue to support and expand small business
incubator programs like the one in place at Bluefield State College to encourage new and minority
small business development; and, be it
Further Resolved, That the State should undertake initiatives to encourage African American
business ownership similar to those efforts used to encourage greater rates of business ownership
among women; and, be it
Further Resolved, That the State should assist community and economic development
corporations to provide effective technical and business advisory services to minority-owned and -
operated enterprises; and, be it
Further Resolved, That the Governor and the Legislature should encourage industry, banks and
other private businesses to hire African Americans and to encourage businesses to be more aggressive
in establishing diversity-conscious practices as employers and for their operations; and, be it
Further Resolved, That the State should encourage traditional and nontraditional lending
institutions to be more creative and favorable to lending in minority communities and to minority
persons, especially for business enterprises; and, be it
Further Resolved, That the Legislature should encourage small business start-up and expansion
and provide funding to assist African American and other minority vendors to meet bid bonding
requirements; and, be it
Further Resolved, That workforce investment boards should be accountable for educating poor
and minority persons for jobs better than low-paying service jobs; and, be it
Further Resolved, That the West Virginia State Police and local law-enforcement officers
should be trained and required to collect data regarding stops of motor vehicle operators which affect
everyone's precious right of privacy in their motor vehicles, which data should include information
on the stops and arrests of African Americans; and, be it
Further Resolved, That the West Virginia State Police and local law-enforcement agencies be
required to provide diversity training for officers, including training to recognize and report hate
crimes; and, be it
Further Resolved, That the West Virginia State Police be required to develop, in writing, goals
for increasing the number of women and African Americans for all grades of officers and staff and to
report annually as to its efforts and success in meeting those goals and be encouraged to employ
African American and other minority persons as recruiting officers; and, be it
Further Resolved, That the Legislature, the Governor and the Supreme Court should increase
support for criminal justice research and for the development, maintenance and continued assessment
of data related to the effectiveness of the court system in the areas of criminal sentencing, juvenile
adjudication and community-based corrections; and, be it
Further Resolved, That the Legislature should protect and maintain the confidentiality of
juvenile records pending a study on the adverse impact of the release of such records on the
employment and higher education opportunities of minority youth; and, be it
Further Resolved, That the West Virginia Supreme Court of Appeals should continue to study
issues related to minority youth, including the highly disproportionate number of minority youth
transferred from juvenile to adult jurisdiction in the criminal justice system through its Task Force to
Study Perceived Racial Disparity in the Juvenile Justice System and to study and develop similar
research projects with data collection in regard to adult offenders; and, be it
Further Resolved, That state agencies should study racial disparities in a number of areas to
reduce gaps in educational achievement and in the overrepresentation of African Americans in adult
prisons and juvenile facilities and encourage all participants in the educational and justice systems,
including teachers, principals and other educational personnel, probation officers, juvenile referees,
judges, justices, prosecutors, attorneys, law-enforcement officers, detention and correctional officers,
caseworkers, social service providers, agency staff and members of the community to join in the study
and development of policies and programs to address racial disparities; and, be it
Further Resolved, That the Legislature, the Governor and the Supreme Court should take
immediate steps to develop, implement and fund a collaborative and comprehensive community-based
plan to study and correct overrepresentation of minority children and adults in the state's criminal and
juvenile justice systems, with particular attention to prevention of juvenile crime through mentoring,
diversion, recidivism-reduction strategies, in-school and after-school programs, entrepreneurial
education, job training and placement alternatives, community-based sentencing for nonviolent
offenders and transition and reentry programs for offenders upon completion of their sentences; and,
be it
Further Resolved, That state agencies and the Legislature should be encouraged to propose
specific legislative proposals where appropriate to facilitate these recommendations; and, be it
Further Resolved, That the Legislature should continue to study minority and racial disparity
issues in 2004; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to forward a
copy of this resolution to the Governor of West Virginia, the Justices of the West Virginia Supreme
Court of Appeals, the President of the West Virginia Senate and the Speaker of the West Virginia
House of Delegates."
And,
By amending the title of the resolution to read as follows:
H. C. R. 25 - "Requesting the three branches of state government to cooperate and encourage
leaders of the state, county and municipal governments to identify and affirmatively address minority
issues and racial disparities in the areas of civil rights, health, education, housing, social issues,
employment, economic development and criminal and juvenile justice systems in West Virginia in the
interest of equality."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
On the question of the adoption of the resolution, as amended, the same was put and prevailed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 30, Requesting the United States Congress to broaden the eligibility categories of
membership in veterans' organizations.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, in the Resolving clause, after the words "United States", by inserting a comma
and the words "wherever possible" followed by a comma.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The question now before the House being on the adoption of the resolution, as amended, the
same was put and prevailed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a joint
resolution of the House of Delegates as follows:
H. J. R. 114, Veterans Bonus Amendment of 2004.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page seven, line one hundred nine, by striking out the following proviso: "Provided, That
no bonus may be issued until a list of veterans and relatives of deceased veterans eligible for such
bonus and the amount of bonus each veteran or relative of a deceased veteran is eligible to receive is
certified to the Legislature at the end of the involvement for the conflict in Afghanistan, the conflict
in Kosovo and the Iraqi War by the Governor as the Legislature will provide by general law" and the
period, and inserting in lieu thereof a new proviso, to read as follows: "Provided, That no bonus may
be issued until the Governor certifies a list of veterans and relatives of deceased veterans eligible to
receive such bonus to the Legislature at any regular or special session of the Legislature as the
Legislature will provide by general law."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The resolution, as amended by the Senate, was then put upon its adoption.
On the adoption of the resolution, the yeas and nays were taken (Roll No. 695), and there
were--yeas 99, nays none, absent and not voting 1, with the yeas, nays and absent and not voting being
as follows:
Yeas: Amores, Anderson, Armstead, Ashley, Azinger, Beach, Beane, Blair, Boggs, Border,
Brown, Browning, Butcher, Calvert, Campbell, Cann, Canterbury, Caputo, Carmichael, Caruth, Craig,
Crosier, DeLong, Doyle, Duke, Ellem, Ennis, Evans, Faircloth, Ferrell, Fleischauer, Foster, Fragale,
Frederick, Frich, Hall, Hamilton, Hartman, Hatfield, Houston, Howard, Hrutkay, Iaquinta, Kominar,
Kuhn, Leach, Leggett, Long, Louisos, Mahan, Manchin, Manuel, Martin, Mezzatesta, Michael,
Morgan, Overington, Palumbo, Paxton, Perdue, Perry, Pethtel, Pino, Poling, Proudfoot, Renner,
Romine, Schadler, Schoen, Shaver, Shelton, Smirl, Sobonya, Spencer, Stalnaker, Staton, Stemple,
Sumner, Susman, Swartzmiller, Tabb, Talbott, R. Thompson, R. M. Thompson, Trump, Tucker,
Varner, Wakim, Walters, Warner, Webb, Webster, G. White, H. White, Williams, Wright, Yeager,
Yost and Mr. Speaker, Mr. Kiss.
Nays: None
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 resolution (H. J. R. 114) adopted, as follows:
H. J. R. 114 - "Proposing an amendment to the Constitution of the State of West Virginia,
authorizing appropriations and the issuance and sale of additional state bonds in an amount not
exceeding eight million dollars for the purpose of paying bonuses to certain veterans or to relatives of
certain veterans; numbering and designating such proposed amendment; and providing a summarized
statement of the purpose of such proposed amendment."
Resolved by the Legislature of West Virginia, two thirds of the members elected to each house
agreeing thereto:
That the question of ratification or rejection of an amendment to the Constitution of the State
of West Virginia be submitted to the voters of the state at the next general election to be held in the year two thousand four, or at any special election held prior thereto, which proposed amendment is as
follows:
VETERANS BONUS AMENDMENT
(Kosovo, Afghanistan, and Iraq)
The Legislature shall provide by law, either for the appropriation from the general revenues
of the State, or for the issuance and sale of state bonds, which shall be in addition to all other state
bonds heretofore issued, or a combination of both as the Legislature may determine, for the purpose
of paying a cash bonus to: (1) Veterans of the armed forces of the United States who served on active
duty in areas of conflict in Iraq, or were members of reserve components called to active duty by the
President of the United States under Title 10, United States Code section 12301, 12302, 12303 or
12304 during the Iraqi War, between the nineteenth day of March, two thousand three and the date
determined by the President or Congress of the United States as the end of the involvement of the
United States armed forces in Iraq, both dates inclusive; or (2) veterans, active service members, or
members of reserve components of the armed forces of the United States, who served on active duty
in one of the military operations for which he or she received a campaign badge or expeditionary
medal during the periods hereinafter described. For purposes of this amendment, periods of active
duty in a campaign or expedition are designated as: The conflict in Kosovo between the twentieth day
of November, one thousand nine hundred ninety-five and the thirty-first day of December, two
thousand, both dates inclusive; and the conflict in Afghanistan, between the seventh day of October,
two thousand one and the date determined by the President or Congress of the United States as the end
of the involvement of the United States armed forces in Afghanistan, both dates inclusive. For
purposes of this amendment not more than one bonus shall be paid to or on behalf of the service of a
veteran. In order to be eligible to receive a bonus, a veteran must have been a bona fide resident of the State of West Virginia at the time of his or her entry into active service and for a period of at least
six months immediately prior thereto, and has not been separated from service under conditions other
than honorable. The bonus shall also be paid to any veteran otherwise qualified pursuant to this
amendment, who was discharged within ninety days after entering the armed forces because of a
service-connected disability. The amount of the bonus shall be six hundred dollars per eligible veteran
who was in active service, inside the combat zone in Kosovo, Afghanistan or Iraq as designated by the
President or Congress of the United States at anytime during the dates specified hereinabove. In the
case of the Iraqi War and the conflict in Afghanistan, the amount of bonus shall be four hundred
dollars per eligible veteran who was in active service outside the combat zone designated by the
President or Congress of the United States during the dates specified hereinabove. The bonus to which
any deceased veteran would have been entitled, if living, shall be paid to the following surviving
relatives of the veteran, if the relatives are residents of the State when the application is made and if
the relatives are living at the time payment is made: Any unremarried widow or widower, or, if none,
all children, stepchildren and adopted children under the age of eighteen, or, if none, any parent,
stepparent, adoptive parent or person standing in loco parentis. The categories of persons listed shall
be treated as separate categories listed in order of entitlement and where there is more than one
member of a class, the bonus shall be paid to each member according to his or her proportional share.
Where a deceased veteran?s death was connected with the service and resulted from the service during
the time period specified, however, the surviving relatives shall be paid, in accordance with the same
order of entitlement, the sum of two thousand dollars in lieu of any bonus to which the deceased might
have been entitled if living. The person receiving the bonus shall not be required to include the bonus
as income for state income tax purposes.
The principal amount of any bonds issued for the purpose of paying the bonuses provided for
in this amendment shall not exceed the principal amount of eight million dollars, but may be funded
or refunded either on the maturity dates of the bonds or on any date on which the bonds are callable
prior to maturity, and if any of the bonds have not matured or are not then callable prior to maturity,
the Legislature may nevertheless provide at any time for the issuance of refunding bonds to fund or
refund the bonds on the dates when the bonds mature or on any date on which the bonds are callable
prior to maturity and for the investment or reinvestment of the proceeds of the refunding bonds in
direct obligations of the United States of America until the date or dates upon which the bonds mature
or are callable prior to maturity. The principal amount of any refunding bonds issued under the
provisions of this paragraph shall not exceed the principal amount of the bonds to be funded or
refunded thereby.
The bonds may be issued from time to time for the purposes authorized by this amendment as
separate issues or as combined issues.
Whenever the Legislature shall provide for the issuance of any bonds under the authority of
this amendment, it shall at the same time provide for the levy, collection and dedication of an
additional tax, or enhancement to another tax as the Legislature may determine, in an amount as may
be required to pay annually the interest on the bonds and the principal thereof within and not exceeding
fifteen years, and all taxes or charges so levied shall be irrevocably dedicated for the payment of the
principal of and interest on the bonds until the principal of and interest on the bonds are finally paid
and discharged and any of the covenants, agreements or provisions in the acts of the Legislature
levying the taxes or charges shall be enforceable in any court of competent jurisdiction by any of the
holders of said bonds. Any revenue generated in excess of that which is required to pay the bonuses herein and to pay any administrative cost associated with the payment shall be used to pay the principal
and interest on any bonds issued as soon as is economically practicable.
The Legislature shall have the power to enact legislation necessary and proper to implement
the provisions of this amendment: Provided, That no bonus may be issued until the Governor certifies
a list of veterans and relatives of deceased veterans eligible to receive such bonus to the Legislature
at any regular or special session of the Legislature as the Legislature will provide by general law.
Resolved further, That in accordance with the provisions of article eleven, chapter three of the
code of West Virginia, one thousand nine hundred thirty-one, as amended, such proposed amendment
is hereby numbered "Amendment No. 1" and designated as the "Veterans Bonus Amendment of
2004," and the purpose of the proposed amendment is summarized as follows: "To amend the State
Constitution to permit the Legislature to appropriate general revenues or sell state bonds for the
payment of bonuses and death benefits to veterans of the conflicts in Kosovo, Afghanistan and Iraq
or to their relatives, and to impose or increase a tax to pay for the bonds.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of Conference
on, and the passage, as amended by said report, to take effect from passage, and requested the
concurrence of the House of Delegates in the passage, of
S. B. 448, Relating to higher education advisory boards generally.
Special Calendar
Third Reading
Com. Sub. for S. B. 513, Relating to jobs investment trust board; 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. 696), 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. 513) 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:
Com. Sub. for S. B. 513 - "A Bill to amend and reenact §12-7-4, §12-7-6, §12-7-8a and §12-
7-11 of the code of West Virginia, 1931, as amended, all relating to the jobs investment trust board;
expanding board powers; providing for sale or transfer of nonincentive tax credits; and providing that
certain documents be available for public inspection."
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. 516, Establishing eastern panhandle highway authority; 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. 697), 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. 516) 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:
Com. Sub. for S. B. 516 - "A Bill to establish the West Virginia eastern panhandle
transportation authority to include representatives from Berkeley, Jefferson and Morgan counties;
appointment of officers; and powers of authority."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 536, Relating to claims against state; on third reading, coming up in regular order, with
the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page eight, section one, following line ninety-three, by inserting "(1)".
On page twenty, section one, line three hundred fifty-eight, by striking out "(2)" and inserting
in lieu thereof "(1)".
And,
On page twenty, section one, line three hundred fifty-nine, by striking out "(n)" and inserting
in lieu thereof "(2)".
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 698), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 536) passed.
Delegate Varner moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 699), 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. 536) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 260, Allowing design-build board to be reimbursed for certain expenses;
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. 700), 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. 260) passed.
Delegate Varner moved that the bill take effect September 1, 2004.
On this question, the yeas and nays were taken (Roll No. 701), 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 S. B. 260) takes effect September 1, 2004.
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. 554, Continuing guardianship or conservatorship of deceased protected
persons; 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. 702), 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. 554) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 558, Making misuse of power of attorney or fiduciary relationship crime; 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. 703), 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 Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 558) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 558 - "A Bill to amend and reenact §61-3-20 of the code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new section, designated §61-3-20a, all relating
to crimes of embezzlement; removing certain evidentiary presumptions which have been deemed
unconstitutional; creating a new crime of embezzlement related to the wilful and fraudulent misuse of a power of attorney or other fiduciary relationship; providing that such crimes of embezzlement or
fraudulent conversion to be punishable as larceny."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 573, Providing procedure for economic development authority to address problems of
state minorities; on third reading, coming up in regular order, with the right to amend, was reported
by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page six, section three, line seven, by striking out the words "faith-
based organizations" and inserting in lieu thereof the words "non-profit organizations".
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 704), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 573) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegate Frich requested that the Journal record her as voting "Nay" on the Judiciary
amendment to S. B. 573.
Conference Committee Report
Delegate Williams, from the Committee of Conference on matters of disagreement between
the two houses, as to
H. B. 4601, Relating to public education generally,
Submitted the following report, which was received.
Your Committee of Conference on the disagreeing votes of the two houses on the amendment
of the Senate to H. B. 4601, 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 §18-9A-7 of the code of West Virginia, 1931, as amended, be amended and reenacted;
and that §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of said code be amended and
reenacted, all to read as follows:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-7. Foundation allowance for transportation cost.
The allowance in the foundation school program for each county for transportation shall be the
sum of the following computations:
(1) Eighty-five percent of the transportation cost within each high-density county and ninety
percent of the transportation cost within each low-density county for maintenance, operation and
related costs, exclusive of all salaries: Provided, That for the school year beginning the first day of
July, one thousand nine hundred ninety-eight, and thereafter, in the event a for any county that uses
an alternative fuel such as compressed natural gas or other acceptable alternative fuel for the operation
of all or any portion of its school bus system, then the allowance in the foundation school program for
each such the county for that portion of its school bus system shall be ninety-five percent of the
transportation cost for maintenance, operation and related costs, exclusive of all salaries, incurred by the use of the alternatively fueled school buses: Provided, however, That any county using an
alternative fuel and qualifying for the additional allowance shall submit a plan regarding the intended
future use of alternatively fueled school buses;
(2) The total cost, within each county, of insurance premiums on buses, buildings and
equipment used in transportation: Provided, That such the premiums were procured through
competitive bidding;
(3) For the school year beginning the first day of July, one thousand nine hundred ninety-nine,
and thereafter, an An amount equal to eight and one-third percent of the current replacement value of
the bus fleet within each county as determined by the state board. such The amount to be used only
shall only be used for the replacement of buses. Buses purchased after the first day of July, one
thousand nine hundred ninety-nine, that are driven one hundred eighty thousand miles, regardless of
year model, will be subject to the replacement value of eight and one-third percent as determined by
the state board: Provided, That for the school year beginning on the first day of July, two thousand
four, only, the allowance in the foundation school program for each county for transportation shall not
include an amount for the replacement of buses. In addition, in any school year in which its net
enrollment increases when compared to the net enrollment the year immediately preceding, a school
district may apply to the state superintendent for funding for an additional bus. The state
superintendent shall make a decision regarding each application based upon an analysis of the
individual school district's net enrollment history and transportation needs: Provided, however, That
the superintendent shall not consider any application which fails to document that the county has
applied for federal funding for additional buses. If the state superintendent finds that a need exists,
a request for funding shall be included in the budget request submitted by the state board for the
upcoming fiscal year;
(4) Eighty-five percent of the cost of contracted transportation services and public utility
transportation within each high-density county and ninety percent of the cost of contracted
transportation services and public utility transportation within each low-density county;
(5) Aid in lieu of transportation equal to the state average amount per pupil for each pupil
receiving such the aid within each county; and
(6) Ninety-five percent of the transportation cost for maintenance, operation and related costs,
exclusive of all salaries, for transporting students to and from classes at a multicounty vocational
center.
The total state share for this purpose shall be the sum of the county shares: Provided, That no
county shall receive an allowance which is greater than one-third above the computed state average
allowance per transportation mile multiplied by the total transportation mileage in the county:
Provided, however, That one half of one percent of the transportation allowance distributed to each
county shall be for the purpose of trips related to academic classroom curriculum and not related to
any extracurricular activity: Provided further, That for the school year beginning on the first day of
July, two thousand four, only, the transportation allowance of each county shall include an allocation
for the purpose of trips related to academic classroom curriculum and not related to any extracurricular
activity. The allocation shall equal the amount distributed to the county for this purpose in the school
year beginning on the first day of July, two thousand three: And provided further, That any remaining
funds credited to a county for the purpose of trips related to academic classroom curriculum during
the fiscal year shall be carried over for use in the same manner the next fiscal year and shall be separate
and apart from, and in addition to, the appropriation for the next fiscal year: And provided further,
That the state board may request a county to document the use of funds for trips related to academic
classroom curriculum if the board deems it determines that it is necessary.
The state department of education shall cause a comprehensive study to be made relating to
student transportation. The study shall examine, but is not limited to, the issues of funding, timeliness
of data used for formula distribution, service personnel needed, inter-county service, regionalization
of services, bus routes, amount of time students spend on buses, maintenance, safety training, and
alternative transportation systems. The state department of education shall submit a report of the study
to the legislative oversight commission on education accountability by the fifteenth day of January,
one thousand nine hundred ninety-nine.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-2. Definitions.
The following terms, wherever used or referred to in this article, have the following meanings
unless a different meaning clearly appears from the context:
(1) "Authority" means the school building authority of West Virginia or, if said the authority
shall be is abolished, any board or officer succeeding to the principal functions thereof of the school
building authority or to whom the powers given to said the authority shall be are given by law;
(2) "Bonds" means bonds issued by the authority pursuant to this article;
(3) "Construction project" means a project in the furtherance of a facilities plan with a cost of
the project greater than five hundred thousand dollars for the new construction, expansion or major
renovation of facilities, buildings and structures for school purposes, including the acquisition of land
for current or future use in connection therewith with the construction project, as well as new or
substantial upgrading of existing equipment, machinery, furnishings, installation of utilities and other
similar items convenient in connection with placing the foregoing construction project into operation:
Provided, That a construction project may not include such items as books, computers or equipment
used for instructional purposes, fuel, supplies, routine utility services fees, routine maintenance costs, ordinary course of business improvements and other items which are customarily deemed considered
to result in a current or ordinary course of business operating charge: Provided, however, That a
construction project may not include a major improvement project;
(4) "Cost of project" means the cost of construction, expansion, renovation, repair and safety
upgrading of facilities, buildings and structures for school purposes; the cost of land, equipment,
machinery, furnishings, installation of utilities and other similar items convenient in connection with
placing the foregoing project into operation; and the cost of financing, interest during construction,
professional service fees and all other charges or expenses necessary, appurtenant or incidental to the
foregoing, including the cost of administration of this article;
(5) "Facilities plan" means the a ten-year countywide comprehensive educational facilities plan
established by the county board in accordance with guidelines adopted by the authority to meet the
goals and objectives of this article that: (i) Addresses the existing school facilities and facility needs
of the county to provide a thorough and efficient education in accordance with the provisions of this
code and policies of the state board; (ii) best serves the needs of the individual student, the general
school population and the communities served by the facilities; (iii) includes a school major
improvement plan as defined in this section; (iv) is updated annually to reflect projects completed,
current enrollment projections and new or continuing needs; and (v) is approved by the state board and
the authority for school facilities required prior to the distribution of state funds pursuant to this article
to any county board or other entity applying for funds; pursuant to subsection (a), section sixteen of
this article;
(6) "Project" means a construction project or a major improvement project;
(7) "Region" means the area encompassed within and serviced by a regional educational
service agency established pursuant to section twenty-six, article two of this chapter;
(8) "Revenue" or "revenues" means moneys deposited in the school building capital
improvements fund pursuant to the operation of section ten, article nine-a of this chapter; moneys
deposited in the school construction fund pursuant to the operation of section thirty, article fifteen,
chapter eleven of this code and pursuant to the operation of section eighteen, article twenty-two,
chapter twenty-nine of this code; moneys deposited in the school building debt service fund pursuant
to section eighteen, article twenty-two, chapter twenty-nine of this code; moneys deposited in the
school major improvement fund pursuant to the operation of section thirty, article fifteen, chapter
eleven of this code; any moneys received, directly or indirectly, from any source for use in any project
completed pursuant to this article; and any other moneys received by the authority for the purposes of
this article;
(9) "School major improvement plan" means the a ten-year school maintenance plan to be that:
(i) Is prepared by each a county board of education in accordance with the guidelines established by
the authority and incorporated in its countywide comprehensive educational facilities plan or is
prepared by the state board of education or the administrative council of an area vocational educational
center in accordance with the guidelines if such entity seeks the entities seek funding from the
authority for a major improvement project; which school major improvement plan (ii) addresses the
regularly scheduled maintenance for all school facilities of the county or under the jurisdiction of the
entity seeking funding; (iii) includes a projected repair and replacement schedule for all school
facilities of the county or of entity seeking funding; (iv) addresses the major improvement needs of
each school within the county or under the jurisdiction of the entity seeking funding; and (v) is
required prior to the distribution of state funds for a major improvement project pursuant to subsection
(b), section sixteen of this article to the county board, state board or administrative council; and
(10) "School major improvement project" means a project with a cost greater than fifty
thousand dollars and less than five hundred thousand dollars for the renovation, expansion, the repair
and safety upgrading of existing school facilities, buildings and structures, including the substantial
repair or upgrading of equipment, machinery, building systems, utilities and other similar items
convenient in connection with such renovation, repair or upgrading in the furtherance of a school
major improvement plan: Provided, That a major improvement project may not include such items
as books, computers or equipment used for instructional purposes, fuel, supplies, routine utility
services fees, routine maintenance costs, ordinary course of business improvements and other items
which are customarily deemed considered to result in a current or ordinary course of business
operating charge.
§18-9D-6. School building capital improvements fund in state treasury; school construction
fund in state treasury; school building debt service fund in state treasury;
school improvement fund in state treasury; collections to be paid into special
funds; authority to pledge the collections as security for refunding revenue
bonds; authority to finance projects on a cash basis.
(a) There is continued in the state treasury a school building capital improvements fund to be
expended by the authority as provided in this article. The school building capital improvements fund
shall be an interest-bearing account with interest credited to and deposited in the school building
capital improvements fund and expended in accordance with the provisions of this article.
The school building authority may pledge all or any part of the revenues paid into the school
building capital improvements fund that are needed to meet the requirements of any revenue bond
issue or issues authorized by this article prior to the twentieth day of July, one thousand nine hundred
ninety-three, or revenue bonds issued to refund revenue bonds issued prior to that date, including the payment of principal of, interest and redemption premium, if any, on the revenue bonds and the
establishing and maintaining of a reserve fund or funds for the payment of the principal of, interest and
redemption premium, if any, on the revenue bond issue or issues when other moneys pledged may be
insufficient for the payment of the principal, interest and redemption premium, including any
additional protective pledge of revenues that the authority in its discretion has provided by resolution
authorizing the issuance of the bonds or in any trust agreement made in connection with the bond
issue. Additionally, the authority may provide in the resolution and in the trust agreement for priorities
on the revenues paid into the school building capital improvements fund that are necessary for the
protection of the prior rights of the holders of bonds issued at different times under the provisions of
this article.
Any balance remaining in the school building capital improvements fund after the authority
has issued bonds authorized by this article and after the requirements of all funds, including reserve
funds established in connection with the bonds issued prior to the twentieth day of July, one thousand
nine hundred ninety-three, pursuant to this article have been satisfied may be used for the redemption
of any of the outstanding bonds issued under this article which by their terms are then redeemable, or
for the purchase of the bonds at the market price, but not exceeding the price, if any, at which the
bonds are in the same year redeemable and all bonds redeemed or purchased shall immediately be
canceled and shall not again be issued.
The school building authority, in its discretion, may use the moneys in the school building
capital improvements fund to finance the cost of projects authorized in accordance with the provisions
of section sixteen of this article on a cash basis. Any pledge of moneys in the fund for revenue bonds
issued prior to the twentieth day of July, one thousand nine hundred ninety-three, is a prior and
superior charge on the fund over the use of any of the moneys in the fund to pay for the cost of any project on a cash basis: Provided, That any expenditures from the fund, other than for the retirement
of revenue bonds, may only be made by the authority in accordance with the provisions of this article.
(b) There is continued in the state treasury a special revenue fund named the school building
debt service fund into which shall be deposited the amounts specified in section eighteen, article
twenty-two, chapter twenty-nine of this code. All amounts deposited in the fund shall be pledged to
the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or
refunding revenue bonds authorized by this article: Provided, That deposited moneys may not be
pledged to the repayment of any revenue bonds issued prior to the first day of January, one thousand
nine hundred ninety-four, or with respect to revenue bonds issued for the purpose of refunding revenue
bonds issued prior to the first day of January, one thousand nine hundred ninety-four. Additionally,
the authority may provide in the resolution and in the trust agreement for priorities on the revenues
paid into the school building debt service fund that are necessary for the protection of the prior rights
of the holders of bonds issued at different times under the provisions of this article. On or prior to the
first day of May of each year, the authority shall certify to the state lottery director the principal and
interest and coverage ratio requirements for the following fiscal year on any revenue bonds issued on
or after the first day of January, one thousand nine hundred ninety-four, and for which moneys
deposited in the school building debt service fund have been pledged, or will be pledged, for
repayment pursuant to this section.
After the authority has issued bonds authorized by this article and after the requirements of all
funds have been satisfied, including coverage and reserve funds established in connection with the
bonds issued pursuant to this article, any balance remaining in the school building debt service fund
may be used for the redemption of any of the outstanding bonds issued under this article which, by
their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which the bonds are redeemable and all bonds redeemed or purchased
shall be immediately canceled and shall not again be issued: Provided, That after the authority has
issued bonds authorized by this article and after the requirements of debt service and all associated
funds have been satisfied for the fiscal year, including coverage and reserve funds established in
connection with the bonds issued pursuant to this article, any remaining balance in the school building
debt service fund may be transferred to the school construction fund created in subsection (c) of this
section and used by the school building authority in its discretion to finance the cost of school
construction or improvement projects authorized in accordance with the provisions of section sixteen
of this article on a cash basis.
(c) There is continued in the state treasury a special revenue fund named the school
construction fund into which shall be deposited the amounts specified in section thirty, article fifteen,
chapter eleven of this code and section eighteen-a, article twenty-two, chapter twenty-nine of this code,
together with any moneys appropriated to the fund by the Legislature: Provided, That for the school
year beginning the first day of July, two thousand and four, only, funds from the excess lottery
allocated in section eighteen-a, article twenty-two, chapter twenty-nine of this code shall not be
transferred to the school construction fund and, in lieu thereof, made available for legislative
appropriation: Provided however, That for the school year beginning the first day of July, two thousand
and four, only, up to five million dollars of the amounts in the fund may be appropriated by the
Legislature for budget shortfalls. Expenditures from the school construction fund shall be for the
purposes set forth in this article, including lease-purchase payments under agreements made pursuant
to subsection (e), section fifteen of this article and section nine, article five of this chapter and are
authorized from collections in accordance with the provisions of article three, chapter twelve of this
code and from other revenues annually appropriated by the Legislature from lottery revenues as authorized by section eighteen, article twenty-two, chapter twenty-nine of this code pursuant to the
provisions set forth in article two, chapter five-a of this code. Amounts collected which are found,
from time to time, to exceed the funds needed for purposes set forth in this article may be transferred
to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. The
school construction fund shall be an interest-bearing account, with the interest credited to and
deposited in the school construction fund and expended in accordance with the provisions of this
article. Deposits to and expenditures from the school construction fund are subject to the provisions
of subsection (i), subsection (k), section fifteen of this article.
(d) There is continued in the state treasury a special revenue fund named the school major
improvement fund into which shall be deposited the amounts specified in section thirty, article fifteen,
chapter eleven of this code, together with any moneys appropriated to the fund by the Legislature.
Expenditures from the school major improvement fund shall be for the purposes set forth in this article
and are authorized from collections in accordance with the provisions of article three, chapter twelve
of this code and from other revenues annually appropriated by the Legislature from lottery revenues
as authorized by section eighteen, article twenty-two, chapter twenty-nine of this code pursuant to the
provisions set forth in article two, chapter five-a of this code. Amounts collected which are found,
from time to time, to exceed the funds needed for purposes set forth in this article may be transferred
to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. The
school major improvement fund shall be an interest-bearing account, with interest being credited to
and deposited in the school major improvement fund and expended in accordance with the provisions
of this article.
(e) The Legislature finds and declares that the supreme court of appeals of West Virginia has
held that the issuance of additional revenue bonds authorized under the school building authority act, as enacted in this article prior to the twentieth day of July, one thousand nine hundred ninety-three,
constituted an indebtedness of the state in violation of section four, article X of the constitution of
West Virginia, but that revenue bonds issued under this article prior to the twentieth day of July, one
thousand nine hundred ninety-three, are not invalid. The Legislature further finds and declares that
the financial capacity of a county to construct, lease and improve school facilities depends upon the
county's bonding capacity (local property wealth), voter willingness to pass bond issues and the
county's ability to reallocate other available county funds instead of criteria related to educational
needs or upon the ability of the school building authority created in this article to issue bonds that
comply with the holding of the West Virginia supreme court of appeals or otherwise assist counties
with the financing of facilities construction and improvement. The Legislature further finds and
declares that this section, as well as section eighteen, article twenty-two, chapter twenty-nine of this
code, have been reenacted during the first extraordinary session of the West Virginia Legislature in
the year one thousand nine hundred ninety-four in an attempt to comply with the holding of the
supreme court of appeals of West Virginia.
The Legislature further finds and declares that it intends, through the reenactment of this
section and section eighteen, article twenty-two, chapter twenty-nine of this code, to dedicate a source
of state revenues to special revenue funds for the purposes of paying the debt service on bonds and
refunding bonds issued subsequent to the first day of January, one thousand nine hundred ninety-four,
the proceeds of which will be used for the construction and improvement of school building facilities.
The Legislature further finds and declares that it intends, through the reenactment of this section and
section thirty, article fifteen, chapter eleven of this code and section eighteen, article twenty-two,
chapter twenty-nine of this code, to appropriate revenues to two special revenue funds for the purposes
of construction and improvement of school building facilities. Furthermore, the Legislature intends to encourage county boards to maintain existing levels of county funding for construction,
improvement and maintenance of school building facilities and to generate additional county funds
for those purposes through bonds and special levies whenever possible. The Legislature further
encourages the school building authority, the state board and county boards of education to propose
uniform project specifications for comparable projects whenever possible to meet county needs at the
lowest possible cost.
The Legislature further finds and declares that it intends, through the reenactment of this
section and section eighteen, article twenty-two, chapter twenty-nine of this code, to comply with the
provisions of sections four and six, article X of the constitution of West Virginia; and section one,
article XII of said constitution.
§18-9D-8. Use of proceeds of bonds; bonds exempt from taxation.
(a) The maximum aggregate face value of bonds that may be issued by the authority, for which
the moneys in the school building debt service fund are to be pledged, is four hundred million dollars.
The issuance of revenue bonds under the provisions of this article shall be authorized, from time to
time, by resolution or resolutions of the school building authority which shall set forth the proposed
projects authorized in accordance with the provisions of section sixteen of this article and provide for
the issuance of bonds in amounts sufficient, when sold as hereinafter provided in this section, to
provide moneys considered sufficient by the authority to pay the costs, less the amounts of any other
funds available for the costs or from any appropriation, grant or gift for the costs: Provided, That bond
issues from which bond revenues are to be distributed in accordance with section fifteen of this article
shall for projects authorized pursuant to the provisions of section sixteen of this article are not be
required to set forth the proposed projects in the resolution. The resolution shall prescribe the rights
and duties of the bondholders and the school building authority and, for that purpose, may prescribe the form of the trust agreement hereinafter referred to in this section. The bonds may be issued, from
time to time, in such amounts; shall be of such series; bear such date or dates; mature at such time or
times not exceeding forty years from their respective dates; bear interest at such rate or rates; be in
such denominations; be in such form, either coupon or registered, carrying such registration,
exchangeability and interchangeability privileges; be payable in such medium of payment and at such
place or places within or without the state; be subject to such terms of redemption at such prices not
exceeding one hundred five percent of the principal amount of the bonds; and be entitled to such
priorities on the revenues paid into the fund pledged for repayment of the bonds as may be provided
in the resolution authorizing the issuance of the bonds or in any trust agreement made in connection
with the bonds: Provided, however, That revenue bonds issued on or after the first day of January, one
thousand nine hundred ninety-four, which are secured by lottery proceeds shall mature at such time
or times not exceeding ten years from their respective dates.
(b) The bonds shall be signed by the governor, and by the president or vice president of the
authority, under the great seal of the state, attested by the secretary of state, and the coupons attached
to the bonds shall bear the facsimile signature of the president or vice president of the authority. In
case any of the officers whose signatures appear on the bonds or coupons cease to be officers before
the delivery of the bonds, the signatures shall nevertheless be valid and sufficient for all purposes the
same as if such the officers had remained in office until such the delivery. The revenue bonds shall
be sold in the manner determined by the authority to be for the best interests of the state.
(c) Any pledge of revenues made by the school building authority for revenue bonds issued
prior to the twentieth day of July, one thousand nine hundred ninety-three, pursuant to this article is
valid and binding between the parties from the time the pledge is made; and the revenues pledged shall
immediately be subject to the lien of the pledge without any further physical delivery thereof of the revenues pledged or further act. The lien of the pledge is valid and binding against all parties having
claims of any kind in tort, contract or otherwise, irrespective of whether the parties have notice of the
lien of the pledge, and the pledge shall be a prior and superior charge over any other use of the
revenues pledged.
(d) The proceeds of any bonds shall be used solely for the purpose or purposes as may be
generally or specifically set forth in the resolution authorizing those bonds and shall be disbursed in
the manner and with the restrictions, if any, that the authority provides in the resolution authorizing
the issuance of the bonds or in the trust agreement hereinafter referred to in this section securing the
same bonds. If the proceeds of the bonds, by error in calculations or otherwise, are less than the cost
of any projects specifically set forth in the resolution, additional bonds may in like manner be issued
to provide the amount of the deficiency; and unless otherwise provided for in the resolution or trust
agreement hereinafter mentioned, the additional bonds shall be considered to be of the same issue and
are entitled to payment from the same fund, without preference or priority, as the bonds before issued
for the projects. If the proceeds of bonds issued for the projects specifically set forth in the resolution
authorizing the bonds issued by the authority exceed the cost of the bonds, the surplus may be used
for any other projects determined by the school building authority authorized in accordance with the
provisions of section sixteen of this article or in any other manner that the resolution authorizing the
bonds provides. Prior to the preparation of definitive bonds, the authority may, under like restrictions,
issue temporary bonds with or without coupons, exchangeable for definitive bonds upon the issuance
of the definitive bonds.
(e) After the issuance of any of revenue bonds, the revenues pledged for the revenue bonds
shall not be reduced as long as any of the revenue bonds are outstanding and unpaid except under the terms, provisions and conditions that are contained in the resolution, trust agreement or other
proceedings under which the revenue bonds were issued.
(f) The revenue bonds and the revenue refunding bonds and bonds issued for combined
purposes, together with the interest on the bonds, are exempt from all taxation by the state of West
Virginia, or by any county, school district, municipality or political subdivision thereof.
(g) To meet the operational costs of the school building authority, the school building authority
may transfer to a special revenue account in the state treasury interest on any debt service reserve funds
created within any resolution authorizing the issue of bonds or any trust agreement made in connection
with the bonds for expenditure in accordance with legislative appropriation or allocation of
appropriation.
(h) Any school construction bonds issued under this section shall be issued on parity with any
existing school building authority bonds previously issued under this article.
§18-9D-15. Legislative intent; allocation of money among categories of projects; lease purchase
options; limitation on time period for expenditure of project allocation;
county maintenance budget requirements; project disbursements over
period of years; preference for multicounty arrangements; submission of
project designs; set-aside to encourage local participation; etc.
(a) It is the intent of the Legislature to empower the school building authority to facilitate and
provide state funds and to administer all federal funds provided for the construction and major
improvement of school facilities so as to meet the educational needs of the people of this state in an
efficient and economical manner. The authority shall make funding determinations in accordance with
the provisions of this article and shall assess existing school facilities and each facility's school major improvement plan in relation to the needs of the individual student, the general school population, the
communities served by the facilities and facility needs statewide.
(b) An amount that is no more than three percent of the sum of moneys that are determined by
the authority to be available for distribution during the then current fiscal year from: (1) Moneys paid
into the school building capital improvements fund pursuant to section ten, article nine-a of this
chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund
are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of
this article; and (4) any other moneys received by the authority, except moneys paid into the school
major improvement fund pursuant to section six of this article, may be allocated and may be expended
by the authority for projects authorized in accordance with the provisions of section sixteen of this
article that service the educational community statewide or, upon application by the state board, for
educational programs that are under the jurisdiction of the state board. In addition, upon application
by the state board or the administrative council of an area vocational educational center established
pursuant to article two-b of this chapter, the authority may allocate and expend under this subsection
moneys for school major improvement projects authorized in accordance with the provisions of section
sixteen of this article proposed by the state board or an administrative council for school facilities
under the direct supervision of the state board or an administrative council, respectively. Furthermore,
upon application by a county board, the authority may allocate and expend under this subsection
moneys for school major improvement projects for vocational programs at comprehensive high
schools, vocational schools cooperating with community and technical college programs, or both.
Each county board is encouraged to cooperate with community and technical colleges in the use of
existing or development of new vocational technical facilities. All projects eligible for funds from this
subsection shall be submitted directly to the authority which shall be solely responsible for the project's evaluation: Provided, That the authority may not expend any moneys for a school major
improvement project proposed by the state board or the administrative council of an area vocational
educational center unless the state board or an administrative council has submitted a ten-year school
major improvement plan, to be updated annually, pursuant to section sixteen of this article: facilities
plan: Provided, however, That the authority shall, before allocating any moneys to the state board or
the administrative council of an area vocational educational center for a school improvement project,
consider all other funding sources available for the project.
(c) An amount that is no more than two percent of the moneys that are determined by the
authority to be available for distribution during the current fiscal year from: (1) Moneys paid into the
school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2)
the issuance of revenue bonds for which moneys in the school building debt service fund are pledged
as security; (3) moneys paid into the school construction fund pursuant to section six of this article;
and (4) any other moneys received by the authority, except moneys deposited into the school major
improvement fund, shall be set aside by the authority as an emergency fund to be distributed in
accordance with the guidelines adopted by the authority.
(d) An amount that is no more than five percent of the moneys that are determined by the
authority to be available for distribution during the current fiscal year from: (1) Moneys paid into the
school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2)
the issuance of revenue bonds for which moneys in the school building debt service fund are pledged
as security; (3) moneys paid into the school construction fund pursuant to section six of this article;
and (4) any other moneys received by the authority, except moneys deposited into the school major
improvement fund, may be reserved by the authority for multiuse vocational-technical education
facilities projects that may include post-secondary programs as a first priority use. The authority may allocate and expend under this subsection moneys for any purposes authorized in this article on
multiuse vocational-technical education facilities projects, including equipment and equipment updates
at the facilities, authorized in accordance with the provisions of section sixteen of this article. and for
equipment and equipment updates at the facilities. If the projects approved under this subsection do
not require the full amount of moneys reserved, moneys above the amount required may be allocated
and expended in accordance with other provisions of this article. A county board, the state board, an
administrative council or the joint administrative board of a vocational-technical education facility
which includes post-secondary programs may propose projects for facilities or equipment, or both,
which are under the direct supervision of the respective body: Provided, That the authority shall,
before allocating any moneys for a project under this subsection, consider all other funding sources
available for the project.
(e) The remaining moneys determined by the authority to be available for distribution during
the then current fiscal year from: (1) Moneys paid into the school building capital improvements fund
pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which
moneys in the school building debt service fund are pledged as security; (3) moneys paid into the
school construction fund pursuant to section six of this article; and (4) any other moneys received by
the authority, except moneys deposited into the school major improvement fund, shall be allocated and
expended on the basis of need and efficient use of resources the basis to be determined by the authority
for projects funded in accordance with the provisions of section sixteen of this article.
(f) If a county board of education proposes to finance a project that is approved pursuant to
authorized in accordance with section sixteen of this article through a lease with an option to purchase
leased premises upon the expiration of the total lease period pursuant to an investment contract, the
authority may allocate no moneys to the county board in connection with the project: Provided, That the authority may transfer moneys to the state board of education which, with the authority, shall lend
the amount transferred to the county board to be used only for a one-time payment due at the beginning
of the lease term, made for the purpose of reducing annual lease payments under the investment
contract, subject to the following conditions:
(1) The loan shall be secured in the manner required by the authority, in consultation with the
state board, and shall be repaid in a period and bear interest at a rate as determined by the state board
and the authority and shall have such any terms and conditions as that are required by the authority,
all of which shall be set forth in a loan agreement among the authority, the state board and the county
board;
(2) The loan agreement shall provide for the state board and the authority to defer the payment
of principal and interest upon any loan made to the county board during the term of the investment
contract, and annual renewals of the investment contract, among the state board, the authority, the
county board and a lessor: Provided, That in the event a county board which has received a loan from
the authority for a one-time payment at the beginning of the lease term does not renew the subject lease
annually until performance of the investment contract in its entirety is completed, the county board is
in default and the principal of the loan, together with all unpaid interest accrued to the date of the
default, shall, at the option of the authority, in consultation with the state board, become due and
payable immediately or subject to renegotiation among the state board, the authority and the county
board: Provided, however, That if a county board renews the lease annually through the performance
of the investment contract in its entirety, the county board shall exercise its option to purchase the
leased premises: Provided further, That the failure of the county board to make a scheduled payment
pursuant to the investment contract constitutes an event of default under the loan agreement: And
provided further, That upon a default by a county board, the principal of the loan, together with all unpaid interest accrued to the date of the default, shall, at the option of the authority, in consultation
with the state board, become due and payable immediately or subject to renegotiation among the state
board, the authority and the county board: And provided further, That if the loan becomes due and
payable immediately, the authority, in consultation with the state board, shall use all means available
under the loan agreement and law to collect the outstanding principal balance of the loan, together with
all unpaid interest accrued to the date of payment of the outstanding principal balance; and
(3) The loan agreement shall provide for the state board and the authority to forgive all
principal and interest of the loan upon the county board purchasing the leased premises pursuant to the
investment contract and performance of the investment contract in its entirety.
(g) To encourage county boards to proceed promptly with facilities planning and to prepare for
the expenditure of any state moneys derived from the sources described in this subsection section, any
county board failing or other entity to whom moneys are allocated by the authority that fails to expend
the money within three years of the allocation to the county board shall forfeit the allocation and
thereafter is ineligible for further allocations pursuant to this subsection section until the county board
it is ready to expend funds in accordance with an approved facilities plan: Provided, That the authority
may authorize an extension beyond the three-year forfeiture period not to exceed an additional two
years. Any amount forfeited shall be added to the total funds available in the school construction fund
of the authority for future allocation and distribution. Funds may not be distributed to any county
board that does not have a comprehensive educational facility for any project under this article unless
the responsible entity has a facilities plan approved by the state board and the school building authority
or to any county board that is not and is prepared to commence expenditure of the funds during the
fiscal year in which the moneys are distributed.
(h) The remaining moneys that are determined by the authority to be available for distribution
during the then current fiscal year from moneys paid into the school major improvement fund pursuant
to section six of this article shall be allocated and distributed on the basis of need and efficient use of
resources the basis to be determined by the authority for projects authorized in accordance with the
provisions of section sixteen of this article: Provided, That the moneys may not be distributed to any
county board that does not have an approved school major improvement for any project under this
section unless the responsible entity has a facilities plan or to any county board that is not prepared
approved by the state board and the authority and is to commence expenditures of the funds during the
fiscal year in which the moneys are distributed: Provided, however, That any moneys allocated to a
county board project and not distributed to that county board for that project shall be deposited in an
account to the credit of that county board the project, the principal amount to remain to the credit of
and available to the county board project for a period of two years. Any moneys which are
unexpended after a two-year period shall be redistributed on the basis of need from the school major
improvement fund in that fiscal year.
(i) No local matching funds may be required under the provisions of this section. However,
the responsibilities of the county boards of education to maintain school facilities are not negated by
the provisions of this article. To be eligible to receive an allocation of school major improvement
funds from the authority, a county board must have expended in the previous fiscal year an amount of
county moneys equal to or exceeding the lowest average amount of money included in the county
board's maintenance budget over any three of the previous five years and must have budgeted an
amount equal to or greater than the average in the current fiscal year: Provided, That the state board
of education shall promulgate rules relating to county boards' maintenance budgets, including items
which shall be included in the budgets.
(j) Any county board may use moneys provided by the authority under this article in
conjunction with local funds derived from bonding, special levy or other sources. Distribution to a
county board, or to the state board or the administrative council of an area vocational educational
center pursuant to subsection (b) of this section, may be in a lump sum or in accordance with a
schedule of payments adopted by the authority pursuant to guidelines adopted by the authority.
(k) Funds in the school construction fund shall first be transferred and expended as follows:
Any funds deposited in the school construction fund shall be expended first in accordance with
an appropriation by the Legislature. To the extent that funds are available in the school construction
fund in excess of that amount appropriated in any fiscal year, the excess funds may be expended for
projects authorized in accordance with the provisions of section sixteen of this article. Any projects
which the authority identified and announced for funding on or before the first day of August, one
thousand nine hundred ninety-five, or identified and announced for funding on or before the thirty-first
day of December, one thousand nine hundred ninety-five, shall be funded by the authority in an
amount which is not less than the amount specified when the project was identified and announced.
(l) It is the intent of the Legislature to encourage county boards to explore and consider
arrangements with other counties that may facilitate the highest and best use of all available funds,
which may result in improved transportation arrangements for students or which otherwise may create
efficiencies for county boards and the students. In order to address the intent of the Legislature
contained in this subsection, the authority shall grant preference to those projects which involve
multicounty arrangements as the authority shall determine reasonable and proper.
(m) County boards shall submit all designs for construction of new school buildings to the
school building authority for review and approval prior to preparation of final bid documents:
Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, inclusive, article three, chapter five-a of this code, may not bid on or be awarded
a contract under this section.
(n) The authority may elect to disburse funds for approved construction projects over a period
of more than one year subject to the following:
(1) The authority may not approve the funding of a school construction project for over a period
of more than three years;
(2) The authority may not approve the use of more than fifty percent of the revenue available
for distribution in any given fiscal year for projects that are to be funded over a period of more than
one year; and
(3) In order to encourage local participation in funding school construction projects, the
authority may set aside limited funding, not to exceed five hundred thousand dollars, in reserve for one
additional year to provide a county the opportunity to complete financial planning for a project prior
to the allocation of construction funds. Any such funding shall be on a reserve basis and converted
to a part of the construction grant only after all project budget funds have been secured and all county
commitments have been fulfilled. Failure of the county to solidify the project budget and meet its
obligations to the state within eighteen months of the date the funding is set aside by the authority will
result in expiration of the reserve and the funds shall be reallocated by the authority in the succeeding
funding cycle.
§18-9D-16. Authority to establish guidelines and procedures for facilities and major
improvement plans; guidelines for modifications and updates, etc.;
guidelines for project evaluation; submission of certified list of projects to
be funded; department on-site inspection of facilities; enforcement of
required changes or additions to project plans.
(a) The authority shall establish guidelines and procedures to promote the intent and purposes
of this article and assure the prudent and resourceful expenditure of state funds for projects under this
article including, but not limited to, the following:
(1) Guidelines and procedures for the facilities plans, school major improvement plans and
projects submitted in the furtherance of the plans that address, but are not limited to, the following:
(A) All of the elements of the respective plans as defined in section two of this article;
(B) The procedures for a county to submit a preliminary plan, a plan outline or a proposal for
a plan to the authority prior to the submission of the facilities plan. The preliminary plan, plan outline
or proposal for a plan shall be the basis for a consultation meeting between representatives of the
county and members of the authority, including at least one citizen member, which shall be held
promptly following submission of the preliminary plan, plan outline or proposal for a plan to assure
understanding of the general goals of this article and the objective criteria by which projects will be
evaluated, to discuss ways the plan may be structured to meet those goals, and to assure efficiency and
productivity in the project approval process;
(C) The manner, time line and process for the submission of each plan and annual plan updates
to the authority;
(D) The requirements for public hearings, comments or other means of providing broad-based
input on plans and projects under this article within a reasonable time period as the authority may
consider appropriate. The submission of each plan must be accompanied by a synopsis of all
comments received and a formal comment by the county board, the state board or the administrative
council of an area vocational educational center submitting the plan;
(E) Any project specifications and maintenance specifications considered appropriate by the
authority including, but not limited to, such matters as energy efficiency, preferred siting, construction
materials, maintenance plan and any other matter related to how the project is to proceed;
(F) A prioritization by the county board, the state board or the administrative council
submitting the plan of each project contained in the plan. In prioritizing the projects, the county board,
the state board or the administrative council submitting the plan shall make determinations in
accordance with the objective criteria formulated by the school building authority in accordance with
this section. The priority list is one of the criteria that shall be considered by the authority deciding
how the available funds should be expended;
(G) The objective means to be set forth in the plan and used in evaluating implementation of
the overall plan and each project included in the plan. The evaluation must measure how the plan
addresses the goals of this article and any guidelines adopted under this article, and how each project
is in furtherance of the facilities plan and school major improvement plan, as applicable, as well as the
importance of the project to the overall success of the facilities plan or school major improvement plan
and the overall goals of the authority; and
(H) Any other matters considered by the authority to be important reflections of how a
construction project or a major improvement project or projects will further the overall goals of this
article.
(2) Guidelines and procedures which may be adopted by the authority for requiring that a
county board modify, update, supplement or otherwise submit changes or additions to an approved
facilities plan or for requiring that a county board, the state board or the administrative council of an
area vocational educational center modify, update, supplement or otherwise submit changes or
additions to an approved school major improvement plan. The authority shall provide reasonable notification and sufficient time for the change or addition as delineated in guidelines developed by the
authority.
(3) Guidelines and procedures for evaluating project proposals that are submitted to the
authority that address, but are not limited to, the following:
(A) Any project funded by the authority must be in furtherance of the facilities plan or school
major improvement plan and in compliance with the guidelines established by the authority;
(B) If a project is to benefit more than one county in the region, the facilities plan must state
the manner in which the cost and funding of the project will be apportioned among the counties;
(C) If a county board proposes to finance a construction project through a lease with an option
to purchase pursuant to an investment contract as described in subsection (f), section fifteen of this
article, the specifications for the project must include the term of the lease, the amount of each lease
payment, including the payment due upon exercise of the option to purchase, and the terms and
conditions of the proposed investment contract; and
(D) The objective criteria for the evaluation of projects which shall include, but are not limited
to, the following:
(i) How the current facilities do not meet and how the plan and any project under the plan
meets the following:
(I) Student health and safety including, but not limited to, critical health and safety needs;
(II) Economies of scale, including compatibility with similar schools that have achieved the
most economical organization, facility use and pupil-teacher ratios;
(III) Reasonable travel time and practical means of addressing other demographic
considerations;
(IV) Multicounty and regional planning to achieve the most effective and efficient instructional
delivery system;
(V) Curriculum improvement and diversification, including the use of instructional technology,
distance learning and access to advanced courses in science, mathematics, language arts and social
studies;
(VI) Innovations in education;
(VII) Adequate space for projected student enrollments;
(VIII) The history of efforts taken by the county board to propose or adopt local school bond
issues or special levies to the extent constitutionally permissible; and
(IX) Regularly scheduled preventive maintenance; and
(ii) How the project will assure the prudent and resourceful expenditure of state funds and
achieve the purposes of this article for constructing, expanding, renovating or otherwise improving and
maintaining school facilities for a thorough and efficient education.
(4) Guidelines and procedures for evaluating projects for funding that address, but are not
limited to, the following:
(A) Requiring each county board's facilities plan and school major improvement plan to
prioritize all the construction projects or major improvement projects, respectively, within the county.
A school major improvement plan submitted by the state board or the administrative council of an area
vocational educational center shall prioritize all the school improvement projects contained in the plan.
The priority list shall be one of the criteria to be considered by the authority in determining how
available funds shall be expended. In prioritizing the projects, the county board, the state board or the
administrative council submitting a plan shall make determinations in accordance with the objective
criteria formulated by the school building authority;
(B) The return to each county submitting a project proposal an explanation of the evaluative
factors underlying the decision of the authority to fund or not to fund the project; and
(C) The allocation and expenditure of funds in accordance with this article, subject to the
availability of funds.
(b) Prior to final action on approving projects for funding under this article, the authority shall
submit a certified list of the projects to the joint committee on government and finance.
(c) The state department of education shall conduct on-site inspections, at least annually, of all
facilities which have been funded wholly or in part by moneys from the authority or state board to
ensure compliance with the county board's facilities plan and school major improvement plan as
related to the facilities; to preserve the physical integrity of the facilities to the extent possible; and to
otherwise extend the useful life of the facilities: Provided, That the state board shall submit reports
regarding its on-site inspections of facilities to the authority within thirty days of completion of the on-
site inspections: Provided, however, That the state board shall promulgate rules regarding the on-site
inspections and matters relating thereto, in consultation with the authority, as soon as practical and
shall submit proposed rules for legislative review no later than the first day of December, one thousand
nine hundred ninety-four.
(d) Based on its on-site inspection or notification by the authority to the state board that the
changes or additions to a county's board facilities plan or school major improvement plan required by
the authority have not been implemented within the time period prescribed by the authority, the state
board shall restrict the use of the necessary funds or otherwise allocate funds from moneys
appropriated by the Legislature for those purposes set forth in section nine, article nine-a of this
chapter.
And,
That both houses recede from their respective positions as to the title of the bill and agree to
the same as follows:
H. B. 4601 - "A Bill to amend and reenact §18-9A-7 of the code of West Virginia, 1931, as
amended; and to amend and reenact §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of
said code, all relating to public education; suspending basic foundation allocation for bus replacement
and providing allocation for academic trips for one school year; school building authority; redefining
certain terms; correcting references; allowing expenditure of certain moneys for vocational programs
at comprehensive high schools and vocational schools cooperating with community and technical
college programs; encouraging cooperation relating to vocational technical facilities; authorizing
appropriation of up to certain amount of school construction funds for budget purposes for next school
year only; providing that excess lottery revenues not be transferred to school construction fund for the
next school year only, with funds made available for legislative appropriation; project submission and
evaluation; requiring facilities plan as condition of receiving funds; providing for certain guidelines
and procedures by authority for plans, plan modifications and evaluating projects; clarifying that
certain revenues can only be expended on projects authorized in accordance with the guidelines and
procedures section; and providing for certified list of projects to joint committee."
Respectfully submitted,
Larry A. Williams, Robert H. Plymale,
Randy Swartzmiller, Larry J. Edgell,
Everette W. Anderson, Jr., Donna J. Boley,
Conferees on the part of Conferees on the part of
the House of Delegates. of the Senate.
On motion of Delegate Williams, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 705), and there were--yeas
77, nays 22, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Calvert, Canterbury, Carmichael, Duke, Evans, Frich, Hamilton,
Howard, Kuhn, Louisos, Manuel, Overington, Schadler, Sobonya, Sumner, R. Thompson, Wakim,
Walters, Webb and Yeager.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (H. B. 4601) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 706), and there were--yeas 89, nays
10, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Frich, Martin, Paxton, Sumner, R. Thompson, Wakim, Walters, Webb and
Yeager.
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. 4601) 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 R. Thompson, from the Committee of Conference on matters of disagreement
between the two houses, as to
Com. Sub. for H. B. 2088, Increasing the penalty for the manufacture, distribution or
possession of certain controlled or counterfeit substances near a park,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendments of the Senate to Com. Sub. for H. B. 2088 having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses as follows:
That the House of Delegates agree to the Senate amendments.
Respectfully submitted,
Richard Thompson, C. Randy White
,
William F. Stemple, Anita Skeens Caldwell
,
Tim Armstead
, J. Frank Deem,
Conferees on the part of Conferees on the part of
the House of Delegates. of the Senate.
On motion of Delegate R. Thompson, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 707), 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 H. B. 2088) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Special Calendar
Third Reading
S. B. 574, Allowing commissioner to sell liquor warehouse under certain circumstances; 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. 708), and
there were--yeas 95, nays 4, absent and not voting 1, with the nays and absent and not voting being as
follows:
Nays: Hrutkay, Manuel, Martin and Paxton.
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. 574) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 709), and there were--yeas 96, nays
3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Hrutkay, Manuel and Martin.
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. 574) 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. 596, Relating to powers and duties of board of directors of state board of
risk and insurance management; 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. 710), and there were--yeas
87, nays 12, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley, Blair, Carmichael, Ellem, Hrutkay, Martin, Perdue, Poling, R. Thompson,
Wakim, Webb and Webster.
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. 596) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 637, Relating to termination of tenancy of factory-built home site; other
provisions; 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. 711), 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. 637) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 637 - "A Bill to amend and reenact §37-15-2, §37-15-3 and §37-15-6 of
the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section,
designated section §37-15-3a; and to amend said code by adding thereto a new article, designated §55-
3B-1, §55-3B-2, §55-3B-3, §55-3B-4, §55-3B-5, §55-3B-6 and §55-3B-7, all relating to factory-built
home sites; definition of good cause and section; written agreements for factory-built home sites;
adoption of rules and regulations by owners of factory-built home sites; terms of written agreement
related to termination of tenancy; remedies for wrongful occupation of factory-built home site; definitions; tenancy of factory-built home site; termination of tenancy; petition for summary relief for
wrongful occupation; defenses; proceedings; final order; disposition of abandoned property; and
waiver of rights."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 638, Authorizing special license plate for Davis & Elkins college and plate recognizing
breast cancer survivors; 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. 712), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Carmichael.
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. 638) passed.
An amendment to the title of the bill, recommended by the Committee on Roads and
Transportation, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 638 - "A Bill to amend and reenact §17A-3-14 of the code of West Virginia, 1931, as
amended, relating to registration plates; providing registration plates for promoting education;
Fairmont State College; West Virginia farmers; native Americans; members of the 82nd airborne
association; Knights of Pythias or Pythian sisters; white water rafting; survivors of wounds received
in the line of duty as law-enforcement members; authorizing a special license plate commemorating
the centennial anniversary of the creation of Davis and Elkins college; authorizing a special license
plate recognizing and honoring breast cancer survivors setting fees; exemptions from fees; extending
the time period for certain organizations to achieve the minimum number of applicants for a registration plate; setting forth requirements to obtain certain registration plates; and expanding the
number of registration plates certain persons may obtain."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 673, Relating to reporting requirements on coal resource transportation roads; 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. 713), and there were--yeas
96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley, Border 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. 673) 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. 673 - "A Bill to amend and reenact §17C-17-8a, §17C-17-9 and §17C-17-11d of the
code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section,
designated §17C-17-9a; and to amend and reenact §17C-17A-1, §17C-17A-3, §17C-17A-6 and §17C-
17A-12 of said code, all relating generally to regulating the weights of vehicles on roads and highways;
authorizing tolerances for certain gross weight vehicle loads; requiring compliance with weight load
limits on the national system of interstate and defense highways; providing tolerance limits for
maximum gross vehicle weights; adding roads and highways eligible to qualify as part of the coal
resource transportation road system; limiting certain reporting requirements relating to coal hauled on
coal resource transportation roads; requiring certain receivers to report receiving vehicles transporting coal in excess of eighty-eight thousand pounds on non-coal transportation highways to the public
service commission; and authorizing the commissioner of the division of highways to designate certain
public roads, highways and bridges as feeder roads and designate them on a temporary basis as being
qualified for inclusion in the coal resource transportation system."
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. 675, Relating to outdoor advertising revenues; 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. 714), and there were--yeas
83, nays 15, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Blair, Border, Carmichael, Evans, Howard, Louisos, Schadler,
Schoen, Sobonya, Sumner, Wakim, Walters and Webb.
Absent And Not Voting: Coleman and Kominar.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 675) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 678, Providing reduced tax rate applies to certain underground mines; 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. 715), and there were--yeas
91, nays 8, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Butcher, Caputo, Faircloth, Louisos, Manchin, Manuel, Tucker and Wakim.
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. 678) 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. 700, Requiring state agencies make timely payments for
telecommunications services; other provisions; 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. 716), 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. 700) 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:
Com. Sub. for S. B. 700 - "A Bill to amend the code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §5A-7-4a, relating to payments for telecommunications
services; providing legislative findings; creating a special revenue account; requiring certain duties of
the information services and communications division; requiring state spending units budget for
telecommunications services and submit payment or transfer funds to pay for services; authorizing
secretary of department of administration to transfer funds to pay for telecommunications services and
certain fees and penalties from funds supporting the administration of a spending unit; providing for
payment and determination of contested telecommunications charges; requiring payment of
telecommunications services within ninety days of receipt of invoice; providing for discontinuance of telecommunications services; authorizing fees for administration of section; and authorizing legislative
and emergency rules."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 717), 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: Azinger, Coleman, Schoen and Susman.
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. 700) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 701, Authorizing certain taxes imposed by municipalities; on third
reading, coming up in regular order, was reported by the Clerk and, at the request of Delegate Staton,
and by unanimous consent, laid at the foot of bills on Second Reading.
Com. Sub. for S. B. 709, Providing additional internal controls and procedures for purchasing
card program; other provisions; 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. 718), 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. 709) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4753, Supplemental appropriation to the department of environmental protection -
division of environmental protection - stream restoration fund; on third reading, coming up in regular
order, was reported by the Clerk and, at the request of Delegate Staton, and by unanimous consent, laid
at the foot of bills on Second Reading.
H. B. 4766, Relating to reporting requirements for medicaid fraud for senior centers; on third
reading, coming up in regular order, was reported by the Clerk.
On motion of Delegate Beane, the bill was amended on page six, section two, line thirty, by
striking out the words "any state or federal funding, including but not limited to" and the comma.
On page eight, section three, line forty-one, by striking out the words "any state or federal
funding, including but not limited to" and the comma.
And,
On page fifteen, section three, line forty, by striking out the words "nursing home" and
inserting in lieu thereof the words "assisted living residence".
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 719), 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 R. M. Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (H. B. 4766) passed.
On motion of Delegate Beane, the title of the bill was amended to read as follows:
H. B. 4766 - "A Bill to amend and reenact §9-7-1 and §9-7-2 of the code of West Virginia,
1931, as amended; to amend and reenact §16-5P-3 and §16-5P-6 of said code; and to amend said code
by adding thereto a new article, designated §16-5U-1, §16-5U-2, §16-5U-3, §16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7 and §16-5U-8, all relating to the oversight of senior centers; providing that the
medicaid fraud unit of the department of health and human resources may investigate; requiring the
commissioner of the bureau of senior services to report violations to the governor; authorizing the
commissioner of the bureau of senior services to investigate and audit senior centers; establishing that
senior centers are subject to governmental ethics act, open governmental meetings act and audit
requirements; and establishing criminal penalties."
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. 408, Relating generally to levies by county boards of education and
expenditure of property taxes collected; on third reading, coming up in regular order, was reported by
the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page four, section six-f, line forty, following the word "subdivision",
by inserting a period and striking out the remainder of the paragraph.
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 720), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Evans.
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. 408) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 721), 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 S. B. 408) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 616, Relating to environmental protection advisory council; on third
reading, coming up in regular order, was reported by the Clerk.
Delegate Amores requested and obtained unanimous consent to amend the bill on third reading.
On motion of Delegate Amores, the bill was then amended on page one, line five, by striking
out subsections (a) and (b) in their entirety and inserting in lieu thereof, the following:
"(a) There is created within the department of commerce, labor and environmental resources
environmental protection the environmental protection advisory council. The environmental protection
advisory council consists of seven twelve members. The director secretary serves as an ex officio
member of the council and as its chair. The remaining six eleven members are appointed by the
governor. Each member serves for a term of four years and may be reappointed. Of the new members
of the council first appointed, as a result of the enactment of this section during the two thousand four
regular session, two four shall be appointed for terms ending on the thirtieth day of June, one thousand
nine hundred ninety-six, and two each for terms ending one and two years thereafter. two thousand six,
four shall be appointed for terms ending two thousand seven and three shall be appointed for terms
ending two thousand eight. Thereafter, each appointment shall be for a term of four years. Vacancies
on the council shall be filled within sixty days after the vacancy occurs.
(b) Two members of the council shall represent industries regulated by the division or their
trade associations. Two members shall represent organizations advocating environmental protection.
One member shall represent organizations representing local governments. One member shall
represent public service districts.
(b) The governor shall appoint members of the from nominations submitted by the following
organizations:
__(1) The largest state organization representing manufacturers;
__(2) The largest state trade organization representing coal producers;
__(3) The largest state organization representing farming interests; and
__(4) The largest employee organization representing coal miners within this state.
__And from the following areas of interest:
__(5) A forester registered pursuant to article nineteen, chapter thirty of this code and representing
the interests of private owners of forest land;
__(6) Two members shall represent organizations advocating environmental protection;
__(7) One member shall represent wild life conservation;
__(8) One member shall be the department of environmental protection environmental advocate;
__(9) One member shall represent organizations representing local governments; and
__(10) One member shall represent public service districts.
In making subsequent appointments this balance of membership shall be maintained."
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 722), and there were--yeas
95, nays 3, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Kominar, Manuel and H. White.
Absent And Not Voting: Coleman and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 616) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 616 - "A Bill to amend and reenact §22-1-9 of the code of West Virginia,
1931, as amended; and to amend said code by adding thereto a new section designated §22-3-33, all
relating to the department of environmental protection generally; increasing the membership of the
environmental protection advisory council; requiring that a meeting of the advisory council be called
upon the written request of a majority of members; requiring that the council timely receive an agenda
and related materials for each meeting; allowing council members to submit rule-making suggestions
to the secretary for consideration; authorizing appointment of technical advisors; establishing a new
quality assurance and compliance advisory committee; providing for procedures for committee
meetings; authorizing payment of expenses; and authorizing the committee to review coal mining
permit procedures and processes."
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. 518, Relating to policemen and firemen required to work during holidays;
compensation; 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. 723), and there were--yeas
70, nays 29, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley, Boggs, Butcher, Canterbury, Caputo, Craig, Fleischauer, Fragale, Frich, Hall,
Hamilton, Houston, Hrutkay, Iaquinta, Leggett, Manchin, Manuel, Martin, Perdue, Perry, Poling,
Schoen, Shaver, Sobonya, Sumner, R. Thompson, Tucker, Wakim and Yost.
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. 518) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Conference Committee Report
Delegate Campbell, from the Committee of Conference on matters of disagreement between
the two houses, as to
H. B. 4084, Pharmaceutical Availability and Affordability Act,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendments of the Senate to H. B. 4084, having met, after full and free conference, have agreed to
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 the code of West Virginia, 1931, as amended, be amended by adding thereto a new article,
designated §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8,
§5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and
§5A-3C-17, all to read as follows:
ARTICLE 3C. PHARMACEUTICAL AVAILABILITY AND AFFORDABILITY ACT OF
2004.
§5A-3C-1. Title.
The provisions of this article shall be known as and referred to as the "West Virginia
Pharmaceutical Availability and Affordability Act".
§5A-3C-2. Purpose.
(a) The Legislature finds:
(1) That the rising cost of prescription drugs has imposed a significant hardship on individuals
who have limited budgets, are uninsured or who have prescription coverage that is unable to control
costs successfully due to cost shifting and disparate pricing policies;
(2) That the average cost per prescription for seniors rose significantly between one thousand
nine hundred ninety-two and two thousand, and is expected to continue increasing significantly
through two thousand ten;
(3) That there is an increasing need for citizens of West Virginia to have affordable access to
prescription drugs; and
(4) That the Legislature does not intend the imposition of the programs under this article to
penalize or otherwise jeopardize the benefits of veterans and other recipients of federal supply
schedule drug prices.
(b) In an effort to promote healthy communities and to protect the public health and welfare
of West Virginia residents, the Legislature finds that it is its responsibility to make every effort to
provide affordable prescription drugs for all residents of West Virginia.
§5A-3C-3. Definitions.
In this article:
(1) "Advertising or marketing" means any manner of communication of information, either
directly or indirectly, that is paid for and usually persuasive in nature about products, services or ideas
related to pharmaceuticals by identified sponsors through various media, persons or other forms as
further defined by legislative rule.
(2) "AWP" or "average wholesale price" means the amount determined from the latest
publication of the blue book, a universally subscribed pharmacist reference guide annually published
by the Hearst corporation. "AWP" or "average wholesale price" may also be derived electronically
from the drug pricing database synonymous with the latest publication of the blue book and furnished
in the national drug data file (NDDF) by first data bank (FDB), a service of the Hearst corporation.
(3) "Dispensing fee" means the fee charged by a pharmacy to dispense pharmaceuticals.
(4) "Drug manufacturer" or "pharmaceutical manufacturer" means any entity which is engaged
in: (A) The production, preparation, propagation, compounding, conversion or processing of
prescription drug products, either directly or indirectly by extraction from substances of natural origin,
or independently by means of chemical synthesis or by a combination of extraction and chemical
synthesis; or (B) in the packaging, repackaging, labeling, relabeling or distribution of prescription drug
products. "Drug manufacturer" or "pharmaceutical manufacturer" does not include a wholesale
distributor of drugs or a retail pharmacy licensed under state law.
(5) "Federal supply schedule" or "FSS" means the price available to all federal agencies for
the purchase of pharmaceuticals authorized in the Veterans Health Care Act of 1992, PL 102-585. FSS
prices are intended to equal or better the prices manufacturers charge their "most-favored" non-federal
customers under comparable terms and conditions.
(6) "Multiple-source drug", "innovator drug" and "noninnovator drug" mean the following:
(A) The term "multiple-source drug" means, for which there are two or more drug products
which are: Rated as therapeutically equivalent (under the food and drug administration's most recent
publication of "Approved Drug Products with Therapeutic Equivalence Evaluations"), except as
provided in paragraph (B) of this subdivision, are pharmaceutically equivalent and bioequivalent, as
determined by the food and drug administration, and the term "innovator drug" shall hereinafter be
referred to as "brand". The term "innovator drug" means a drug which is produced or distributed
under an original new drug application approved by the food and drug administration, including a drug
product marketed by any cross-licensed producers or distributors operating under the new drug
application and any multiple-source drug that was originally marketed under an original new drug
application approved by the food and drug administration. The term "noninnovator drug" shall
hereinafter be referred to as "generic". The term "noninnovator drug" means a multiple-source drug
that is not an "innovator drug".
(B) Paragraph (A) of this subdivision shall not apply if the food and drug administration
changes by regulation the requirement that, for purposes of the publication described in paragraph (A)
of this subdivision, in order for drug products to be rated as therapeutically equivalent, they must be
pharmaceutically equivalent and bioequivalent.
(7) "Labeler" means an entity or person that receives prescription drugs from a manufacturer
or wholesaler and repackages those drugs for later retail sale and that has a labeler code from the
federal food and drug administration pursuant to 21 C. F. R. §207.20 (1999).
(8) "Person" means any natural person or persons or any corporation, partnership, company,
trust or association of persons.
(9) "Pharmaceutical drug detailing" or "detailing" means the function performed by a sales
representative who is employed by a pharmaceutical manufacturer for the purpose of: Promotion of pharmaceutical drugs or related products; education about pharmaceutical drugs or related products;
or to provide samples of pharmaceutical drugs, related products or related materials, gifts, food or
meals.
(10) "Savings" means the difference between the previous price of a prescription drug
including any discounts, rebates or price containments and the current price after the effective date of
this article for the public employees insurance agency, children's health insurance program, medicaid
and workers' compensation programs or other programs which are payors for prescription drugs.
(11) "Sole source" means a pharmaceutical that provides a unique and powerful advantage
available in the market to a broad group of patients established under federal law.
(12) "West Virginia Pharmaceutical Cost Management Council" or "council" means the
council created pursuant to section eight of this article.
§5A-3C-4. Creation of clearinghouse program.
(a) There is hereby created the state prescription drug assistance clearinghouse program. The
brand pharmaceutical manufacturers shall create and implement a program to assist state residents of
who are low income or uninsured to gain access to prescription medications through existing private
and public sector programs and prescription drug assistance programs offered by manufacturers,
including discount and coverage programs. The brand pharmaceutical manufacturers shall use
available computer software programs that access an eligible individual with the appropriate private
or public programs relating to the individual's medically necessary drugs. The brand pharmaceutical
manufacturers shall provide education to individuals and providers to promote the program and to
expand enrollment and access to necessary medications for low-income or uninsured individuals
qualifying for the programs. The participating brand pharmaceutical manufacturers shall be
responsible for the cost of the establishment of the program, and be responsible for running the program, regardless of the date of transfer of the program to the state, for the period of time until a date
no earlier than the thirthieth day of June two thousand five, and ownership of the technology, website
and other program features shall be transferred to the state on the same date. The secretary of the
department of health and human resources and the director of the public employees insurance agency
shall provide joint oversight over the establishment and construction of the program and program
features for the period of time prior to the transfer of ownership to the state. The pharmaceutical
council shall recommend the state agency to own, control and operate the program, technology and
program features, and shall include such recommendation in its report on or before the first day of
September, two thousand four, to the joint committee on government and finance, as provided for in
section eight of this article. In addition, the pharmaceutical manufacturers shall report to the Joint
Committee on Government and Finance on a monthly basis all activities related to the implementation
of this program including the number of citizens serviced and the services provided.
(b) The participating brand pharmaceutical manufacturers shall contribute the funding for the
promotion of the public relations program attendant to the establishment of the program. The
participating brand pharmaceutical manufacturers shall be responsible for the cost of the establishment
of the program and the cost of the ongoing program, regardless of the date of transfer of ownership of
the program to the state, for the period of time until the thirty-first day of December, two thousand
four.
§5A-3C-5. Pharmaceutical discount program; establishment; eligible individuals; discount pass
through; terms.
There is hereby established a discount drug program to provide low-income, uninsured
individuals with access to prescription drugs from participating brand pharmaceutical companies and pharmacists through either a state-sponsored discount card program or a program that extends current
brand pharmaceutical manufacturer prescription drug assistance programs:
(a) The state hereby establishes a state-sponsored prescription drug discount card program for
certain eligible residents of West Virginia:
(1) Eligible individuals include uninsured residents of West Virginia up to two hundred per
cent of the federal poverty guideline who have not been covered by a prescription drug program,
whether public or private, at least six months prior to applying to the discount card program;
(2) The state may negotiate voluntary discounts with brand pharmaceutical manufacturers and
pharmacists: Provided, That the total discount received from the manufacturer shall pass through to
the eligible resident;
(3) Failure of a brand pharmaceutical manufacturer to participate in the voluntary discount card
program will not result in prior authorization on their drugs in the medicaid program which would not
otherwise be subject to prior authorization but for the failure of the manufacturer to participate in this
program; and
(4) The state shall not establish a formulary or preferred drug list as part of the discount card
program.
(b) The brand pharmaceutical manufacturers may extend existing prescription drug assistance
programs to eligible residents of West Virginia. Eligible individuals include uninsured residents of
West Virginia up to two hundred percent of the federal poverty level who have not been covered by
a prescription drug program, whether public or private, at least six months prior to applying to the
program.
(c) The program established under this section shall be structured so that a member presenting
a discount card at a participating pharmacy will receive the full benefit of the pharmacy discount, as well as the manufacturer's discount, at a point of sale transaction. The program, or the pharmacy
benefit manager contracted by the program, shall coordinate the drug discount information provided
by participating pharmacies and manufacturers so that the available drug discounts are provided to the
member at the point of sale.
(d) Manufacturers participating in the voluntary program established under this section shall
cooperate with the program, or the pharmacy benefit manager contracted by the program, to provide
the current list of drugs and the percentage of discount from the AWP for such drugs, or the rebates
that the manufacturer will provide under the program. It is the intent of this program that adequate
drug price and discount or rebate information be provided by the manufacturer, such that the program
and participating pharmacies will have available such drug prices and discounts or rebates at a point
of sale pharmaceutical drug transaction. Retail pharmacies will be responsible for no more than fifty
percent of the discount offered by the manufacturer to the participant.
(1) Pharmacies participating in the voluntary program(s) established under this section will be
responsible for no more than fifty percent of the discount offered by the manufacturer to the
participant, and be paid a dispensing fee of no more than three dollars and fifty cents per prescription
with regard to prescriptions filled under the program(s).
(2) Upon the presentation of a valid discount card, payment for the prescription and otherwise
meeting appropriate criteria to have their prescription filled, the card-holder will have their prescription
filled by a participating pharmacy. To accomplish the transaction, the participating pharmacy shall
electronically transmit the transaction to the program or pharmacy benefit manager contracted by the
program for processing. The program, or the program's pharmacy benefit manager, shall determine
the discounted cost of the drug, including the discount provided, the discount provided by the
pharmacy, the discount or rebate provided by the manufacturer, the pharmacy dispensing fee, and any pharmacy benefit manager transaction fee. The program, or the program's pharmacy benefit manager,
shall then transmit to the manufacturer an electronic statement of the amount the manufacturer owes
on the transaction to cover the manufacturer's discount or rebate and the program's or the pharmacy
benefit manager's processing fee. The manufacturer shall, in turn, at least every fourteen days,
transmit such monetary amounts for the transaction to the program, or the program's pharmacy benefit
manager, and the program, or the program's pharmacy benefit manager, shall pass such discount or
rebate amounts back to the participating pharmacy which originated the transaction immediately.
(e) The pharmaceutical manufacturers shall report to the Joint Committee on Government and
Finance on a monthly basis all activities related to the implementation of this program including the
number of citizens serviced and the services provided, as well as, the benefits, the costs and the
discounts obtained.
§5A-3C-6. Creation of program; administrative support; medicaid and chip program.
(a) There is hereby created in the state a program to obtain favorable pharmaceutical prices for
state agencies and other qualified entities pursuant to this article.
(b) The medicaid program and the West Virginia children's health insurance program may be
exempt from participation in this program until approval by the center for medicare and medicaid
services has been granted if it is determined to be required by the council.
(c) Administrative staff support for the council created by this article shall be provided by the
departments represented on the council.
(d) The council shall establish a pricing schedule using or referencing the FSS prices, or using
or referencing to the price, as adjusted for currency valuations, set by Canada patented medicine prices
review board (PMPRB) or any other appropriate referenced price that will maximize savings to the
broadest percentage of the population of this state.
(e) By September fifteenth of two thousand four, the council shall report back to the Legislature
the pricing schedule developed and a strategic plan for implementation. The council shall implement
the proposed pricing schedule and strategic plan upon concurrent resolution of the Legislature. If, at
the time of the acceptance or rejection of the concurrent resolution to implement the proposed pricing
schedule and strategy, the concurrent resolution is not passed due to the Legislature's lack of
acceptance of the same, the Legislature shall accept or reject a concurrent resolution to implement the
pricing schedule and strategy using or referencing the FSS: Provided, That acceptance or rejection of
the above referenced resolutions shall occur prior to the end of the regular session of the Legislature
in two thousand five.
(f) If neither of the above referenced resolutions pass during the regular session of the
Legislature in two thousand five, the Legislature may, at any time in the future, pass a concurrent
resolution to implement the above referenced pricing schedule and strategy or any subsequent
recommendation of the council to the Legislature and the Legislature determines that the proposed
pricing schedule and strategy are the most effective method of reducing pharmaceutical prices for the
citizens of the state.
(g) Qualified entities, including but not limited to, licensed private insurers, self insured
employers, free clinics and other entities who provide pharmaceuticals either directly or through some
form of coverage to the citizens of West Virginia shall have an option to apply for participation in the
program established by this article in the form and manner established by the council. The council,
in it's sole discretion, shall approve or deny participation through review of documentation
determined to be necessary for full consideration and as established by rule. The council shall
consider, but not be limited to, the fiscal stability and the size of each applicant.
(h) Pharmaceutical manufacturers may request a waiver from the pricing schedule to be
granted by the council for a particular drug in which the development, production, distribution costs,
other reasonable costs and reasonable profits, but exclusive of all marketing and advertising costs as
determined by the council, is more than the pricing schedule rate of the pharmaceutical or in those
cases in which the pharmaceutical in question has a sole source. The determination of reasonable costs
and reasonable profits may fluctuate between different pharmaceuticals under consideration by the
council. The council shall determine by legislative rule fees to be paid by the applicant at the time
a waiver request is made and documentation required to be submitted at the time of the waiver request.
5A-3C-7. Multistate discussion group.
For the purposes of reviewing or amending the program establishing the process for making
pharmaceuticals more available and affordable to the citizens of West Virginia, the state may continue
to enter into multistate discussions and agreements. For purposes of participating in these discussions,
the state shall be represented by members of the council created in section eight of this article.
§5A-3C-8. West Virginia pharmaceutical cost management council.
(a) There is hereby created the West Virginia pharmaceutical cost management council which
consists of the secretary of the department of administration or his or her designee, the director of the
public employees insurance agency or his or her designee, the commissioner of the bureau of medical
services of the department of health and human resources or his or her designee, the secretary of the
department of health and human resources or his or her designee, the executive director of the workers'
compensation commission or his or her designee, bureau of senior services or his or her designee and
five members from the public who shall be appointed by the governor with the advice and consent of
the Senate. One public member shall be a licensed pharmacist employed by a community retail
pharmacy, one public member shall be a representative of a pharmaceutical manufacturer with substantial operations located in the state of West Virginia that has at least seven hundred fifty
employees, one public member shall be a primary care physician, one public member shall represent
those who will receive benefit from the establishment of this program and one public member shall
have experience in the financing, development or management of a health insurance company which
provides pharmaceutical coverage. Each public member shall serve for a term of four years. Of the
public members of the council first appointed, one shall be appointed for a term ending the thirtieth
day of June, two thousand six, and two each for terms of three and four years. Each public member
shall serve until his or her successor is appointed and has qualified. A member of the council may be
removed by the governor for cause.
(b) The secretary of the department of administration shall serve as chairperson of the council,
which shall meet at times and places specified by the chairperson or upon the request of two members
of the council.
(c) Authority members shall not be compensated in their capacity as members but shall be
reimbursed for reasonable expenses incurred in the performance of their duties.
(d) The council has the power and authority to:
(1) Contract for the purpose of implementing the cost containment provisions of this article;
(2) File suit;
(3) Execute as permitted by applicable federal law, prescription drug purchasing agreements
with:
(A) All departments, agencies, authorities, institutions, programs, any agencies or programs
of the federal government, quasi public corporations and political subdivisions of this state, including,
but not limited to, the children's health insurance program, the division of corrections, the division of
juvenile services, the regional jail and correctional facility authority, the workers' compensation fund, state colleges and universities, public hospitals, state or local institutions, such as nursing homes,
veterans' homes, the division of rehabilitation, public health departments, state programs, including,
but not limited to, programs established in sections four and five of this article, and the bureau of
medical services: Provided, That any contract or agreement executed with or on behalf of the bureau
of medical services shall contain all necessary provisions to comply with the provisions of Title XIX
of the Social Security Act, 42 U. S. C. §1396 et seq., dealing with pharmacy services offered to
recipients under the medical assistance plan of West Virginia;
(B) Governments of other states and jurisdictions and their individual departments, agencies,
authorities, institutions, programs, quasi-public corporations and political subdivisions; and
(C) Regional or multi-state purchasing alliances or consortia, formed for the purpose of pooling
the combined purchasing power of the individual members in order to increase bargaining power; and
(4) Consider strategies by which West Virginia may manage the increasing costs of prescription
drugs and increase access to prescription drugs for all of the state's citizens, including the authority
to:
(A) Explore the enactment of fair prescription drug pricing policies;
(B) Explore discount prices or rebate programs for seniors and persons without prescription
drug coverage;
(C) Explore programs offered by pharmaceutical manufacturers that provide prescription drugs
for free or at reduced prices;
(D) Explore requirements and criteria, including the level of detail, for prescription drug
manufacturers to disclose to the council expenditures for advertising, marketing and promotion, based
on aggregate national data;
(E) Explore the establishment of counter-detailing programs aimed at educating health care
practitioners authorized to prescribe prescription drugs about the relative costs and benefits of various
prescription drugs, with an emphasis on generic substitution for brand name drugs when available and
appropriate; prescribing older, less costly drugs instead of newer, more expensive drugs, when
appropriate; and prescribing lower dosages of prescription drugs, when available and appropriate;
(F) Explore disease state management programs aimed at enhancing the effectiveness of
treating certain diseases identified as prevalent among this state's population with prescription drugs;
(G) Explore prescription drug purchasing agreements with large private sector purchasers of
prescription drugs and including those private entities in pharmacy benefit management contracts:
Provided, That no private entity may be compelled to participate in a purchasing agreement;
(H) Explore the feasibility of using or referencing, the federal supply schedule or referencing
to the price, as adjusted for currency valuations, set by the Canada patented medicine prices review
board ("PMPRB"), or any other appropriate referenced price to establish prescription drug pricing for
brand name drugs in the state; and to review and determine the dispensing fees for pharmacies in such
as established in section six of this article;
(I) Explore , if possible, joint negotiations for drug purchasing and a shared prescription drug
pricing schedule and shared preferred drug list for use by the public employees insurance agency, the
medicaid program, other state payors and private insurers;
(J) Explore coordination between the medicaid program, the public employees insurance
agency and, to the extent possible, in-state hospitals and private insurers toward the development of
a uniform preferred prescription drug list which is clinically appropriate and which leverages retail
prices;
(K) Explore policies which promote the use of generic drugs, where appropriate;
(L) Explore a policy that precludes a drug manufacturer from reducing the amounts of drug
rebates or otherwise penalize an insurer, health plan or other entity which pays for prescription drugs
based upon the fact that the entity uses step therapy or other clinical programs before a drug is covered
or otherwise authorized for payment;
(M) Explore arrangements with entities in the private sector, including self-funded benefit
plans and nonprofit corporations, toward combined purchasing of health care services, health care
management services, pharmacy benefits management services or pharmaceutical products on the
condition that no private entity be compelled to participate in the prescription drug purchasing pool;
and
(N) Explore other strategies, as permitted under state and federal law, aimed at managing
escalating prescription drug prices and increasing affordable access to prescription drugs for all West
Virginia citizens;
(5) Contract with appropriate legal, actuarial and other service providers required to accomplish
any function within the powers of the council;
(6) Develop other strategies, as permitted under state and federal law, aimed at managing
escalating prescription drug prices and increasing affordable access to prescription drugs for all West
Virginia citizens;
(7) Explore the licensing and regulation of pharmaceutical detailers, including the requirement
of continuing professional education, the imposition of fees for licensing and continuing education,
the establishment of a special revenue account for deposit of the fees and the imposition of penalties
for noncompliance with licensing and continuing education requirements, and rules to establish
procedures to implement the provisions of the subdivision;
(8) The council shall report to the Legislature's joint committee on government and finance
on or before the first day of September, two thousand four, and report on or before the thirty-first day
of December, two thousand four, and annually thereafter to the Legislature, and provide
recommendations to the Legislature on needed legislative action and other functions established by
the article or requested by the joint committee on government and finance of the Legislature; and
(9) The council shall, upon the passage of this article, immediately commence to study the
fiscal impact to this state of the federal "Medicare Prescription Drug Improvement and Modernization
Act of 2003" and shall report to the Legislature's joint committee on government and finance on or
before the fifteenth day of October, two thousand four, as to the findings of the council.
(10) The council shall develop an evaluation methodology to certify and audit savings in the
discount savings program by determining the impact on growth and profit of the pharmaceutical
manufacturers to ensure that prices have not been inflated to offset the discount card value.
(11) The council shall evaluate the clearinghouse established by this article and the discount
card program established by this article to report to the Joint Committee on Government and Finance,
and the Legislative Oversight Commission on Health and Human Resources Accountability, their
findings and recommendations for further action by the Legislature.
(12) The council shall further (1)review determine that the implementation of the programs
under this article will not jeopardize, reduce or penalize the benefits of veterans or other recipients of
FSS drug prices, considering their respective co-pay structures, and the pricing mechanisms of their
respective programs; (2) commence negotations to obtain independent agreements or multi-state
agreements as many as ten states to use or reference a pricing schedule as set forth in section six of this
article; (3) and determine the ability to establish a savings of forty two percent of the retail cost to be
reported to the Joint Committee on Government and Finance and the Legislative Oversight Commission on Health and Human Resources Accountability, as established in section eight of this
article.
§5A-3C-9. Investigation of Canadian drugs; wholesaling; federal waivers.
The council created in section eight of this article and the director of the public employees
insurance agency are authorized to investigate the feasibility of purchasing prescription drugs from
sources in Canada, which may include the feasibility of the state or an instrumentality thereof serving
as a wholesale distributor of prescription drugs in the state.
(a) Upon a determination by the council or the director of the public employees insurance
agency that the same is feasible and in the best interests of the citizens of the state, the council or the
director is authorized to pursue waivers from the federal government, including, but not limited to,
from the United States food and drug administration, as necessary for the state to accomplish
prescription drug purchasing from sources in Canada provided, however, if a waiver is not granted,
the council is authorized to take necessary legal action.
(b) Upon a favorable finding by the appropriate federal agencies or courts, notwithstanding any
provision of this code to the contrary, the council or the director of the public employees insurance
agency may establish and implement a methodology to provide wholesale drugs to licensed pharmacies
located within West Virginia, provided however, prior to the implementation, the Legislature must
adopt a concurrent resolution authorizing such action.
§5A-3C-10. Director's powers; ability to enter drug purchasing contracts.
Notwithstanding any provision of this code to the contrary, nothing contained in this article
shall be construed to limit the powers and authority granted to the director of the public employees
insurance agency pursuant to article sixteen-c, chapter five of this code. Notwithstanding any
provision of this code to the contrary and specifically subdivision four, subsection (a), section four, article five-c, chapter five of this code, the director is authorized to execute prescription drug
purchasing agreements without further enactment of the Legislature.
§5A-3C-11. Agency's management ability continued.
Nothing contained in this article shall be construed to limit the ability of the various state
agencies to enter into contracts or arrangements or to otherwise manage their pharmacy programs until
such time as the programs created or authorized pursuant to this article are implemented.
§5A-3C-12. Restraint of trade; civil and criminal violations defined.
(a) The following are considered to restrain trade or commerce unreasonably and shall be
unlawful:
(1) A contract, combination or conspiracy between two or more persons:
(A) For the purpose or with the intent to fix, control or maintain the market price, rate or fee
of pharmaceuticals; or
(B) Allocate or divide customers or markets, functional or geographic, for any pharmaceutical.
(2) The establishment, maintenance or use of a monopoly or an attempt to establish a monopoly
of trade or commerce, any part of which is within this state, by any persons for the purpose of or with
the intent to exclude competition or control, fix or maintain pharmaceutical prices.
(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 for not less than one nor more than ten years,
or fined in an amount consistent with the Clayton Act 15 U.S.C. §15 et seq. which may include treble
damages, or both fined and confined.
(c) Any person violating the provisions of this section is liable for a civil penalty and fine in
an amount consistent with the Clayton Act 15 U.S.C. §15 et seq. which may include treble damages,
for each violation.
(d) The county prosecutor shall investigate suspected violations of, and institute criminal
proceedings pursuant to, the provisions of this section.
(e) The attorney general or special counsel appointed by the governor, in his or her discretion,
shall represent the state in all civil proceedings brought on behalf of the state to enforce the provisions
of this section. After payment of all attorney fees and costs, no less than fifty percent of all judgments
or settlements shall be placed in the general revenue fund of the state.
§5A-3C-13. Advertising costs; reporting of same.
(a) Advertising costs for prescription drugs, based on aggregate national data, must be reported
to the state council by all manufacturers and labelers of prescription drugs dispensed in this state that
employs, directs or utilizes marketing representatives. The reporting shall assist this state in its role
as a purchaser of prescription drugs and an administrator of prescription drug programs, enabling this
state to determine the scope of prescription drug advertising costs and their effect on the cost,
utilization and delivery of health care services and furthering the role of this state as guardian of the
public interest.
(b) The council shall establish, by legislative rule, the reporting requirements of information
by labelers and manufacturers which shall include all national aggregate expenses associated with
advertising and direct promotion of prescription drugs through radio, television, magazines,
newspapers, direct mail and telephone communications as they pertain to residents of this state.
(c) The following shall be exempt from disclosure requirements:
(1) All free samples of prescription drugs intended to be distributed to patients;
(2) All payments of reasonable compensation and reimbursement of expenses in connection
with a bona fide clinical trial. As used in this subdivision, "clinical trial" means an approved clinical trial conducted in connection with a research study designed to answer specific questions about
vaccines, new therapies or new ways of using known treatments; or
(3) All scholarship or other support for medical students, residents and fellows to attend
significant educational, scientific or policy-making conference of national, regional or specialty
medical or other professional association if the recipient of the scholarship or other support is selected
by the association.
(d) The council is further authorized to establish time lines, the documentation, form and
manner of reporting required as the council determines necessary to effectuate the purpose of this
article. The council shall report to the joint committee on government and finance, in an aggregate
form, the information provided in the required reporting.
(e) Notwithstanding any provision of law to the contrary, information submitted to the council
pursuant to this section is confidential and is not a public record and is not available for release
pursuant to the West Virginia freedom of information act. Data compiled in aggregate form by the
council for the purposes of reporting required by this section is a public record as defined in the West
Virginia freedom of information act, as long as it does not reveal trade information that is protected
by state or federal law.
§5A-3C-14. State role.
For purpose of implementing this article, the state represented by the council shall have
authority to negotiate pharmaceutical prices to be paid by program participants. These negotiated
prices shall be available to all programs.
§5A-3C-15. Rulemaking.
The council may promulgate emergency rules pursuant to the provisions of section fifteen,
article three, chapter twenty-nine-a of this code to implement any section of this article.
§5A-3C-16. Sunset provision.
The council shall continue to exist, pursuant to the provisions of article ten, chapter four of this
code, until the first day of July, two thousand eight, unless sooner terminated, continued or
reestablished pursuant to the provisions of that article.
§5A-3C-17. Potential use of savings.
Savings identified by all program participants shall be quantified and certified to the council
and included in the annual report of the council to the Legislature provided for in section eight of this
article. Savings, or any part thereof, created by the implementation of this program may, in the sole
discretion of the Legislature, be directed towards the maintenance of existing state health programs
and the expansion of insurance programs for the uninsured and underinsured.
And,
That both houses recede from their positions as to the title of the bill and agree to the same as
follows:
H. B. 4084 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto
a new article, designated §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6,
§5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-
3C-15, §5A-3C-16 and §5A-3C-17, all relating generally to the creation of a pharmaceutical program
for the state; legislative findings; definitions; creation of the prescription drug assistance clearinghouse
program; requiring costs of program to be paid by drug manufacturers; transfer of ownership of the
program to the state; establishment of pharmaceutical discount program; eligibility for participation
in the pharmaceutical discount program; discount pass through; creation of a West Virginia
pharmaceutical cost management council; establishing membership; establishing powers and
responsibilities; reporting requirements; authority to investigate the feasibility of purchasing Canadian drugs; authority to establish a pricing schedule to be implemented upon concurrent resolution of the
legislature; authority to explore numerous strategies, policies, and programs, including, but not limited
to, referenced prices for prescription drug purchases and pricing in the state; authority to implement
certain designated programs; state responsibilities; prohibiting restraint of trade; providing civil and
criminal penalties for restraint of trade; advertising costs and reporting; rule-making authority; sunset
provisions; and identifying potential use of savings."
Respectfully submitted,
Thomas W. Campbell, Roman W. Prezioso,
John Doyle, Mike Ross,
Don Perdue, Brooks McCabe,
Dan Foster, John Unger,
Mike Hall, Lisa Smith,
Conferees on the part Conferees on the part
of the House of Delegates. of the Senate.
On motion of Delegate Campbell, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 724), and there were--yeas
94, nays 5, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Blair, Carmichael, Ellem, Overington and Trump.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (H. B. 4084) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 725), 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. 4084) 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.
Miscellaneous Business
Delegate Staton asked and obtained unanimous consent that the remarks of Mr. Speaker, Mr.
Kiss, and Delegates Wakim and Carmichael regarding H. B. 4084 be printed in the Appendix to the
Journal.
Delegate Frich asked and obtained unanimous consent that the remarks of Delegate Smirl
regarding her legislative career be printed in the Appendix to the Journal.
Delegate Frich announced that she was absent on today when the vote was taken on Roll No.
687, and that had she been present, she would have voted "Yea" thereon.
Delegate Azinger announced that he was absent on today when the vote was taken on Roll No.
717, and that had he been present, he would have voted "Yea" thereon.
At 9:25 p.m., on motion of Delegate Staton, the House of Delegates recessed until 10:45 p.m.,
and reconvened at that time.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had agreed to the appointment of a
Committee of Conference of six from each house on the disagreeing votes of the two houses as to
Com. Sub. for S. B. 133, Budget bill.
The message further announced that the President of the Senate had appointed as conferees on
the part of the Senate the following:
Senators Helmick, Sharpe, Prezioso, Plymale, Minear and Facemyer.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with
amendments, and the passage, as amended, of
Com. Sub. for S. B. 566, Establishing Unborn Victims of Violence Act.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House of Delegates amendment were reported by the
Clerk:
On page one, by striking out the section heading and inserting in lieu thereof a new section
heading, to read as follows:
"§61-2-30. Recognizing an embryo or fetus as a distinct unborn victim of certain crimes of
violence against the person."
On page one, section thirty, by striking out all of subsection (b) and inserting in lieu thereof
a new subsection (b), to read as follows:
"(b) For the purposes of this article, the following definitions shall apply: Provided, That these
definitions only apply for purposes of prosecution of unlawful acts under this section and may not
otherwise be used: (1) To create or to imply that a civil cause of action exists; or (2) for purposes of
argument in a civil cause of action, unless there has been a criminal conviction under this section."
On page one, section thirty, subsection (b), by striking out all of subdivision (3).
On page two, section thirty, subsection (c), following the words "pregnant woman and the",
by inserting the words "embryo or".
On page two, section thirty, subsection (c), following the word "carrying", by inserting the
words "in the womb".
On page two, section thirty, subsection (d), subdivision (2), following the words "by medical",
by inserting the words "or health care".
On page two, section thirty, subsection (d), subdivision (3), following the word "medical", by
inserting the words "or health care personnel or scientific research".
On page two, section thirty, subsection (e), by striking out "twenty-one" and inserting in lieu
thereof "two-i".
And,
By amending the title of the bill to read as follows:
Com. Sub. for S. B. 566 - "A Bill to amend the code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §61-2-30, relating to creating the 'Unborn Victims of
Violence Act'; defining certain terms; identifying offenses of violence against a person that are
committed against a pregnant woman or her embryo or fetus in the womb; establishing that an embryo
or fetus in the womb may be a separate and distinct unborn victim in the case of certain violent crimes
against a pregnant woman or her embryo or fetus in the womb; providing exceptions against the
application of this section to certain persons or entities; specifying penalties; and providing that a
conviction under this section, or of this article, is not a bar to prosecution of, or punishment for, any
other crime allegedly committed by the defendant arising from the same incident."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
to the House amendment.
The bill, as amended by the House, and as further amended by the Senate, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 726), and there were--yeas
83, nays 16, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Amores, Brown, Campbell, Caputo, Doyle, Fleischauer, Foster, Hatfield, Leach,
Manuel, Mezzatesta, Morgan, Palumbo, Spencer, Talbott and Webster.
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 S. B. 566) 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. 4008, Abolishing the insurance and retirement division and creating a new employee and
insurance services division.
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, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"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 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-1. Consolidated public retirement board continued; members; vacancies; investment
of plan funds.
(a) There is hereby continued a The consolidated public retirement board is continued to
administer all public retirement plans in this state. It shall administer the public employees retirement
system established in article ten of this chapter; the teachers retirement system established in article
seven-a, chapter eighteen of this code; the teachers' defined contribution retirement system created by
article seven-b of said chapter; the West Virginia state police death, disability and retirement fund
created by article two, chapter fifteen of this code; the West Virginia state police retirement system
created by article two-a of said chapter; the death, disability and retirement fund for deputy sheriffs
created by article fourteen-d, chapter seven of this code; and the judges' retirement system created
under article nine, chapter fifty-one of this code.
(b) The consolidated public retirement board shall begin administration of the death, disability
and retirement fund for deputy sheriffs established in article fourteen-d, chapter seven of this code on
the first day of July, one thousand nine hundred ninety-eight.
(c) (b) The membership of the consolidated public retirement board consists of:
(1) The governor or his or her designee;
(2) The state treasurer or his or her designee;
(3) The state auditor or his or her designee;
(4) The secretary of the department of administration or his or her designee
(4) The commissioner of the employee and insurance services division of the department of
administration;
(5) Four residents of the state, who are not members, retirants or beneficiaries of any of the
public retirement systems, to be appointed by the governor, with the advice and consent of the Senate;
and
(6) A member, annuitant or retirant of the public employees retirement system who is or was
a state employee; a member, annuitant or retirant of the public employees retirement system who is
not or was not a state employee; a member, annuitant or retirant of the teachers retirement system; a
member, annuitant or retirant of the West Virginia state police death, disability and retirement fund;
a member, annuitant or retirant of the deputy sheriff's death, disability and retirement fund; and a
member, annuitant or retirant of the teachers' defined contribution retirement system, all to be
appointed by the governor, with the advice and consent of the Senate.
(d) (c) The appointed members of the board shall serve five-year terms. The governor shall
appoint the member representing the deputy sheriff's death, disability and retirement fund by the first
day of July, one thousand nine hundred ninety-eight, to a five-year term. A member appointed
pursuant to subdivision (6), subsection (c) (b) of this section ceases to be a member of the board if he
or she ceases to be a member of the represented system. If a vacancy occurs in the appointed
membership, the governor, within sixty days, shall fill the vacancy by appointment for the unexpired
term. No more than five appointees shall be of the same political party.
(e) (d) The consolidated public retirement board has all the powers, duties, responsibilities and
liabilities of the public employees retirement system established pursuant to article ten of this chapter;
the teachers retirement system established pursuant to article seven-a, chapter eighteen of this code;
the teachers' defined contribution system established pursuant to article seven-b of said chapter; the
West Virginia state police death, disability and retirement fund created pursuant to article two, chapter
fifteen of this code; the death, disability and retirement fund for deputy sheriffs created pursuant to article fourteen-d, chapter seven of this code; and the judges' retirement system created pursuant to
article nine, chapter fifty-one of this code and their appropriate governing boards. The consolidated
public retirement board may propose for promulgation all rules necessary to effectuate its powers,
duties and responsibilities pursuant to article three, chapter twenty-nine-a of this code: Provided, That
the board may adopt any or all of the rules, previously promulgated, of a retirement system which it
administers.
(f) Effective on the first day of July, one thousand nine hundred ninety-six, the consolidated
public retirement board shall, within two business days of receipt, transfer (e) The consolidated public
retirement board shall continue to transfer all funds received by the consolidated public retirement
board for the benefit of the retirement systems within the consolidated pension plan as defined in
section three-c, article six-b, chapter forty-four of this code, including, but not limited to, all employer
and employee contributions, to the West Virginia investment management board: Provided, That the
employer and employee contributions of the teachers' defined contribution system, established in
section three, article seven-b, chapter eighteen of this code, and voluntary deferred compensation funds
invested by the West Virginia consolidated public retirement board pursuant to section five, article
ten-b of this chapter may not be transferred to the West Virginia investment management board.
(g) (f) Notwithstanding any provision of this code or any legislative rule to the contrary, all
assets of the public retirement plans set forth in subsection (a) of this section shall be held in trust. The
consolidated public retirement board shall be a trustee for all public retirement plans, except with
regard to the investment of funds: Provided, That the consolidated public retirement board shall be
a trustee with regard to the investments of the teachers' defined contribution system, the voluntary
deferred compensation funds invested pursuant to section five, article ten-b of this chapter and any
other assets of the public retirement plans administered by the consolidated public retirement board as set forth in subsection (a) of this section for which no trustee has been expressly designated in this
code.
(h) (g) The board may employ the West Virginia investment management board to provide
investment management consulting services for the investment of funds in the teachers' defined
contribution system.
§5-10D-2. Chairman and vice chairman; executive director; employees; legal advisor; actuary.
(a) The board shall elect from its own number a chairman and vice chairman.
(b) The board shall appoint an executive director of the retirement systems. The executive
director shall be the chief administrative officer of all the systems and he or she shall not be a member
of the board. He or she shall perform such duties as are required of him or her in this article and as
the board from time to time delegates to him or her. The compensation of the executive director shall
be fixed by the board subject to the approval of the governor. The executive director shall, with the
approval of the board of trustees, employ such any administrative, technical and clerical employees
as are required in the proper operation of the systems.
(c) Notwithstanding the provisions of section two, article three of this chapter, the board shall
employ and be represented by an attorney licensed to practice law in the state of West Virginia who
is not a an active member of any of the retirement systems administered by the board.
(d) An actuary, employed by the state or the board pursuant to section four of this article, shall
be the actuarial consultant to the board.
(e) Prior to the first day of July, one thousand nine hundred ninety-one, the expenses of the
board for the administration of the teachers' defined contribution retirement system created pursuant
to article seven-b, chapter eighteen of this code shall be paid by the teachers retirement system created
pursuant to article seven-a of said chapter.
§5-10D-3. Board meetings; quorum; vote; proceedings; compensation.
(a) The board shall hold a meeting at least once each three months, and shall designate the time
and place thereof of the meeting. Seven voting trustees constitute a quorum at any meeting of the
board. Each member is entitled to one vote on each question before the board. The board shall adopt
its own rules of procedure and shall keep a record of its proceedings. All meetings of the board shall
be public.
(b) The members shall serve as members without compensation for their services as such:
Provided, That each member shall be reimbursed, upon approval of the board, for any necessary
expenses actually incurred by him or her in carrying out his or her duties. No public employee member
may suffer any loss of salary or wages on account of his or her service as trustee.
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-3. Composition of public employees insurance agency; appointment, qualification,
compensation and duties of director of agency; employees; civil service
coverage; director vested after specified date with powers of public
employees insurance board.
(a) The public employees insurance agency consists of the director, the finance board, the
advisory board and any employees who may be authorized by law. The director shall be appointed by
the governor, with the advice and consent of the Senate commissioner of the employee and insurance
services division of the department of administration. He or she shall serve at the will and pleasure
of the governor, unless earlier removed from office for cause as provided by law. The director shall
have at least three years' experience in health insurance administration or governmental health benefit
administration as his or her primary employment duty prior to appointment as director. The director
shall be employed pursuant to an employment contract which may have a multi-year term, not to exceed five years per contract. Notwithstanding any other provision of this code to the contrary, the
director's salary shall be set by the commissioner of the employee and insurance services division, with
the approval of the secretary of the department of administration. The current director shall continue
to be eligible to serve as director through the thirtieth day of June, two thousand four. The director
shall receive actual expenses incurred in the performance of official business. The director shall
employ such any administrative, technical and clerical employees that are required for the proper
administration of the insurance programs provided for in this article. The director shall perform the
duties that are required of him or her under the provisions of this article and is the chief administrative
officer of the public employees insurance agency. The director may employ a deputy director.
(b) All positions in the agency, except for the director, his or her personal secretary, the deputy
director and the chief financial officer shall be included in the classified service of the civil service
system pursuant to article six, chapter twenty-nine of this code. Any person required to be included
in the classified service by the provisions of this subsection who was employed in any of the positions
included in this subsection on or after the effective date of this article shall not be required to take and
pass qualifying or competitive examinations upon or as a condition to being added to the classified
service: Provided, That no person required to be included in the classified service by the provisions
of this subsection who was employed in any of the positions included in this subsection as of the
effective date of this section shall be thereafter severed, removed or terminated in his or her
employment prior to his or her entry into the classified service except for cause as if the person had
been in the classified service when severed, removed or terminated.
(c) The director is responsible for the administration and management of the public employees
insurance agency as provided for in this article and in connection with his or her responsibility may
make all rules necessary to effectuate the provisions of this article. Nothing in section four or five of this article limits the director's ability to manage on a day-to-day basis the group insurance plans
required or authorized by this article, including, but not limited to, administrative contracting, studies,
analyses and audits, eligibility determinations, utilization management provisions and incentives,
provider negotiations, provider contracting and payment, designation of covered and noncovered
services, offering of additional coverage options or cost containment incentives, pursuit of
coordination of benefits and subrogation, or any other actions which would serve to implement the
plan or plans designed by the finance board. The director is to function as a benefits management
professional and should avoid political involvement in managing the affairs of the public employees
insurance agency.
§5-16-4. Public employees insurance agency finance board continued; qualifications, terms and
removal of members; quorum; compensation and expenses; termination
date.
(a) There is hereby continued the The public employees insurance agency finance board, which
is continued and consists of the director commissioner of the employee and insurance services division
of the department of administration and six eight members appointed by the governor with the advice
and consent of the Senate for terms of four years and until the appointment of their successors.
Provided, That of the two members added to the board by the amendment of this section, enacted
during the regular legislative session, one thousand nine hundred ninety-nine, the at-large member
shall be appointed for an initial term of two years and the member representing organized labor shall
be appointed for a term of four years Members may be reappointed for successive terms. No more
than four five members (including the director commissioner) may be of the same political party.
(b) Of the six eight members appointed by the governor, one member shall represent the
interests of education employees, one shall represent the interests of public employees, one shall represent the interests of retired employees, one shall represent the interests of organized labor and
three four shall be selected from the public at large. The governor shall appoint the member
representing the interests of education employees from a list of three names submitted by the largest
organization of education employees in this state. The governor shall appoint the member representing
the interests of organized labor from a list of three names submitted by the state's largest organization
representing labor affiliates. The three four members appointed from the public shall each have
experience in the financing, development or management of employee benefit programs. All new
appointments made after the first day of July, one thousand nine hundred ninety-four, shall be selected
to represent the different geographical areas within the state and all members shall be residents of West
Virginia. No member may be removed from office by the governor except for official misconduct,
incompetence, neglect of duty, neglect of fiduciary duty or other specific responsibility imposed by
this article, or gross immorality.
(c) The director commissioner of the employee and insurance services division shall serve as
chairperson chair of the finance board, which shall meet at times and places specified by the call of
the director chair or upon the written request to the director chair of at least two members. The
director of the public employees insurance agency shall serve as staff to the board. Notice of each
meeting shall be given in writing to each member by the director at least three days in advance of the
meeting. Four Five members constitutes constitute a quorum. The board shall pay each member the
same compensation and expense reimbursement as that is paid to members of the Legislature for their
interim duties, as recommended by the citizens legislative compensation commission and authorized
by law for each day or portion of a day engaged in the discharge of official duties.
(d) Pursuant to the provisions of article ten, chapter four of this code, the finance board shall
terminate on the first day of July, two thousand three, unless extended by legislation enacted before
the termination date.
(e) (d) Upon termination of the board and notwithstanding any provisions in this article to the
contrary, the director is authorized to assess monthly employee premium contributions and to change
the types and levels of costs to employees only in accordance with this subsection. Any assessments
or changes in costs imposed pursuant to this subsection shall be implemented by legislative rule
proposed by the director for promulgation pursuant to the provisions of article three, chapter
twenty-nine-a of this code; any employee assessments or costs previously authorized by the finance
board shall then remain in effect until amended by rule of the director promulgated pursuant to this
subsection.
§5-16-4a. Continuation of the public employees insurance agency finance board.
The public employees insurance agency finance board shall continue to exist, pursuant to the
provisions of article ten, chapter four of this code, until the first day of July, two thousand five, unless
sooner terminated, continued or reestablished pursuant to the provisions of that article.
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 1. DEPARTMENT OF ADMINISTRATION.
§5A-1-2. Department of administration and office of secretary; secretary; divisions; directors.
(a) The department of administration and the office of secretary of administration are hereby
continued in the executive branch of state government. The secretary shall be the chief executive
officer of the department and director of the budget and shall be appointed by the governor, by and
with the advice and consent of the Senate, for a term not exceeding the term of the governor. The
office of the commissioner of finance and administration and the division of finance and administration are hereby abolished. All duties and responsibilities of the commissioner of finance
and administration are hereby vested in the secretary of administration. All records, responsibilities,
obligations, assets and property, of whatever kind and character, of the division of finance and
administration are hereby transferred to the department of administration. The balances of all funds
of the division of finance and administration are hereby transferred to the department of
administration.
(b) The department of administration is hereby authorized to may receive federal funds.
(c) The secretary shall serve at the will and pleasure of the governor. The annual compensation
of the secretary shall be as specified in section three two-a, article one seven, chapter five-f six of this
code.
(d) There shall be in the department of administration a finance division, a general services
division, an information services and communications division, an employee and insurance services
and retirement division, a personnel division and a purchasing division. The insurance and retirement
division shall be comprised of the public employees retirement system and board of trustees, the public
employees insurance agency and public employees advisory board, the teachers retirement system and
teachers' retirement board, and the board of risk and insurance management. Each division shall be
headed by a director who may also head any and all sections within that division and who shall be
appointed by the secretary, except that the commissioner of the employee and insurance services
division shall be appointed by the governor with the advice and consent of the Senate as provided in
article ten of this chapter. In addition to the divisions enumerated above in this subsection, there shall
also be in the department of administration those agencies, boards, commissions and councils specified
in section one, article two, chapter five-f of this code.
ARTICLE 10. Employee and insurance services division.
§5A-10-1. Division created; purpose and functions; cooperation.
(a) There is hereby created within the department of administration, an employee and insurance
services division. The following agencies of the department of administration are hereby incorporated
within the employee and insurance services division:
(1) The consolidated public retirement board provided for in article ten-d, chapter five of this
code and the retirement programs administered thereunder by the board;
(2) The public employees insurance agency and associated boards provided for in article
sixteen, chapter five of this code;
(3) The division of personnel provided for in article six, chapter twenty-nine of this code;
(4) The board of risk and insurance management provided for in article twelve, chapter twenty-
nine of this code.;
(5) The children's health insurance agency and associated boards provided for in article
sixteen-b, chapter five of this code; and
(6) The education and state employees grievance board provided for in article six-a, chapter
twenty-nine of this code.
(b) The purpose and function of the division of employee and insurance services is to preserve
the integrity of a system of personnel administration for state agencies based on merit principles; to
provide to the state employees who are stakeholders, fairness, confidence and security in the
administration of state insurance and retirement benefit plans; to provide for long-term fiscal security
and enhance the state's ability to assure its fiscal obligations under its insurance, risk and benefit plans;
to promote loss control in state programs and agencies; and to coordinate and consolidate technical
functions of the component agencies while preserving inviolate their separate trust responsibilities.
(c) The director of the purchasing division and the chief technology officer within the office
of the governor shall cooperate and provide assistance in the consolidation, reorganization and
integration of functions of the division and its component agencies and programs, and shall expedite
all reasonable requests in order to assure efficient and adequate systems support.
(d) Any agency or board incorporated into the division pursuant to subsection (a) of this section
which disagrees with an action of the commissioner may refer the disagreement to the secretary for
review.
§5A-10-2. Creation of office of commissioner of the employee and insurance services division;
qualifications; powers and duties.
(a) The office of commissioner of the employee and insurance services division is hereby
created. On the effective date of this section, the director of the former insurance and retirement
division shall serve as acting commissioner of the employee and insurance services division and shall
immediately assume the duties of the office. Not later than the thirtieth day of January, two thousand
five, the governor shall appoint the commissioner with the advice and consent of the Senate, to serve
at the will and pleasure of the governor, at a salary to be established by the governor. The
commissioner shall have knowledge in the areas of self-insured risk pools and employee benefit
program administration, knowledge of the special trust requirements of benefit programs with respect
to stakeholders, and an understanding of the special demands upon government with respect to
budgetary constraints, the protection of public funds, and federal and state standards of accountability.
(b) The commissioner shall have the power, duty and authority to may:
(1) Coordinate overall policy within the division;
(2) Propose comprehensive budgets for consideration by the secretary of the department of
administration and the governor;
(3) Develop and provide to the governor, the speaker of the House of Delegates and the
president of the Senate, on an annual basis, long-range financial forecasts for the insurance and benefit
programs administered by the division, which forecasts shall include cash-flow projections for future
budget years, based on known facts and reasonable, clearly stated actuarial assumptions;
(4) Interact with stakeholders, staff of the component agencies and outside agencies to develop
long-term strategies for delivering quality services, reducing unfunded liabilities, and assuring the
fiscal viability of programs;
(5) Propose and provide to the governor, the speaker of the House of Delegates and the
president of the Senate, on an annual basis, long-term strategic plans to provide for the fiscal security
of the programs administered by the agencies within the division and minimize the fiscal burden upon
limited state resources;
(6) Employ and discharge, with the approval of the secretary of the department of
administration, employees within the office of the commissioner, to serve at the will and pleasure of
the commissioner;
(7) Eliminate or consolidate positions, with the approval of the secretary of the department of
administration, other than positions of administrators or positions of board members, and name a
person to fill more than one position;
(8) Delegate, assign, transfer or combine responsibilities or duties to or among employees,
other than administrators or board members;
(9) Reorganize internal functions or operations;
(10) Transfer within the division, with the approval of the secretary of the department of
administration, funds appropriated to the various agencies of the division: Provided, That no funds
may be transferred from a claims payment account, retiree benefit account, trust account or any other account or funds specifically exempted by the Legislature from transfer: Provided, however, That
authority to transfer funds pursuant to this section shall expire expires on the thirtieth day of June, two
thousand five;
(11) Enter into contracts or agreements requiring the expenditure of public funds, and authorize
the expenditure or obligating of public funds as authorized by law;
(12) Acquire by lease or purchase property of whatever kind or character, and convey or
dispose of any property of whatever kind or character as authorized by law;
(13) Conduct internal audits;
(14) Supervise internal management;
(15) Recommend to the secretary the promulgation of rules to implement and make effective
the powers, authority and duties granted and imposed by the provisions of this article, which. The
rules, unless specifically exempted in accordance with the provisions of this code, shall be proposed
in accordance with the provisions of chapter twenty-nine-a of this code;
(16) Delegate duties to administrators in order to facilitate execution of the powers, authority
and duties of the commissioner;
(17) Consolidate data, accounting and claims administration systems and propose to the
secretary of the department of administration the termination or renegotiation of contracts;
(18) Take any other action involving or relating to internal management not otherwise
prohibited by law;
(19) With approval of the secretary of the department of administration, assess all agencies
within the employee and insurance services division a reasonable amount to cover the costs of the
division; and
(20) Promote combined purchasing of components within the division.
(c) The commissioner shall work cooperatively with the consolidated public retirement board
and the public employees insurance agency to acquire and implement combined data systems for the
retirement and health plans administered by the consolidated public retirement board and the public
employees insurance agency. Beginning on the first day of January, two thousand five, and continuing
until such time as the combined data system is fully implemented, the commissioner shall provide to
the joint committee on government and finance, or such any other committee as the Legislature directs,
monthly updates on the development and implementation of the system.
(d) Nothing contained in this section may be construed to limit the powers of the secretary of
the department of administration pursuant to chapter five-f of this code, or to enlarge the power and
authority granted to any agency or administrator within the division. Nothing contained in this section
may be construed to limit the rights of any beneficiary of a retirement or benefit program arising by
operation of law or any trust instrument. No power granted to the commissioner may be exercised if
to do so would violate or be inconsistent with the separate fiduciary responsibilities with respect to the
respective funds under the commissioners' authority, or with the provisions of any federal law or
regulation, any federal-state program or federally delegated program, or jeopardize the approval,
existence or funding of any such program. The powers granted to the commissioner to enter into
contracts or agreements and to make expenditures or obligations of public funds under this provision
may not exceed or be interpreted as authority to exceed the powers heretofore previously granted by
the Legislature to the various administrators or board members of the various agencies or boards that
comprise and are incorporated into the division. Nothing contained in this section may be construed
to limit the rights of employees within the classified service of the state as provided in subsection (d),
section two, article two, chapter five-f of this code.
§5A-10-3. Continuation of division.
The division of employee and insurance services and the office of commissioner of the division
of employee and insurance services 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.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 6. CIVIL SERVICE COMMISSION.
§29-6-5. Division of personnel continued; sections.
(a) Effective the first day of July, one thousand nine hundred eighty-nine, there is hereby
created a The division of personnel is continued within the executive branch employee and insurance
services division of the department of administration.
__(b) The division of personnel shall consist of perform the following sections functions:
(1) Applicant services;
(2) Classification and compensation;
(3) Management development and training;
(4) Program evaluation and payroll;
(5) Employee services;
(6) Employee relations; and
(7) Administrative and staff services.
__(c) The commissioner of the employee and insurance services division shall establish any
sections of the division that are necessary to carry out the functions of the division and the purposes
of this article. Each section shall be under the control of a section chief to be appointed by the director
who shall be qualified by reason of exceptional training and experience in the field of activities of the respective section. The director has authority to establish such additional sections as may be
determined necessary to carry out the purpose of this article.
§29-6-6. State personnel board continued; members; term; quorum; vacancies; powers and
duties.
(a) There is hereby created continued within the division a state personnel board which shall
consist of consists of the commissioner of the employee and insurance services division or his or her
designee, who shall serve as an ex officio member and five members appointed by the governor with
the advice and consent of the Senate for terms of four years and until the appointment of their
successors. Provided, That of the members first appointed, one shall be appointed for a term of one
year, one for two years, one for three years, and one for four years. No more than three four members
may be of the same political party. Three Four members of the board constitute a quorum.
(b) A member of the board may not be removed from office except for official misconduct,
incompetence, neglect of duty, gross immorality or malfeasance, and then only in the manner
prescribed in article six, chapter six of this code for the removal by the governor of state elected
officers.
(c) Citizen members of the board shall each be paid one hundred dollars for each day devoted
to the work of the board. Each member shall be reimbursed for all reasonable and necessary expenses
actually incurred in the performance of his or her duties, except that in the event the expenses are paid,
or are to be paid, by a third party, the members shall not be reimbursed by the state.
(d) The commissioner of the employee and insurance services division of the department of
administration or his or her designee shall serve as chair of the board. The board shall elect one of its
members as chairperson and shall meet at such the time and place as shall be specified by the call of
the chairman chair. At least one meeting shall be held in each month. All meetings shall be open to the public. Notice of each meeting shall be given in writing to each member by the director at least
three days in advance of the meeting period.
(e) In addition to other powers and duties invested in it by this article or by any other law, the
board shall:
(1) Promulgate Propose rules for promulgation in accordance with chapter twenty-nine-a of
this code to implement the provisions of this article;
(2) Interpret the application of this article to any public body or entity; and
(3) Authorize and conduct such any studies, inquiries, investigations or hearings in the
operation of this article as it deems considers necessary.
(f) The director or the board may subpoena and require the attendance of witnesses in the
production of evidence or documents relevant to any proceeding under this article."
And,
By amending the title of the bill to read as follows:
H. B. 4008 - "A Bill to amend and reenact §5-10D-1, §5-10D-2 and §5-10D-3 of the code of
West Virginia, 1931, as amended; to amend and reenact §5-16-3 and §5-16-4 of said code; to amend
said code by adding thereto a new section, designated §5-16-4a; to amend and reenact §5A-1-2 of said
code; to amend said code by adding thereto a new article, designated §5A-10-1, §5A-10-2 and §5A-10-
3; and to amend and reenact §29-6-5 and §29-6-6 of said code, all relating to creating a new employee
and insurance services division within the department of administration and revising the law governing
its component agencies and boards; providing that the division incorporate the consolidated public
retirement board, the public employees insurance agency, the board of risk and insurance management,
the children's health insurance agency, the education and state employees grievance board and the
personnel division; creating the office of commissioner of the division; providing for the powers and duties of the commissioner; authorizing the commissioner to consolidate or reorganize certain internal
functions and operations, transfer funds within the agencies and assess agencies with costs; providing
that the commissioner chair certain boards and appoint directors of component state agencies within
the division; providing for sunset review of division and office of commissioner; establishing
employment requirements for director of public employees insurance agency; and adding members to
public employees insurance agency finance board."
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. 727), and there were--yeas
97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Carmichael.
Absent And Not Voting: Coleman and Leggett.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4008) 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. 4055, Creating a compact between states for the protection and return of juvenile
offenders, runaways and other juveniles.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by amending the title to read as follows:
H. B. 4055 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto
a new article, designated §49-8A-1, §49-8A-2, §49-8A-3 and §49-8A-4, all relating to the supervision
and return of juvenile offenders, juvenile runaways and other juveniles; authorizing and directing the
governor to execute an interstate compact for the supervision and return of juvenile offenders, juvenile
runaways and other juveniles; purpose; definitions; creation of the interstate commission for juveniles;
powers and duties; bylaws; immunity; defense and indemnification; promulgation of rules; dispute
resolution; annual assessment on member states; state council for interstate juvenile supervision;
effective date; withdrawal from compact; default of a compact state; fines; suspension; termination;
severability; binding effect of compact; and appointment of compact administrator."
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. 728), 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. 4055) 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 July 1, 2004, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4072, Providing for a unified approach to the long-term planning and
implementation of technology in the public schools.
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 after the enacting clause and inserting in lieu thereof
the following:
"That §18-2E-7 of the code of West Virginia, 1931, as amended, be amended and reenacted;
and that said code be amended by adding thereto a new article, designated §18-2J-1, §18-2J-2, §18-2J-
3, §18-2J-4, §18-2J-5, §18-2J-6 and §18-2J-7, all to read as follows:
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-7. Providing for high quality basic skills development and remediation in all public
schools.
(a) The Legislature finds that teachers must be provided the support, assistance and teaching
tools necessary to meet individual student instructional needs on a daily basis in a classroom of
students who differ in learning styles, learning rates and in motivation to learn. The Legislature further
finds that attaining a solid foundation in the basic skills of reading, composition and arithmetic is
essential for advancement in higher education, occupational and avocational pursuits and that
computers are an effective tool for the teacher in corrective, remedial and enrichment activities.
Therefore, the state board shall develop a plan which specifies ensure that the resources to be used to
provide services to students in the earliest grade level and moving upward higher grade levels as
resources become available are included in the education technology strategic plan required by article
two-j of this chapter. The provision of services to students shall be based on a plan developed by each
individual school team.
This plan must provide for standardization of computer hardware and software and for
technology upgrade and replacement for the purposes of achieving economies of scale, facilitating
teacher training, permitting the comparison of achievement of students in schools and counties
utilizing the hardware and software and facilitating the repair of equipment and ensuring appropriate
utilization of the hardware and software purchased for remediation and basic skills development.
The state board shall determine the computer hardware and software specifications after input
from practicing teachers at the appropriate grade levels and with the assistance of education computer
experts and the curriculum technology resource center.
Computer hardware and software shall be purchased either directly or through a lease-purchase
arrangement pursuant to the provisions of article three, chapter five-a of this code in the amount equal
to anticipated revenues being appropriated: Provided, That, with the approval of the state board, the
revenues appropriated may be expended directly or through contractual agreements with county boards
and regional education service agencies for materials and other costs associated with installation, set-
up, internet hook-up and wiring of the computer hardware and software: Provided, however, That
nothing in this section shall be construed to require any specific level of funding by the Legislature.
Computer hardware and software shall be purchased in accordance with the education
technology strategic plan adopted pursuant to article two-j of this chapter.
The state board shall develop and provide through the state curriculum technology resource
center a program to ensure adequate teacher training, continuous teacher support and updates. The
program shall be consistent with the education technology strategic plan adopted pursuant to article
two-j of this chapter.
To the extent practicable, such the technology shall be utilized used to enhance student access
to learning tools and resources outside of the normal school day, such as: Before and after school; in the evenings, on weekends and during vacations; and for student use for homework, remedial work,
independent learning, career planning and adult basic education.
(b) The Legislature finds that the continued implementation of computer utilization use under
this section for high quality basic skills development and remediation in the middle schools, junior
high schools and high schools is necessary to meet the goal that high school graduates will be prepared
fully for college, other post-secondary education or gainful employment. Further, such the
implementation should provide a technology infrastructure at the middle schools, junior high schools
and high schools that has multiple applications in enabling capable of supporting multiple technology
based learning strategies designed to enable students to achieve at higher academic levels. The
technology infrastructure should facilitate student development in the following areas:
(1) Attaining basic computer skills such as word processing, spreadsheets, data bases, internet
usage, telecommunications and graphic presentations;
(2) Learning critical thinking and decision-making skills;
(3) Applying academic knowledge in real life situations through simulated workplace
programs;
(4) Understanding the modern workplace environment, particularly in remote areas of the state,
by bringing the workplace to the school;
(5) Making informed career decisions based upon information on labor markets and the skills
required for success in various occupations;
(6) Gaining access to labor markets and job placement;
(7) Obtaining information and assistance about college and other post-secondary education
opportunities and financial aid; and
(8) Other uses for acquiring the necessary skills and information to make a smooth transition
from high school to college, other post-secondary education or gainful employment.
Therefore, the state board also shall extend the plan as set forth in subsection (a) of this section,
and consistent with the terms and conditions in said subsection to address the findings of this
subsection regarding the continued implementation of computer hardware and software and technical
planning support in the middle schools, junior high schools and high schools of the state in the
education technology strategic plan required by article two-j of this chapter.
ARTICLE 2J. PUBLIC AND HIGHER EDUCATION TECHNOLOGY STRATEGIC PLAN.
§18-2J-1. Findings.
(a) The Legislature finds that:
(1) Technology is being used in public schools as an instructional tool that enables teachers to
meet the individual instructional needs of students who differ in learning styles, learning rates and the
motivation to learn;
(2) Technology is being used in public schools as an effective resource for providing corrective,
remedial and enrichment activities to help students achieve proficiency at grade level or above in the
basic skills of reading, composition and arithmetic that are essential for advancement to more rigorous
curriculum and success in higher education, occupational and avocational pursuits;
(3) Technology is being used in public schools to ensure that all students have a basic level of
computer literacy that will enable them to participate fully in a society in which computers are an ever
more prevalent medium for social, economic, and informational interaction;
(4) Technology is being used in public schools to provide greater access for students to
advanced curricular offerings, virtual field trips, problem solving and team building exercises, reference information and source knowledge than could be provided efficiently through traditional on-
site delivery formats;
(5) Technology is being used in public schools to help students obtain information on post-
secondary educational opportunities, financial aid, and the credentials and skills required in various
occupations that will help them better prepare for a successful transition following high school;
(6) Technology is being used in public schools to help students learn to think critically, apply
academic knowledge in real life situations, make decisions, and gain an understanding of the modern
workplace environment through simulated workplace programs;
(7) Technology is being used in public schools as a resource for teachers by providing them
with access to sample lesson plans, curriculum resources, on-line staff development, continuing
education and college course-work;
(8) Technology is being used in public schools as a tool for managing information, reporting
on measures of accountability, analyzing student learning and helping to improve student, school and
school system performance;
(9) Technology is being used in state institutions of higher education for teaching, learning and
research for all students across all disciplines and programs;
(10) Technology is being used in state institutions of higher education by students, staff and
faculty to discover, create, communicate and collaborate, as well as to enhance research and economic
development activities;
(11) Technology is being used in state institutions of higher education for digital age literacy,
problem solving, creativity, effective communication, collaboration and high productivity skills
essential for West Virginia citizens in a rapidly changing global economy;
(12) Technology is being used by libraries in higher education to offer reference services in a
virtual environment online;
(13) Technology is being used by libraries in higher education to create and share cataloging
records. It is possible to create a seamless resource for sharing these resources between public and
higher education; and
(14) Technology is being used in libraries in higher education to offer electronic document
delivery services to distance education students and to a multitude of professionals throughout the
state.
(b) Each use of technology set forth in this section shall apply to public education, higher
education or both, as appropriate. The determination of whether the use of technology applies to
public education, higher education or both shall be made by the education technology strategic plan
advisory committee, the state board and the higher education policy commission.
§18-2J-2. Intent and purpose; goals.
(a) The intent and purpose of this article is to establish a unified approach to the administration
and allocation of funds for technology that is used for public education and higher education purposes
in this state which meets the following goals:
(1) Maintaining a reasonable balance in the resources allocated among the customary diverse
uses of technology in the public schools and the state institutions of higher education, while allowing
flexibility to address unanticipated priority needs and unusual local circumstances;
(2) Providing for uniformity in technological hardware and software standards and procedures
to achieve interoperability between public schools and higher education to the extent that the
uniformity is considered prudent for reducing acquisition cost, avoiding duplication, promoting expeditious repair and maintenance and facilitating user training, while allowing flexibility for local
innovations and options when the objectives relating to uniformity are reasonably met;
(3) Preserving the integrity of governance, administration, standards and accountability for
technology in the public schools and institutions of higher education under the jurisdiction of the state
board and the higher education policy commission, while encouraging collaborative service delivery
and infrastructure investments with other entities that will reduce cost, avoid duplication or improve
services, particularly with respect to other entities such as the educational broadcasting system, public
libraries and other governmental agencies with compatible technology interests;
(4) Improving the long-term ability of the state board and the higher education policy
commission to efficiently manage and direct the resources available for technology in the public
schools and the institutions of higher education concurrent with evolving technological capabilities
and applications;
(5) Fostering closer communication between faculty, students and administrators;
(6) Providing for individualized instruction, accommodating a variety of learning styles of
students or faculty members;
(7) Advancing new and traditional ways of learning through alternative approaches in
curriculum to integrate education, research and technology into life long learning strategies;
(8) Offering new approaches to administration and accountability within the education system
through technology application;
(9) Promoting the collaboration of schools, libraries, researchers, community members, state
agencies, organizations, business and industry, post-secondary institutions and public virtual learning
environments to meet the needs of all learners;
(10) Recognizing that information literacy is a fundamental competency for life-long learning
and information literacy is incorporated into the curricula of higher education and the workplace;
(11) Creating the appropriate infrastructure to ensure, as required, a sustainable, cost effective
and transparent migration to new technology platforms;
(12) Creating and maintaining compatible and secure technology systems that enhance the
efficient operation of all educational systems;
(13) Assessing, evaluating and publicizing the effects of technology use by educators and
students toward student learning and achievement; and
(14) Increasing student access to high quality blended distance learning curriculum using real
time interactive and online distance education tools.
(b) Each goal set forth in this section shall apply to public education, higher education or both,
as appropriate. The determination of whether a goal applies to public education, higher education or
both shall be made by the education technology strategic plan advisory committee, the state board and
the higher education policy commission.
§18-2J-3. Education technology strategic plan advisory committee.
(a) On or before the first day of July, two thousand four, there is established an education
technology strategic plan advisory committee to be composed of sixteen members. The Governor shall
appoint, by and with the advice and consent of the Senate, the following eleven voting members to the
advisory committee:
(1) Five voting members representing public education some or all of which may be from a list
of five recommended appointees which shall be submitted by the state board;
(2) Five voting members representing higher education some or all of which may be from a list
of five recommended appointees which shall be submitted by the higher education policy commission;
and
(3) One voting member who is a business representative with knowledge of technology
management practices of large corporations and has contributed and advanced technology in education
in West Virginia.
(b) The chief technology officer of Marshall university, or a designee, and the chief technology
officer of West Virginia university, or a designee, shall be ex officio nonvoting members of the
advisory committee. The state superintendent shall designate two positions within the department of
education, and the persons employed in those position shall be ex officio nonvoting members of the
advisory committee. Additionally, the West Virginia library commissioner shall be an ex officio
nonvoting member.
(c) The business representative shall serve as chair of the advisory committee. The advisory
committee shall meet as necessary, but shall hold no less than four meetings annually. A majority of
the voting members constitutes a quorum for conducting the business of the advisory committee.
(d) Voting members of the advisory committee shall serve for terms of three years, except that
of the original appointments, three members shall be appointed for one year; four members shall be
appointed for two years; and four members shall be appointed for three years. No member may serve
more than two consecutive full terms nor may any member be appointed to a term which results in the
member serving more than six consecutive years.
(e) Members of the advisory committee shall serve without compensation, but shall be
reimbursed by the Governor for all reasonable and necessary expenses actually incurred in the
performance of their official duties under this article upon presentation of an itemized sworn statement of their expenses, except that any member of the advisory committee who is an employee of the state
shall be reimbursed by the employing agency.
§18-2J-4. Education technology strategic plan.
(a) The education technology strategic plan advisory committee shall develop an education
technology strategic plan that achieves the intent and purpose of this article. The plan shall be a
continuing plan that covers a period of not less than three and not more than five years and is updated
annually. In addition to other strategies considered necessary for achieving the intent and purpose of
this section, the education technology strategic plan shall address the following:
(1) The strategy for using technology in the public schools and in the institutions of higher
education of the state consistent with the intent and purpose of this article for each of the purposes for
which the Legislature finds that technology is used in public schools and institutions of higher
education as described in section one of this article and for any other purposes considered necessary
by the state board and the higher education policy commission for using technology in the public
schools and institutions of higher education to improve performance and progress;
(2) The strategy for allocating the resources available and developing the capacity necessary
to achieve the purposes addressed in the plan. The strategy shall allow for reasonable flexibility for:
(A) County boards and regional education service agencies to receive assistance with the
development and implementation of technological solutions designed to improve performance, enrich
the curriculum and increase student access to high level courses;
(B) County boards, regional education service agencies and institutional boards of governors
to implement technological solutions that address local priorities consistent with achieving the major
objectives set forth in the education technology strategic plan; and
(C) Using the most cost effective alternative allowable pursuant to section six of this article
for expending funds for technology acquisition and implementation consistent with the goals of the
plan;
(3) For public education, the strategy for using technology to maintain equity in the array and
quality of educational offerings and professional qualifications among the counties notwithstanding
circumstances of geography and population density;
(4) For public education, the strategy for developing and using the capacity of the public school
system to implement, support and maintain technology in the public schools through the allocation of
funds either directly or through contractual agreements with county boards and regional education
service agencies for labor, materials and other costs associated with the installation, set-up, internet
hook-up, wiring, repair and maintenance of technology in the public schools and state institutions of
higher education;
(5) The strategy for ensuring that the capabilities and capacities of the technology infrastructure
within the state and its various regions is adequate for acceptable performance of the technology being
implemented in the public schools and the state institutions of higher education, for developing the
necessary capabilities and capacities, or for pursuing alternative solutions;
(6) The strategy for maximizing student access to learning tools and resources at all times
including before and after school or class, in the evenings, on weekends and holidays, and for public
education, non instructional days, and during vacations for student use for homework, remedial work,
independent learning, career planning and adult basic education;
(7) The strategy for providing access to individualized instruction through computer-based
technology, video and other technology-based instruction;
(8) The strategy for improving teaching and learning and the ability to meet individual students'
needs to increase student achievement;
(9) The strategy for improving curriculum delivery to help meet the needs for educational
equity across the state;
(10) The strategy for improving delivery of professional development;
(11) The strategy for improving the efficiency and productivity of administrators;
(12) The strategy for encouraging development by the private sector and acquisition by districts
of technologies and applications appropriate for education;
(13) The strategy for ensuring efficient and equitable use of technology at all levels from
primary school through higher education, including vocational and adult education;
(14) The strategy for taking advantage of bulk purchasing abilities to the maximum extent
feasible. This may include, but is not limited to:
(A) A method of recording all technology purchases across both the public education system
and the higher education system;
(B) Combining the purchasing power of the public education system and the higher education
system with the purchasing power of other state entities or all state entities; or
(C) A method of allowing public education and higher education to purchase from
competitively bid contracts initiated through the southern regional education board educational
technology cooperative and the American TelEdCommunications Alliance;
(15) A strategy for seeking funding through grants, gifts, donations or any other source for uses
related to education technology; and
(16) A strategy for allowing any other flexibility that is determined to be needed for the
effective use of technology in public education and higher education.
(b) Each strategy to be included in the education technology strategic plan pursuant to this
section shall apply to public education, higher education or both, as appropriate. The determination
of whether the strategy applies to public education, higher education or both shall be made by the
education technology strategic plan advisory committee, the state board and the higher education
policy commission.
(c) Nothing in this section may be construed to conflict with a state higher education
institution's mission as set forth in its compact.
§18-2J-5. State board and higher education policy commission approval and adoption.
On or before the first day of November, two thousand four, and each year thereafter, the
education technology strategic plan advisory committee shall submit the education technology strategic
plan to the state board and the higher education policy commission for approval and adoption. This
time line also shall be in accordance with the federal E-rate discount program. If the state board, the
higher education policy commission or both do not approve and adopt the plan, the state board, the
higher education policy commission and the education technology strategic plan advisory committee
shall collaborate in addressing any objection, agree to a plan and then formally approve and adopt the
plan agreed to. The procedure for collaboration shall be determined through agreement of the state
board, the higher education policy commission and the education technology strategic plan advisory
committee. The plan shall become effective the school year following the time of approval and
adoption by both the state board and the higher education policy commission.
§18-2J-6. Allocation and expenditure of appropriations.
(a) The state board, regional education service agencies, the higher education policy
commission and the state institutions of higher education shall allocate and expend appropriations for
technology in the public schools or the state institutions of higher education, as appropriate, in accordance with the education technology strategic plan except that expenditures from grants which
can only be used for certain purposes are not subject to this requirement. For public education, the
expenditures shall be made directly, or through lease-purchase arrangements pursuant to the provisions
of article three, chapter five-a of this code, or through contractual agreements or grants to county
boards and regional education service agencies or any combination of the foregoing options as shall
best implement the strategic plan in the most cost effective manner.
(b) Nothing in this section requires any specific level of appropriation by the Legislature.
§18-2J-7. Report to the legislative oversight commission on education accountability.
The state board and the higher education policy commission shall report to the legislative
oversight commission on education accountability annually as soon as practical following the annual
adoption and approval of the education technology strategic plan. Additionally, as soon as practical
following the annual adoption and approval of the education technology strategic plan, the state board
and the higher education policy commission shall submit copies of the report to the joint committee
on government and finance. The report shall summarize the expenditures and other related activities
undertaken to achieve the objectives of the plan during the past fiscal year, all modifications made in
the updated education technology strategic plan and any other matters considered important by the
state board and the higher education policy commission to inform the Legislature on the state of
education technology in the public schools and the institutions of higher education."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4072 - "A Bill to amend and reenact §18-2E-7 of the code of West
Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §18-
2J-1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5, §18-2J-6 and §18-2J-7, all relating to an education technology strategic plan for public education and higher education; including basic skills and
SUCCESS in plan; findings; intent, purpose and goals; education technology strategic plan advisory
committee; strategies to be included in plan; state board of education and higher education policy
commission approval and adoption; expenditures in accordance with the plan; and the report to the
legislative oversight commission on education accountability and joint committee on government and
finance."
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. 729), 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. 4072) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 730), 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. 4072) takes effect July 1, 2004.
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. 4374, Relating to manufactured housing construction and safety
standards.
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 after the enacting clause and inserting in lieu thereof
the following:
"That §21-9-4, §21-9-11 and §21-9-12 of the code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding thereto a new section, designated
§21-9-12a, all to read as follows:
ARTICLE 9. MANUFACTURED HOUSING CONSTRUCTION AND SAFETY
STANDARDS.
§21-9-4. General powers and duties; persons adversely affected entitled to hearing.
(a) The board shall have the power to:
(1) Regulate its own procedure and practice;
(2) Promulgate reasonable Propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code, to implement any provision the
provisions of this article or of and the federal standards; such rules to be promulgated in accordance
with the provisions of article three, chapter twenty-nine-a of this code
(3) Advise the commissioner in all matters within his jurisdiction under this article;
(4) Prepare and submit to HUD a state plan application seeking the designation of the board
as a state administrative agency for the purpose of administering and enforcing the federal standards
and take all other action necessary to enable the board to serve as such a state administrative agency;
(5) Study and report to the governor and the Legislature on matters pertinent to the
manufacture, distribution and sale of manufactured housing in this state and recommend such changes
in the law as the board may determine determined by the board to be necessary to promote consumer
safety and protect purchasers of manufactured housing;
(6) Conduct hearings and presentations of views consistent with its rules and regulations and
the federal standards;
(7) Approve or disapprove applications for licenses to manufacturers, dealers, distributors and
contractors in accordance with section nine of this article, and revoke or suspend such licenses in
accordance with such that section, and set the amounts of license fees and bonds or other forms of
assurance in accordance with sections nine and ten of this article;
(8) Realizing the inability of the citizens of the state of West Virginia to obtain fire insurance
on manufactured housing, the Legislature directs the board to conduct a study in regard to this crisis
and to report to the Legislature by the fifth day of February, one thousand nine hundred eighty-nine.
The report shall include specific recommendations to correct this crisis and improve the availability
and reduce the cost of fire insurance;
(9) (8) Delegate to and authorize the commissioner to exercise such the powers and duties of
the board as that the board may from time to time determine, including without limitation, the authority
to approve, disapprove, revoke or suspend licenses in accordance with section nine of this article.
(b) Any person adversely affected by a decision of the board or the commissioner shall be
afforded an opportunity for hearing before the board in accordance with section one, article five,
chapter twenty-nine-a of this code.
§21-9-11. State may act as primary inspection agency.
(a) This state, acting through the board, is hereby granted all powers and authority necessary
to act as a primary inspection agency and to perform the functions of a 'design approval primary
inspection agency' and a 'production inspection primary inspection agency', as such the terms are
defined in the federal standards. The board may apply to the secretary of HUD on behalf of this state
to act as such a the primary inspection agency, including application for approval to act as the
exclusive production inspection primary inspection agency in this state. The board shall promulgate
such may propose rules and regulations as are for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code necessary to enable the board to act on
behalf of this state as such a the primary inspection agency .
(b) The board may provide inspections to private home sites to aid in the resolution of a
consumer complaint filed with the board by the home owner. The board may provide, free of charge,
one initial and one follow-up inspection related to each consumer complaint: Provided, That the board
may charge a licensee an inspection fee for any follow-up inspections which are necessitated by a
licensee's failure to comply with an order of the board. The inspection fee may not exceed seventy-
five dollars per hour, plus expenses.
§21-9-12. Violation of article; penalties; injunction.
(a) Any person who violates any of the following provisions relating to manufactured homes
or any legislative rule promulgated proposed by the board pursuant to the provisions of this article, is
liable to the state for a penalty, as determined by the court board, not to exceed one thousand dollars for each violation. Each violation constitutes a separate violation with respect to each manufactured
home, except that the maximum penalty may not exceed one million dollars for any related series of
violations occurring within one year from the date of the first violation. No person may:
(1) Manufacture for sale, lease, sell, offer for sale or lease, or introduce or deliver, or import
into this state any manufactured home which is manufactured on or after the effective date of any
applicable standard established by a rule promulgated by the board pursuant to the provisions of this
article, or any applicable federal standard, which does not comply with that standard.
(2) Fail or refuse to permit access to or copying of records, or fail to make reports or provide
information or fail or refuse to permit entry or inspection as required by the provisions of this article.
(3) Fail to furnish notification of any defect as required by the provisions of 42 U.S.C. §5414.
(4) Fail to issue a certification required by the provisions of 42 U.S.C. §5415 or issue a
certification to the effect that a manufactured home conforms to all applicable federal standards, when
the person knows or in the exercise of due care would have reason to know that the certification is
false or misleading in a material respect.
(5) Fail to establish and maintain records, make reports, and provide information as the board
may reasonably require to enable the board to determine whether there is compliance with the federal
standards; or fail to permit, upon request of a person duly authorized by the board, the inspection of
appropriate books, papers, records and documents relative to determining whether a manufacturer,
dealer, distributor or contractor has acted or is acting in compliance with the provisions of this article
or applicable federal standards.
(6) Issue a certification pursuant to the provisions of 42 U.S.C. §5403(a), when the person
knows or in the exercise of due care would have reason to know that the certification is false or
misleading in a material respect.
(b) Subdivision (1), subsection (a) of this section does not apply to:
(i) (1) The sale or the offer for sale of any manufactured home after the first purchase of it in
good faith for purposes other than resale;
(ii) (2) Any person who establishes that he did not have reason to know in the exercise of due
care that such the manufactured home is not in conformity with applicable federal standards; or
(iii) (3) Any person who, prior to the first purchase, holds a certificate by the manufacturer or
importer of the manufactured home to the effect that such the manufactured home conforms to all
applicable federal standards, unless that person knows that the manufactured home does not conform
to those standards.
(c) Any manufacturer, dealer, distributor or contractor who engages in business in this state
without a current license as required by the provisions of this article or without furnishing a bond or
other form of assurance as required by the provisions of this article is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than fifty dollars for each day the violation continues.
(d) The board may institute proceedings in the circuit court of the county in which the alleged
violation occurred or are occurring to enjoin any violation of the provisions of this article.
_______________(e) Any person or officer, director, partner or agent of a corporation, partnership or other entity
who willfully or knowingly violates any of the provisions listed in subsection (a) of this section, in any
manner which threatens the health or safety of any purchaser, 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 for a period of not more than one year, or both fined and imprisoned. Provided, That
(f) Nothing in this article may apply applies to any bank or financial institution engaged in the
disposal of foreclosed or repossessed manufactured home(s) homes.
§21-9-12a. Violation of cease and desist order; penalties.
(a) Upon a determination that a person is engaging in business without a valid license as
required under the provisions of section nine of this article, the board or commissioner may
immediately issue a cease and desist order requiring the person to cease all operations within this state.
After a hearing, the board may impose a penalty of not less than two hundred dollars nor more than
one thousand dollars upon any person found to have been engaging in business in this state without
a valid license as required under the provisions of section nine of this article.
(b) The board may institute proceedings in the circuit court of the county where the violation
occurred, against any person violating a cease and desist order issued under the provisions of
subsection (a) of this section.
(c) Any person continuing to engage in business in this state without a valid license as required
under the provisions of section nine of this article, after the issuance of a cease and desist order under
the provisions of subsection (a) of this section, is guilty of a misdemeanor and, upon conviction
thereof, is subject to the following penalties:
(1) For a first offense, a fine of not less than two hundred dollars nor more than one thousand
dollars;
(2) For a second offense, a fine of not less than five hundred dollars nor more than five
thousand dollars, or confinement in a county or regional jail for not less than thirty days nor more than
six months or both a fine and confinement; and
(3) For a third or subsequent offense, a fine of not less than one thousand dollars nor more than
five thousand dollars, and confinement in the country or regional jail for not less than thirty days nor
more than one year."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4374 - "A Bill to amend and reenact §21-9-4, §21-9-11 and §21-9-12
of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new
section designated §21-9-12a, all relating to manufactured housing construction and safety standards;
removing out-dated language; providing for inspections and the payment of the costs of inspection;
authorizing the issuance of cease and desist orders; and establishing civil and 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. 731), 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. 4374) 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. 4411, Changing certain reporting requirements in the West Virginia workforce
investment 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, by amending the title to read as follows:
H. B. 4411 - "A Bill to amend and reenact §5B-2B-2, §5B-2B-4, §5B-2B-5 and §5B-2B-9 of
the code of West Virginia, 1931, as amended, all relating to the West Virginia workforce investment
act; updating terms; outlining duties; and creating the workforce investment interagency collaborative
team."
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. 732), 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. 4411) 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, 2004, a bill of the House of Delegates as follows:
H. B. 4453, Relating to the deputy sheriff's retirement system.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-2. Definitions.
As used in this article, unless a federal law or regulation or the context clearly requires a
different meaning:
(a) 'Accrued benefit' means on behalf of any member two and one-quarter percent of the
member's final average salary multiplied by the member's years of credited service. A member's
accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is subject
to the provisions of section nine-a of this article.
(b) 'Accumulated contributions' means the sum of all amounts deducted from the
compensation of a member, or paid on his or her behalf pursuant to article ten-c, chapter five of this
code, either pursuant to section seven of this article or section twenty-nine, article ten, chapter five of
this code as a result of covered employment together with regular interest on the deducted amounts.
(c) 'Active military duty' means full-time active duty with any branch of the armed forces of
the United States, including service with the national guard or reserve military forces when the
member has been called to active full-time duty and has received no compensation during the period
of that duty from any board or employer other than the armed forces.
(d) 'Actuarial equivalent' means a benefit of equal value computed upon the basis of the
mortality table and interest rates as set and adopted by the retirement board in accordance with the
provisions of this article.
(e) 'Annual compensation' means the wages paid to the member during covered employment
within the meaning of Section 3401(a) of the Internal Revenue Code, but determined without regard
to any rules that limit the remuneration included in wages based upon the nature or location of
employment or services performed during the plan year plus amounts excluded under Section
414(h)(2) of the Internal Revenue Code and less reimbursements or other expense allowances, cash
or noncash fringe benefits or both, deferred compensation and welfare benefits. Annual compensation for determining benefits during any determination period may not exceed one hundred fifty thousand
dollars as adjusted for cost of living in accordance with Section 401(a)(17)(B) of the Internal Revenue
Code.
(f) 'Annual leave service' means accrued annual leave.
(g) 'Annuity starting date' means the first day of the first period for which an amount is
received as an annuity by reason of retirement. For purposes of this subsection, if retirement income
payments commence after the normal retirement age, 'retirement' means the later of the last day the
member worked in covered employment and the normal retirement age.
(h) 'Base salary' means a member's cash compensation exclusive of overtime from covered
employment during the last twelve months of employment. Until a member has worked twelve months,
annualized base salary is used as base salary.
(i) 'Board' means the consolidated public retirement board created pursuant to article ten-d,
chapter five of this code.
(j) 'County commission' has the meaning ascribed to it in section one, article one, chapter
seven of this code.
(k) 'Covered employment' means either: (1) Employment as a deputy sheriff and the active
performance of the duties required of a deputy sheriff; or (2) the period of time which active duties are
not performed but disability benefits are received under section fourteen or fifteen of this article; or
(3) concurrent employment by a deputy sheriff in a job or jobs in addition to his or her employment
as a deputy sheriff where such the secondary employment requires the deputy sheriff to be a member
of another retirement system which is administered by the consolidated public retirement board
pursuant to article ten-d of chapter five of this code: Provided, That the deputy sheriff contribute to the fund created in section six of this article the amount specified as the deputy sheriff's contribution
in section seven of this article.
(l) 'Credited service' means the sum of a member's years of service, active military duty,
disability service and annual leave service.
(m) 'Deputy sheriff' means an individual employed as a county law-enforcement deputy sheriff
in this state and as defined by section two, article fourteen, chapter seven of this code.
(n) 'Dependent child' means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living with the member while the
member was an adopting parent during any period of probation; or
(D) A stepchild of the member residing in the member's household at the time of the member's
death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited college or university;
(B) Who was claimed as a dependent by the member for federal income tax purposes at the
time of the member's death; and
(C) Whose relationship with the member is described in subparagraph (A), (B) or (C),
paragraph (1) of this subdivision.
(o) 'Dependent parent' means the father or mother of the member who was claimed as a
dependent by the member for federal income tax purposes at the time of the member's death.
(p) 'Disability service' means service received by a member, expressed in whole years,
fractions thereof or both, equal to one half of the whole years, fractions thereof, or both, during which
time a member receives disability benefits under section fourteen or fifteen of this article.
(q) 'Early retirement age' means age forty or over and completion of twenty years of service.
(r) 'Effective date' means the first day of July, one thousand nine hundred ninety-eight.
(s) 'Final average salary' means the average of the highest annual compensation received for
covered employment by the member during any five consecutive plan years within the member's last
ten years of service. If the member did not have annual compensation for the five full plan years
preceding the member's attainment of normal retirement age and during that period the member
received disability benefits under section fourteen or fifteen of this article then 'final average salary'
means the average of the monthly salary determined paid to the member during that period as
determined under section seventeen of this article multiplied by twelve.
(t) 'Fund' means the West Virginia deputy sheriff retirement fund created pursuant to section
six of this article.
(u) 'Hour of service' means:
(1) Each hour for which a member is paid or entitled to payment for covered employment
during which time active duties are performed. These hours shall be credited to the member for the
plan year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to payment for covered employment
during a plan year but where no duties are performed due to vacation, holiday, illness, incapacity
including disability, layoff, jury duty, military duty, leave of absence, or any combination thereof, and
without regard to whether the employment relationship has terminated. Hours under this paragraph
shall be calculated and credited pursuant to West Virginia division of labor rules. A member will not be credited with any hours of service for any period of time he or she is receiving benefits under
section fourteen or fifteen of this article; and
(3) Each hour for which back pay is either awarded or agreed to be paid by the employing
county commission, irrespective of mitigation of damages. The same hours of service shall not be
credited both under paragraph (1) or (2) of this subdivision and under this paragraph. Hours under this
paragraph shall be credited to the member for the plan year or years to which the award or agreement
pertains, rather than the plan year in which the award, agreement or payment is made.
(v) 'Member' means a person first hired as a deputy sheriff after the effective date of this
article, as defined in subsection (r) of this section, or a deputy sheriff first hired prior to the effective
date and who elects to become a member pursuant to section five or section seventeen of this article.
A member shall remain a member until the benefits to which he or she is entitled under this article are
paid or forfeited.
(w) 'Monthly salary' means the portion of a member's annual compensation which is paid to
him or her per month.
(x) 'Normal form' means a monthly annuity which is one twelfth of the amount of the
member's accrued benefit which is payable for the member's life. If the member dies before the sum
of the payments he or she receives equals his or her accumulated contributions on the annuity starting
date, the named beneficiary shall receive in one lump sum the difference between the accumulated
contributions at the annuity starting date and the total of the retirement income payments made to the
member.
(y) 'Normal retirement age' means the first to occur of the following:
(1) Attainment of age fifty years and the completion of twenty or more years of service;
(2) While still in covered employment, attainment of at least age fifty years and when the sum
of current age plus years of service equals or exceeds seventy years;
(3) While still in covered employment, attainment of at least age sixty years and completion
of five years of service; or
(4) Attainment of age sixty-two years and completion of five or more years of service.
(z) 'Partially disabled' means a member's inability to engage in the duties of deputy sheriff by
reason of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. A member may be determined partially disabled for the purposes of this article and maintain
the ability to engage in other gainful employment which exists within the state but which ability would
not enable him or her to earn an amount at least equal to two thirds of the average annual
compensation earned by all active members of this plan during the plan year ending as of the most
recent thirtieth day of June, as of which plan data has been assembled and used for the actuarial
valuation of the plan.
(aa) 'Public employees retirement system' means the West Virginia public employee's
retirement system created by article ten, chapter five of this code.
(bb) 'Plan' means the West Virginia deputy sheriff death, disability and retirement plan
established by this article.
(cc) 'Plan year' means the twelve-month period commencing on the first day of July of any
designated year and ending the following thirtieth day of June.
(dd) 'Regular interest' means the rate or rates of interest per annum, compounded annually, as
the board adopts in accordance with the provisions of this article.
(ee) 'Retirement income payments' means the annual retirement income payments payable
under the plan.
(ff) 'Spouse' means the person to whom the member is legally married on the annuity starting
date.
(gg) 'Surviving spouse' means the person to whom the member was legally married at the time
of the member's death and who survived the member.
(hh) 'Totally disabled' means a member's inability to engage in substantial gainful activity by
reason of any medically determined physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months.
For purposes of this subdivision:
(1) A member is totally disabled only if his or her physical or mental impairment or
impairments is are so severe that he or she is not only unable to perform his or her previous work as
a deputy sheriff but also cannot, considering his or her age, education and work experience, engage
in any other kind of substantial gainful employment which exists in the state regardless of whether:
(A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy
exists; or (C) the member would be hired if he or she applied for work.
(2) 'Physical or mental impairment' is an impairment that results from an anatomical,
physiological or psychological abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
A member's receipt of social security disability benefits creates a rebuttable presumption that
the member is totally disabled for purposes of this plan. Substantial gainful employment rebuts the
presumption of total disability.
(ii) 'Year of service.' A member shall, except in his or her first and last years of covered
employment, be credited with year of service credit based upon the hours of service performed as
covered employment and credited to the member during the plan year based upon the following
schedule:
Hours of Service Year of Service Credited:
Less than 500 ........................ 0
500 to 999 ........................... 1/3
1,000 to 1,499 ....................... 2/3
1,500 or more ........................ 1
During a member's first and last years of covered employment, the member shall be credited
with one twelfth of a year of service for each month during the plan year in which the member is
credited with an hour of service. A member is not entitled to credit for years of service for any time
period during which he or she received disability payments under section fourteen or fifteen of this
article. Except as specifically excluded, years of service include covered employment prior to the
effective date.
Years of service which are credited to a member prior to his or her receipt of accumulated
contributions upon termination of employment pursuant to section thirteen of this article or section
thirty, article ten, chapter five of this code, shall be disregarded for all purposes under this plan unless
the member repays the accumulated contributions with interest pursuant to section twelve of this article
or had prior to the effective date made the repayment pursuant to section eighteen, article ten, chapter
five of this code.
(jj) 'Required beginning date' means the first day of April of the calendar year following the
later of: (i) The calendar year in which the member attains age seventy and one-half; or (ii) the
calendar year in which he or she retires or otherwise separates from covered employment.
§7-14D-5. Members.
(a) Any deputy sheriff first employed by a county in covered employment after the effective
date of this article shall be a member of this retirement system and plan and does not qualify for
membership in any other retirement system administered by the board, so long as he or she remains
employed in covered employment.
(b) Any deputy sheriff employed in covered employment on the effective date of this article
shall within six months of that effective date notify in writing both the county commission in the
county in which he or she is employed and the board of his or her desire to become a member of the
plan: Provided, That this time period is extended to the thirtieth day of January, one thousand nine
hundred ninety-nine, in accordance with the decision of the supreme court of appeals in West Virginia
Deputy Sheriffs' Association, et al v. James L. Sims, et al, No. 25212: Provided, however, That any
deputy sheriff employed in covered employment on the effective date of this article has an additional
time period consisting of the ten-day period following the day after which the amended provisions of
this section become law to notify in writing both the county commission in the county in which he or
she is employed and the board of his or her desire to become a member of the plan. Any deputy sheriff
who elects to become a member of the plan ceases to be a member or have any credit for covered
employment in any other retirement system administered by the board and shall continue to be
ineligible for membership in any other retirement system administered by the board so long as the
deputy sheriff remains employed in covered employment in this plan: Provided further, That any
deputy sheriff who elects during the time period from the first day of July, one thousand nine hundred ninety-eight, to the thirtieth day of January, one thousand nine hundred ninety-nine, or who so elects
during the ten-day time period occurring immediately following the day after the day the amendments
made during the one thousand nine hundred ninety-nine legislative session become law, to transfer
from the public employees retirement system to the plan created in this article shall contribute to the
plan created in this article at the rate set forth in section seven of this article retroactive to the first day
of July, one thousand nine hundred ninety-eight. Any deputy sheriff who does not affirmatively elect
to become a member of the plan continues to be eligible for any other retirement system as is from
time to time offered to other county employees but is ineligible for this plan regardless of any
subsequent termination of employment and rehire.
(c) Any deputy sheriff who was employed as a deputy sheriff prior to the effective date, but was
not employed as a deputy sheriff on the effective date of this article, shall become a member upon
rehire as a deputy sheriff. For purposes of this section, the member's years of service and credited
service prior to the effective date shall not be counted for any purposes under this plan unless: (1) The
deputy sheriff has not received the return of his or her accumulated contributions in the public
employees retirement fund system pursuant to section thirty, article ten, chapter five of this code; or
(2) the accumulated contributions returned to the member from the public employees retirement system
have been repaid pursuant to section twelve thirteen of this article. If the conditions of subdivision (1)
or (2) of this subsection are met, all years of the deputy sheriff's covered employment shall be counted
as years of service for the purposes of this article. Each transferring deputy sheriff shall be given
credited service for the purposes of this article for all covered employment transferred from the public
employees retirement system regardless of whether such the credited service (as that term is defined
in section two, article ten, chapter five of this code) was earned as a deputy sheriff. All service in the
public employees retirement system accrued by a transferring deputy sheriff shall be transferred into the plan created by this article and the transferring deputy sheriff shall be given the same credit for the
purposes of this article for all such covered service which is transferred from the public employees
retirement system as that transferring deputy sheriff would have received from the public employees
retirement system if such the transfer had not occurred. In connection with each deputy sheriff
receiving credit for prior employment provided in this subsection, a transfer from public employees
retirement system to this plan shall be made pursuant to the procedures described in section eight of
this article.
(d) Once made, the election made under this section is irrevocable. All deputy sheriffs first
employed after the effective date and deputy sheriffs electing to become members as described in this
section shall be members as a condition of employment and shall make the contributions required by
section seven of this article.
(e) Notwithstanding any other provisions of this article, any individual who is a leased
employee shall not be eligible to participate in the plan. For purposes of this plan, a 'leased employee'
means any individual who performs services as an independent contractor or pursuant to an agreement
with an employee leasing organization or similar organization. If a question arises regarding the status
of an individual as a leased employee, the board has final power to decide the question.
§7-14D-7. Members' contributions; employer contributions.
There shall be deducted from the monthly salary of each member and paid into the fund an
amount equal to eight and one-half percent of his or her monthly salary. Any active member who has
concurrent employment in an additional job or jobs and such the additional employment requires the
deputy sheriff to be a member of another retirement system which is administered by the consolidated
public retirement board pursuant to article ten-d, chapter five of this code shall contribute to the fund
the sum of eight and one-half percent of his or her monthly salary earned as a deputy sheriff as well as the sum of eight and one-half percent of his or her monthly salary earned from any additional
employment which additional employment requires the deputy sheriff to be a member of another
retirement which is administered by the consolidated public retirement board pursuant to article ten-d,
chapter five of this code. An additional nine and one-half percent of the monthly salary of each
member shall be paid to the fund by the county commission of the county in which the member is
employed in covered employment amount shall be paid to the fund by the county commission of the
county in which the member is employed in covered employment in an amount determined by the
board: Provided, That in no year may the total of the contributions provided for in this section, to be
paid by the county commission, exceed ten and one-half percent of the total payroll for the members
in the employ of the county commission for the preceding fiscal year. If the board finds that the
benefits provided by this article can be actually funded with a lesser contribution, then the board shall
reduce the required member and or employer contributions or both proportionally. The sums withheld
each calendar month shall be paid to the fund no later than ten days following the end of the calendar
month.
§7-14D-12. Annuity options.
Prior to the effective date of retirement, but not thereafter, a member may elect to receive
retirement income payments in the normal form, or the actuarial equivalent of the normal form from
the following options:
(a) Option A -- Joint and Survivor Annuity. -- A life annuity payable during the joint lifetime
of the member and his or her beneficiary who is a natural person with an insurable interest in the
member's life. Upon the death of either the member of or his or her beneficiary, the benefit shall
continue as a life annuity to the survivor in an amount equal to fifty percent, sixty-six and two-thirds
percent, seventy-five percent or one hundred percent of the amount paid while both were living as selected by the member. If the retiring member is married, the spouse shall sign a waiver of benefit
rights if the beneficiary is to be other than the spouse.
(b) Option B -- Contingent Joint and Survivor Annuity. -- A life annuity payable during the
joint lifetime of the member and his or her beneficiary who must be a natural person with an insurable
interest in the member's life. Upon the death of the member, the benefit shall continue as a life annuity
to the beneficiary in an amount equal to fifty percent, sixty-six and two-thirds percent, seventy-five
percent or one hundred percent of the amount paid while both were living as selected by the member.
If the beneficiary dies first, the monthly amount of benefits may not be reduced, but shall be paid at
the amount that was in effect before the death of the beneficiary. If the retiring member is married, the
spouse shall sign a waiver of benefit rights if the beneficiary is to be other than the spouse.
(c) Option C -- Ten Years Certain and Life Annuity. -- A life annuity payable during the
member's lifetime but in any event for a minimum of ten years. If the member dies before the
expiration of ten years, the remaining payments shall be made to a designated beneficiary, if any, or
otherwise to the member's estate.
(d) Option D -- Level Income Annuity. -- A life annuity payable monthly in an increased
amount 'A' from the time of retirement until the member is social security retirement age, and then
a lesser amount 'B' payable for the member's lifetime thereafter, with these amounts computed
actuarially to satisfy the following two conditions:
(1) Actuarial equivalence. -- The actuarial present value at the date of retirement of the
member's annuity if taken in the normal form must equal the actuarial present value of the term life
annuity in amount 'A' plus the actual present value of the deferred life annuity in amount 'B'; and
(2) Level income. -- The amount 'A' equals the amount 'B' plus the amount of the member's
estimated monthly social security primary insurance amount that would commence at the date amount 'B' becomes payable. For this calculation, the primary insurance amount is estimated when the
member applies for retirement, using social security law then in effect, using assumptions established
by the board.
In the case of a member who has elected the options set forth in subdivisions (a) and (b) of this
section, respectively, and whose beneficiary dies prior to the member's death, the member may name
an alternative beneficiary. If an alternative beneficiary is named within eighteen months following the
death of the prior beneficiary, the benefit shall be adjusted to be the actuarial equivalent of the benefit
the member is receiving just after the death of the member's named beneficiary. If the election is not
made until eighteen months after the death of the prior beneficiary, the amount shall be reduced so that
it is only ninety percent of the actuarial equivalent of the benefit the member is receiving just after the
death of the member's named beneficiary.
§7-14D-13. Refunds to certain members upon discharge or resignation; deferred retirement;
forfeitures.
(a) Any member who terminates covered employment and is not eligible to receive disability
benefits under this article is, by written request filed with the board, entitled to receive from the fund
the member's accumulated contributions. Except as provided in subsection (b) of this section, upon
withdrawal the member shall forfeit his or her accrued benefit and cease to be a member.
(b) Any member who withdraws accumulated contributions from either this plan or the public
employees retirement system and thereafter becomes reemployed in covered employment shall not
receive any credited service for the prior employment unless following his or her return to covered
employment, the member redeposits in the fund the amount of the accumulated contributions
submitted on salary earned while a deputy sheriff, together with interest on the accumulated
contributions at the rate determined by the board from the date of withdrawal to the date of redeposit. Upon repayment he or she shall receive the same credit on account of his or her former service as if
no refund had been made. The repayment shall be made in a lump sum within sixty months of the
deputy sheriff's reemployment or if later, within sixty months of the effective date of this article.
(c) Every member who completes sixty months of covered employment is eligible, upon
cessation of covered employment, to either withdraw his or her accumulated contributions in
accordance with subsection (a) of this section, or to choose not to withdraw his or her accumulated
contribution and to receive retirement income payments upon attaining early or normal retirement age.
(d) Notwithstanding any other provision of this article, forfeitures under the plan shall not be
applied to increase the benefits any member would otherwise receive under the plan.
§7-14D-14. Awards and benefits for disability -- Duty related.
Any member who after the effective date of this article and during covered employment: (A)
Has been or becomes either totally or partially disabled by injury, illness or disease; and (B) the
disability is a result of an occupational risk or hazard inherent in or peculiar to the services required
of members; or (C) the disability was incurred while performing law-enforcement functions during
either scheduled work hours or at any other time; and (D) in the opinion of the board, the member is
by reason of the disability unable to perform adequately the duties required of a deputy sheriff, is
entitled to receive and shall be paid from the fund in monthly installments during the lifetime of the
member, or if sooner until the member attains normal retirement age or until the disability sooner
terminates, the compensation under either subdivision (a) or (b) of this section.
(a) If the member is totally disabled, the member shall receive ninety percent of his or her
average full monthly compensation for the twelve-month contributory period preceding the member's
disability award, or the shorter period if the member has not worked twelve months.
(b) If the member is partially disabled, the member shall receive forty-five percent of his or her
average full monthly compensation for the twelve-month contributory period preceding the member's
disability award, or the shorter period if the member has not worked twelve months.
If the member remains totally disabled until attaining sixty-five years of age, the member shall
then receive the retirement benefit provided for in sections eleven and twelve of this article.
If the member remains partially disabled until attaining sixty years of age the member shall then
receive the retirement benefit provided for in sections eleven and twelve of this article.
§7-14D-15. Same -- Due to other causes.
(a) Any member who after the effective date of this article and during covered employment:
(1) Has been or becomes totally or partially disabled from any cause other than those set forth in
section fourteen of this article and not due to vicious habits, intemperance or willful misconduct on
his or her part; and (2) in the opinion of the board, he or she is by reason of the disability unable to
perform adequately the duties required of a deputy sheriff, is entitled to receive and shall be paid from
the fund in monthly installments during the lifetime of the member, or if sooner until the member
attains normal retirement age or until the disability sooner terminates the compensation set forth in,
either subsection (b) or (c) of this section.
(b) If the member is totally disabled, he or she shall receive sixty-six and two-thirds percent
of his or her average full monthly compensation for the twelve-month contributory period preceding
the disability award, or the shorter period, if the member has not worked twelve months.
(c) If the member is partially disabled, he or she shall receive thirty-three and one-third percent
of his or her average full monthly compensation for the twelve-month contributory period preceding
the disability award, or the shorter period, if the member has not worked twelve months.
(d) If the member remains disabled until attaining sixty years of age, then the member shall
receive the retirement benefit provided for in sections eleven and twelve of this article.
(e) The board shall propose legislative rules for promulgation in accordance with the provisions
of article three, chapter twenty-nine-a of this code concerning member disability payments so as to
ensure that the payments do not exceed one hundred percent of the average current salary in any given
county for the position last held by the member.
§7-14D-20. Additional death benefits and scholarships -- Dependent children.
(a) In addition to the spouse death benefits in sections eighteen and nineteen of this article, the
surviving spouse is entitled to receive and there shall be paid to the spouse one hundred dollars
monthly for each dependent child.
(b) If the surviving spouse dies or if there is no surviving spouse, the fund shall pay monthly
to each dependent child a sum equal to one fourth of the surviving spouse's entitlement under either
section nineteen or twenty of this article. If there is neither a surviving spouse nor a dependent child,
the fund shall pay in equal monthly installments to the dependent parents of the deceased member
during their joint lifetimes a sum equal to the amount which a surviving spouse, without children,
would have received: Provided, That when there is only one dependent parent surviving, that parent
is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would
have been entitled to receive: Provided, however, That if there is no surviving spouse, dependent child,
nor dependent parent of the deceased member the accumulated contributions shall be paid to a named
beneficiary or beneficiaries: Provided, further, That if there is no surviving spouse, dependent child,
nor dependent parent of the deceased member, nor any named beneficiary or beneficiaries then the
accumulated contributions shall be paid to the estate of the deceased member.
(c) Any person qualifying as a dependent child under this, in addition to any other benefits due
under this or other sections of this article, is entitled to receive a scholarship to be applied to the career
development education of that person. This sum, up to but not exceeding six thousand dollars per year,
shall be paid from the fund to any university or college in this state or to any trade or vocational school
or other entity in this state approved by the board, to offset the expenses of tuition, room and board,
books, fees or other costs incurred in a course of study at any of these institutions so long as the
recipient makes application to the board on an approved form and under such rules as the board may
provide, and maintains scholastic eligibility as defined by the institution or the board. The board may
propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of
this code which define age requirements, physical and mental requirements, scholastic eligibility,
disbursement methods, institutional qualifications and other requirements as necessary and not
inconsistent with this section.
§7-14D-21. Burial benefit.
Any member who dies as a result of any service related illness or injury after the effective date
is entitled to a lump sum burial benefit of five thousand dollars. If the member is married, the burial
benefit shall be paid to the member's spouse. If the member is not married, the burial benefit shall be
paid to the member's estate for the purposes of paying burial expenses, settling the member's final
affairs, or both. Any unspent balance shall be distributed as a part of the member's estate. If the
member is not entitled to a death benefit under sections eighteen and nineteen of this article, then if
greater than five thousand dollars, the amount payable to the member's estate shall be his or her
accumulated contributions.
§7-14D-23. Loans to members.
(a) A member who is not yet receiving disability or retirement income benefits from the plan
may borrow from the plan no more than one time in any year an amount up to one half of his or her
accumulated contributions, but not less than five hundred dollars nor more than eight thousand dollars:
Provided, That the maximum amount of any loan when added to the outstanding balance of all other
loans shall not exceed the lesser of the following: (1) Fifty Eight thousand dollars reduced by the
excess (if any) of the highest outstanding balance of loans to the member during the one-year period
ending on the day before the date on which the loan is made, over the outstanding balance of loans to
the member on the day on which the loan is made; or (2) fifty percent of his or her accumulated
contributions. No member is eligible for more than one outstanding loan at any time. No loan may be
made from the plan if the board determines that the loans constitute more than fifteen percent of the
amortized cost value of the assets of the plan as of the last day of the preceding plan year. The board
may discontinue the loans any time it determines that cash flow problems might develop as a result
of the loans. Each loan shall be repaid through monthly installments over periods of six through sixty
months and carry interest on the unpaid balance and an annual effective interest rate that is two
hundred basis points higher than the most recent rate of interest used by the board for determining
actuarial contributions levels: Provided, however, That interest charged shall be commercially
reasonable in accordance with the provisions of section 72(p)(2) of the Internal Revenue Code and
federal regulations issued thereunder. Monthly loan payments shall be calculated to be as nearly equal
as possible with all but the final payment being an equal amount. An eligible member may make
additional loan payments or pay off the entire loan balance at any time without incurring any interest
penalty. At the member's option, the monthly loan payment may include a level premium sufficient
to provide declining term insurance with the plan as beneficiary to repay the loan in full upon the
member's death. If a member declines the insurance and dies before the loan is repaid, the unpaid balance of the loan shall be deducted from the lump sum insurance benefits payable under section
twenty-one of this article.
(b) A member with an unpaid loan balance who wishes to retire may have the loan repaid in
full by accepting retirement income payments reduced by deducting from the actuarial reserve for the
accrued benefit the amount of the unpaid balance and then converting the remaining of the reserve to
a monthly pension payable in the form of the annuity desired by the member.
(c) The entire unpaid balance of any loan, and interest due thereon, shall at the option of the
retirement board become due and payable without further notice or demand upon the occurrence with
respect to the borrowing member of any of the following events of default: (1) Any payment of
principal and accrued interest on a loan remains unpaid after the same become due and payable under
the terms of the loan or after such grace period as may be established in the discretion of the retirement
board; (2) the borrowing member attempts to make an assignment for the benefit of creditors of his
or her benefit under the retirement system; or (3) any other event of default set forth in rules
promulgated by the board pursuant to the authority granted in section one, article ten-d, chapter five
of this code: Provided, That any offset of such an unpaid loan balance shall be made only at such time
as the member is entitled to receive a distribution under the plan.
(d) Loans shall be evidenced by such form of obligations and shall be made upon such
additional terms as to default, prepayment, security, and otherwise as the retirement board may
determine.
(e) Notwithstanding anything herein to the contrary, the loan program authorized by this section
shall comply with the provisions of section 72(p)(2) and section 401 of the Internal Revenue Code and
the federal regulations issued thereunder. The retirement board is authorized to: (a) Apply and construe
the provisions of this section and administer the plan loan program in such a manner as to comply with the provisions of sections 72(p)(2) and section 401 of the Internal Revenue Code; (b) adopt plan loan
policies or procedures consistent with these federal law provisions; and (c) take such actions as it
deems necessary or appropriate to administer the plan loan program created hereunder in accordance
with these federal law provisions. The retirement board is further authorized in connection with the
plan loan program to take any actions that may at any time be required by the Internal Revenue Service
regarding compliance with the requirements of section 72(p)(2) or section 401 of the Internal Revenue
Code, notwithstanding any provision in this article to the contrary.
§7-14D-24a. Return to covered employment by retired member.
The annuity of any member who retires under the provisions of this article and who resumes
service in covered employment shall be suspended while such the member continues in covered
employment. The monthly annuity payment for the month in which such the service resumes shall be
pro-rated to the date of commencement of service, and such the member shall again become a
contributing member during such resumption of service. At the conclusion of such resumed service
in covered employment the member shall have his or her annuity recalculated to take into account the
entirety of service in covered employment."
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. 733), 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. 4453) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 734), 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. 4453) takes effect July 1, 2004.
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. 4521, Increasing the current annual registration fee for underground storage tanks and
requiring the DEP to annually report on the status of the fund and the underground storage tank
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 two, section twenty, line seven, following the word "special", by inserting the word
"revenue".
On page three, section twenty, line twenty-three, by striking out the word "therein" and
inserting in lieu thereof the words "for expenditure of moneys in the fund".
And,
On page three, section twenty, line twenty-nine, by striking out the word "therefrom" and
inserting in lieu thereof the words "from the proceeds".
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. 735), and there were--yeas
91, nays 8, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Hall, Hamilton, Louisos, Trump, 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 (H. B. 4521) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 736), and there were--yeas 95, nays
4, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Louisos, Walters and Webb.
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4521) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Conference Committee Report
Delegate Mezzatesta, from the Committee of Conference on matters of disagreement between
the two houses, as to
S. B. 448, Relating to higher education advisory boards generally,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendments to Engrossed Senate Bill 448 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 amendments of the House and
the Senate, striking out everything after the enacting clause, and agree to the same as follows:
That §18B-1A-8 of the code of West Virginia, 1931, as amended, be repealed; that §18B-1B-7
of said code be repealed; that §18B-3C-7 of said code be repealed; that §18B-6-2a, §18B-6-3a,
§18B-6-4a and §18B-6-4b of said code be repealed; that §18-2-1 of said code be amended and
reenacted; that §18B-1-1a, §18B-1-2, §18B-1-3 and §18B-1-6 of said code be amended and reenacted;
that §18B-1A-2, §18B-1A-3, §18B-1A-4, §18B-1A-5 and §18B-1A-6 of said code be amended and
reenacted; that §18B-1B-1, §18B-1B-2, §18B-1B-4, §18B-1B-5 and §18B-1B-6 of said code be
amended and reenacted; that said code be amended by adding thereto a new section, designated
§18B-1B-11; that §18B-2A-1 and §18B-2A-4 of said code be amended and reenacted; that said code
be amended by adding thereto a new section, designated §18B-2A-6; that §18B-2B-1, §18B-2B-2,
§18B-2B-3, §18B-2B-4, §18B-2B-5, §18B-2B-6, §18B-2B-7 and §18B-2B-8 of said code be amended
and reenacted; that said code be amended by adding thereto a new section, designated §18B-2B-6a;
that §18B-2C-3 and §18B-2C-4 of said code be amended and reenacted; that §18B-3C-2, §18B-3C-3,
§18B-3C-4, §18B-3C-5, §18B-3C-6, §18B-3C-8, §18B-3C-9, §18B-3C-10 and §18B-3C-12 of said code be amended and reenacted; that §18B-4-1, §18B-4-2 and §18B-4-7 of said code be amended and
reenacted; that §18B-5-4 of said code be amended and reenacted; that §18B-6-1 and §18B-6-1a of said
code be amended and reenacted; that said code be amended by adding thereto five new sections,
designated §18B-6-2, §18B-6-3, §18B-6-4, §18B-6-5 and §18B-6-6; that §18B-7-1 of said code be
amended and reenacted; that said code be amended by adding thereto a new section, designated
§18B-7-12; that §18B-9-1 and §18B-9-2 of said code be amended and reenacted; that §18B-10-2 of
said code be amended and reenacted; and that said code be amended by adding thereto a new section,
designated §18B-10-1b, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-1. Creation; composition; appointment, qualifications, terms and removal of members;
offices.
There shall be is a state board of education, to be known as the West Virginia board of
education, which shall be is a corporation and as such may contract and be contracted with, plead and
be impleaded, sue and be sued, and have and use a common seal. The state board shall consist consists
of twelve members, of whom one shall be is the state superintendent of schools, ex officio; one of
whom shall be is the chancellor of the board of trustees higher education policy commission, ex
officio; and one of whom shall be is the chancellor of the board of directors West Virginia council for
community and technical college education, ex officio, none of whom shall be is entitled to vote. The
other nine members shall be are citizens of the state, appointed by the governor, by and with the advice
and consent of the Senate, for overlapping terms of nine years. except that the original appointments
shall be for terms of one, two, three, four, five, six, seven, eight and nine years, respectively. Terms
of office shall begin on the fifth day of November of the appropriate year and end on the fourth day of November of the appropriate year. At least two, but not more than three, members shall be are
appointed from each congressional district.
No more than five of the appointive members shall may belong to the same political party, and
no person shall be is eligible for appointment to membership on the state board who is a member of
any political party executive committee or holds any other public office or public employment under
the federal government or under the government of this state or any of its political subdivisions, or who
is an appointee or employee of the board. Members shall be are eligible for reappointment. Any
vacancy on the board shall be filled by the governor by appointment for the unexpired term.
Notwithstanding the provisions of section four, article six, chapter six of this code, no a
member of the state board may not be removed from office by the governor except for official
misconduct, incompetence, neglect of duty or gross immorality and then only in the manner prescribed
by law for the removal by the governor of state elective officers.
Before exercising any authority or performing any duties as a member of the state board, each
member shall qualify as such by taking and subscribing to the oath of office prescribed by section five,
article IV of the constitution of West Virginia, the certificate whereof shall be filed with the secretary
of state. A suitable office in the state department of education at the state capitol shall be provided for
the use of use by the state board.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1. GOVERNANCE.
§18B-1-1a. Goals for post-secondary education.
(a) Findings. -- The Legislature finds that post-secondary education is vital to the future of
West Virginia. For the state to realize its considerable potential in the twenty-first century, it must have a system for the delivery of post-secondary education which is competitive in the changing
national and global environment, is affordable within the fiscal constraints of the state and for the
state's residents to participate and has the capacity to deliver the programs and services necessary to
meet regional and statewide needs.
(1) West Virginia leads a national trend toward an aging population wherein a declining
percentage of working-age adults will be expected to support a growing percentage of retirees. Public
school enrollments statewide have declined and will continue to do so for the foreseeable future with
a few notable exceptions in growing areas of the state. As the state works to expand and diversify its
economy, it is vitally important that young people entering the work force from our education systems
have the knowledge and skills to succeed in the economy of the twenty-first century. It is equally
important, however, that working-age adults who are the large majority of the current and potential
work force also possess the requisite knowledge and skills and the ability to continue learning
throughout their lifetimes. The reality for West Virginia is that its future rests not only on how well
its youth are educated, but also on how well it educates its entire population of any age.
(2) Post-secondary education is changing throughout the nation. Place-bound adults, employers
and communities are demanding education and student services that are accessible at any time, at any
place and at any pace. Institutions are seizing the opportunity to provide academic content and support
services on a global scale by designing new courseware, increasing information technology-based
delivery, increasing access to library and other information resources and developing new methods to
assess student competency rather than "seat time" as the basis for recognizing learning, allocating
resources and ensuring accountability. In this changing environment, the state must take into account
the continuing decline in the public school-age population, the limits of its fiscal resources and the
imperative need to serve the educational needs of working-age adults. West Virginia cannot afford to finance quality higher education systems that aspire to offer a full array of programs while
competing among themselves for a dwindling pool of traditional applicants. The competitive position
of the state and its institutions will depend fundamentally on its capacity to reinforce the quality and
differentiation of its institutions through policies that encourage focus and collaboration.
(3) The current accountability system is exceptionally complicated and largely defines
accountability in terms of institutional procedures. It also is not The accountability system in West
Virginia must be well equipped to address cross-cutting issues such as regional economic and work
force development, community and technical college services, collaboration with the public schools
to improve quality and student participation rates, access to graduate education and other broad issues
of state interest. Severe fiscal constraints require West Virginia to make maximum use of existing
assets to meet new demands. New investments must be targeted to those initiatives designed to
enhance and reorient existing capacity, provide incentives for collaboration and focus on the new
demands. It must have a single accountability point for developing, building consensus around and
sustaining attention to the public policy agenda and for allocating resources consistent with this policy
agenda.
(4) The state should make the best use of the expertise that private institutions of higher
education can offer and recognize the importance of their contributions to the economic, social and
cultural well-being of their communities.
(5) The system of public higher education should be open and accessible to all persons,
including persons with disabilities and other persons with special needs.
(b) Compact with higher education. -- In pursuance of these findings, it is the intent of the
Legislature to engage higher education in a statewide compact for the future of West Virginia, as provided in article one-a of this chapter, that focuses on a public policy agenda that includes, but is not
limited to, the following:
(1) Diversifying and expanding the economy of the state;
(2) Increasing the competitiveness of the state's work force and the availability of professional
expertise by increasing the number of college degrees produced to the level of the national average and
significantly improving the level of adult functional literacy; and
(3) Creating a system of higher education that is equipped to succeed at producing these results.
(c) Elements of the compact with higher education. -- It is the intent of the Legislature that the
compact with higher education include the following elements:
(1) A step-by-step process, as provided in articles one-b and three-c of this chapter, which will
enable the state to achieve its public policy agenda through a system of higher education equipped to
assist in producing the needed results. This process includes, but is not limited to, separate
institutional compacts with state institutions of higher education that describe changes in institutional
missions in the areas of research, graduate education, admission standards, community and technical
college education and geographical areas of responsibility to accomplish the following:
(A) A capacity within higher education to conduct research to enhance West Virginia in the
eyes of the larger economic and educational community and to provide a basis for West Virginia's
improved capacity to compete in the new economy through research oriented to state needs;
(B) Access to stable and continuing graduate-level programs in every region of the state,
particularly in teacher education related to teaching within a subject area to improve teacher quality;
(C) Universities, and colleges and community and technical colleges that have focused
missions, their own individual points of distinction and quality and strong links with the educational,
economic and social revitalization of their regions and the state of West Virginia;
(D) Greater access and capacity to deliver technical education, work force development and
other higher education services to place-bound adults, thus improving the general levels of
post-secondary educational attainment and literacy;
(E) Independently accredited community and technical colleges in every region of the state to
the extent possible that:
(i) Assess regional needs;
(ii) Ensure access to comprehensive community and technical college and work force
development services within each of their respective regions;
(iii) Convene and act serve as a catalyst for local action in collaboration with regional leaders,
employers and other educational institutions;
(iv) Provide and, as necessary, broker educational services;
(v) Provide necessary student services;
(vi) Fulfill such other aspects of the community and technical college mission and general
provisions for community and technical colleges as provided for in article three-c of this chapter; and
(vii) Make maximum Maximize use of existing infrastructure and resources within their
regions to increase access, including, but not limited to, vocational technical centers, schools, libraries,
industrial parks and work sites.
(2) Providing additional resources, subject to availability and appropriation by the Legislature,
as provided in article one-a of this chapter, to make the state institutions of higher education more competitive with their peers, to assist them in accomplishing the elements of the public policy agenda
and to ensure the continuity of academic programs and services to students.
(3) Establishing a process for the allocation of additional resources which focuses on achieving
the elements of the public policy agenda and streamlines accountability for the step-by-step progress
toward achieving these elements within a reasonable time frame as provided in article one-a of this
chapter.
(4) Providing additional flexibility to the state institutions of higher education by making
permanent the exceptions granted to higher education relating to travel rules and vehicles pursuant to
sections forty-eight through fifty-three, inclusive, article three, chapter five-a of this code and section
eleven, article three, chapter twelve of this code.
(5) Revising the higher education governance structure to make it more responsive to state and
regional needs.
(d) General goals for post-secondary education. -- In pursuance of the findings and the
development of institutional compacts with higher education for the future of West Virginia pursuant
to article one-a of this chapter, it is the intent of the Legislature to establish general goals for
post-secondary education and to have the commission and council report the progress toward achieving
these goals in the higher education report card required pursuant to section eight, article one-b of this
chapter and, where applicable, have the goals made a part of the institutional compacts. The
Legislature establishes the general goals as follows:
(1) The overall focus of education is on a lifelong process which is to be as seamless as
possible at all levels and is to encourage citizens of all ages to increase their knowledge and skills.
Efforts in pursuit of this goal include, but are not limited to, the following:
(A) Collaboration, coordination and interaction between public and post-secondary education
to:
(i) Improve the quality of public education, particularly with respect to ensuring that the needs
of public schools for teachers and administrators is are met;
(ii) Inform public school students, their parents and teachers of the academic preparation that
students need to be prepared adequately to succeed in their selected fields of study and career plans,
including academic career fairs; and
(iii) Improve instructional programs in the public schools so that the students enrolling in
post-secondary education are adequately prepared;
(B) Collaboration, coordination and interaction between among public and post-secondary
education, the governor's council on literacy and the governor's work force investment office to
promote the effective and efficient utilization of work force investment and other funds to:
(i) Provide to individuals and employers greatly improved access to information and services
for individuals and employers on education and training programs, financial assistance, labor markets
and job placement;
(ii) Increase awareness among the state's citizens of the opportunities available to them to
improve their basic literacy, work force and post-secondary skills and credentials; and
(iii) Help improve their Improve citizens' motivation to take advantage of available
opportunities by making the system more seamless and user friendly;
(C) Collaboration, coordination and interaction between public and post-secondary education
on the development of seamless curriculum in technical preparation programs of study between the
secondary and post-secondary levels; and
(D) Opportunities for advanced high school students to obtain college credit prior to high
school graduation.
(2) The number of degrees produced per capita by West Virginia institutions of higher
education is at the national average. Efforts in pursuit of this goal include, but are not limited to, the
following:
(A) Collaboration, coordination and interaction between public and post-secondary education,
the governor's council on literacy and the governor's work force investment office to promote to
individuals of all ages the benefits of increased post-secondary educational attainment;
(B) Assistance in overcoming the financial barriers to post-secondary education for both
traditional and nontraditional students;
(C) An environment within post-secondary education that is student-friendly and that
encourages and assists students in the completion of degree requirements within a reasonable time
frame. The environment also should expand participation for the increasingly diverse student
population;
(D) A spirit of entrepreneurship and flexibility within post-secondary education that is
responsive to the needs of the current work force and other nontraditional students for upgrading and
retraining college-level skills; and
(E) The expanded use of technology for instructional delivery and distance learning.
(3) All West Virginians, whether traditional or nontraditional students, displaced workers or
those currently employed, have access to post-secondary educational opportunities through their
community and technical colleges, colleges and universities which:
(A) Are relevant and affordable;
(B) Allow them to gain transferrable credits and associate or higher level degrees;
(C) Provide quality technical education and skill training; and
(D) Are responsive to business, industry, labor and community needs.
(4) State institutions of higher education prepare students to practice good citizenship and to
compete in a global economy in which good jobs require an advanced level of education and skill
which far surpasses former requirements. Efforts in pursuit of this goal include, but are not limited
to, the following:
(A) The development of entrepreneurial skills through programs such as the rural
entrepreneurship through action learning (REAL) program, which include practical experience in
market analysis, business plan development and operations;
(B) Elements of citizenship development are included across the curriculum in core areas,
including practical applications such as community service, civic involvement and participation in
charitable organizations and in the many opportunities for the responsible exercise of citizenship that
higher education institutions provide;
(C) Students are provided opportunities for internships, externships, work study and other
methods to increase their knowledge and skills through practical application in a work environment;
(D) College graduates meet or exceed national and international standards for skill levels in
reading, oral and written communications, mathematics, critical thinking, science and technology,
research and human relations;
(E) College graduates meet or exceed national and international standards for performance in
their fields through national accreditation of programs and through outcomes assessment of graduates;
and
(F) Admission and exit standards for students, professional staff development, program
assessment and evaluation and other incentives are used to improve teaching and learning.
(5) State institutions of higher education exceed peer institutions in other states in measures
of institutional productivity and administrative efficiency. Efforts in pursuit of this goal include, but
are not limited to:
(A) The establishment of systematic ongoing mechanisms for each state institution of higher
education to set goals, to measure the extent to which those goals are met and to use the results of
quantitative evaluation processes to improve institutional effectiveness;
(B) The combination and use of resources, technology and faculty to their maximum potential
in a way that makes West Virginia higher education more productive than its peer institutions in other
states while maintaining educational quality; and
(C) The use of systemic program review to determine how much duplication is necessary to
maintain geographic access and to eliminate unnecessary duplication.
(6) Post-secondary education enhances state efforts to diversify and expand the economy of the
state. Efforts in pursuit of this goal include, but are not limited to, the following:
(A) The focus of resources on programs and courses which offer the greatest opportunities for
students and the greatest opportunity for job creation and retention in the state;
(B) The focus of resources on programs supportive of West Virginia employment opportunities
and the emerging high-technology industries;
(C) Closer linkages among higher education and business, labor, government and community
and economic development organizations; and
(D) Clarification of institutional missions and shifting of resources to programs which meet
the current and future work force needs of the state.
(7) Faculty and administrators are compensated on a competitive level at a level competitive
with peer institutions to attract and keep quality personnel at state institutions of higher education.
(8) The tuition and fee levels for in-state students are competitive with those of peer institutions
and the tuition and fee levels for out-of-state students are set at a level which at the least covers the full
cost of instruction.
§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) 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)"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 and eastern
West Virginia community and technical college which shall may 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 deliver community and technical
college education. This definition includes southern West Virginia community and technical college,
West Virginia northern community and technical college, eastern West Virginia community and
technical college, New River community and technical college, West Virginia university at
Parkersburg, the community and technical college at West Virginia university institute of technology,
the community and technical college of Shepherd, Fairmont state community and technical college,
Marshall community and technical college and West Virginia state community and technical college;
(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", "policy commission" or "commission" means the
commission created pursuant to section one, article one-b of this chapter;
(j) "Chancellor for higher education" means the chief executive officer of the higher education
policy commission employed pursuant to section five, article one-b of this chapter;
(k) "Chancellor for community and technical college education" means the chief executive
officer of the West Virginia council for community and technical college education employed pursuant
to section three, article two-b of this chapter;
_______________(l) "Chancellor" means the chancellor for higher education where the context refers to a
function of the higher education policy commission. "Chancellor" means chancellor for community
and technical college education where the context refers to a function of the West Virginia council for
community and technical college education;
_______________(k) (m) "Institutional operating budget" or "operating budget" means for any fiscal year means
an institution's total unrestricted education and general funding from all sources in a the 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 or council based on comparisons with peer institutions
or to reflect consistent components of peer operating budgets;
(l) (n) "Post-secondary vocational "Community and technical college education program"
means any college-level course or program beyond the high school level provided through an a public
institution of higher education under the jurisdiction of a governing board which results resulting in
or which may result in the awarding of a two-year associate degree award including an associate of
arts, an associate of science and an associate of applied science; certificate programs and skill sets;
developmental education; continuing education; collegiate credit and noncredit work force
development programs; and transfer and baccalaureate parallel programs. All such programs are under
the jurisdiction of the council. Any reference to "post-secondary vocational education programs"
means community and technical college education programs as defined in this subsection;
_______________(m) (o) "Rule" or "rules" means a regulation, standard, policy or interpretation of general
application and future effect;
(n) (p) 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 by the
commission with the advice and consent of the council 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) (q) "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) (r) "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) (s) "Regional Until the first day of July, two thousand five, "regional campus" means West
Virginia university at Parkersburg, Potomac state college of West Virginia university and West
Virginia university institute of technology;
(r) (t) The advisory board previously appointed for the West Virginia graduate college shall be
is known as the "board of visitors" and shall provide guidance to the Marshall university graduate
college;
(s) (u) "Institutional compact" means a the compact between the commission or council and
a state institution of higher education and the commission under its jurisdiction, as described in section
two, article one-a of this chapter;
(t) (v) "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) (w) "Administratively linked community and technical college" means a community and
technical college created pursuant to section eight, article three-c of this chapter;
(v) (x) "Sponsoring institution" means the a 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) (y) "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) (z) "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 at that 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.
(aa) "Council" means the West Virginia council for community and technical college education
created pursuant to article two-b of this chapter.
§18B-1-3. Transfer of powers, duties, property, obligations, etc.
(a) All powers, duties and authorities transferred to the board of regents pursuant to former
provisions of chapter eighteen of this code and transferred to the board of trustees and board of
directors which were created as the governing boards pursuant to the former provisions of this chapter
and all powers, duties and authorities of the board of trustees and board of directors, to the extent they
are in effect on the seventeenth day of June, two thousand, are hereby transferred to the interim
governing board created in article one-c of this chapter and shall be exercised and performed by the interim governing board until the first day of July, two thousand one, as such powers, duties and
authorities may apply to the institutions under its jurisdiction.
(b) Title to all property previously transferred to or vested in the board of trustees and the board
of directors and property vested in either of the boards separately, formerly existing under the
provisions of this chapter, are hereby transferred to the interim governing board created in article one-c
of this chapter until the first day of July, two thousand one. Property transferred to or vested in the
board of trustees and board of directors shall include:
(1) All property vested in the board of governors of West Virginia university and transferred
to and vested in the West Virginia board of regents;
(2) All property acquired in the name of the state board of control or the West Virginia board
of education and used by or for the state colleges and universities and transferred to and vested in the
West Virginia board of regents;
(3) All property acquired in the name of the state commission on higher education and
transferred to and vested in the West Virginia board of regents; and
(4) All property acquired in the name of the board of regents and transferred to and vested in
the respective board of trustees and board of directors.
(c) Each valid agreement and obligation previously transferred to or vested in the board of
trustees and board of directors formerly existing under the provisions of this chapter is hereby
transferred to the interim governing board until the first day of July, two thousand one, as those
agreements and obligations may apply to the institutions under its jurisdiction. Valid agreements and
obligations transferred to the board of trustees and board of directors shall include:
(1) Each valid agreement and obligation of the board of governors of West Virginia university
transferred to and deemed the agreement and obligation of the West Virginia board of regents;
(2) Each valid agreement and obligation of the state board of education with respect to the state
colleges and universities transferred to and deemed the agreement and obligation of the West Virginia
board of regents;
(3) Each valid agreement and obligation of the state commission on higher education
transferred to and deemed the agreement and obligation of the West Virginia board of regents; and
(4) Each valid agreement and obligation of the board of regents transferred to and deemed the
agreement and obligation of the respective board of trustees and board of directors.
(d) All orders, resolutions and rules adopted or promulgated by the respective board of trustees
and board of directors and in effect immediately prior to the first day of July, two thousand, are hereby
transferred to the interim governing board until the first day of July, two thousand one, and shall
continue in effect and shall be deemed the orders, resolutions and rules of the interim governing board
until rescinded, revised, altered or amended by the commission or the governing boards in the manner
and to the extent authorized and permitted by law. Such orders, resolutions and rules shall include:
(1) Those adopted or promulgated by the board of governors of West Virginia university and
in effect immediately prior to the first day of July, one thousand nine hundred sixty-nine, unless and
until rescinded, revised, altered or amended by the board of regents in the manner and to the extent
authorized and permitted by law;
(2) Those respecting state colleges and universities adopted or promulgated by the West
Virginia board of education and in effect immediately prior to the first day of July, one thousand nine hundred sixty-nine, unless and until rescinded, revised, altered or amended by the board of regents in
the manner and to the extent authorized and permitted by law;
(3) Those adopted or promulgated by the state commission on higher education and in effect
immediately prior to the first day of July, one thousand nine hundred sixty-nine, unless and until
rescinded, revised, altered or amended by the board of regents in the manner and to the extent
authorized and permitted by law; and
(4) Those adopted or promulgated by the board of regents prior to the first day of July, one
thousand nine hundred eighty-nine, unless and until rescinded, revised, altered or amended by the
respective board of trustees or board of directors in the manner and to the extent authorized and
permitted by law.
(e) Title to all real property transferred to or vested in the interim governing board pursuant to
this section of the code is hereby transferred to the commission effective the first day of July, two
thousand one. The board of governors for each institution may request that the commission transfer
title to the board of governors of any real property specifically identifiable with that institution or the
commission may initiate the transfer. Any such request must be made within two years of the effective
date of this section and be accompanied by an adequate legal description of the property.
The title to any real property that is jointly utilized by institutions or for statewide programs
under the jurisdiction of the commission shall be retained by the commission.
(f) Ownership of or title to any other property, materials, equipment or supplies obtained or
purchased by the interim governing board or the previous governing boards on behalf of an institution
is hereby transferred to the board of governors of that institution effective the first day of July, two
thousand one.
(g) Each valid agreement and obligation previously transferred or vested in the interim
governing board and which was undertaken or agreed to on behalf of an institution or institutions is
hereby transferred to the board of governors of the institution or institutions for whose benefit the
agreement was entered into or the obligation undertaken effective the first day of July, two thousand
one.
(1) The obligations contained in revenue bonds issued by the previous governing boards under
the provisions of section eight, article ten of this chapter and article twelve-b, chapter eighteen of this
code are hereby transferred to the commission and each institution shall transfer to the commission
those funds the commission determines are necessary to pay that institution's share of bonded
indebtedness.
(2) The obligations contained in revenue bonds issued on behalf of a state institution of higher
education pursuant to any other section of this code is hereby transferred to the board of governors of
the institution on whose behalf the bonds were issued.
(h) All orders, resolutions, policies and rules:
(1) Adopted or promulgated by the respective board of trustees, board of directors or interim
governing board and in effect immediately prior to the first day of July, two thousand one, are hereby
transferred to the commission effective the first day of July, two thousand one, and shall continue in
effect until rescinded, revised, altered, or amended or transferred to the governing boards by the
commission as set out provided in this section and in section six of this article.
__(2) Adopted or promulgated by the commission relating solely to community and technical
colleges or community and technical college education, or rules which the council finds necessary for
the exercise of its lawful powers and duties pursuant to the provisions of this chapter, may be adopted by the council, and continue in effect until rescinded, revised, altered, amended or transferred to the
governing boards under the jurisdiction of the council pursuant to section six of this article. Nothing
in this section requires the initial rules of the commission that are adopted by the council to be
promulgated again under the procedure set forth in article three-a, chapter twenty-nine-a of this code
unless such rules are rescinded, revised, altered or amended.
__(3) Adopted or promulgated by the commission relating to multiple types of public institutions
of higher education or community and technical college education as well as baccalaureate and
post-baccalaureate education are transferred to the council in part as follows:
__(A) That portion of the rule relating solely to community and technical colleges or community
and technical college education is transferred to the council and continues in effect until rescinded,
revised, altered, amended or transferred to the governing boards by the council as provided in this
section and in section six of this article;
__(B) That portion of the rule relating to institutions or education other than community and
technical colleges is retained by the commission and continues in effect until rescinded, revised,
altered, amended or transferred to the governing boards by the commission as provided in this section
and in section six of this article.
(i) The commission may, in its sole discretion, transfer any rule, other than a legislative rule,
to the jurisdiction of the governing boards of the institutions under its jurisdiction who may rescind,
revise, alter or amend any rule so transferred pursuant to rules adopted by the commission pursuant
to section six of this article.
The council may, in its sole discretion, transfer any rule, other than a legislative rule, to the
jurisdiction of the governing boards of the institutions under its jurisdiction who may rescind, revise, alter or amend any rule so transferred pursuant to rules adopted by the council pursuant to section six
of this article.
(j) As to any title, agreement, obligation, order, resolution, rule or any other matter about which
there is some uncertainty, misunderstanding or question, the matter shall be summarized in writing and
sent to the commission which shall make a determination regarding such matter within thirty days of
receipt thereof.
(k) Rules or provisions of law which refer to other provisions of law which were repealed,
rendered inoperative or superseded by the provisions of this section shall remain in full force and effect
to such extent as may still be applicable to higher education and may be so interpreted. Such
references include, but are not limited to, references to sections and prior enactments of article
twenty-six, chapter eighteen of this code and code provisions relating to retirement, health insurance,
grievance procedures, purchasing, student loans and savings plans. Any determination which needs
to be made regarding applicability of any provision of law shall first be made by the commission.
§18B-1-6. Rulemaking.
(a) Effective the first day of July, two thousand one The commission is hereby empowered to
promulgate, adopt, amend or repeal rules, in accordance with the provisions of article three-a, chapter
twenty-nine-a of this code, subject to the provisions of section three of this article.
(b) The council is hereby empowered to promulgate, adopt, amend or repeal rules, in
accordance with the provisions of article three-a, chapter twenty-nine-a of this code and subject to the
provisions of section three of this article. This grant of rulemaking power extends only to those areas
over which the council has been granted specific authority and jurisdiction by law.
__(b) (c) The commission and council each shall promulgate a rule to guide the development and
approval of rules, guidelines and other policy statements made by the their respective governing
boards. The rule rules promulgated by the commission and council shall include, but is are not limited
to, the following provisions:
(1) A procedure to ensure that public notice is given and that the right of interested parties to
have a fair and adequate opportunity to respond is protected;
(2) Designation of a single location where all proposed and approved rules, guidelines and
other policy statements can be accessed by the public;
(3) A procedure to maximize internet access to all proposed and approved rules, guidelines and
other policy statements to the extent technically and financially feasible.
(c) (d) On and after the effective date of this section, and notwithstanding any other provision
of this code to the contrary, no any rule heretofore required by law to be promulgated as a legislative
rule prior to the first day of July, two thousand one, may not be considered to be a legislative rule for
the purposes of article three-a, chapter twenty-nine-a of this code, except for the following:
(1) The legislative rule required by subsection (c), section eight of this article;
(2) The legislative rule required by section eight-a of this article;
(3) The legislative rule required by section two, article one-a of this chapter;
(4) The legislative rule required by section four, article one-b of this chapter;
(5) The legislative rule required by section one, article three, chapter eighteen-c of this code;
(6) The legislative rule required by section one, article four, chapter eighteen-c of this code;
(7) The legislative rule required by section seven, article five, chapter eighteen-c of this code;
and
(8) The legislative rule required by section one, article six, chapter eighteen-c of this code.
(d) On or after the effective date of this section and before the first day of October, two
thousand one, notwithstanding any other provision of this code to the contrary, any rule heretofore
promulgated as a legislative rule which was not required specifically by law to be promulgated as a
legislative rule, or any rule previously required to be a legislative rule by statute but reclassified by
subsection (c) of this section, may be reclassified by the commission either as an interpretive rule or
as a procedural rule. The commission shall notify in writing the legislative oversight commission on
education accountability of such reclassification and shall file such notice with the office of the
secretary of state to be published in the state register.
(e) Nothing in this section may be construed to require requires that any rule reclassified or
transferred under this section be promulgated again under the procedures set out in article three-a,
chapter twenty-nine-a of this code unless the rule is amended or modified.
(f) The commission shall cause a copy of and council each shall file with the legislative
oversight commission on education accountability any rule it proposes to promulgate, adopt, amend
or repeal under the authority of this article. to be filed with the legislative oversight commission on
education accountability created in said article three-a, chapter twenty-nine-a of this code
ARTICLE 1A. COMPACT WITH HIGHER EDUCATION FOR THE FUTURE OF WEST
VIRGINIA.
§18B-1A-2. Institutional compacts with state institutions of higher education; establishment
and review process.
(a) Each institution of higher education state college and university shall prepare an
institutional compact for submission to the commission. Each community and technical college shall
prepare an institutional compact for submission to the council. When the process herein provided is
completed, the institutional compacts shall form the agreements between the institutions of higher
education and the commission or council, respectively, and, ultimately, between the institutions of
higher education and the people of West Virginia on how the institutions will use their resources to
address the intent of the Legislature and the goals set forth in section one-a, article one of this chapter.
The compacts shall contain the following:
(1) A step-by-step process to accomplish the intent of the Legislature and the goals set forth
in section one-a, article one of this chapter as organized by the commission and council. The
step-by-step process shall be delineated by objectives and shall set forth a time line for achieving the
objectives which shall, where applicable, include benchmarks to measure institutional progress as
defined in subsection (e) of this section.
(2) A determination of the mission of the institution which specifically addresses changes, as
applicable, in the areas of research, graduate education, baccalaureate education, revised admission
requirements, community and technical colleges and such other areas as the commission or council
determines appropriate. In the determination of mission, the institutions and the commission or council
shall consider the report completed by the national center for higher education management systems
pursuant to the legislative study as provided in section seven, article three of this chapter;
(3) A plan which is calculated to make any changes in institutional mission and structure within
a six-year period;
(4) A statement of the geographic areas of responsibility, where applicable, for each goal to be
accomplished as provided in subsection (d) of this section;
(5) A detailed statement of how the compact is aligned with and will be implemented in
conjunction with the master plan of the institution;
(6) Such other items, requirements or initiatives, required by the commission or council,
designed to accomplish the intent of the Legislature and the goals set forth in section one-a, article one
of this chapter or other public policy goals established by the commission or council.
(b) Each institutional compact shall be updated annually and shall follow the same general
guidelines contained in subsection (a) of this section.
(c) Development and updating of the institutional compacts shall be is subject to the following:
(1) The ultimate responsibility for developing and updating the institutional compacts at the
institutional level resides with the institutional board of advisors or the board of governors, as
appropriate;
(2) The ultimate responsibility for developing and adopting the final version of the state college
and university institutional compacts resides with the commission. The ultimate responsibility for
developing and adopting the final version of the community and technical college institutional
compacts resides with the council;
(3) The initial institutional compacts shall be submitted to the commission by the institutions
on or before the first day of February, two thousand one. The first annual updates shall be submitted
on or before the fifteenth day of November, two thousand one, and succeeding updates shall be
submitted on the fifteenth day of November of each year thereafter
(3) Each institution shall submit its compact to the commission or council annually by the
fifteenth day of November;
(4) The commission and council shall review the initial institutional compacts and the annual
updates and either shall adopt the institutional each compact of the institutions under their respective
jurisdictions and either adopt the compact or return it with specific comments for change or
improvement. The commission and council shall continue this process as long as it each considers
advisable;
(5) By the first day of May of each year annually, if the institutional compact of any institution
as presented by that institution is not adopted by the commission or council, then the commission or
council is empowered and directed to develop and adopt the institutional compact for the institution
and the institution shall be is bound by the compact so adopted; and
(6) As far as practicable, the commission and council each shall as far as practicable, establish
uniform processes and forms for the development and submission of the institutional compacts by the
institutions under their respective jurisdictions. As a part of this function, the commission and council
shall organize the statements of legislative intent and goals contained in section one-a, article one of
this chapter in a manner that facilitates the purposes of this subdivision and the purposes of this
section.
(d) The commission and council shall assign geographic areas of responsibility to the state
institutions of higher education under their respective jurisdictions as a part of their institutional
compacts to ensure that all areas of the state are provided necessary programs and services to achieve
the public policy agenda. The benchmarks established in the institutional compacts shall include
measures of programs and services by geographic area throughout the assigned geographic area of
responsibility.
(e) The compacts shall contain benchmarks used to determine progress toward meeting the
goals established in the compacts. The benchmarks shall meet the following criteria:
(1) They shall be as objective as possible;
(2) They shall be directly linked to the goals in the compacts;
(3) They shall be measured by the indicators described in subsection (f) of this section; and
(4) Where applicable, they shall be used to measure progress in geographic areas of
responsibility.
(f) The commission and council each shall establish by legislative rule indicators which
measure the degree to which the goals and objectives set forth in section one-a, article one of this
chapter are being addressed and met by the institutions under their respective jurisdictions. The
benchmarks established in subsection (e) of this section shall be measured by the indicators.
(1) The Legislature finds that an emergency exists; and therefore, the commission shall file as
an emergency rule the rule pertaining to benchmarks and indicators that was filed with the office of
the secretary of state on the twenty-sixth day of December, two thousand. The commission shall file
a legislative rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code
to replace the emergency rule no later than the first day of November, two thousand one. not later than
the first day of October, two thousand four, the council shall file as an emergency rule a legislative rule
pertaining to benchmarks and indicators in accordance with the provisions of article three-a, chapter
twenty-nine-a of this code. The rule pertaining to benchmarks and indicators in effect for the
commission at the time of the effective date of this section remains in effect for the institutions under
its jurisdiction.
(2) The legislative rule rules shall set forth at the least the following as pertains to all state
institutions of higher education:
(A) The indicators to be used to measure the degree to which the goals and objectives are being
met;
(B) Uniform definitions for the various data elements to be used in establishing the indicators;
(C) Guidelines for the collection and reporting of data; and
(D) Sufficient detail within the benchmarks and indicators to:
(i) Provide measurable evidence that the pursuits of the institution are targeting the educational
needs of the citizens of the state and the components of the compacts and master plans;
(ii) Delineate the goals and benchmarks for an institution so that the commission or council
can precisely measure the degree to which progress is being made toward achieving the goals for
post-secondary education provided in section one-a, article one of this chapter; and
(iii) Distinctly identify specific goals within the master plan or compact of an institution that
are not being met or toward which sufficient progress is not being made.
(3) In addition to any other requirement, the legislative rule established by the council shall set
forth at the least the following as pertains to community and technical college education:
(A) Benchmarks and indicators which are targeted to identify:
(i) The degree to which progress is being made by institutions toward meeting the goals for
post-secondary education and the essential conditions provided in section three, article three-c of this
chapter;
(ii) Information and data necessary to be considered by the policy commission council in
making the determination required by section three, article two-c of this chapter;
(iii) The degree to which progress is being made in the areas considered by the commission
council for the purpose of making the determination required by section three, article two-c of this
chapter; and
(B) Sufficient detail within the benchmarks and indicators to provide clear evidence to support
an objective determination by the commission council that an institution's progress toward achieving
the goals for post-secondary education and the essential conditions is so deficient that implementation
of the provisions of section four, article two-c of this chapter is warranted and necessary.
(g) The commission or the council, as appropriate, shall approve the master plans developed
by the boards of governors and the institutional boards of advisors pursuant to section four, article
two-a of this chapter and or section one, article six of this chapter, as appropriate.jean
§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) When selecting peers, the commission shall abide by the following conditions:
__(1) 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.
(2) The peer institutions for community and technical colleges shall be selected in collaboration
with the council.
__(c) (3) 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) (A) To determine adjustments to base operating budgets as described in section five of this
article;
(2) (B) To determine comparable levels of tuition;
(3) (C) To determine comparable faculty and staff teaching requirements and other workloads;
and
(4) (D) For such other purposes as the law may require or the commission may find useful or
necessary.
(d) (4) 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.
(5) The commission shall select peer institutions for each institution through an open,
deliberative, objective process and in consultation with the institutional boards of governors or boards
of advisors, as appropriate, intended to achieve broad understanding of the basis for this selection in
the higher education community and the Legislature.
(6) Final peer selection is subject to the approval of the legislative oversight commission on
education accountability.
(7) In selecting peer institutions, the commission shall use criteria such as, but not limited to:
(1) (A) Institutional mission;
(2) (B) Institutional size related to full-time equivalent students;
(3) (C) The proportions of full-time and part-time students;
(4) (D) 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) (E) The characteristics of academic programs such as health sciences, professional,
technical or liberal arts and sciences; and
(6) (F) The level of research funding from federal competitive funding sources.
(e) (8) Subject to the 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. The commission shall review and make
adjustments to peer institutions for community and technical colleges in collaboration with the council.
__(f) (9) Nothing herein may be construed to prevent prevents the commission from using the
same peers or peer groups for more than one institution of higher education.
§18B-1A-4. Legislative financing goals.
(a) The Legislature recognizes that the higher education goals set forth in section one-a, article
one of this chapter are of utmost importance. The Legislature further recognizes that meeting the goals
may require the appropriation of funds above the current operating budgets of the institutions.
(b) It is, therefore, the desire of the Legislature to increase funding annually for higher
education at a rate not less than the annual percentage increase in the overall general revenue budget.
(c) If the commission or council, or both, determines that appropriations are insufficient to fund
the requirements of the institutional compacts under its jurisdiction, the commission or council first
shall consider extending the length of the compacts or otherwise modifying the compacts to allow the institutions to achieve the benchmarks in the compacts. If modifications to the institutional compacts
are not sufficient to allow the institutions to meet their benchmarks, the commission or council, or
both, shall recommend to the Legislature methods of making the higher education system more
efficient. The methods may include, but are not limited to, the following:
(1) Administrative efficiencies;
(2) Consolidation of services;
(3) Elimination of programs;
(4) Consolidating institutions; and
(5) Closing institutions.
§18B-1A-5. Financing; institutional operating budgets, additional funding.
(a) Budget request and appropriations. -- The commission and council each has the
responsibility to develop a budget for the state system of higher education under its respective
jurisdiction. and submit The commission submits a the budget request for higher education, including
the budget request as developed by the council, to the governor before the first day of September
beginning in two thousand, and for each fiscal year thereafter annually. The The budget request
requests of the commission and the council specifically shall include the amount of the institutional
operating budgets, as defined in section two, article one of this chapter, required for all state
institutions of higher education under their respective jurisdictions. The budget appropriation for the
state system systems of higher education under this chapter and other provisions of the law shall
consist of separate control accounts or institutional control accounts, or some combination of such
accounts, for appropriation of institutional operating budgets and other funds. The commission and
council each is responsible for allocating state appropriations to supplement institutional operating budgets in accordance with this section. In addition to the institutional operating budget and incentive
funding, however, the commission and council each is responsible for allocating funds that are
appropriated to it for other purposes. Provided, That in In order to determine institutional allocations,
it is the responsibility of the institutions and their respective institutional boards of governors or
advisors, as appropriate to provide to the commission or council documentation on institutional
progress toward mission enhancement, preliminary peer comparison calculations, performance of
increased productivity and academic quality and measurable attainment in fulfilling state priorities as
set forth in this article. The documentation shall be provided to the commission or council no later
than the first day of October annually. each year for commission review and verification.
(b) Legislative funding priorities. --
(1) The Legislature recognizes the current resource allocation funding model has not moved
all state institutions equitably towards comparable peer funding levels. This formula The model has
left West Virginia institutions at a competitive disadvantage to their national peers.
(2) The Legislature acknowledges that the resource allocation model used to comply with
Enrolled Committee Substitute for Senate Bill No. 547, passed during the legislative session of one
thousand nine hundred ninety-five, alleviated some of the disparity that exists among state institutions'
operating budgets, but left significant differences between the institutions and their national peers.
(3) The Legislature recognizes that a system of independently-accredited community and
technical colleges is essential to the economic vitality of the state.
(4) The Legislature places great importance on achieving the priority goals outlined in the
public policy agenda and believes the state institutions of higher education should play a vital role in
facilitating the attainment of these goals.
(5) The Legislature also believes it is imperative that the state make progress on narrowing the
peer inequity while balancing the need for sustaining the quality of our institutions.
(6) It is the charge of the commission and council to allocate all funds appropriated in excess
of the fiscal year two thousand one general revenue appropriations in alignment with the legislative
funding priorities listed below. The commission and council shall consider the priorities and assign
a percentage of the total appropriation of new funds to each priority.
(A) Peer equity. -- Funds appropriated for this purpose increase the level of the institutional
operating budget for state institutions of higher education comparable to their peer institutions. The
allocation shall provide, subject to the availability of funds and legislative appropriations, for a
systematic adjustment of the institutional operating budgets to move all institutions' funding in the
direction of levels comparable with their peers. Institutional allocations shall be calculated as follows:
(i) A calculation shall be made of the deficiency in per student funding of each institution in
comparison with the mean per student funding of the peer institutions as defined by the commission
pursuant to section three of this article;
(ii) For all institutions that are deficient in comparison with peer institutions, the amounts of
the deficiencies shall be totaled;
(iii) A ratio of the amount of the deficiency for an institution divided by the total amounts of
deficiency for all West Virginia institutions shall be established for each institution; and
(iv) The allocation to each institution shall be calculated by multiplying the ratio by the total
amount of money in the account;
(B) Independently accredited community and technical colleges development. -- Funds
appropriated for this purpose will ensure a smooth transition, where required, from "component" community and technical colleges to independently accredited community and technical colleges as
defined in section two, article one of this chapter. Appropriations for this purpose are only to be
allocated only to those institutions having approved compacts with the commission council that
expressly include the transition of their component community colleges to independently accredited
status and have demonstrated measurable progress towards this goal. By the first day of July, two
thousand seven five, or when all required community and technical colleges are independently
accredited, whichever first occurs, funds for this purpose shall be allocated to the incentives for
institutional contributions to state priorities; Provided, That if the commission determines that
payments from the account to the institutions should continue beyond the first day of July, two
thousand seven, it shall request an extension from the Legislature;
(C) Research challenge. -- Funds appropriated for this purpose shall assist public colleges and
universities in West Virginia to compete on a national and international basis by providing incentives
to increase their capacity to compete successfully for research funding. The Legislature intends for
institutions to collaborate in the development and execution of research projects to the extent
practicable and to target research to the needs of the state as established in the public policy agenda
and linked to the future competitiveness of this state.
(i) The commission shall develop criteria for awarding grants to institutions under this account,
which may include, but are not limited to, the following:
(I) Grants to be used to match externally funded, peer-reviewed research;
(II) Grants to be used to match funds for strategic institutional investments in faculty and other
resources to increase research capacity;
(III) Grants to support funding for new research centers and projects that will foster economic
development and work force investment within the state. These grants shall be limited to seven five
years and each research center or project funded shall receive a decreasing award each year and shall
be required to be supported solely by external funding within seven five years;
(ii) The commission may establish an advisory council consisting of nationally prominent
researchers and scientists, including representatives from outside the state, to assist in developing the
criteria for awarding grants under this account.
(iii) For the purposes of making the distributions from this account, the commission shall
establish the definition for research, research funds and any other terms as may be necessary to
implement this subdivision; and
(D) Incentives for institutional contributions to state priorities. -- Funds appropriated for this
purpose provide incentives to institutions which demonstrate success toward advancing the goals of
the public policy agenda as set forth in section one-a, article one of this chapter and to provide
incentives for mission enhancement as set forth in section two of this article.
(E) Sustained quality support. -- The commission and council shall provide additional
operating funds to institutions under their respective jurisdictions with approved compacts. The
commission and council shall allocate these funds on an equal percentage basis to all institutions.
Provided, That the The commission or council may delay distribution of these funds to any institution
which does not demonstrate measurable progress towards the goals provided in its compact with the
commission or council.
(c) Allocations to institutional operating budgets. -- For the purposes of this subsection, the
commission and council each shall establish by rule pursuant to subsection (f), section two of this article the method for measuring the progress of each institution towards meeting the benchmarks of
its institutional compact.
(d) Allocation of appropriations to the institutions. -- Appropriations in this section shall be
allocated to the state institutions of higher education in the following manner:
(1) For the fiscal year two thousand two, appropriations above the fiscal year two thousand two
institutional operating budget shall be allocated only to institutions with approved compacts, pursuant
to this article;
(2) For the fiscal year two thousand three, and each fiscal year thereafter
(1) Each fiscal year appropriations from the funds shall be allocated only to institutions with
which have:
__(A) Approved compacts, pursuant to section two of this article; and which also have achieved
(B) Achieved their annual benchmarks for accomplishing the goals of their compacts, as
approved by the commission or council. Provided, That if
(2) If an institution has not achieved all of its annual benchmarks, the commission or council
may distribute a portion of the funds to the institution based on its progress as the commission or
council determines appropriate. Provided, however, That the The commission and council each shall
establish by rule, pursuant to subsection (f), section two of this article, the method for measuring the
progress of each institution toward meeting the benchmarks of its institutional compact.
(e) Nothing in this section shall be construed in a manner that limits the appropriation or
collection of fees necessary to effectuate the operation and purpose of the commission or council.
§18B-1A-6. Graduate education.
(a) Intent. -- It is the intent of the Legislature to address the need for high quality graduate
education programs to be available throughout the state.
(b) Findings. -- The Legislature makes the following findings:
(1) Since West Virginia ranks below its competitor states in graduate degree production,
particularly in the areas that are important to the state's competitive position in the new economy of
the twenty-first century, there is a considerable need for greater access to graduate education,
especially at the master's degree level;
(2) There is a significant disparity in access to part-time graduate degree programs among the
different regions of the state and part-time graduate enrollments are heavily concentrated in the
counties immediately surrounding Marshall university and West Virginia university;
(3) There is a particular need for increased access to graduate programs linked directly to the
revitalization of the regional economies of the state; and
(4) There is a particular need for improved quality and accessibility of pre-service and
in-service programs for teachers in subject matter fields.
(c) In order to meet the need for graduate education, the commission shall be responsible for
accomplishing the following:
(1) Ensuring that West Virginia university and Marshall university expand access to master's
degree programs throughout West Virginia, with a strong emphasis on collaboration with the
baccalaureate colleges and community and technical colleges in each region;
(2) Ensuring that any institution providing a master's degree program under the provisions of
this section provides a meaningful, coherent program by offering courses in such a way that students, including place-bound adults, have ample opportunity to complete a degree in a reasonable period of
time;
(3) Focusing on providing courses that enhance the professional skills of teachers in their
subject areas; and
(4) Ensuring that programs are offered in the most cost-effective manner to expand access
throughout the region and the state.
(d) Concord college, Fairmont state college, Glenville state college, Shepherd college, West
Liberty state college and West Virginia state college shall meet the need for graduate education in their
regions by following the procedures outlined below.
(1) The institutions shall develop as graduate centers for their regions to broker access to
graduate programs by contracting with accredited colleges and universities in and out of the state.
These programs shall be related directly to each region's education and economic needs.
(2) The institutions may begin collaborative programs with other institutions leading to the
granting of master's degrees in selected areas that are demonstrated to be related directly to the needs
of their regions and that draw on faculty strengths. An institution may continue to offer collaborative
programs aimed at meeting the documented needs with the approval of the commission or, if a
sustained need still exists, the institution may move to the next level.
(3) If the graduate education needs of the region have not been met through brokering and
collaborative programs, the institution may explore the option of beginning its own graduate-level
program leading to the granting of a master's degree. The institution may begin its own master's
degree program if it can meet the following conditions as determined by the commission:
(A) Demonstrate that the institution has successfully completed each of the steps required
before exploring development of its own master's degree program;
(B) Provide evidence based on experience gained in the brokering and collaborative
arrangements that a sustained demand exists for the program;
(C) Demonstrate that the baccalaureate institution has the capacity to provide the program;
(D) Demonstrate that the core mission of the baccalaureate institution will not be impaired by
offering the graduate program;
(E) Provide evidence that the graduate program has a reasonable expectation of being
accredited;
(F) Demonstrate that the need documented in subdivision (B) of this subsection is not currently
being met by any other state institution of higher education; and
(G) The commission may designate one of the institutions listed in subsection (d) of this
section to develop and implement no more than four of its own masters level programs as a pilot
project: Provided, That the selected institution shall move toward and achieve regional accreditation
of the masters program within a reasonable time as determined by the commission. The institution
shall be selected based on the following:
(i) Sufficient credentialed faculty to offer quality programs in the areas selected;
(ii) Sufficient unmet demand for the programs; and
(iii) Sustainable unmet demand based on generally accepted projections for population growth
in the region served by the institution.
The programs authorized by this clause may not be restricted by the provisions of subdivisions
(1), (2) and (3) of this subsection nor by the provisions of subsection (e) of this section.
(e) There is an urgent need for master's degree programs for teachers in disciplines or subject
areas, such as mathematics, science, history, literature, foreign languages and the arts. Currently,
master's-level courses in education that are offered in the regions served by the state universities are
primarily in areas such as guidance and counseling, administration, special education and other
disciplines unrelated to teaching in subject areas. If this need is not being met in a region through the
procedure established in subsection (d) of this section, then the graduate center in that region may plan
a master's degree program in education focused on teaching in subject area fields in which the demand
is not being met. No institution may begin a graduate program under the provisions of this section
until the program has been reviewed and approved by the commission. The commission shall approve
only those programs, as authorized by this subsection, that emphasize serving the needs of teachers
and schools in the colleges' immediate regions. In determining whether a program should be
approved, the commission also shall rely upon the recommendations of the statewide task force on
teacher quality provided for in section eight, article fourteen of this chapter.
(f) The commission shall review all graduate programs being offered under the provisions of
this section and, using the criteria established for program startup in subsection (d) of this section,
determine which programs should be discontinued.
(g) At least annually, the governing boards shall evaluate graduate programs developed
pursuant to the provisions of this section and report to the commission on the following:
(1) The number of programs being offered and the courses offered within each program;
(2) The disciplines in which programs are being offered;
(3) The locations and times at which courses are offered;
(4) The number of students enrolled in the program; and
(5) The number of students who have obtained master's degrees through each program.
The governing boards shall provide the commission with any additional information the
commission requests in order to make a determination on the viability of a program.
(h) In developing any graduate program under the provisions of this section, institutions shall
consider delivering courses at times and places convenient to adult students who are employed full
time. Institutions shall place an emphasis on extended degree programs, distance learning and
off-campus centers which utilize the cost-effective nature of extending existing university capacity to
serve the state rather than duplicating the core university capacity and incurring the increased cost of
developing master's degree programs at other institutions throughout the state.
(i) Brokering institutions shall invite proposals from other public institutions of higher
education for service provision prior to contracting with other institutions: Provided, That if
institutions propose providing graduate programs in service areas other than in their responsibility
district, the institution seeking to establish a program shall work through the district's lead institution
in providing those services.
(j) In addition to the approval required by the commission, authorization for any institution to
offer a master's degree program under the provisions of this section is subject to the formal approval
processes established by the governing boards.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-1. Higher education policy commission established; development of public policy
agenda.
There is hereby created the "higher education policy commission", hereinafter referred to as
the "commission". which is responsible for developing, gaining consensus around and overseeing the implementation of a public policy agenda It is the intent of the Legislature that the commission be
responsible to develop, gain consensus around and oversee the public policy agenda for higher
education and other statewide issues pursuant to section one-a, article one of this chapter under the
following conditions:
(a) It is the responsibility of the commission to work collaboratively with the council to
develop and gain consensus around the public policy agenda for community and technical colleges;
__(b) It is the responsibility of the council to oversee the implementation of the public policy
agenda for the institutions under its jurisdiction.
__It is the intent of the Legislature that the commission be and council jointly are responsible for
development and articulation of the public policy agenda for higher education and other statewide
issues pursuant to section one-a, article one of this chapter.
(c) All matters of governance not specifically assigned to the commission or council by law
are the duty and responsibility of the governing board or boards.
§18B-1B-2. Composition of commission; terms and qualifications of members; vacancies;
eligibility for reappointment; oath of office; removal from office.
(a) The commission is comprised of nine ten members, all of whom are entitled to vote. One
is the secretary of education and the arts, ex officio. One is the state superintendent of schools, ex
officio. One is the chair of the West Virginia council for community and technical college education
who is an ex officio, nonvoting member. Provided, That if the state superintendent of schools desires
not to serve, the state board of education shall submit to the governor the names of three nominees,
which may include members of the state board of education. The governor shall select from the
nominees a member to serve on the commission. The three nominees shall be persons who are knowledgeable in the area of public education policy, are able to represent the state board of education
and who understand and are committed to achieving the goals and objectives as set forth in the
institutional compacts and in section one-a, article one of this chapter.
(b) The other seven members of the commission shall be are citizens of the state, appointed by
the governor, by and with the advice and consent of the Senate. Provided, That prior Prior to
appointment, the governor shall interview each candidate to assure that the person selected understands
and is committed to achieving the goals and objectives as set forth in the institutional compacts and
in section one-a, article one of this chapter. The governor shall invite the president of the Senate, the
speaker of the House of Delegates, the chairs of the Senate and House of Delegates committees on
finance and education and such other legislative leaders as the governor may determine to participate
in interviewing potential candidates. Each member appointed to the commission by the governor shall
represent the public interest and shall be committed to the legislative intent and goals set forth in said
section.
(c) The governor may not appoint any person to be a member of the commission who is an
officer, employee or member of the council or an advisory board of any state college or university; an
officer or member of any political party executive committee; the holder of any other public office or
public employment under the government of this state or any of its political subdivisions; or an
appointee or employee of any governing board; or an immediate family member of any employee
under the jurisdiction of the commission, the council or any governing board. Of the members
appointed by the governor from the public at large, no more than four thereof shall may belong to the
same political party and at least two shall be appointed from each congressional district.
(d) The governor shall appoint seven members to the commission on the first day of July, two
thousand, or as soon thereafter as is practicable and the original terms of all members shall commence
on the first day of July, two thousand.
(e) (d) The terms of the members appointed by the governor shall be are for overlapping terms
of four years. except, of the original appointments, one shall be appointed to a term of one year, two
shall be appointed to a term of two years, two shall be appointed to a term of three years and two shall
be appointed to a term of four years. Each subsequent appointment which is not for the purpose of
filling a vacancy in an unexpired term shall be for a term of four years.
(f) (e) The governor shall appoint a member to fill any vacancy among the seven members of
the commission appointed by the governor, by and with the advice and consent of the Senate. which
member appointed to fill such vacancy shall serve Any member appointed to fill a vacancy serves for
the unexpired term of the vacating member. The governor shall fill the vacancy within thirty days of
the occurrence of the vacancy.
(g) (f) No A member appointed by the governor shall be eligible to may not serve more than
two consecutive terms.
(h) (g) Before exercising any authority or performing any duties as a member of the
commission, each member shall qualify as such by taking and subscribing to the oath of office
prescribed by section five, article IV of the constitution of West Virginia and the certificate thereof
shall be filed with the secretary of state.
(i) (h) No A member of the commission appointed by the governor may not be removed from
office by the governor except for official misconduct, incompetence, neglect of duty or gross immorality, and then only in the manner prescribed by law for the removal of the state elective officers
by the governor.
§18B-1B-4. Powers and duties of higher education policy commission.
(a) The primary responsibility of the commission is to develop, establish and implement policy
that will achieve the goals and objectives found in section one-a, article one of this chapter. The
commission shall exercise its authority and carry out its responsibilities in a manner that is consistent
and not in conflict with the powers and duties assigned by law to the West Virginia council for
community and technical college education. To that end, the commission has the following powers and
duties relating to the institutions under its jurisdiction:
(1) Develop, oversee and advance the public policy agenda pursuant to section one, article
one-a of this chapter to address major challenges facing the state, including, but not limited to, the
goals and objectives found in section one-a, article one of this chapter and including specifically those
goals and objectives pertaining to the compacts created pursuant to section two, article one-a of this
chapter and to develop and implement the master plan described in section ten nine of this article for
the purpose of accomplishing the mandates of this section;
(2) Develop, oversee and advance the implementation jointly with the council of a financing
policy for higher education in West Virginia. The policy shall meet the following criteria:
(A) Provide an adequate level of education and general funding for institutions pursuant to
section five, article one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not limited to, human and physical
resources and deferred maintenance; and
(C) Invest and provide incentives for achieving the priority goals in the public policy agenda,
including, but not limited to, those found in section one-a, article one of this chapter; and
__(D) Incorporate the plan for strategic funding to strengthen capacity for support of community
and technical college education established by the West Virginia council for community and technical
college education pursuant to the provisions of section six, article two-b of this chapter;
(3) Create In collaboration with the council, create a policy leadership structure capable of the
following actions:
(A) Developing, building public consensus around and sustaining attention to a long-range
public policy agenda. In developing the agenda, the commission and council shall seek input from the
Legislature and the governor and specifically from the state board of education and local school
districts in order to create the necessary linkages to assure smooth, effective and seamless movement
of students through the public education and post-secondary education systems and to ensure that the
needs of public school courses and programs can be fulfilled by the graduates produced and the
programs offered;
(B) Ensuring that the governing boards carry out their duty effectively to govern the individual
institutions of higher education; and
(C) Holding the higher education institutions and the higher education system systems as a
whole accountable for accomplishing their missions and implementing the provisions of the compacts;
(4) Develop and adopt each institutional compact;
(5) Review and adopt the annual updates of the institutional compacts;
(6) Review the progress of community and technical colleges in every region of West Virginia;
such review includes, but is not limited to, evaluating and reporting annually to the legislative oversight commission on education accountability on the step-by-step implementation required in
article three-c of this chapter;
(7) (6) Serve as the accountability point for to:
(A) The governor for implementation of the public policy agenda; and for
(B) The Legislature by maintaining a close working relationship with the legislative leadership
and the legislative oversight commission on education accountability;
(8) (7) Promulgate Jointly with the council, promulgate legislative rules pursuant to article
three-a, chapter twenty-nine-a of this code to fulfill the purposes of section five, article one-a of this
chapter;
(9) (8) Establish and implement a peer group for each public institution of higher education in
the state as described in section three, article one-a of this chapter;
(10) (9) Establish and implement the benchmarks and performance indicators necessary to
measure institutional achievement towards state policy priorities and institutional missions pursuant
to section two, article one-a of this chapter;
(11) In January, two thousand one, and annually thereafter
(10) Annually report to the Legislature and to the legislative oversight commission on
education accountability during the January interim meetings on a date and at a time and location to
be determined by the president of the Senate and the speaker of the House of Delegates. The report
shall address at least the following:
(A) The performance of the its system of higher education during the previous fiscal year,
including, but not limited to, progress in meeting goals stated in the compacts and progress of the institutions and the higher education system as a whole in meeting the goals and objectives set forth
in section one-a, article one of this chapter;
(B) An analysis of enrollment data collected pursuant to subsection (i) section one, article ten
of this chapter and recommendations for any changes necessary to assure access to high-quality,
high-demand education programs for West Virginia residents;
(C) The priorities established for capital investment needs pursuant to subdivision (12) (11)
of this subsection and the justification for such priority;
(E) (D) Recommendations of the commission for statutory changes needed to further the goals
and objectives set forth in section one-a, article one of this chapter;
(12) (11) Establish a formal process for identifying needs for capital investments and for
determining priorities for these investments. It is the responsibility of the commission to assure a fair
distribution of funds for capital projects between the commission and the council. To that end the
commission shall take the following steps:
__(A) Receive the list of priorities developed by the council for capital investment for the
institutions under the council's jurisdiction pursuant to subsection (b), section six, article two-b of this
chapter;
__(B) Place the ranked list of projects on the agenda for action within sixty days of the date on
which the list was received;
__(C) Select a minimum of three projects from the list submitted by the council to be included
on the ranked list established by the commission. At least one of the three projects selected must come
from the top two priorities established by the council.
__(13) On or before the first day of October, two thousand, develop, establish and implement
(12) Maintain guidelines for institutions to follow concerning extensive capital projects. The
guidelines shall provide a process for developing capital projects, including, but not limited to, the
notification by an institution to the commission of any proposed capital project which has the potential
to exceed one million dollars in cost. No such project may Such a project may not be pursued by an
institution without the approval of the commission. An institution may not nor may an institution
participate directly or indirectly with any public or private entity in any capital project which has the
potential to exceed one million dollars in cost;
(14) Draw upon the expertise available within the governor's work force investment office and
the West Virginia development office as a resource in the area of work force development and training;
(15) (13) Acquire legal services as are considered necessary, including representation of the
commission, its institutions, employees and officers before any court or administrative body,
notwithstanding any other provision of this code to the contrary. The counsel may be employed either
on a salaried basis or on a reasonable fee basis. In addition, the commission may, but is not required
to, call upon the attorney general for legal assistance and representation as provided by law;
(16) (14) Employ a chancellor for higher education pursuant to section five of this article;
(17) (15) Employ other staff as necessary and appropriate to carry out the duties and
responsibilities of the commission and the council, in accordance with the provisions of article four
of this chapter;
__(18) (16) Provide suitable offices in Charleston for the chancellor, vice chancellors and other
staff;
(19) Conduct a study of the faculty tenure system as administered by the governing boards with
specific attention to the role of community service and other criteria for achieving tenured status. The commission shall make a report of its findings and recommendations to the legislative oversight
commission on education accountability by the first day of July, two thousand one;
(20) (17) Advise and consent in the appointment of the presidents of the institutions of higher
education under its jurisdiction pursuant to section six of this article. The role of the commission in
approving an institutional president is to assure through personal interview that the person selected
understands and is committed to achieving the goals and objectives as set forth in the institutional
compact and in section one-a, article one of this chapter;
(21) (18) Approve the total compensation package from all sources for institutional presidents
of institutions under its jurisdiction, as proposed by the governing boards. The governing boards must
obtain approval from the commission of the total compensation package both when institutional
presidents are employed initially and afterward when any change is made in the amount of the total
compensation package;
(22) (19) Establish and implement the policy of the state to assure that parents and students
have sufficient information at the earliest possible age on which to base academic decisions about what
is required for students to be successful in college, other post-secondary education and careers related,
as far as possible, to results from current assessment tools in use in West Virginia;
(23) (20) Approve and implement a uniform standard, as developed by the chancellor, jointly
with the council to determine which students shall be placed in remedial or developmental courses.
The standard shall be aligned with college admission tests and assessment tools used in West Virginia
and shall be applied uniformly by the governing boards throughout the public higher education system.
The chancellor chancellors shall develop a clear, concise explanation of the standard which the
governing boards they shall communicate to the state board of education and the state superintendent
of schools;
(24) (21) Review and approve or disapprove capital projects as described in subdivision (12)
(11) of this subsection;
(25) (22) Develop Jointly with the council, develop and implement an oversight plan to manage
system-wide technology such as the following:
(A) Expanding distance learning and technology networks to enhance teaching and learning,
promote access to quality educational offerings with minimum duplication of effort; and
(B) increase Increasing the delivery of instruction to nontraditional students, to provide services
to business and industry and increase the management capabilities of the higher education system; and
(B) Reviewing courses and programs offered electronically within the state by nonstate public
or private institutions of higher education,
(26) (23) Establish and implement policies and procedures to ensure that students may transfer
and apply toward the requirements for a bachelor's degree the maximum number of credits earned at
any regionally accredited in-state or out-of-state community and technical college with as few
requirements to repeat courses or to incur additional costs as is consistent with sound academic policy;
(27) (24) Establish and implement policies and procedures to ensure that students may transfer
and apply toward the requirements for a degree the maximum number of credits earned at any
regionally accredited in-state or out-of-state higher education institution with as few requirements to
repeat courses or to incur additional costs as is consistent with sound academic policy;
(28) (25) Establish and implement policies and procedures to ensure that students may transfer
and apply toward the requirements for a master's degree the maximum number of credits earned at any
regionally accredited in-state or out-of-state higher education institution with as few requirements to
repeat courses or to incur additional costs as is consistent with sound academic policy;
(29) (26) Establish and implement policies and programs, in cooperation with the council and
the institutions of higher education, through which students who have gained knowledge and skills
through employment, participation in education and training at vocational schools or other education
institutions, or internet-based education programs, may demonstrate by competency-based assessment
that they have the necessary knowledge and skills to be granted academic credit or advanced placement
standing toward the requirements of an associate degree or a bachelor's degree at a state institution of
higher education;
(30) (27) Seek out and attend regional, national and international meetings and forums on
education and work force development-related topics, as in the commission's discretion is critical for
the performance of their duties as members, for the purpose of keeping abreast of education trends and
policies to aid it in developing the policies for this state to meet the established education goals and
objectives pursuant to section one-a, article one of this chapter;
(31) (28) Develop, establish and implement guidelines for higher education governing boards
and institutions to follow when considering capital projects. The guidelines shall include, but not be
limited to, the following:
(A) That the governing boards and institutions not approve or promote projects that give
competitive advantage to new private sector projects over existing West Virginia businesses, unless
the commission determines such private sector projects are in the best interest of the students, the
institution and the community to be served; and
(B) That the governing boards and institutions not approve or promote projects involving
private sector businesses which would have the effect of reducing property taxes on existing properties
or avoiding, in whole or in part, the full amount of taxes which would be due on newly developed or
future properties;
The commission shall determine whether the guidelines developed pursuant to this subdivision
should apply to any project which a governing board and institution allege to have been planned on
or before the seventeenth day of June, two thousand. In making the determination, the commission
shall be guided by the best interests of the students, the institution and the community to be served
(32) Certify to the Legislature, on or before the first day of February, two thousand one, the
priority funding percentages and other information needed to complete the allocation of funds in
section five, article one-a of this chapter;
(33) (29) Consider and submit to the appropriate agencies of the executive and legislative
branches of state government a single budget for higher education that reflects recommended
appropriations Provided, That on the first day of January, two thousand one, and annually thereafter
the from the commission and the institutions under its jurisdiction. The commission shall submit as
part of its budget proposal the separate recommended appropriations it received from the council both
for the council and the institutions under the council's jurisdiction. The commission annually shall
submit the proposed institutional allocations based on each institution's progress toward meeting the
goals of its institutional compact;
(34) Initiate a full review and analysis of all student fees charged by state institutions of higher
education and make recommendations to the legislative oversight commission on education
accountability no later than the second day of January, two thousand two. The final report shall
contain findings of fact and recommendations for proposed legislation to condense, simplify and
streamline the fee schedule and the use of fees or other money collected by state institutions of higher
education;
(35) (30) The commission has the authority to assess institutions under its jurisdiction for the
payment of expenses of the commission or for the funding of statewide higher education services, obligations or initiatives related to the goals set forth for the provision of public higher education in
the state;
(36) (31) Promulgate rules allocating reimbursement of appropriations, if made available by
the Legislature, to institutions of higher education for qualifying noncapital expenditures incurred in
the provision of services to students with physical, learning or severe sensory disabilities;
(37) (32) Make appointments to boards and commissions where this code requires
appointments from the state college system board of directors or the university of West Virginia
system board of trustees which were abolished effective the thirtieth day of June, two thousand, except
in those cases where the required appointment has a specific and direct connection to the provision of
community and technical college education, the appointment shall be made by the council.
Notwithstanding any provisions of this code to the contrary, the commission or the council may
appoint one of its own members or any other citizen of the state as its designee. The commission and
council shall appoint the total number of persons in the aggregate required to be appointed by these
previous governing boards;
(38) Assume the powers set out in section five, article three of this chapter. The rules
previously promulgated by the state college system board of directors pursuant to that section are
hereby transferred to the commission and shall continue in effect until rescinded, revised, altered or
amended by the commission;
(39) Examine and determine the feasibility of recommendations contained in the
Implementation Board Report presented to the commission in January, two thousand one, and, at the
discretion of the commission, create the advantage valley community college network to enhance
provision of community and technical college education in the responsibility areas of Marshall
university, West Virginia state college and West Virginia university institute of technology;
(40) (33) Pursuant to the provisions of article three-a, chapter twenty-nine-a of this code and
section six, article one of this chapter, promulgate rules as necessary or expedient to fulfill the
purposes of this chapter. The commission may and the council shall promulgate a new uniform joint
legislative rule for the purpose of standardizing, as much as possible, the administration of personnel
matters among the institutions of higher education;
(41) (34) Determine when a joint rule among the governing boards of the institutions under its
jurisdiction is necessary or required by law and, in those instances and in consultation with the
governing boards, promulgate the joint rule;
(35) Implement a policy jointly with the council whereby course credit earned at a community
and technical college transfers for program credit at any other state institution of higher education and
is not limited to fulfilling a general education requirement; and
__(42) (36) Promulgate a joint rule with the council establishing tuition and fee policy for all
institutions of higher education. The rule shall include, but is not limited to, the following:
(A) Comparisons with peer institutions;
(B) Differences among institutional missions;
(C) Strategies for promoting student access;
(D) Consideration of charges to out-of-state students; and
(E) Such other policies as the commission considers and council consider appropriate. and
(43) Develop a method for the council, or members thereof, to participate in the selection of
administrative heads of the community and technical colleges.
(b) In addition to the powers and duties listed in subsection (a) of this section, the commission
has the following general powers and duties related to its role in developing, articulating and
overseeing the implementation of the public policy agenda:
(1) Planning and policy leadership including a distinct and visible role in setting the state's
policy agenda and in serving as an agent of change;
(2) Policy analysis and research focused on issues affecting the system as a whole or a
geographical region thereof;
(3) Development and implementation of institutional mission definitions including use of
incentive money funds to influence institutional behavior in ways that are consistent with public
priorities;
(4) Academic program review and approval for institutions under its jurisdiction including the
use of institutional missions as a template to judge the appropriateness of both new and existing
programs and the authority to implement needed changes;
(5) Development of budget and allocation of resources, including reviewing and approving
institutional operating and capital budgets and distributing incentive and performance-based funding;
(6) Administration of state and federal student aid programs under the supervision of the vice
chancellor for administration, including promulgation of any rules formerly vested in the previous
governing boards in relation to necessary to administer those programs;
(7) Acting Serving as the agent to receive and disburse public funds when a governmental
entity requires designation of a statewide higher education agency for this purpose;
(8) Development, establishment and implementation of information, assessment and
accountability systems, including maintenance of statewide data systems that facilitate long-term
planning and accurate measurement of strategic outcomes and performance indicators;
(9) Jointly with the council, developing, establishing and implementing policies for licensing
and oversight for both public and private degree-granting and nondegree-granting institutions that
provide post-secondary education courses or programs in the state pursuant to the findings and policy
recommendations to be determined as set forth in section eleven of this article;
(10) Development, implementation and oversight of statewide and regionwide projects and
initiatives related to providing post-secondary education at the baccalaureate level and above such as
those using funds from federal categorical programs or those using incentive and performance-based
funding from any source; and
(11) Quality assurance that intersects with all other duties of the commission particularly in the
areas of planning, policy analysis, program review and approval, budgeting and information and
accountability systems.
(c) In addition to the powers and duties provided for in subsections (a) and (b) of this section
and any other powers and duties as may be assigned to it by law, the commission has such other
powers and duties as may be necessary or expedient to accomplish the purposes of this article.
(d) The commission is authorized to withdraw specific powers of any governing board of an
institution under its jurisdiction for a period not to exceed two years if the commission makes a
determination that:
(1) The governing board has failed for two consecutive years to develop an institutional
compact as required in article one of this chapter;
(2) The commission has received information, substantiated by independent audit, of
significant mismanagement or failure to carry out the powers and duties of the board of governors
according to state law; or
(3) Other circumstances which, in the view of the commission, severely limit the capacity of
the board of governors to carry out its duties and responsibilities.
(4) The period of withdrawal of specific powers may not exceed two years during which time
the commission is authorized to take steps necessary to reestablish the conditions for restoration of
sound, stable and responsible institutional governance.
(e) Notwithstanding the provisions of section six, article one-a of this chapter, the commission
shall undertake a study of the most effective and efficient strategies and policies to address the findings
and intent of that section.
(1) The issues addressed by this study shall include, but not be limited to:
(A) Strategies to ensure access to graduate education;
(B) The development of state colleges as regional graduate centers with authority to broker
access to graduate programs in their responsibility areas;
(C) The process by which state colleges obtain authorization to grant graduate degrees;
(D) The relationship of regional graduate centers at state colleges to graduate programs offered
within those regions by state universities; and
(E) Other issues related to initiatives to meet each region's need and enhance the quality and
competitiveness of graduate programs offered and/or brokered by West Virginia state colleges and
universities.
(2) The commission shall report the findings of this study along with the recommendations for
legislative actions, if any, to address these findings and the intent of this section, to the legislative
oversight commission on education accountability by the first day of January, two thousand one.
§18B-1B-5. Employment of chancellor for higher education; office; powers and duties
generally; employment of vice chancellors.
(a) The commission, created pursuant to section one of this article, shall employ a chancellor
for higher education who shall be is the chief executive officer of the commission and who shall serve
serves at its will and pleasure. The vice chancellor for administration shall serve as the interim
chancellor until a chancellor is employed.
(b) The commission shall set the qualifications for the position of chancellor and shall conduct
a thorough nationwide search for qualified candidates. A qualified candidate is one who meets at least
the following criteria:
(1) Possesses an excellent academic and administrative background;
(2) Demonstrates strong communication skills;
(3) Has significant experience and an established national reputation as a professional in the
field of higher education;
(4) Is free of institutional or regional biases; and
(5) Holds or retains no other administrative position within the a system of higher education
while employed as chancellor.
__(c) The commission shall conduct written performance evaluations of the chancellor annually
and may offer the chancellor a contract not to exceed three years. At the end of each contract period, the commission shall review the evaluations and make a determination by vote of its members on
continuing employment and compensation level.
__(d) When filling a vacancy in the position of chancellor, the commission shall enter into an
initial employment contract for one year with the candidate selected. At the end of the initial contract
period, and each contract period thereafter, the commission shall review the evaluations and make a
determination by vote of its members on continuing employment and compensation level for the
chancellor.
__(c) (e) The chancellor shall be compensated on a basis in excess of, but not to exceed twenty
percent greater than, the base salary of any president of a state institution of higher education or the
administrative head of a governing board.
(d) (f) With the approval of the commission, The chancellor commission may employ a vice
chancellor for health sciences who shall serve serves at the will and pleasure of the chancellor
commission. The vice chancellor for health sciences shall coordinate the West Virginia university
school of medicine, the Marshall university school of medicine and the West Virginia school of
osteopathic medicine and also shall provide assistance to the governing boards on matters related to
medical education and health sciences. The vice chancellor for health sciences shall perform all duties
assigned by the chancellor, the commission and state law. In the case of a vacancy in the office of vice
chancellor of health sciences, the duties assigned to this office by law are the responsibility of the
chancellor or a designee.
(e) With the approval of the commission, the chancellor shall employ a vice chancellor for
community and technical college education and work force development who serves at the will and
pleasure of the chancellor. The duties of this position include serving as the chief executive officer
of the West Virginia council for community and technical college education created pursuant to article two-b of this chapter, and such other duties as assigned by law or by the commission. Any reference
in this code to the vice chancellor for community and technical colleges means the vice chancellor for
community and technical college education and work force development, which vice chancellor for
community and technical colleges shall become the vice chancellor for community and technical
college education and work force development. It is the duty and responsibility of the vice chancellor
for community and technical college education and work force development to:
(1) Provide assistance to the commission, the chancellor and the governing boards on matters
related to community and technical college education;
(2) Advise, assist and consult regularly with the institutional presidents; institutional boards
of governors or boards of advisors, as appropriate; and district consortia committees of the state
institutions of higher education involved in community and technical college education; and
(3) Perform all duties assigned by the chancellor, the commission and state law.
(f) With the approval of the commission, the chancellor
(g) With the approval of the The commission the chancellor shall employ a vice chancellor for
administration pursuant to section two, article four of this chapter.
(g) (h) With the approval of the The commission the chancellor may employ a vice chancellor
for state colleges who shall serve serves at the will and pleasure of the chancellor commission. It is
the duty and responsibility of the vice chancellor for state colleges to:
(1) Provide assistance to the commission, the chancellor and the state colleges on matters
related to or of interest and concern to these institutions;
(2) Advise, assist and consult regularly with the institutional presidents and institutional boards
of governors of each state college;
(3) Serve as an advocate and spokesperson for the state colleges to represent them and to make
their interests, views and issues known to the chancellor, the commission and governmental agencies;
(4) Perform all duties assigned by the chancellor, the commission and state law.
In addition, the vice chancellor for state colleges has the responsibility and the duty to provide
staff assistance to the institutional presidents and governing boards to the extent practicable.
(h) Apart from the offices of the vice chancellors as set forth in this section and section two,
article four of this chapter, the chancellor shall determine the organization and staffing positions within
the office that are necessary to carry out his or her powers and duties and may employ necessary staff.
(i) On behalf of the commission, the chancellor may enter into agreements with any state
agency or political subdivision of the state, any state higher education institution or any other person
or entity to enlist staff assistance to implement the powers and duties assigned by the commission or
by state law.
(j) The chancellor shall be is responsible for the day-to-day daily operations of the commission
and shall have has the following responsibilities relating to the commission and the institutions under
its jurisdiction:
(1) To carry out policy and program directives of the commission;
(2) To develop and submit annual reports on the implementation plan to achieve the goals and
objectives set forth in section one-a, article one of this chapter and in the institutional compacts;
(3) To prepare and submit to the commission for its approval the proposed budget of the
commission including the offices of the chancellor and the vice chancellors;
(4) On and after the first day of July, two thousand one, to To assist the governing boards in
developing rules, subject to the provisions of section six, article one of this chapter. Provided, That Nothing in this chapter requires the rules of the governing boards to be filed pursuant to the
rule-making procedures provided in article three-a, chapter twenty-nine-a of this code. The chancellor
shall be is responsible for ensuring that any policy which is required to be uniform across the
institutions is applied in a uniform manner;
(5) To perform all other duties and responsibilities assigned by the commission or by state law.
(k) The chancellor shall be reimbursed for all actual and necessary expenses incurred in the
performance of all assigned duties and responsibilities.
(l) The chancellor, is the primary advocate for higher education and with the commission,
advises the Legislature on matters of higher education in West Virginia. As the primary advocate for
higher education the The chancellor shall work closely with the legislative oversight commission on
education accountability and with the elected leadership of the state to ensure that they are fully
informed about higher education issues and that the commission fully understands the goals for higher
education that the Legislature has established by law.
(m) The chancellor may design and develop for consideration by the commission new statewide
or regional initiatives in accordance with the goals set forth in section one-a, article one of this chapter
and the public policy agenda articulated by the commission. In those instances where the initiatives
to be proposed have a direct and specific impact or connection to community and technical college
education as well as to baccalaureate and graduate education, the chancellor for higher education and
the chancellor for community and technical college education shall design and develop the initiatives
jointly for consideration by the commission and the council.
(n) The chancellor shall work closely with members of the state board of education and with
the state superintendent of schools to assure that the following goals are met:
(1) Development and implementation of a seamless kindergarten-through-college system of
education; and
(2) Appropriate coordination of missions and programs. To further the goals of cooperation
and coordination between the commission and the state board of education, the chancellor shall serve
serves as an ex officio, nonvoting member of the state board of education.
§18B-1B-6. Appointment of institutional presidents; evaluation.
(a) Appointment of institutional presidents. -- 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 appoints 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 council and to the provisions
of article three-c of this chapter, the president governing board of the appropriate institution shall
appoint West Virginia University appoints the president of the regional campuses campus known as
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. at Parkersburg. When selecting candidates for consideration to fill the office of president,
the governing board shall use the search and screening process provided for in section one, article six
of this chapter.
__Subject to the approval of the commission, the governing board of West Virginia University
appoints the president of the regional campus known as West Virginia university institute of
technology. The president of each regional campus serves at the will and pleasure of the appointing
governing board.
__(4) (3) Subject to the approval of the council, the governing board of the community and
technical college shall appoint appoints a president for eastern West Virginia community and technical
college, southern West Virginia community and technical college and West Virginia northern
community and technical college.
(4) Subject to the approval of the council, the governing board of the sponsoring institution
appoints a president for each administratively linked community and technical colleges which shares
a physical campus location with the sponsoring institution, including Fairmont state community and
technical college, Marshall community and technical college, the community and technical college at
West Virginia university institute of technology and West Virginia state community and technical
college. 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 article three-c 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.
(5) Subject to the approval of the council, the governing board of the community and technical
college appoints a president for each administratively linked community and technical college which
does not share a physical campus location with the sponsoring institution, including New River
community and technical college and the community and technical college of Shepherd.
__Subject to the approval of the council, the governing board of the sponsoring institution
appoints a president for each of these two community and technical colleges until the institution gains
independent accreditation.
(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 administrative heads presidents. -- The appointing governing boards board
shall conduct written performance evaluations of each institution's president except the presidents of
regional campuses shall be evaluated by the president of West Virginia university. The provosts
including the presidents 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 administrative
head president, 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-11. Study of licensing and oversight of certain institutions providing post-secondary
education.
(a) The commission and the council shall conduct a joint study of current policies relating to
licensing and oversight of both public and private degree-granting and nondegree-granting entities
providing post-secondary education programs or courses within the state or from locations outside this
state through distance learning or any technology methods.
(b) The study shall include, but is not limited to, the following:
(1) The strengths and weaknesses of current state and higher education policies including a
determination of how well the policies protect consumers and whether such protection should be
expanded;
(2) The appropriate entity within public higher education to assume licensing and oversight of
each type of institution;
(3) The standards to be used for program approval or a method to develop such standards; and
(4) The requirements for fees and bonding.
The commission and the council shall report their findings, conclusions and recommendations,
together with drafts of any legislation necessary to effectuate the recommendations, to the legislative
oversight commission on education accountability by the first day of December, two thousand four.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-1. Composition of boards; terms and qualifications of members; vacancies; eligibility
for reappointment.
(a) Effective the thirtieth day of June, two thousand one, the institutional boards of advisors
at 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, the West Virginia school of osteopathic medicine, West Virginia
state college and West Virginia university are abolished.
(b) Effective the first day of July, two thousand one,
(a) A board of governors is established continued at each of the following institutions:
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, the West Virginia school of osteopathic medicine, West Virginia
state college and West Virginia university. Each board of governors shall consist of twelve persons.
Provided, That the institutional boards of governors for Marshall university and West Virginia
university shall consist of fifteen persons.
(b) For the community and technical college of Shepherd and New River community and
technical college the institutional board of advisors remains in place until the institution achieves
independent accreditation as provided in section eight, article three-c of this chapter.
__(1) As long as the institutional board of advisors remains in place, the chairperson of the board
of advisors serves as an ex officio, voting member of the board of governors of the sponsoring
institution;
__(2) When the community and technical college achieves independent accreditation, the board
of advisors is abolished and a board of governors is established with members appointed pursuant to
this section;
__(3) When a board of governors is established for the community and technical college:
__(A) The chairperson of the governing board of the sponsoring institution serves as an ex officio,
nonvoting member of the governing board of the community and technical college board of governors;
and
__(B) The chairperson of the governing board of the community and technical college serves as
an ex officio, nonvoting member of the governing board of the sponsoring institution.
__(4) In making the initial appointments to these boards of governors, the governor shall appoint
those persons who are lay members of the institutional boards of advisors, except in the case of death,
resignation or failure to be confirmed by the Senate.
__(c) The institutional board of governors for Marshall university consists of sixteen persons and
the institutional board of governors for West Virginia university consists of seventeen persons. Each
other board of governors consists of twelve persons.
(d) Each board of governors shall include includes the following members:
(1) A full-time member of the faculty with the rank of instructor or above duly elected by the
faculty of the respective institution;
(2) A member of the student body in good academic standing, enrolled for college credit work
and duly elected by the student body of the respective institution;
(3) A member from the institutional classified employees duly elected by the classified
employees of the respective institution; and
(4) Nine lay members appointed by the governor by and with the advice and consent of the
Senate pursuant to section one-a, article six of this chapter. Provided, That For the institutional boards
of governors at Marshall university and West Virginia university, twelve lay members shall be
appointed by the governor by and with the advice and consent of the Senate pursuant to section one-a,
article six of this chapter: Provided, however, That of the appointed lay members, the governor shall
appoint one superintendent of a county board of education from the area served by the institution:
Provided further, That in making the initial appointments to the institutional boards of governors, the
governor shall appoint, except in the case of death, resignation or failure to be confirmed by the
Senate, those persons who are lay members of the institutional boards of advisors for those institutions
named in subsection (a) on the thirtieth day of June, two thousand one, and appointed pursuant to
section one-a, article six of this chapter.
(4) For the institutional board of governors at Marshall university, twelve lay members
appointed by the governor, by and with the advice and consent of the Senate, pursuant to this section
and, additionally, the chairperson of the institutional board of advisors of Marshall community and
technical college serving as an ex officio, voting member.
__(5) For the institutional board of governors at West Virginia university, twelve lay members
appointed by the governor by and with the advice and consent of the senate pursuant to this section
and, additionally, the chairperson of the institutional board of advisors of the community and technical
college at West Virginia university institute of technology and West Virginia university at Parkersburg.
__(6) For each institutional board of governors of an institution that does not have an
administratively linked community and technical college under its jurisdiction, nine lay members
appointed by the governor, by and with the advice and consent of the Senate, pursuant to this section.
__(7) For each institutional board of governors which has an administratively linked community
and technical college under its jurisdiction:
__(A) Eight lay members appointed by the governor, by and with the advice and consent of the
Senate, pursuant to this section and, additionally, the chairperson of the institutional board of advisors
of the administratively linked community and technical college; and
__(B) Of the eight lay members appointed by the governor, one shall be the superintendent of a
county board of education from the area served by the institution.
__(c) (e) Of the eight or nine members appointed by the governor, no more than five may be of
the same political party. Provided, That of Of the twelve members appointed by the governor to the
governing boards of Marshall university and West Virginia university, no more than seven may be of
the same political party. Of the eight or nine members appointed by the governor, at least six of the
members shall be residents of the state. Provided, however, That Of the twelve members appointed
by the governor to the governing boards of Marshall university and West Virginia university, at least
eight of the members shall be residents of the state.
(d) (f) The student member shall serve serves for a term of one year. The term beginning in
July, two thousand one, shall end on the thirtieth day of June, two thousand two. Thereafter, The term
shall begin Each term begins on the first day of July.
(e) (g) The faculty member shall serve serves for a term of two years. The term beginning in
July, two thousand one, ends on the thirtieth day of June, two thousand three. Thereafter, the term shall begin Each term begins on the first day of July. Faculty members are eligible to succeed
themselves for three additional terms, not to exceed a total of eight consecutive years.
(f) (h) The member representing classified employees shall serve serves for a term of two years.
The term beginning in July, two thousand one, shall end on the thirtieth day of June, two thousand
three. Thereafter, the term shall begin Each term begins on the first day of July. Members
representing classified employees are eligible to succeed themselves for three additional terms, not to
exceed a total of eight consecutive years.
(g) (i) The appointed lay citizen members shall serve terms of four years each and shall be are
eligible to succeed themselves for no more than one additional term.
(h) (j) A vacancy in an unexpired term of a member shall be filled for the unexpired term
within thirty days of the occurrence of the vacancy in the same manner as the original appointment or
election. Except in the case of a vacancy, all elections shall be held and all appointments shall be made
no later than the thirtieth day of June preceding the commencement of the term. except the election
of officers for the term beginning in July, two thousand one shall be made that July Each board of
governors shall elect one of its appointed lay members to be chairperson in June of each year. No
member may A member may not serve as chairperson for more than two consecutive years.
(i) (k) The appointed members of the institutional boards of governors shall serve staggered
terms of the initial appointments by the governor to each of the institutional boards of governors, two
shall be appointed for terms of one year, two shall be appointed for terms of two years, two shall be
appointed for terms of three years and three shall be appointed for terms of four years: Provided, That
for the initial appointments to the governing boards of Marshall university and West Virginia
university, three shall be appointed for terms of one year, three shall be appointed for terms of two years, three shall be appointed for terms of three years and three shall be appointed for terms of four
years. After the initial appointments, all appointees shall serve for terms of four years.
(j) No person shall be eligible
(l) A person is ineligible for appointment to membership on a board of governors of a state
institution of higher education under the following conditions:
(1) For a baccalaureate institution or university, a person is ineligible for appointment who is
an officer, employee or member of any other board of governors, a member of an institutional board
of advisors of any public institution of higher education, an employee of any institution of higher
education, an officer or member of any political party executive committee, the holder of any other
public office or public employment under the government of this state or any of its political
subdivisions or a member of the council or commission. Provided, That this subsection shall not be
construed to This subsection does not prevent the representative from the faculty, classified employees,
or students or chairpersons of the boards of advisors or the superintendent of a county board of
education from being members of the governing boards.
(2) For a community and technical college, a person is ineligible for appointment who is an
officer, employee or member of any other board of governors; a member of an institutional board of
advisors of any public institution of higher education; an employee of any institution of higher
education; an officer or member of any political party executive committee; the holder of any other
public office, other than an elected county office, or public employment, other than employment by
the county board of education, under the government of this state or any of its political subdivisions;
or a member of the council or commission. This subsection does not prevent the representative from
the faculty, classified employees, students or chairpersons of the boards of advisors from being
members of the governing boards.
__(k) (m) Before exercising any authority or performing any duties as a member of a governing
board, each member shall qualify as such by taking and subscribing to the oath of office prescribed by
section five, article IV of the constitution of West Virginia and the certificate thereof shall be filed with
the secretary of state.
(l) (n) No A member of a governing board appointed by the governor may not be removed from
office by the governor except for official misconduct, incompetence, neglect of duty or gross
immorality and then only in the manner prescribed by law for the removal of the state elective officers
by the governor.
(m) (o) The president of the institution shall make available resources of the institution for
conducting the business of its board of governors. The members of the board of governors shall serve
without compensation, but shall be are reimbursed for all reasonable and necessary expenses actually
incurred in the performance of their official duties under this article upon presentation of an itemized
sworn statement of their expenses. All expenses incurred by the board of governors and the institution
under this section shall be are paid from funds allocated to the institution for that purpose.
§18B-2A-4. Powers and duties of governing boards generally.
Each governing board separately has the following powers and duties:
(a) Determine, control, supervise and manage the financial, business and education policies and
affairs of the state institutions of higher education under its jurisdiction;
(b) Develop a master plan for the institutions under its jurisdiction except the administratively
linked community and technical colleges which retain an institutional board of advisors shall develop
their master plans subject to the provisions of section one, article six of this chapter. The ultimate
responsibility for developing and updating the master plans at the institutional level resides with the board of governors, or board of advisors, as applicable, but the ultimate responsibility for approving
the final version of the institutional master plans, including periodic updates, resides with the
commission or council, as appropriate. Each master plan shall include, but not be limited to, the
following:
(1) A detailed demonstration of how the master plan will be used to meet the goals and
objectives of the institutional compact;
(2) A well-developed set of goals outlining missions, degree offerings, resource requirements,
physical plant needs, personnel needs, enrollment levels and other planning determinates and
projections necessary in such a plan to assure that the needs of the institution's area of responsibility
for a quality system of higher education are addressed;
(3) Documentation of the involvement of the commission or council, as appropriate,
institutional constituency groups, clientele of the institution and the general public in the development
of all segments of the institutional master plan.
The plan shall be established for periods of not less than three nor more than six years and shall
be revised periodically as necessary, including the addition or deletion of degree programs as, in the
discretion of the appropriate governing board, may be necessary;
(c) Prescribe for the institutions under its jurisdiction, in accordance with its master plan and
the compact for each institution, specific functions and responsibilities to meet the higher education
needs of its area of responsibility and to avoid unnecessary duplication;
(d) Direct the preparation of a budget request for the institutions under its jurisdiction, such
request to relate directly to missions, goals and projections as found in the institutional master plans
and the institutional compacts;
(e) Consider, revise and submit to the commission or council, as appropriate, a budget request
on behalf of the institutions under its jurisdiction;
(f) Review, at least every five years, all academic programs offered at the institutions under its
jurisdiction. The review shall address the viability, adequacy and necessity of the programs in relation
to its institutional master plan, the institutional compact and the education and work force needs of its
responsibility district. As a part of the review, each governing board shall require the institutions
under its jurisdiction to conduct periodic studies of its graduates and their employers to determine
placement patterns and the effectiveness of the education experience. Where appropriate, these studies
should coincide with the studies required of many academic disciplines by their accrediting bodies;
(g) The governing boards shall ensure that the sequence and availability of academic programs
and courses offered by the institutions under their jurisdiction is such that students have the maximum
opportunity to complete programs in the time frame normally associated with program completion.
Each governing board is responsible to see that the needs of nontraditional college-age students are
appropriately addressed and, to the extent it is possible for the individual governing board to control,
to assure core course work completed at institutions under its jurisdiction is transferable to any other
state institution of higher education for credit with the grade earned;
(h) Subject to the provisions of article one-b of this chapter, the appropriate governing board
has the exclusive authority to approve the teacher education programs offered in the institution under
its control. In order to permit graduates of teacher education programs to receive a degree from a
nationally accredited program and in order to prevent expensive duplication of program accreditation,
the chancellor commission may select and utilize one nationally recognized teacher education program
accreditation standard as the appropriate standard for program evaluation;
(i) Utilize faculty, students and classified employees in institutional-level planning and
decisionmaking when those groups are affected;
(j) Subject to the provisions of federal law and pursuant to the provisions of article nine of this
chapter and to rules adopted by the commission and the council, administer a system for the
management of personnel matters, including, but not limited to, personnel classification, compensation
and discipline for employees of at the institutions under their jurisdiction;
(k) Administer a system for hearing employee grievances and appeals. Notwithstanding any
other provision of this code to the contrary, the procedure established in article six-a, chapter
twenty-nine of this code is the exclusive mechanism for hearing prospective employee grievances and
appeals. In construing the application of said article to grievances of higher education employees, the
following apply:
(1) "Chief administrator" means the president of a state institution of higher education as to
those employees employed by the institution and the appropriate chancellor as to those employees
employed by the commission or council;
(2) The state division of personnel may not be a party to nor have any authority regarding a
grievance initiated by a higher education employee; and
(3) The provisions of this section supersede and replace the grievance procedure set out in
article twenty-nine, chapter eighteen of this code for any grievance initiated by a higher education
employee after the first day of July, two thousand one;
(l) Solicit and utilize or expend voluntary support, including financial contributions and support
services, for the institutions under its jurisdiction;
(m) Appoint a president or other administrative head for the institutions under its jurisdiction
subject to the provisions of section six, article one-b of this chapter;
(n) Conduct written performance evaluations of each institution's the president pursuant to
section six, article one-b of this chapter;
__(o) Employ all faculty and staff at the institution under its jurisdiction. Such employees operate
under the supervision of the president, but are employees of the governing board;
__(o) (p) Submit to the commission or council, as appropriate, no later than the first day of
November of each year an annual report of the performance of the institutions institution under its
jurisdiction during the previous fiscal year as compared to stated goals in its master plan and
institutional compact;
(p) (q) Enter into contracts or consortium agreements with the public schools, private schools
or private industry to provide technical, vocational, college preparatory, remedial and customized
training courses at locations either on campuses of the public institution of higher education or at
off-campus locations in the institution's responsibility district. To accomplish this goal, the boards
are permitted to share resources among the various groups in the community;
(q) (r) Provide and transfer funding and property to certain corporations pursuant to section ten,
article twelve of this chapter;
(r) (s) Delegate, with prescribed standards and limitations, the part of its power and control
over the business affairs of a particular institution under its jurisdiction to the president or other
administrative head of the institution to the president in any case where it considers the delegation
necessary and prudent in order to enable the institution to function in a proper and expeditious manner
and to meet the requirements of its institutional compact. If a governing board elects to delegate any of its power and control under the provisions of this subsection, it shall notify the appropriate
chancellor. Any such delegation of power and control may be rescinded by the appropriate governing
board or the chancellor at any time, in whole or in part;
(s) (t) Unless changed by the chancellor commission or the council, as appropriate, the
governing boards shall continue to abide by existing rules setting forth standards for acceptance of
advanced placement credit for their respective institutions. Individual departments at institutions of
higher education may, upon approval of the institutional faculty senate, require higher scores on the
advanced placement test than scores designated by the appropriate governing board when the credit
is to be used toward meeting a requirement of the core curriculum for a major in that department;
(t) (u) Each governing board, or its designee, shall consult, cooperate and work with the state
treasurer and the state auditor to update as necessary and maintain an efficient and cost-effective
system for the financial management and expenditure of special revenue and appropriated state funds
at the institutions under its jurisdiction that ensures that properly submitted requests for payment be
paid on or before due date but, in any event, within fifteen days of receipt in the state auditor's office;
(u) (v) The governing boards in consultation with the appropriate chancellor and the secretary
of the department of administration shall develop, update as necessary and maintain a plan to
administer a consistent method of conducting personnel transactions, including, but not limited to,
hiring, dismissal, promotions and transfers at the institutions under their jurisdiction. Each such
personnel transaction shall be accompanied by the appropriate standardized system or forms which will
be submitted to the respective governing board and the department of finance and administration;
(v) (w) Notwithstanding any other provision of this code to the contrary, the governing boards
may transfer funds from any account specifically appropriated for their use to any corresponding line
item in a general revenue account at any agency or institution under their jurisdiction as long as such transferred funds are used for the purposes appropriated. The governing boards may transfer funds
from appropriated special revenue accounts for capital improvements under their jurisdiction to special
revenue accounts at agencies or institutions under their jurisdiction as long as such transferred funds
are used for the purposes appropriated; and
(w) (x) Notwithstanding any other provision of this code to the contrary, the governing boards
may acquire legal services as are considered necessary, including representation of the governing
boards, their institutions, employees and officers before any court or administrative body. The counsel
may be employed either on a salaried basis or on a reasonable fee basis. In addition, the governing
boards may, but are not required to, call upon the attorney general for legal assistance and
representation as provided by law; and
__(y) Each governing board which has under its jurisdiction an administratively linked
community and technical college or a regional campus offering community and technical college
education programs shall create within the administrative structure of its governing board a
subcommittee for community and technical college education. The subcommittee shall have at least
four members, one of whom is the chairperson of the board of advisors of the community and technical
college or, in the case of the governing board of West Virginia university, both the member
representing the community and technical college and the member representing the regional campus;
§18B-2A-6. University status for public baccalaureate institutions of higher education.
(a) The purpose of this section is to redesignate certain existing public baccalaureate
institutions as universities and to provide a mechanism for other public baccalaureate institutions to
become universities. The change in name is based on each institution's ability to meet minimum
standards developed and adopted by the commission.
(b) Each governing board of a public baccalaureate institution is authorized to make changes
which would further its eligibility to attain university status:
(1) If the college meets the eligibility requirements established by the commission to attain
university status and if the commission grants university status, then the governing board shall
determine the effective date on which the public baccalaureate institution becomes a university; and
(2) On and after the effective date designated by the governing board, the baccalaureate
institution shall be designated a university.
(c) Concord college, Fairmont state college, Shepherd college and West Virginia state college,
having met the eligibility requirements established by the commission to attain university status, are
hereby designated as universities on the effective date of this section.
(d) An institution may not request or seek additional state appropriations as a result of the
redesignation provided for in this section. No consequences, including the need to meet future
accreditation requirements in order to maintain university status, which arise as a result of designating
an existing state college as a university, provide sufficient justification for an institution to request or
in any way seek additional state funds.
(e) Notwithstanding any provision of this code to the contrary, Marshall university and West
Virginia university are, and remain, the only research and doctoral degree-granting public institutions
of higher education in this state.
ARTICLE 2B. WEST VIRGINIA COUNCIL FOR COMMUNITY AND TECHNICAL
COLLEGE EDUCATION.
§18B-2B-1. Legislative findings; intent; purpose.
(a) The Legislature hereby finds that:
(1) The goals, objectives and purposes contained in Enrolled Senate Bill No. 653, passed
during the two thousand regular legislative session, in two thousand reflected the research findings
available to the Legislature at the time; since then, however, additional research indicates that, while
Enrolled Senate Bill No. 653 moves in the appropriate direction of independent accreditation and
meeting essential conditions for public community and technical colleges, the legislation does not take
the final steps that are considered to be necessary by independent researchers. This position is clearly
demonstrated by the recent research findings and recommendations cited below:
(A) "West Virginia: A Vision Shared! Economic Development: A Plan for West Virginia's
Future", hereinafter cited in this article and article two-c of this chapter as the Market Street Report,
is a research document commissioned by the West Virginia council for community and economic
development to assess the economic competitiveness of the state. The report makes a number of
findings and recommendations important to public community and technical college education:
(i) The state needs to adopt and implement a specific focus on technical education; in
particular, it needs to move away from the traditionally isolated and limited vocational programming
towards a systematic approach of teaching technical skills that employers need today;
(ii) The state needs to establish a strong technical education system that is separate from the
university system and is responsive to the needs of business throughout the state;
(iii) The state needs to establish as a high-level priority the training and retraining of its
working-age adults to help them acquire and maintain the competitive skills they need to succeed in
today's economy; and
(iv) The state needs to emphasize the role of lifelong learning as a critical piece of its overall
education and training system if the state is to make the transition to the new economy.
(B) The Report to the Legislative Oversight Commission on Education Accountability,
hereinafter cited in this article and article two-c as the McClenney Report, is a study required by
provisions of Enrolled Senate Bill No. 653 and conducted by Dr. Kay McClenney. The research found
that:
(i) The participation rate in West Virginia community and technical college education is
substantially lower than will be necessary if the state is to achieve its goals for economic development
and prosperity for its citizens;
(ii) The low visibility of the component community and technical colleges effectively restricts
access for the West Virginians who most need encouragement to participate in post-secondary
education and training;
(iii) It is not clear that the parent institutions of the component community colleges actually
embrace the community college mission;
(iv) The community and technical college developmental education programs are under serving
by far the evident needs of the population, especially as that service relates to nontraditional students;
(v) Adults over age twenty-five are under represented in the community and technical college
student populations;
(vi) Technical education program development and enrollment are not at the levels necessary
to serve the needs of the state;
(vii) Independent accreditation and the essential conditions required by Enrolled Senate Bill
No. 653 are necessary, but not sufficient alone to provide a strong enough tool to accomplish the
state's goal to strengthen community and technical college education;
(viii) The community and technical college will not be able to operate optimally until they
move out of the shadow of their "parent" institutions, with the flexibility and autonomy to establish
a uniquely community college identity, culture, program mix, outreach capacity and approach to
teaching and learning;
__(ix) The development of stronger support mechanisms for the community and technical
colleges should be an extension of the ongoing step-by-step process for achieving the goals for post
secondary education in the state;
__(x) Building on the foundations laid in Enrolled Committee Substitute for Senate Bill No. 547
and Enrolled Senate Bill No. 653, the Legislature should now establish the further systemic and policy
supports that are needed for the community and technical college to thrive, perform and meet state
goals;
__(xi) Implementation will necessarily be incremental;
__(xii) The consistent focus at the state level should be on the statewide mission of raising
educational attainment, increasing adult literacy, promoting workforce and economic development and
ensuring access to advanced education for the citizens of West Virginia;
__(xiii) The solution must ensure a high degree of flexibility and autonomy at the local level,
preserving the ability of community and technical colleges to respond rapidly and effectively to local
needs;
__(xiv) At the same time, there is serious and recognized need for statewide leadership,
coordination and support for the work of the community and technical colleges and the advocacy for
the public priorities that these institutions are charged to address;
and therefore
(viii) (xv) The state needs to create a community college support capacity at the state level that
will bring leadership, coordination, technical support, advocacy and critical mass to a statewide
network of local community and technical college campuses.
(C) The Report and Recommendations of the Implementation Board to the West Virginia
Higher Education Policy Commission, hereinafter cited in this article and article two-c of this chapter
as the Implementation Board Report, is a study required by Enrolled Senate Bill No. 653 to determine
the most effective and efficient method to deliver community and technical college services in the
former responsibility areas of Marshall university, West Virginia state college and West Virginia
university institute of technology. The Implementation Board Report states its goals and vision for
community and technical college education in the advantage valley region as one of a dynamic, vital
and vibrant community college network which offers:
(i) Affordable, quality training and education to students;
(ii) Represents a recognized path of choice to success in the knowledge economy for thousands
of West Virginians; and
(iii) Provides West Virginia businesses with the highly skilled work force necessary to meet
their evolving needs in the global knowledge economy.
(D) In furtherance of their goals, the Implementation Board Report recommended formation
of the advantage valley community college network:
(i) To enhance economic development through coordinated leadership and a delivery system
for education and training initiatives;
(ii) To provide accountability through a separate compact and through independent
accreditation of each of the affected community and technical colleges; and
(iii) To enhance education opportunities for the citizens of the area and assist in overcoming
the barrier of accessibility in higher education.
(b) Based on the recent research cited above, the Legislature further finds that:
(1) The recommendations of the Market Street Report clearly point out the shortcomings of the
state's current approach to providing post-secondary education and programs and show the
consequences of failing to change appropriately;
(2) The research, findings, vision and goals set forth in the McClenney Report and the
Implementation Board Report are noteworthy and, although written, in part, to address specific
institutions, have broad application statewide for community and technical colleges;
(3) The research shows that:
(A) A need exists to enhance community and technical college education in West Virginia
through the delivery of services that meet the goals of this chapter and that are delivered pursuant to
the process for meeting the essential conditions established in section three, article three-c of this
chapter;
(B) A need exists for statewide leadership, coordination and support for the work of the
community and technical colleges and for advocacy for the public priorities these institutions are
charged to address;
(C) Community and technical colleges need to be efficient, avoiding duplication and the burden
of bureaucracy while recognizing fiscal realities;
(D) Community and technical colleges need a high degree of flexibility and local autonomy
to preserve and expand their ability to respond rapidly and effectively to local or regional needs;
(E) Community and technical colleges need state-level support and leadership that recognize
differences among regions of the state and among institutions and accept the reality that institutions
are at different stages in their development and have different challenges and capabilities;
(F) Clear benchmarks and regular monitoring are required to assess the progress of community
and technical colleges toward meeting the established goals and for meeting the essential conditions,
including independent accreditation, established in this chapter;
(G) Implementation will necessarily be incremental;
(4) Certain acts to streamline accountability, to make maximum use of existing assets to meet
new demands and target funding to initiatives designed to enhance and reorient existing capacity and
to provide incentives for brokering and collaboration require that the role of the joint commission for
vocational-technical- occupational education be reexamined.
(c) Legislative intent. -- The intent of the Legislature in enacting this article is to address the
research findings cited above by reconstituting the joint commission for vocational-
technical-occupational education as the West Virginia council for community and technical college
education in order to reorient the mission, role and responsibilities consistent with and supportive of
the mission, role and responsibilities of the commission, the goals for post-secondary education and
accountability for assisting the public community and technical colleges, branches, centers, regional
centers and other delivery sites with a community and technical college mission in achieving the state's
public policy agenda.
(d) Purpose. -- The purpose of this article is to provide for the development of a leadership and
support mechanism for the community and technical colleges, branches, centers, regional centers and
other delivery sites with a community and technical college mission to assist them in meeting the essential conditions and in the step-by-step implementation process for achieving the goals for
community and technical college education as provided for in article three-c of this chapter and to
promote coordination and collaboration among secondary and post-secondary vocational-
technical-occupational and adult basic education programs as provided for in this chapter and chapter
eighteen of this code. The focus of this leadership and support mechanism is to encourage development
of a statewide mission to raise education attainment, increase adult literacy, promote work force and
economic development and ensure access to secondary and post-secondary education for the citizens
of the state while maintaining the local autonomy and flexibility necessary to the success of
community and technical education.
§18B-2B-2. Definitions.
The following words when used in this article have the meaning hereinafter ascribed to them
unless the context clearly indicates a different meaning:
(a) "Adult basic education" means adult basic skills education designed to improve the basic
literacy needs of adults, including information processing skills, communication skills and
computational skills, leading to a high school equivalency diploma under the jurisdiction of the state
board of education.
(b) "Post-secondary vocational-technical-occupational education" means any course or program
beyond the high school level that results in, or may result in, the awarding of a two-year associate
degree, certificate or other credential from an institution under the jurisdiction of a governing board
or other public or private education provider.
(c) "Secondary vocational-technical-occupational education" means any course or program at
the high school level that results in, or may result in, a high school diploma or its equivalent under the
jurisdiction of the state board of education.
(d) "Vice chancellor" means the vice chancellor for community and technical college education
and work force development "Chancellor for community and technical college education" means the
chief executive officer of the West Virginia council for community and technical college education
employed pursuant to section five three, article one-b two-b of this chapter. Any reference in this code
to the vice chancellor for community and technical college education and work force development
means the chancellor for community and technical college education.
(e) "West Virginia council for community and technical college education" or "council" means
the council established pursuant to section three of this article. On and after the effective date of this
article any Any reference in this code to the joint commission for vocational-technical-occupational
education means the West Virginia council for community and technical college education.
§18B-2B-3. West Virginia council for community and technical college education; supervision
of chancellor; chief executive officer.
(a) Effective the first day of July, two thousand one, the West Virginia joint commission for
vocational-technical- occupational education is reconstituted as the West Virginia council for
community and technical college education. Any reference in this code to the joint commission for
vocational-technical-occupational education means the West Virginia council for community and
technical college education.
__(a) There is continued the West Virginia council for community and technical college
education. The council has all the powers and duties assigned by law to the joint commission for vocational-technical-occupational education prior to the effective date of this section and such other
powers and duties as may be assigned by law. or by the commission
(b) The council is subject to the jurisdiction of the commission established in article one-b of
this chapter. The vice chancellor shall employ a chancellor for community and technical college
education. The chancellor serves as chief executive officer of the council at the will and pleasure of
the council. The chancellor shall be compensated at a level set by the council not to exceed eighty
percent of the annual salary of the chancellor for higher education.
__(1) The vice chancellor for community and technical college education and work force
development, as the current chief executive officer of the council, shall continue in such capacity upon
the effective date of this section, and shall be the chancellor for community and technical college
education.
__(A) The council shall conduct a written performance evaluation of the chancellor one year after
the effective date of this section. The council shall report the results of the evaluation to the legislative
oversight commission on education accountability during the legislative interim meeting period
following the evaluation.
__(B) After reviewing the evaluation, the council shall make a determination by vote of its
members on continuing employment and compensation level for the chancellor.
__(C) After the initial contract period, the council shall conduct written performance evaluations
of the chancellor annually and may offer the chancellor a contract of longer term, but not to exceed
three years. At the end of each contract period, the council shall review the evaluations and make a
determination by vote of its members on continuing employment and level of compensation.
__(D) When a vacancy occurs in the position of chancellor, the council shall enter into an initial
employment contract for one year with the candidate selected to fill the vacancy. At the end of the
initial period, the council shall make a determination by vote of its members on continuing
employment and compensation level for the chancellor and shall continue thereafter as set forth in
paragraph (C) of this subdivision.
__(2) The chancellor maintains all benefits of employment held, accrued and afforded as the vice
chancellor for community and technical college education and workforce development. Such benefits
include, but are not limited to, retirement benefits, continued membership in the same retirement
system, any insurance coverage and sick and annual leave. For the purposes of leave conversion
established in section thirteen, article sixteen, chapter five of this code, the chancellor is not a new
employee, and the prohibition on conversion does not apply if the chancellor was eligible for leave
conversion while serving as vice chancellor on the day preceding the effective date of this section. On
the effective date of this section, for the purpose of section thirteen article sixteen, chapter five of this
code, the chancellor:
__(A) Maintains all sick and annual leave accrued, and all rights to convert the leave that had
been accrued as vice chancellor; and
__(B) Continues to maintain his or her status for eligibility under the provisions and application
of said section as applied while serving as vice chancellor on the day preceding the effective date of
this section.
§18B-2B-4. Appointment, composition and terms of council.
(a) On the effective date of this section, the joint commission for
vocational-technical-occupational education is reconstituted as the West Virginia council for community and technical college education and all terms of members appointed by the governor prior
to the effective date of this section expire upon the appointment by the governor of all the members
required to be appointed by this section.
(b) (a) The council is comprised of eight thirteen members selected as follows:
(1) Three Eight members appointed by the governor, with the advice and consent of the Senate:
(A) One member shall be appointed from each community and technical college consortia
district as established in this section.
__(B) Prior to appointment, the governor shall interview each candidate to assure that the person
selected understands and is committed to achieving the goals and objectives as set forth in the
institutional compacts and in section one-a, article one of this chapter. The governor shall invite the
president of the Senate, the speaker of the House of Delegates, the chairs of the Senate and House of
Delegates committees on finance and education and such other legislative leaders as the governor may
determine to participate in interviewing potential candidates. Each member appointed to the council
by the governor shall represent the public interest and shall be committed to the legislative intent and
goals set forth in section one-a, article one of this chapter.
__(2) Two members appointed by the governor from a list of six persons nominated by the
president of the Senate: Provided, That no more than two nominees may be from the same
congressional district and no more than three may be from the same political party;
(3) Two members appointed by the governor from a list of six persons nominated by the
speaker of the House of Delegates: Provided, That no more than two nominees may be from the same
congressional district and no more than three may be from the same political party; and (4)
(2) The chairperson of the West Virginia work force investment council;
__(3) The executive director of the West Virginia development office, or designee;
__(4) The president of the West Virginia AFL-CIO, or a designee;
__(5) The chair of the higher education policy commission who serves as an ex officio, nonvoting
member of the council; and
__(6) The assistant superintendent for technical and adult education of the state department of
education who serves as an ex officio, nonvoting member of the council;
(c) The governor may, but is not required to reappoint any person who was a member of the
joint commission immediately prior to the effective date of this section: Provided, That the individual
selected is otherwise eligible to serve.
(d) (b) All appointed members shall be citizens Any appointed member shall be a citizen of
the state, shall represent the public interest and shall be persons who understand and be committed to
achieving the goals and objectives set forth in section one-a, article one of this chapter, the essential
conditions for community and technical college education programs and services set forth in article
three-c of this chapter, and the goals for secondary and post-secondary
vocational-technical-occupational and adult basic education in the state. The appointed members Any
appointed member shall represent the interests of the business, labor and employer communities and
demonstrate knowledge of the education needs of the various regions, attainment levels and age groups
within the state.
(e) (c) The governor may not appoint any person to be a member of the council who is an
officer, employee or member of an advisory board of any state college or university, the holder of any
other public office or public employment under the government of this state or any of its political
subdivisions, an appointee or employee of any governing board or an immediate family member of any employee under the jurisdiction of the commission or any governing board. No individual may An
individual may not serve on the council who is engaged in providing, or employed by a person or
company whose primary function is to provide, workforce development services and activities. of the
members appointed by the governor, no more than four thereof may belong to the same political party
and no more than three may be appointed from any congressional district.
(f) (d) Members of the council shall serve for staggered terms of four years. except that of the
original appointments, one member shall be appointed for one year; two members shall be appointed
for two years; two members shall be appointed for three years; and two members shall be appointed
for four years. No member may serve more than two consecutive full terms nor may any member be
appointed to a term which results in the member serving more than eight consecutive years.
Notwithstanding the provisions of subdivision (1), subsection (a) of this section, on the effective date
of this section any current member of the council maintains his or her appointment to the council and
continues to serve for the remainder of the term for which originally appointed. Any additional
appointment required by the provisions of said subdivision shall represent a consortia district not
otherwise represented on the council.
§18B-2B-5. Meetings and compensation.
(a) The vice chancellor shall call the initial meeting of the council and preside until a
chairperson is selected. The members shall elect a chairperson from among the persons appointed by
the governor. The council shall hold at least eight meetings annually and may meet more often at the
call of the chairperson. One such meeting shall be a public forum for the discussion of the goals and
standards for workforce development, economic development and vocational education in the state.
(b) The council shall hold an annual meeting each June for the purpose of electing officers for
the next fiscal year. At the annual meeting, the council shall elect from its appointed members a chairperson and other officers as it may consider necessary or desirable. Provided, That the initial
meeting for the purpose of selecting the first chairperson and other officers shall be held during July,
two thousand one, or as soon thereafter as practicable. The chairperson and other officers shall be are
elected for a one-year term two-year terms commencing on the first day of July following the annual
meeting. Provided, however, That the terms of officers elected in July, two thousand one, begin upon
election and end on the thirtieth day of June, two thousand two. The chairperson of the board may
serve no more than two consecutive two-year terms as chair, except that the member serving as
chairperson of the council on the effective date of this section is eligible to serve a two-year term
regardless of the number of consecutive terms already served.
(c) Members of the council shall serve without compensation. but shall be Members shall be
reimbursed for all reasonable and necessary expenses actually incurred in the performance of their
official duties under this article upon presentation of an itemized sworn statement of their expenses.
except that the An ex officio member of the council who is an employee of the state shall be is
reimbursed by the employing agency.
(d) A majority of the members appointed constitutes a quorum for conducting the business of
the council. All action taken by the council shall be by majority vote of the members present.
§18B-2B-6. Powers and duties of the council.
(a) The council has all the powers and duties assigned to the joint commission prior to the
effective date of this article as set forth in the provisions of section two, article two-b, chapter eighteen
of this code and such other powers and duties as may be assigned by law or by the commission.
Authority granted under that section to the joint commission as
(a) The council is the sole agency responsible for the administration of
vocational-technical-occupational education and community and technical college education in the
state. is hereby transferred to the council. (b) Under the supervision of the commission The council
has jurisdiction and authority over the community and technical colleges and the system of community
and technical college education as a whole, including community and technical college education
programs as defined in section two, article one of this chapter.
__(b) As relates to the authority established in subsection (a) of this section, the council has the
following powers and duties:
(1) Develop, oversee and advance the public policy agenda as it relates to community and
technical college education to address major challenges facing the state, including, but not limited to,
the goals and objectives found in section one-a, article one of this chapter and including specifically
those goals and objectives pertaining to the compacts created pursuant to section two, article one-a of
this chapter and to develop and implement the master plan described in section nine of this article for
the purpose of accomplishing the mandates of this section;
__(2) Jointly with the commission, develop, oversee and advance the implementation of a
financing policy for higher education in West Virginia. The policy shall meet the following criteria:
__(A) Provide an adequate level of education and general funding for institutions pursuant to
section five, article one-a of this chapter;
__(B) Serve to maintain institutional assets, including, but not limited to, human and physical
resources and deferred maintenance;
__(C) Invest and provide incentives for achieving the priority goals in the public policy agenda,
including, but not limited to, those found in section one-a, article one of this chapter; and
__(D) Establish for incorporation into the financing policy for higher education in West Virginia
a plan for strategic funding to strengthen capacity for support of community and technical college
education;
__(3) Create a policy leadership structure relating to community and technical college education
capable of the following actions:
__(A) Developing, building public consensus around and sustaining attention to a long-range
public policy agenda. In developing the agenda, the council shall seek input from the Legislature and
the governor and specifically from the state board of education and local school districts in order to
create the necessary linkages to assure smooth, effective and seamless movement of students through
the public education and post-secondary education systems and to ensure that the needs of public
school courses and programs can be fulfilled by the graduates produced and the programs offered;
__(B) Ensuring that the governing boards of the institutions under the council's jurisdiction carry
out their duty effectively to govern the individual institutions of higher education; and
__(C) Holding the community and technical college institutions and the community and technical
college system as a whole accountable for accomplishing their missions and implementing the
provisions of the compacts;
__(1) To develop and recommend to the commission
(4) To develop for inclusion in the statewide public agenda, a plan for raising education
attainment, increasing adult literacy, promoting work force and economic development and ensuring
access to advanced education for the citizens of West Virginia;
(2) (5) To provide statewide leadership, coordination, support, and technical assistance to the
community and technical colleges and to provide a focal point for visible and effective advocacy for their work and for the public policy agenda adopted approved by the commission and council. For the
institutions under their jurisdiction, this responsibility includes, but is not limited to:
(A) Ensuring that the governing boards carry out their duty effectively to govern the individual
institutions of higher education; and
(B) Holding the higher education institutions and the higher education system as a whole
accountable for accomplishing their missions and implementing the provisions of the compacts;
(3) To review and approve
(6) To review and adopt annually all institutional compacts for the community and technical
colleges prior to their submission to the commission for final approval pursuant to the provisions of
section two, article one-a of this chapter;
__(4) To consider and submit to the commission a budget
(7) Serve as the accountability point to:
__(A) The governor for implementation by the community and technical colleges of their role in
advancing the public policy agenda; and
__(B) The Legislature by maintaining a close working relationship with the legislative leadership
and the legislative oversight commission on education accountability;
__(8) Jointly with the commission, promulgate a legislative rule pursuant to article three-a,
chapter twenty-nine-a of this code to fulfill the purposes of section five, article one-a of this chapter;
__(9) Establish and implement the benchmarks and performance indicators necessary to measure
institutional achievement towards state policy priorities and institutional missions;
__(10) Review the progress of community and technical colleges in every region of West
Virginia. The review includes, but is not limited to, evaluating and reporting annually to the legislative
oversight commission on education accountability on the step-by-step implementation required in
article three-c of this chapter;
__(11) Annually report to the Legislature and to the legislative oversight commission on
education accountability during the January interim meetings on a date and at a time and location to
be determined by the president of the Senate and the speaker of the House of Delegates. The report
shall address at least the following:
__(A) The performance of the community and technical college system during the previous fiscal
year, including, but not limited to, progress in meeting goals stated in the compacts and progress of
the institutions and the system as a whole in meeting the goals and objectives set forth in section one-a,
article one of this chapter;
__(B) The priorities established for capital investment needs pursuant to subdivision (12) of this
subsection and the justification for such priority;
__(C) Recommendations of the council for statutory changes necessary to further the goals and
objectives set forth in section one-a, article one of this chapter;
__(12) Establish a formal process for identifying needs for capital investments and for
determining priorities for these investments. When the needs have been determined, the council shall
take the following steps:
__(A) Develop a ranked list of the top ten projects for capital investment for the institutions under
its jurisdiction;
__(B) Convey the ranked list to the commission for its consideration pursuant to section four,
article one-b of this chapter;
__(13) Draw upon the expertise available within the governor's work force investment office and
the West Virginia development office as a resource in the area of work force development and training;
__(14) Acquire legal services as are considered necessary, including representation of the council,
its institutions, employees and officers before any court or administrative body, notwithstanding any
other provision of this code to the contrary. The counsel may be employed either on a salaried basis
or on a reasonable fee basis. In addition, the council may, but is not required to, call upon the attorney
general for legal assistance and representation as provided by law;
__(15) Employ a chancellor for community and technical college education pursuant to section
three of this article;
__(16) Employ other staff as necessary and appropriate to carry out the duties and responsibilities
of the council consistent with the provisions of section two, article four of this chapter;
__(17) Employ other staff as necessary and appropriate to carry out the duties and responsibilities
of the council who are employed solely by the council;
__(18) Provide suitable offices in Charleston for the chancellor and other staff;
__(19) Approve the total compensation package from all sources for presidents of community and
technical colleges, as proposed by the governing boards. The governing boards must obtain approval
from the council of the total compensation package both when presidents are employed initially and
subsequently when any change is made in the amount of the total compensation package;
__(20) Establish and implement policies and procedures to ensure that students may transfer and
apply toward the requirements for a degree the maximum number of credits earned at any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat
courses or to incur additional costs as is consistent with sound academic policy;
__(21) Establish and implement policies and programs, jointly with the community and technical
colleges, through which students who have gained knowledge and skills through employment,
participation in education and training at vocational schools or other education institutions, or
internet-based education programs, may demonstrate by competency-based assessment that they have
the necessary knowledge and skills to be granted academic credit or advanced placement standing
toward the requirements of an associate degree or a bachelor's degree at a state institution of higher
education;
__(22) Seek out and attend regional and national meetings and forums on education and work
force development-related topics, as in the council's discretion is critical for the performance of their
duties as members for the purpose of keeping abreast of community and technical college education
trends and policies to aid it in developing the policies for this state to meet the established education
goals and objectives pursuant to section one-a, article one of this chapter;
__(23) Assess community and technical colleges for the payment of expenses of the council or
for the funding of statewide services, obligations or initiatives related specifically to the provision of
community and technical college education;
__(24) Promulgate rules allocating reimbursement of appropriations, if made available by the
Legislature, to community and technical colleges for qualifying noncapital expenditures incurred in
the provision of services to students with physical, learning or severe sensory disabilities;
__(25) Assume the prior authority of the commission in examining and approving tuition and fee
increase proposals submitted by community and technical college governing boards as provided in
section one, article ten of this chapter.
__(26) Consider and submit to the commission, a single budget for community and technical
college education that reflects recommended appropriations for community and technical colleges and
that:
(A) Includes recommended appropriations;
(B) Considers the progress of each institution toward meeting the essential conditions set forth
in section three, article three-c of this chapter, including independent accreditation; and
(C) (B) Considers the progress of each institution toward meeting the goals established in its
institutional compact;
(5) To make recommendations to the commission for approval of the administration and
distribution of
(27) Administer and distribute the independently accredited community and technical college
development account;
(6) (28) To design and recommend to the commission Establish a plan of strategic funding to
strengthen capacity for support of community and technical college education in all areas of the state;
(7) (29) To Foster coordination among all state-level, regional and local entities providing
post-secondary vocational education or work force development and to coordinate all public
institutions and entities that have a community and technical college mission;
(8) (30) To assume on behalf of the commission Assume the principal responsibility for
overseeing the implementation of the step-by-step process for achieving independent accreditation and
for meeting the essential conditions pursuant to article three-c of this chapter;
(9) To participate in the selection of administrative heads of the community and technical
colleges; as directed by the commission (31) Advise and consent in the appointment of the presidents
of the community and technical colleges pursuant to section six, article one-b of this chapter. The role
of the council in approving a president is to assure through personal interview that the person selected
understands and is committed to achieving the goals and objectives as set forth in the institutional
compact and in section one-a, article one of this chapter;
__(10) (32) To provide Provide a single, statewide link for current and prospective employers
whose needs extend beyond one locality;
(11) (33) To provide Provide a mechanism that serves two or more institutions to facilitate joint
problem-solving in areas including, but not limited to:
(A) Defining faculty roles and personnel policies;
(B) Delivering high-cost technical education programs across the state;
(C) Providing one-stop service for workforce training to be delivered by multiple institutions;
and
(D) Providing opportunities for resource-sharing and collaborative ventures;
(12) (34) To provide Provide support and technical assistance to develop, coordinate, and
deliver effective and efficient community and technical college education programs and services in
the state;
(13) (35) To assist Assist the community and technical colleges in establishing and promoting
links with business, industry and labor in the geographic areas for which each of the community and
technical colleges is responsible;
(14) (36) To develop Develop alliances among the community and technical colleges for
resource sharing, joint development of courses and courseware, and sharing of expertise and staff
development;
(15) (37) To serve Serve aggressively as an advocate for development of a seamless
curriculum;
(16) (38) To cooperate Cooperate with the governor's P-20 council of West Virginia to remove
barriers relating to transfer and articulation between and among community and technical colleges,
state colleges and universities, and public education, preschool through grade twelve;
(17) (39) To encourage Encourage the most efficient utilization of available resources; The
council for community and technical college education is responsible for advising the commission on
these issues and making appropriate recommendations
(16) (40) To assist Coordinate with the commission in informing public school students, their
parents and teachers of the academic preparation that students need in order to be prepared adequately
to succeed in their selected fields of study and career plans, including presentation of academic career
fairs;
(41) Jointly with the commission, approve and implement a uniform standard, as developed
by the chancellors, to determine which students shall be placed in remedial or developmental courses.
The standard shall be aligned with college admission tests and assessment tools used in West Virginia
and shall be applied uniformly by the governing boards throughout the public higher education system. The chancellors shall develop a clear, concise explanation of the standard which the governing boards
shall communicate to the state board of education and the state superintendent of schools;
__(40) (42) Develop and implement strategies and curriculum for providing developmental
education which shall be applied by any state institution of higher education providing developmental
education.
(17) (43) To assist the commission in developing Develop a statewide system of community
and technical college programs and services in every region of West Virginia for competency-based
certification of knowledge and skills, including a statewide competency-based associate degree
program;
(18) (44) To review Review and approve all institutional master plans for the community and
technical colleges; prior to their submission to the commission for final approval
(19) (45) To recommend to the commission Establish policies or rules for promulgation that
are necessary or expedient for the effective and efficient performance of community and technical
colleges in the state;
(46) In its sole discretion, transfer any rule under its jurisdiction, other than a legislative rule,
to the jurisdiction of the governing boards who may rescind, revise, alter or amend any rule so
transferred pursuant to rules adopted by the council;
__(20) (47) To recommend to the commission a set of Establish benchmarks and performance
indicators to apply to for community and technical colleges to measure institutional progress toward
meeting the goals as outlined in section one-a, article one of this chapter and in meeting the essential
conditions established in article three-c of this chapter;
(21) (48) To assist the commission staff in developing a separate section on community and
technical colleges Develop for inclusion in the higher education report card, as defined in section eight,
article one-b of this chapter, a separate section on community and technical colleges. This section
shall include, but is not limited to, evaluation of the institutions based upon the benchmarks and
indicators developed in subdivision (20) (47) of this subsection;
(22) (49) If approved by the commission to facilitate creation Facilitate continuation of the
advantage valley community college network under the leadership and direction of Marshall
community and technical college; recommended by the Implementation Board Report
(50) Initiate and facilitate creation of as well as any other regional networks of affiliated
community and technical colleges that the council finds to be appropriate and in the best interests of
the citizens to be served; if requested by all affected institutions in that region; as the commission finds
to be appropriate and in the best interests of the citizens to be served
(23) (51) To advise and assist the state board of education and the commission on Develop with
the state board of education state plans for secondary and post-secondary
vocational-technical-occupational and adult basic education, including, but not limited to:
(A) Policies to strengthen vocational-technical-occupational and adult basic education; and
(B) Programs and methods to assist in the improvement, modernization and expanded delivery
of vocational- technical-occupational and adult basic education programs;
(24) (52) To distribute Distribute federal vocational education funding provided under the Carl
D. Perkins Vocational and Technical Education Act of 1998, PL 105-332, with an emphasis on the
distribution of distributing financial assistance among secondary and post-secondary vocational-technical-occupational and adult basic education programs to help meet the public policy
agenda.
In distributing funds the council shall use the following guidelines:
(A) The board of education shall continue to be the fiscal agent for federal vocational education
funding;
(B) For the fiscal years beginning on the first day of July, two thousand one and two thousand
two, the percentage split of the federal allocation for vocational education between the West Virginia
board of education and the commission shall remain the same as the percentage split that was
distributed to the board of education and the commission for the fiscal year that began on the first day
of July, two thousand;
(C) For the fiscal year beginning on the first day of July, two thousand three and thereafter,
(B) The percentage split between the board of education and the commission council shall be
determined by rule promulgated by the council under the provisions of article three-a, chapter
twenty-nine-a of this code. Provided, That the The council shall first obtain the approval of the board
of education before proposing a rule;
(25) (53) To collaborate Collaborate, cooperate and interact with all secondary and
post-secondary vocational-technical-occupational and adult basic education programs in the state,
including the programs assisted under the federal Carl D. Perkins Vocational and Technical Education
Act of 1998, PL 105-332, and the Workforce Investment Act of 1998, to promote the development of
seamless curriculum and the elimination of duplicative programs;
(26) (54) To coordinate Coordinate the delivery of vocational- technical-occupational and adult
basic education in a manner designed to make the most effective use of available public funds to
increase accessibility for students;
(27) (55) To analyze Analyze and report to the commission and the West Virginia board of
education on the distribution of spending for vocational-technical-occupational and adult basic
education in the state and on the availability of vocational-technical-occupational and adult basic
education activities and services within the state;
(28) (56) To promote Promote the delivery of vocational-technical-occupational education,
adult basic education and community and technical college education programs in the state which
emphasize the involvement of business, industry and labor organizations;
(29) (57) To promote Promote public participation in the provision of
vocational-technical-occupational education, adult basic education and community and technical
education at the local level, with an emphasis on emphasizing programs which involve the
participation of local employers and labor organizations;
(30) (58) To promote Promote equal access to quality vocational-technical-occupational
education, adult basic education and community and technical college education programs to
handicapped and disadvantaged individuals, adults who are in need of training and retraining,
individuals who are single parents, or homemakers, individuals participating participants in programs
designed to eliminate sexual bias and stereotyping and criminal offenders serving in correctional
institutions;
(31) (59) To meet Meet annually between the months of October and December with the
advisory committee of community and technical college presidents and provosts created pursuant to section eight of this article to discuss those matters relating to community and technical college
education in which advisory committee members or the council may have an interest; and
(32) (60) To accept Accept and expend any gift, grant, contribution, bequest, endowment or
other money for the purposes of this article;
(61) Assume the powers set out in section five, article three of this chapter. The rules
previously promulgated by the state college system board of directors pursuant to that section and
transferred to the commission are hereby transferred to the council and shall continue in effect until
rescinded, revised, altered or amended by the council;
__(62) Pursuant to the provisions of article three-a, chapter twenty-nine-a of this code and section
six, article one of this chapter, promulgate rules as necessary or expedient to fulfill the purposes of this
chapter. The council and commission shall promulgate a uniform joint legislative rule for the purpose
of standardizing, as much as possible, the administration of personnel matters among the institutions
of higher education;
__(63) Determine when a joint rule among the governing boards of the community and technical
colleges is necessary or required by law and, in those instances and in consultation with the governing
boards, promulgate the joint rule;
__(64) Promulgate a joint rule with the commission establishing tuition and fee policy for all
institutions of higher education. The rule shall include, but is not limited to, the following:
__(A) Comparisons with peer institutions;
__(B) Differences among institutional missions;
__(C) Strategies for promoting student access;
__(D) Consideration of charges to out-of-state students; and
__(E) Such other policies as the commission and council consider appropriate;
__(65) In cooperation with the West Virginia division of highways, study a method for increasing
the signage signifying community and technical college locations along the state interstate highways,
and report to the legislative oversight commission on education accountability regarding any
recommendations and required costs; and
__(66) Implement a policy jointly with the commission whereby any course credit earned at a
community and technical college transfers for program credit at any other state institution of higher
education and is not limited to fulfilling a general education requirement.
__(c) In addition to the powers and duties listed in subsections (a) and (b) of this section, the
council has the following general powers and duties related to its role in developing, articulating and
overseeing the implementation of the public policy agenda for community and technical colleges:
__(1) Planning and policy leadership including a distinct and visible role in setting the state's
policy agenda for the delivery of community and technical college education and in serving as an agent
of change;
__(2) Policy analysis and research focused on issues affecting the community and technical
college system as a whole or a geographical region thereof;
__(3) Development and implementation of each community and technical college mission
definition including use of incentive funds to influence institutional behavior in ways that are
consistent with public priorities;
__(4) Academic program review and approval for the institutions under its jurisdiction, including
the use of institutional missions as a template to judge the appropriateness of both new and existing
programs and the authority to implement needed changes;
__(5) Development of budget and allocation of resources for institutions delivering community
and technical college education, including reviewing and approving institutional operating and capital
budgets and distributing incentive and performance-based funding;
__(6) Acting as the agent to receive and disburse public funds related to community and technical
college education when a governmental entity requires designation of a statewide higher education
agency for this purpose;
__(7) Development, establishment and implementation of information, assessment and
accountability systems including maintenance of statewide data systems that facilitate long-term
planning and accurate measurement of strategic outcomes and performance indicators for community
and technical colleges;
__(8) Jointly with the commission, development, establishment and implementation of policies
for licensing and oversight of both public and private degree-granting and nondegree-granting
institutions that provide post-secondary education courses or programs pursuant to the findings and
policy recommendations to be determined as set forth in section eleven, article one-b of this chapter;
__(9) Development, implementation and oversight of statewide and regionwide projects and
initiatives related specifically to providing community and technical college education such as those
using funds from federal categorical programs or those using incentive and performance-based funding
from any source; and
__(10) Quality assurance that intersects with all other duties of the council particularly in the
areas of planning, policy analysis, program review and approval, budgeting and information and
accountability systems.
__(d) The council is authorized to withdraw specific powers of a governing board under its
jurisdiction for a period not to exceed two years if the council makes a determination that:
__(1) The governing board has failed for two consecutive years to develop an institutional
compact as required in article one of this chapter;
__(2) The council has received information, substantiated by independent audit, of significant
mismanagement or failure to carry out the powers and duties of the board of governors according to
state law; or
__(3) Other circumstances which, in the view of the council, severely limit the capacity of the
board of governors to carry out its duties and responsibilities.
__The period of withdrawal of specific powers may not exceed two years during which time the
council is authorized to take steps necessary to reestablish the conditions for restoration of sound,
stable and responsible institutional governance.
__(e) In addition to the powers and duties provided for in subsections (a) and (b), (c) and (d) of
this section and any other powers and duties as may be assigned to it by law, or by the commission the
council has:
(1) Such other powers and duties as may be necessary or expedient to accomplish the purposes
of this article; and
__(2) All powers, duties and responsibilities directly related to community and technical colleges
and community and technical college education that were vested in the commission prior to the
effective date of this section.
__(f) When the council and commission, each, is required to consent, cooperate, collaborate or
provide input into the actions of the other:
__(1) The body acting first shall convey its decision in the matter to the other body with a request
for concurrence in the action;
__(2) The commission or the council, as the receiving body, shall place the proposal on its agenda
and shall take final action within sixty days of the date when the request for concurrence is received;
and
__(3) If the receiving body fails to take final action within sixty days, the original proposal stands
and is binding on both the commission and the council.
§18B-2B-6a. Transfer of funds; council authority to expend funds.
On the effective date of this section, the unexpended balance remaining in the appropriation
for the West Virginia council for community and technical education is transferred from the
commission to the authority of the council to be expended by the council to carry out the purposes of
this article.
§18B-2B-7. Powers and duties of the chief executive officer.
(a) The vice chancellor for community and technical college education is the chief executive
officer of the council and as such may exercise the powers and duties assigned pursuant to subsection
(3), section five, article one-b of this chapter. The vice chancellor has all powers and duties assigned
by law or by the commission and, in addition by the council. The chancellor has the following powers
and duties:
(1) To serve as the principal accountability point for the commission council for
implementation of the public policy agenda as it relates to community and technical colleges;
(2) To serve on behalf of the commission as the liaison to the council and to the community
and technical colleges;
(3) (2) To assume on behalf of the commission the principal responsibility for directing and
assisting the work of the council; and
(4) (3) With the approval of the commission and the chancellor to employ To supervise and
direct staff of the council as necessary and appropriate to carry out the duties and responsibilities of
this article.
(A) On the first day of July, two thousand one effective date of this section, all personnel
employed on the thirtieth day of June, two thousand one, within the joint commission for
vocational-technical-occupational education are hereby transferred to the jurisdiction of the
commission and are under the direct supervision of the vice chancellor and the chancellor: Provided,
That by the commission and under the supervision of the vice chancellor for community and technical
college education and workforce development on the first day of January, two thousand four, are
transferred to the jurisdiction of the council and are under the direct supervision of the chancellor for
community and technical college education.
__(B) Prior to the first day of October, two thousand one, no employee shall four, any such
employee, including the chief executive officer of the council, may not be terminated or have his or
her salary or benefit level reduced as the sole result of the governance reorganization set forth in this
article.
__(4) On behalf of the council, the chancellor may enter into agreements with any state agency
or political subdivision of the state, any state higher education institution or any other person or entity
to enlist staff assistance to implement the powers and duties assigned to the council by state law.
__(5) The chancellor is responsible for the day-to-day operations of the council and has the
following responsibilities:
__(A) To carry out policy and program directives of the council;
__(B) To develop and submit annual reports on the implementation plan to achieve the goals and
objectives set forth in section one-a, article one of this chapter and in the institutional compacts;
__(C) To prepare and submit to the council for its approval the proposed budget of the council
including the office of the chancellor and necessary staff;
__(D) To assist the governing boards in developing rules, subject to the provisions of section six,
article one of this chapter. Nothing in this chapter requires the rules of the governing boards to be filed
pursuant to the rule-making procedures provided in article three-a, chapter twenty-nine-a of this code.
The chancellor is responsible for ensuring that any policy which is required to be uniform across the
institutions under the jurisdiction of the council is applied in a uniform manner; and
__(E) To perform all other duties and responsibilities assigned by the council or by state law.
__(6) The chancellor shall be reimbursed for all actual and necessary expenses incurred in the
performance of all assigned duties and responsibilities.
__(7) The council is the primary advocate for community and technical college education and,
with the chancellor, advises the Legislature on matters of community and technical college education
in West Virginia. The chancellor shall work closely with the legislative oversight commission on
education accountability and with the elected leadership of the state to ensure that they are fully
informed about community and technical college education issues and that the council fully
understands the goals for higher education that the Legislature has established by law.
__(8) The chancellor may design and develop for consideration by the council new statewide or
regional initiatives directly related to community and technical college education and in accordance
with the goals set forth in section one-a, article one of this chapter and the public policy agenda.
__(9) The chancellor shall work closely with members of the state board of education and with
the state superintendent of schools to assure that the following goals are met:
__(A) Development and implementation of a seamless kindergarten-through-college system of
education; and
__(B) Appropriate coordination of missions and programs. To further the goals of cooperation
and coordination between the council and the state board of education, the chancellor serves as an ex
officio, nonvoting member of the state board of education.
__§18B-2B-8. State advisory committee of community and technical college presidents.
(a) Effective the first day of July, two thousand one, there is hereby created There is continued
the state advisory committee of community and technical college presidents. and provosts For the
purposes of this section, the state advisory committee of community and technical college presidents
and provosts shall be is referred to as the "advisory committee".
(b) Each president or other administrative head of a public community and technical college,
as defined in section four, article three-c one, article six of this chapter, shall be is a member of the
advisory committee. An administrative head of a component, branch, center, regional center or other
delivery site with a community and technical college mission may be a member if considered
appropriate.
(c) The vice chancellor serves as chair of the advisory committee. and shall convene the initial
meeting during the month of July, two thousand one. Thereafter the The advisory committee shall
meet at least once each quarter and may meet at such other times as called by the chair or by a majority
of the members.
(d) The advisory committee shall communicate to the council through the vice chancellor on
matters of importance to the group. and It shall meet annually between the months of October and
December with the council to discuss those matters relating to community and technical college
education in which advisory committee members or the council may have an interest.
(e) The vice chancellor shall prepare meeting minutes which shall be made available, upon
request, to the public.
ARTICLE 2C. WEST VIRGINIA COMMUNITY AND TECHNICAL COLLEGE.
§18B-2C-3. Authority and duty of council to determine progress of community and technical
colleges; conditions; authority to create West Virginia community and
technical college.
(a) Beginning on the first day of July, two thousand one, and at least annually thereafter, the
commission The council annually shall review and analyze all the public community and technical
colleges, and any branches, centers, regional centers and or other delivery sites with a community and
technical college mission, to determine their progress toward meeting the goals and objectives set forth
in section one-a, article one of this chapter and toward advancing the purposes, goals and objectives
set forth in article three-c of this chapter.
(b) The analysis required in subsection (a) of this section shall be based, in whole or in part,
upon the findings made pursuant to the rule establishing benchmarks and indicators required to be
promulgated by the commission in section two, article one-a of this chapter council in section six,
article two-b of this chapter.
(c) Based upon their analysis in subsections (a) and (b) of this section, the commission council
shall make a determination whether any one or more of the following conditions exist exists:
(1) One or more of the component community and technical colleges required to do so has not
achieved or is not making sufficient, satisfactory progress toward achieving the essential conditions,
including independent accreditation;
(2) One or more of the public community and technical colleges, branches, centers, regional
centers and other delivery sites with a community and technical college mission requires financial
assistance or other support to meet the goals and essential conditions set forth in this chapter;
(3) It is in the best interests of the people of the state or a region within the state to have a
single, accredited institution which can provide an umbrella of statewide accreditation;
(4) It is in the best interests of the people of the state or a region of the state to have one
accredited institution able to extend accreditation to institutions and entities required to seek
independent accreditation;
(5) One or more of the public community and technical colleges, branches, centers, regional
centers or other delivery sites with a community and technical college mission requests from the
commission council the type of assistance which can best be delivered through implementation of the
provisions of section four of this article. Institutional requests that may be considered by the
commission council include, but are not limited to, assistance in seeking and/or attaining independent
accreditation, in meeting the goals for post-secondary education established in section one-a, article
one of this chapter, in meeting the essential conditions set forth in section three, article three-c of this
chapter, or in establishing and implementing regional networks.
(6) One or more public community and technical colleges, branches, centers, regional centers
or other delivery sites with a community and technical college mission has not met, or is not making sufficient, satisfactory progress toward meeting, the goals set forth in section one-a, article one of this
chapter; and
(7) The council makes a recommendation to the commission determines that it is in the best
interests of the people of the state or a region of the state to create a statewide, independently
accredited community and technical college.
(d) The commission council may not make a determination subject to the provisions of
subsection (c) of this section that a condition does not exist based upon a finding that the higher
education entity lacks sufficient funds to make sufficient, satisfactory progress.
(e) The commission shall prepare By the first day of December annually, the council shall
prepare and file with the legislative oversight commission on education accountability a written report
on the findings and determinations required by this section, for the legislative oversight commission
on education accountability by the first day of December, two thousand one, and each year thereafter
together with a detailed history of any actions taken by the commission council under the authority of
this article.
§18B-2C-4. Authority of council in creating West Virginia community and technical college.
(a) Subject to the provisions of subsection (c), section three of this article, if the commission
council makes a determination that one or more of the conditions exists, then the commission council
is authorized to create the West Virginia community and technical college.
(b) As soon as practicable after the commission council determines that the college should be
created, the commission council shall notify the governor, the president of the Senate, the speaker of
the House of Delegates and the legislative oversight commission on education accountability of the
proposed actions. Provided, That the commission The council shall conduct a study regarding the procedures, findings and determinations considered necessary prior to any creation of the college and
shall report its findings to the legislative oversight commission on education accountability. no later
than the first day of December, two thousand one: Provided, however, That the commission The
council may not create the college prior to the report being received by the legislative oversight
commission on education accountability.
(c) The commission On or before the first day of December of the year in which the college
is created, the council shall certify to the legislative oversight commission on education accountability
on or before the first day of December of the year in which the college is created proposed legislation
to accomplish the purposes of this article for those matters requiring statutory change.
ARTICLE 3C. COMMUNITY AND TECHNICAL COLLEGE SYSTEM.
§18B-3C-2. Purposes of article.
The general purposes of this article are the following:
(a) To establish community and technical college education that is well articulated with the
public schools and four-year colleges; that makes maximum use of shared facilities, faculty, staff,
equipment and other resources; that encourages traditional and nontraditional students and adult
learners to pursue a lifetime of learning; that serves as an instrument of economic development; and
that has the independence and flexibility to respond quickly to changing needs;
(b) To charge the respective governing boards with providing community and technical college
education at state institutions of higher education under their jurisdiction that has the administrative,
programmatic and budgetary control necessary to allow maximum flexibility and responsiveness to
district and community needs. Education services shall be provided consistent with the goal of sharing facilities, faculty, staff, equipment and other resources within and among the districts, the other
systems of public and higher education and other education and training programs;
(c) To establish the essential conditions for community and technical college programs and
services, as defined in section three of this article, necessary to ensure that each region of West
Virginia is served by a community and technical college meeting the needs of the people of the region;
(d) To establish a mechanism for assuring that, where applicable, a transition plan for meeting
the essential conditions is developed by each relevant community and technical college;
(e) To establish responsibility community and technical college consortia districts for each of
the community and technical colleges to ensure accountability that the full range of community and
technical college education programs and services is provided in all areas of the state, including the
implementation of seamless curricula and the West Virginia EDGE, "Earn a Degree Graduate Early"
program;
(f) To define the full range of programs and services that every each community and technical
college has the responsibility to provide; and
(g) To establish such other policies and procedures necessary to ensure that the needs of West
Virginia, its people and its businesses are met for the programs and services that can be provided
through a comprehensive system of community and technical colleges.
§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 higher
learning commission of the north central association of colleges and schools (NCA), by the first day of July, two thousand five, 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. An institution meets this requirement if on such date the council determines that the
institution is on target to meet independent accreditation status. A community and technical college
continues to share the accreditation of the sponsoring institution until such time as independent
accreditation is achieved;
(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 provost president who is the chief academic and administrative executive 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 president reports 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 at each meeting for the president to discuss issues
relevant to the mission of the component community and technical college;
(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:
(1) College and university faculty, to teach community college courses; and
(2) 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 provost of the community and technical college has full
(l) Full budgetary authority for the entity president of the institution, 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. Community and technical college consortia planning districts.
(a) Unless otherwise designated, the president of each community and technical college
facilitates the formation of community and technical college consortia in the state, which includes
representatives of community and technical colleges, public vocational-technical education centers,
and public baccalaureate institutions offering associate degrees. The community and technical college
consortium shall:
(1) Complete a comprehensive assessment of the district to determine what education and
training programs are necessary to meet the short and long-term work force development needs of the
district;
(2) Coordinate efforts with regional labor market information systems to identify the ongoing
needs of business and industry, both current and projected, and to provide information to assist in an
informed program of planning and decision making;
(3) Plan and develop a unified effort between the community and technical colleges and public
vocational-technical education to meet the documented work force development needs of the district through individual and cooperative programs, shared facilities, faculty, staff, equipment and other
resources and the development and use of distance learning and other education technologies;
(4) Regularly review and revise curricula to ensure that the work force needs are met, develop
new programs and phase out or modify existing programs as appropriate to meet such needs,
streamline procedures for designing and implementing customized training programs;
(5) Increase the integration of secondary and post-secondary curriculum and programs that are
targeted to meet regional labor market needs, including implementation of seamless curricula project
in all major career pathways and the West Virginia EDGE, "Earn a Degree Graduate Early" program;
(6) Plan and implement integrated professional development activities for secondary and
post-secondary faculty, staff and administrators;
(7) Ensure that program graduates have attained the competencies required for successful
employment through the involvement of business, industry and labor in establishing student
credentialing;
(8) Performance assessment of student knowledge and skills which may be gained from
multiple sources so that students gain credit toward program completion and advance more rapidly
without repeating course work in which they already possess competency;
(9) Cooperate with work force investment boards in establishing one-stop-shop career centers
with integrated employment and training and labor market information systems that enable job seekers
to assess their skills, identify and secure needed education training and secure employment and
employers to locate available workers;
(10) Increase the integration of adult literacy, adult basic education, federal Work Force
Investment Act and community and technical college programs and services to expedite the transition
of adults from welfare to gainful employment; and
(11) Establish a single point of contact for employers and potential employers to access
education and training programs throughout the district.
(b) The community and technical college education consortium shall cooperate with the
regional work force investment board in the district and shall participate in any development or
amendment to the regional work force investment plan.
(c) To carry out the provisions of this section, community and technical college consortia
planning districts are established and defined as follows:
(1) Northern panhandle community and technical college district includes Hancock, Brooke,
Ohio, Marshall and Wetzel counties.
(A) The facilitating institution is West Virginia northern community and technical college.
(B) Participating institutions include West Virginia northern community and technical college;
John Marshall high school; Cameron high school; John D. Rockefeller center; and other public
vocational technical schools offering post-secondary programs.
(2) North central West Virginia community and technical college district includes Monongalia,
Marion, Preston, Taylor, Barbour, Randolph, Doddridge, Harrison, Braxton, Lewis, Calhoun, Gilmer
and Upshur counties.
(A) The facilitating institution is Fairmont state community and technical college.
(B) Participating institutions include Fairmont state community and technical college; Glenville
state college; Randolph county vocational-technical center; Monongalia county technical education center; united technical center; Marion county technical center; Fred W. Eberly technical center; and
other public vocational technical schools offering post-secondary programs.
(3) Mid-Ohio valley community and technical college district includes Tyler, Pleasants,
Ritchie, Wood, Wirt, Jackson and Roane counties.
(A) The facilitating institution is West Virginia university at Parkersburg.
(B) Participating institutions includes West Virginia university at Parkersburg; West Virginia
northern community and technical college; Roane-Jackson technical center; Gaston Caperton center;
Wood County technical center; and other public vocational technical schools offering post-secondary
programs.
(4) Potomac highlands community and technical college district includes Tucker, Pendleton,
Grant, Hardy, Mineral and Hampshire counties.
(A) The facilitating institution is eastern West Virginia community and technical college.
(B) Participating institutions include eastern West Virginia community and technical college;
South Branch career and technical center; Mineral County technical center; and other public vocational
technical schools offering post-secondary programs.
(5) Shenandoah valley community and technical college district includes Berkeley, Jefferson
and Morgan counties.
(A) The facilitating institution is Shepherd the community and technical college of Shepherd.
(B) Participating institutions include Shepherd the community and technical college of
Shepherd; James Rumsey technical institute; and other public vocational technical schools offering
post-secondary programs.
(6) Advantage valley community and technical college district includes Fayette, Kanawha,
Clay, Putnam, Cabell, Mason and Wayne counties.
(A) The facilitating institution is Marshall community and technical college.
(B) Every five years the council shall:
(i) Evaluate the progress of the advantage valley consortia toward achieving the goals and
benchmarks of its compact;
(ii) Evaluate the progress of each community and technical college in the district toward
achieving the goals and benchmarks of its institutional compact;
(iii) Determine which community and technical college in the district would best serve the
needs of the district for the following five-year period if serving as the facilitating institution; and
(iv) Designate the community and technical college selected pursuant to subparagraph (iii) of
this paragraph to serve as the facilitating institution for the following five-year period.
(C) Participating institutions include Marshall community and technical college; the
community and technology college at West Virginia university institute of technology; West Virginia
state community and technical college; Carver career center; Garnet career center; Ben Franklin career
center; Putnam County vocational-technical-occupational center; Cabell County career-technical
center; and other public vocational technical schools offering post-secondary programs.
(7) Southern mountains community and technical college district includes Lincoln, Boone,
Logan, Mingo, Wyoming and McDowell counties.
(A) The facilitating institution is southern West Virginia community and technical college.
(B) Participating institutions include southern West Virginia community and technical college;
New River community and technical college; Boone County career and technical center; Wyoming County vocational-technical center; Ralph R. Willis Career and technical center; McDowell County
career and technology center; Mingo County vocation-technical center; Charles Yeager technical
center; and other public vocational technical schools offering post-secondary programs.
(8) Southeastern community and technical college district includes Raleigh, Summers, Fayette,
Nicholas, Webster, Pocahontas, Greenbrier, Monroe and Mercer counties.
(A) The facilitating institution is New River community and technical college.
(B) Participating institutions include New River community and technical college; southern
West Virginia community and technical college; the community and technical college at West Virginia
university institute of technology; Bluefield state college; academy of careers and technology; Fayette
plateau vocation-technology center; Summers County high school; Monroe County technical center;
Mercer County technical center; and other public vocational technical schools offering post-secondary
programs.
(d) In the role of the facilitating institution of the community and technical college district, the
college:
(1) Communicates to the council;
(2) Facilitates the delivery of comprehensive community and technical college education in the
region, which includes the seven areas of comprehensive community and technical college education
delivery as required by section six of this article; and
(3) Facilitates development of statement of commitment signed by all participating institutions
in the region as to how community and technical college education will be delivered.
(e) Participating institutions are not subordinate to the facilitating institution but will sign the
statement of commitment to participate.
(f) The council shall:
(1) Establish guidelines for community and technical college consortia development;
(2) Set goals for each consortium based upon legislative goals for the delivery of
comprehensive community and technical college education; and
(3) Establish a format for development of a consortium compact outlining plans for achieving
stated goals to be submitted to the council for approval on or before the fifteenth day of November,
two thousand four.
(g) On or before the fifteenth day of November, two thousand four, each consortium shall
submit to the council for approval a compact which outlines plans for obtaining the stated goals. Each
compact shall include the implementation of seamless curricula and the West Virginia EDGE, "Earn
a Degree Graduate Early" program, and be updated annually.
(h) The council annually shall evaluate the progress made in meeting the compact goals for
each community and technical college consortia through the development and collection of
performance indicator data.
§18B-3C-5. Appointment of community and technical college presidents.
The administrative head of a community and technical college shall be is the president or the
provost, who shall be who is chosen pursuant to the terms of section six, article one-b of this chapter.
Any individual employed as provost of an administratively linked community and technical college
on the first day of January, two thousand four, continues as the administrative head of the institution
and becomes the community and technical college president on the effective date of this section.
§18B-3C-6. Community and technical college programs.
(a) The mission of each community and technical college includes the following programs
which may be offered on or off campus, at the work site, in the public schools and at other locations
and at times that are convenient for the intended population:
(1) Career and technical education skill sets, certificates, associate of applied science and
selected associate of science degree programs for students seeking immediate employment, individual
entrepreneurship skills, occupational development, skill enhancement and career mobility;
(2) Transfer education associate of arts and associate of science degree programs for students
whose education goal is to transfer into a baccalaureate degree program;
(3) Developmental/remedial education courses, literacy education, tutorials, skills development
labs and other services for students who need to improve their skills in mathematics, English, reading,
study skills, computers and other basic skill areas;
(4) Workforce training and retraining and contract education with business and industry to train
or retrain employees;
(5) Continuing development assistance and education credit and noncredit courses for
professional and self-development, certification and licensure and literacy training;
(6) Community service workshops, lectures, seminars, clinics, concerts, theatrical performances
and other noncredit activities to meet the cultural, civic and personal interests and needs of the
community; and
(7) Cooperative arrangements with the public school system for the seamless progression of
students through programs of study which are calculated to begin at the secondary level and conclude
at the community and technical college level.
(b) All administrative, programmatic and budgetary control over community and technical
college education within the district shall be institution is vested in the president, or provost subject
to rules adopted by the interim governing board or the chancellor. The president and the provost
council. The president with the institutional board of governors or institutional board of advisors, as
appropriate, shall be is responsible for the regular review, revision, elimination and establishment of
programs within the district institution to assure that the needs of the district for community and
technical college programs consortia district are met. It is the intent of the Legislature that the program
review and approval process for community and technical college education be separate and distinct
from baccalaureate education and subject to the provisions of section nine of this article. The president
and institutional board of advisors shall seek assistance from and utilize a district consortium
committee in fulfilling this responsibility.
(c) Independently accredited community and technical colleges will shall serve as higher
education centers for their regions by brokering with colleges, universities and other providers, in state
and out of state, to ensure the coordinated access of students, employers and other clients to needed
programs and services.
§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 By the first day of July,
two thousand five, West Virginia shall have 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 or West Virginia university at Parkersburg. and
Potomac state college of West Virginia university.
(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;
(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) 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
(A) There is continued the multicampus entity known as New River community and technical
college, administratively linked to Bluefield state college. The multicampus community and technical
college shall serve Raleigh, Summers, Fayette, Greenbrier, Clay, Mercer, McDowell, Monroe,
Nicholas, Pocahontas, and Webster counties and be New River community and technical college is
headquartered in the Beckley higher education center and incorporates the campuses of Greenbrier
community college center of New River community and technical college and Nicholas community
college center of New River community and technical college. The West Virginia council for
community and technical college education New River community and technical college shall be an
independently accredited community and technical college. The council 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.
The board of advisors shall become the board of governors pursuant to section one, article two-a of
this chapter when the institution achieves independent accreditation.
_____________(B) Bluefield state college may continue associate degree programs 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 through direct coordination with a
baccalaureate institution. Any such program shall be delivered under the authority of the council and
through contract with the community and technical college. The terms of the contract shall be
negotiated between the council and the governing board of the sponsoring institution. The final
contract is approved by the council. Such a program shall be evaluated according to the benchmarks
and indicators for community and technical college education developed by the council. If the council
determines that the program is making insufficient progress toward accomplishing the benchmarks,
the program shall thereafter be delivered by the community and technical college.
_____________(C) Bluefield state college may continue the associate of science degree in nursing which is an
existing nationally accredited associate degree program in an area of particular institutional strength
and which is closely articulated to the baccalaureate program and mission. The program is of a high-
cost nature and can best be provided through direct administration by a baccalaureate institution. This
program may not be transferred to New River community and technical college or any other
community and technical college as long as the program maintains national accreditation and is
seamlessly coordinated into the baccalaureate program at the institution.
_____________(C) Bluefield state college shall take immediate steps to seek independent accreditation of
(D) By the first day of July, two thousand five, New River community and technical college
including all sites within its revised service district shall be independently accredited. The president
and the board of governors of Bluefield state college 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 council 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) (E) The president and the board of governors of Bluefield state college also are accountable
to the commission council 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) (F) 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) (G) New River community and technical college shall facilitate participate in 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
education and 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
mountain state university, 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.
(2) Fairmont state community and technical college. -- Fairmont state community and technical
college shall be is an independently accredited community and technical college. serving Marion,
Doddridge, Barbour, Harrison, Monongalia, Preston, Randolph 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 council, 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 may be construed to require Fairmont state college to discontinue any
associate degree program Fairmont state college may continue associate degree programs 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. Any such program shall be delivered under the authority of the council and
through contract with the community and technical college. The terms of the contract shall be
negotiated between the council and the governing board of the sponsoring institution. The final
contract is approved by the council. Such a program shall be evaluated according to the benchmarks
and indicators for community and technical college education developed by the council. If the council
determines that the program is making insufficient progress toward accomplishing the benchmarks,
the program shall thereafter be delivered by the community and technical college.
(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 is an independently accredited community and
technical college. It 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 council, 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 may be construed to require
Marshall university to discontinue any associate degree program Marshall university may continue
associate degree programs 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. Any such program shall be delivered under the
authority of the council and through contract with the community and technical college. The terms
of the contract shall be negotiated between the council and the governing board of the sponsoring
institution. The final contract is approved by the council. Such a program shall be evaluated according
to the benchmarks and indicators for community and technical college education developed by the council. If the council determines that the program is making insufficient progress toward
accomplishing the benchmarks, the program shall thereafter be delivered by the community and
technical college.
(4) Shepherd The community and technical college of Shepherd. -- Shepherd The community
and technical college of Shepherd shall become an independently accredited community and technical
college. It 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 council, 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 may be construed to require Shepherd
college to discontinue any associate degree program Shepherd college may continue associate degree
programs 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. Any such program shall be delivered under the authority
of the council and through contract with the community and technical college. The terms of the
contract shall be negotiated between the council and the governing board of the sponsoring institution.
The final contract is approved by the council. Such a program shall be evaluated according to the
benchmarks and indicators for community and technical college education developed by the council.
If the council determines that the program is making insufficient progress toward accomplishing the
benchmarks, the program shall thereafter be delivered by the community and technical college.
(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 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 council, 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 may be construed to require
West Virginia state college to discontinue any associate degree program West Virginia state college
may continue associate degree programs 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. Any such program shall be
delivered under the authority of the council and through contract with the community and technical
college. The terms of the contract shall be negotiated between the council and the governing board
of the sponsoring institution. The final contract is approved by the council. Such a program shall be
evaluated according to the benchmarks and indicators for community and technical college education developed by the council. If the council determines that the program is making insufficient progress
toward accomplishing the benchmarks, the program shall thereafter be delivered by the community
and technical college.
(6) The community and technical college at 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 The community and technical college at West Virginia university institute of technology
community and technical college shall become is an independently accredited community and
technical college. It 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 may be construed to require West Virginia
university institute of technology to discontinue any associate degree program West Virginia university
institute of technology may continue associate degree programs 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. Any
such program shall be delivered under the authority of the council and through contract with the
community and technical college. The terms of the contract shall be negotiated between the council
and the governing board of the sponsoring institution. The final contract is approved by the council.
Such a program shall be evaluated according to the benchmarks and indicators for community and
technical college education developed by the council. If the council determines that the program is
making insufficient progress toward accomplishing the benchmarks, the program shall thereafter be
delivered by the community and technical college.
_____________(d) For each administratively linked community and technical college which fails to achieve
independent accreditation by the first day of July, two thousand five, the council shall choose one of
the following options:
_____________(1) Create the administratively linked institution as a freestanding community and technical
college; or
_____________(2) Assign the responsibility for obtaining independent accreditation to another state institution
of higher education.
_____________The president and the board of governors of each sponsoring institution is accountable to the
council for ensuring that the community and technical college is able to meet the conditions for
independent accreditation and adheres to the essential conditions pursuant to section three of this
article.
§18B-3C-9. Increasing flexibility for community and technical colleges.
(a) Notwithstanding any rules or procedures of the governing boards to the contrary, the
community and technical colleges have the authority and the duty to:
(1) Incorporate the most effective and efficient use of technology in accessing and delivering
courses and programs in order to make the best use of available resources and to control costs;
(2) Incorporate a model to offer occupational program curricula in smaller modules to
accommodate specific student and employer needs and to gain sufficient flexibility in formatting
courses;
(3) Serve as a facilitator for education programs from outside delivery sources to meet the
needs of the residents and employers of the district; and
(4) Employ faculty in the most effective manner to serve the core mission of the community
and technical college.
(A) To that end, the freestanding community and technical colleges may employ faculty for an
indefinite period without a grant of tenure and shall work toward a staffing goal of no more than
twenty percent of the faculty holding tenure or being tenure-track employees. Provided, That tenured
Tenured faculty employed by the freestanding community and technical colleges before the first day
of July, one thousand nine hundred ninety-nine, shall not be are not affected by this provision.
(B) All community and technical colleges, other than those set forth in paragraph (A) of this
subdivision, may employ faculty for an indefinite period without a grant of tenure. The immediate
goal is to use this provision as a tool to assist the community and technical colleges in meeting the
essential conditions provided for in section three of this article and in gaining independent
accreditation status. The ultimate goal is to provide the flexibility community and technical colleges
need to meet the needs of the state by working toward having no more than twenty percent of the core
faculty holding tenure or being tenure-track employees. Provided, That tenured Tenured faculty
employed by community and technical colleges other than freestanding community and technical colleges on the effective date of this section the thirtieth day of June, two thousand, may not be
affected by this provision. Provided, however, That tenure shall Tenure may not be denied to a faculty
member solely as a result of change in employing institution necessitated by the change to
independently accredited community and technical colleges.
(b) The governing boards shall adopt a model of program approval for the community and
technical colleges that permits occupational programs to be customized to meet needs without
requiring approval by any governing board or other agency of government. and, furthermore, that
incorporates The model shall incorporate a post-audit review of such programs on a three-year cycle
to determine the effectiveness of such the programs in meeting district needs.
(c) The interim governing board or the chancellor council shall promulgate rules to implement
the provisions of this section and shall file these rules for review and approval with the chancellor no
later than the first day of December, two thousand four.
§18B-3C-10. Freestanding community and technical colleges; tuition and fees.
(a) During the transition year, beginning the first day of July, two thousand, and ending the
thirtieth day of June, two thousand one, the appropriate governing board may fix tuition and establish
and set such other fees to be charged students at community and technical colleges as it considers
appropriate and shall pay such tuition and fees collected into a revolving fund for the partial or full
support, including the making of capital improvements, of any community and technical college.
Funds collected at any such community and technical college may be used only for the benefit of that
community and technical college. The appropriate governing board also may establish special fees for
such purposes as, including, but not limited to, health services, student activities, student recreation,
athletics or any other extracurricular purposes. Such special fees shall be paid into special funds in
the state treasury and used only for the purposes for which collected.
(b) Beginning on the first day of July, two thousand one, the appropriate
(a) Each governing board may fix tuition and establish and set such other fees to be charged
students at its community and technical colleges college as it considers appropriate, subject to the
provisions of subdivision (2) of this subsection and article ten, chapter eighteen-b of this code.
(1) As used in this subsection, "appropriate governing board" means:
(A) The governing board of the institution, in the case of a free-standing community and
technical college; and
__(B) The governing boards of Glenville state college and Bluefield state college, respectively,
in the cases of Glenville community and technical college and Bluefield community and technical
college; and
(C) The institutional board of advisors in all other cases.
(2) (1) The appropriate governing board, in consultation with the joint commission council,
also may establish special fees for such purposes as, including, but not limited to, health services,
student activities, student recreation, athletics or any other extracurricular purposes. Provided, That
the joint commission The council shall determine which fees, if any, do not apply to the entire student
population and to which students such fees do not apply. Such special fees may be used only for the
purposes for which collected.
(3) (2) A community and technical college may contract with any other state institution of
higher education for the participation of its students in programs, activities or services of the other
institution and for the use of such fees collected.
(c) (b) All tuition and fee charges in the total aggregate shall comply with the terms of the
institution's compact approved by the commission council, based on peer comparisons or cost of instruction as set forth in the goals for post-secondary education pursuant to section one-a, article one
of this chapter.
§18B-3C-12. Relationship between administratively linked community and technical colleges
and sponsoring institutions.
(a) Intent and purposes. --
(1) It is the intent of the Legislature to establish community and technical colleges in every
region of the state of West Virginia that as far as possible that meet the essential conditions of section
three of this article.
(2) The Legislature finds that, in order to increase efficiency, reduce costs and, generally, to
facilitate the effective transition from community and technical colleges which are components of
existing institutions of higher education to community and technical colleges which meet as far as
possible the essential conditions, it is appropriate to maintain an administrative link between the
community and technical colleges and the sponsoring institutions.
(3) This section defines the relationship between the an administratively linked community and
technical colleges college and its sponsoring institution.
(b) Where an independently accredited community and technical colleges are is linked
administratively to a sponsoring state college or university in order to ensure efficient use of limited
resources, the following conditions shall apply:
(1) The community and technical college shall be accredited separately from the sponsoring
institution;
(2) All state funding allocations for the community and technical college shall be transferred
directly to the community and technical college. The sponsoring institution may charge fees for
administrative overhead costs subject to a schedule approved by the commission council.
(A) By the first day of December, two thousand four, the council shall develop a new model,
or select an existing model, for services to be provided by sponsoring institutions and the fees to be
charged administratively linked community and technical colleges for the services. The fee schedule
shall be based upon the reasonable and customary fee for any service and shall bear a rational
relationship to the cost of providing the service. Nothing in this paragraph requires the council to
adopt a particular model for service delivery.
__(B) With the approval of the council, a community and technical college and the sponsoring
institution may customize the model to fit their needs;
(3) Policies shall be formally established to ensure the separation of academic and faculty
personnel policies of the community and technical college from those of the sponsoring institution.
These policies include, but are not limited to, appointment, promotion, workload and, if appropriate,
tenure; and
__(4) The council may authorize a community and technical college to decline any service of the
sponsoring institution provided in subsection (c) of this section if the council determines that the
service is not appropriate for the community and technical college, or that declining the service is in
the best interest of the community and technical college. Any service declined may be obtained from
an alternate source with the approval of the council.
(c) The sponsoring institution which is administratively linked to a community and technical
college shall provide the following services:
(1) Personnel management;
(2) Recordkeeping;
(3) Payroll;
(4) Accounting;
(5) Legal services;
(6) Registration;
(7) Student aid;
(8) Student records; and
(9) Such other services as determined to be necessary and appropriate by the commission
council.
(d) Subject to the approval of the appropriate governing board, the president of the sponsoring
institution, pursuant to the terms of section six, article one-b of this chapter, shall appoint the
presidents The institutional governing board shall appoint the president of the community and
technical college, who shall serve serves at the will and pleasure of the institutional president
governing board. Subject to the provisions of section six, article one-b of this chapter, the appropriate
governing board shall appoint the president of the sponsoring institution.
(e) The governing board and the president of the sponsoring institution shall be council are
responsible for the step-by-step development of the community and technical college and for
compliance with the essential conditions, all as required by this article.
(f) The president of the sponsoring institution shall have community and technical college has
such responsibilities, powers and duties in the development of the community and technical college and in compliance with the essential conditions, as directed by the governing board or as are necessary
for the proper implementation of the provisions of this act.
(g) Notwithstanding any other provision of this code to the contrary, the commission shall take
necessary steps to ensure that institutional bonded indebtedness is secure and that each administratively
linked community and technical colleges assume their college assumes its fair share of any institutional
debt acquired while they were it was part of the baccalaureate institution.
(h) The community and technical college is encouraged to secure academic services from the
sponsoring institution when it is in the best interests of the students to be served, the community and
technical college and the sponsoring institution. In determining whether or not to secure services from
the sponsoring institution, the community and technical college shall consider the following:
(1) The cost of the academic services;
(2) The quality of the academic services;
(3) The availability, both as to time and place, of the academic services; and
(4) Such other considerations as the community and technical college finds appropriate taking
into account the best interests of the students to be served, the community and technical college, and
the sponsoring institution. Provided, That, nothing in this article shall be construed to prohibit
Nothing in this article prohibits any state institution of higher education from purchasing or brokering
remedial and/or or developmental courses from a community and technical college.
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-1. Employment of chancellors; designation of staff; offices.
(a) At its annual meeting in June of each year, each governing board shall elect from its
members appointed by the governor a president and other officers as it may consider necessary or desirable: Provided, That the initial annual meeting shall be held during July, one thousand nine
hundred eighty-nine. The president and other officers shall be elected for a one-year term commencing
on the first day of July following the annual meeting and ending on the thirtieth day of June of the
following year. The president of the board shall serve no more than two consecutive terms.
(b) Each governing board shall employ a chancellor who shall serve at the will and pleasure
of the employing board and shall assist the governing board in the performance of its duties and
responsibilities. No
(a) The council and commission each shall employ a chancellor to assist in the performance
of their respective duties and responsibilities subject to the following conditions:
______________(1) Each chancellor serves at the will and pleasure of the hiring body.
______________(2) Neither chancellor may hold or retain any other administrative position within the system
of higher education while employed as chancellor.
(3) Each chancellor is responsible for carrying out the directives of the governing board by
which he or she is body by whom employed and shall work with the board that body in developing
policy options.
______________(4) The commission shall designate a limited number of positions that are under the direct
control and supervision of the chancellor for higher education. These positions form the nuclear staff
of the chancellor's office and may equal no more than fifteen percent of the total number of staff
employed by the commission.
______________Nevertheless, regardless of the number or title of the positions so designated, the commission
is responsible to the council and the chancellor for community and technical college education for
providing services in areas essential to exercising the powers and duties assigned to the council by law. The commission may not charge the council any fee for the provision of these essential services. The
service areas include, but are not limited to, legal services, research, technology, computing, finance
and facilities, academic affairs, telecommunications, human resources, student services and any other
general areas the council considers to be essential to the exercise of its legal authority. The services
are provided under the general supervision of the vice chancellor for administration.
______________(5) For the purpose of developing or evaluating policy options, the chancellors may request
the assistance of the presidents and other administrative heads of the institutions under their
jurisdiction and their staffs. The respective chancellors shall jointly agree to and shall hire one senior
administrator who shall serve at their will and pleasure in accordance with section two of this article.
and staff of the institutions under their respective jurisdictions.
______________(b) In addition to the staff positions designated in subdivision (4), subsection (a) of this
section, the vice chancellor for administration, employed pursuant to section two of this article, serves
the offices of the chancellors to discharge jointly the duties and responsibilities of the council and
commission.
(c) The vice chancellor for health sciences shall coordinate the West Virginia university school
of medicine, the Marshall university school of medicine and the West Virginia school of osteopathic
medicine.
(d) Suitable offices for the senior administrator vice chancellor of administration and other
staff shall be provided in Charleston.
(e) The chancellor of the university of West Virginia board of trustees and the chancellor of
the board of directors of the state college system shall establish a plan and funding recommendations
for development and implementation of a multifaceted instructional technology strategy that includes,
but is not limited to, a goal that every full-time freshman student beginning in the fall semester, one thousand nine hundred ninety-six, and thereafter, and as many other students and faculty as possible
will own or lease a computer, and alternatively that computers be available for part-time students
through on-site labs; the integration of computer usage into all course work; the involvement of faculty
in the development and use of technology-based instruction and instructional courseware for
community and technical colleges, colleges and universities; and the expansion of distance learning
and technology networks throughout the higher education systems to enhance teaching and learning,
promote access to quality educational offerings with minimum duplication of effort, increase the
delivery of instruction to nontraditional students, provide services to business and industry, and
increase the management capabilities of the higher education system. The chancellors shall submit the
plan to the Legislature on or before the first day of July, one thousand nine hundred ninety-seven.
The chancellor of the university of West Virginia board of trustees and the chancellor of the
board of directors of the state college system shall supervise the administration, oversight, coordination
and implementation of the plan, or portions of the plan, subject to the availability of funds and the
direction of the governing boards. In addition, the chancellors shall review all technology related
matters within the department of education and the arts and suggest appropriate integration and
compatibility of the technology systems within the department and the institutions governed by the
board.
(f) The governing boards shall jointly employ a vice chancellor for community and technical
education pursuant to the provisions of section three-a, article three of this chapter.
§18B-4-2. Employment of vice chancellor for administration; office; powers and duties
generally.
(a) With the approval of The commission the chancellor for higher education shall employ the
vice chancellor for administration who shall serve at the will and pleasure of the chancellor. By and with the advice and consent of the council, the commission shall employ a vice chancellor for
administration who may not be dismissed without the consent of the council:
__(1) The individual serving as vice chancellor for administration on the effective date of this
section may continue to serve on an interim basis until the commission and the council have agreed,
jointly, on a candidate to fill the position;
__(2) The interim vice chancellor for administration may be considered as a candidate for the
position;
__(3) The position shall be filled on a permanent basis no later than the first day of October, two
thousand four; and
__(4) Any vacancy occurring in this position shall be filled pursuant to the requirements of this
section.
__(b) Any reference in this chapter or chapter eighteen-c of this code to the senior administrator
means the vice chancellor for administration. which senior administrator shall become the vice
chancellor of administration and also shall serve as interim chancellor for higher education until a
chancellor is employed pursuant to section five, article one-b of this chapter.
(b) (c) The vice chancellor for administration has a ministerial duty, in consultation with and
under direction of the chancellor chancellors, to perform such functions, tasks and duties as may be
necessary to carry out the policy directives of the council and commission and such other duties as may
be prescribed by law.
(c) (d) The vice chancellor for administration may employ and discharge, and shall supervise
such professional, administrative, clerical and other employees as may be necessary to these duties and
shall delineate staff responsibilities as considered desirable and appropriate. It is the responsibility of the vice chancellor for administration, within the parameters of the total resources available, to
supervise and direct the staff in such a way that the staff and resource needs of the council, the
commission and the offices of the chancellors are met. The vice chancellor for administration shall
fix the compensation and emoluments of such employees: Provided, That those employees
__(e) Any employee of the commission or the council whose job duties meet criteria listed in the
system of job classifications as stated in article nine of this chapter shall be is accorded the job title,
compensation and rights established in the article as well as all other rights and privileges accorded
classified employees by the provisions of this code.
(d) (f) Effective on the first day of July, two thousand, the The office of the senior administrator
vice chancellor for administration and all personnel, except for the chancellor for community and
technical college education and staff transferred to the jurisdiction of the council pursuant to
subsection (a), section seven, article two-b of this chapter, who are employed on the thirtieth day of
June first day of January, two thousand four, within the higher education central office and the West
Virginia network for educational telecomputing, and the offices of the chancellor of the board of
trustees and the chancellor of the board of directors shall be transferred to the jurisdiction of the
chancellor for higher education: Provided, That prior remain under the jurisdiction of the commission.
Prior to the first day of October, two thousand no employee shall four, any such employee may not be
terminated or have his or her salary and benefit levels reduced as the sole result of the governance
reorganization that becomes effective on the first day of July, two thousand higher education
reorganization that occurs on the effective date of this section.
(e) (g) The vice chancellor for administration shall follow state and national education trends
and gather data on higher education needs.
(f) (h) The vice chancellor for administration, in accordance with established guidelines and
in consultation with and under the direction of the chancellor chancellors, shall administer, oversee
or monitor all state and federal student assistance and support programs administered on the state level,
including those provided for in chapter eighteen-c of this code.
(g) (i) The vice chancellor for administration has a fiduciary responsibility to administer the
tuition and registration fee capital improvement revenue bond accounts of the governing boards.
(h) (j) The vice chancellor for administration shall administer the purchasing system or systems
of the council and commission, the office of the chancellor offices of the chancellors and the governing
boards. Provided, That the chancellor By mutual agreement, the commission and the council may
delegate authority for the purchasing systems or portions thereof to the institution presidents.
(i) (k) The vice chancellor for administration is responsible for the management of the West
Virginia network for educational telecomputing (WVNET). The vice chancellor for administration
shall establish a computer advisory board, which shall be representative of higher education and other
users of the West Virginia network for educational telecomputing as the chancellor for higher
education commission and council determines determine appropriate. It is the responsibility of the
computer advisory board to recommend to the chancellor commission and the council policies for a
statewide shared computer system.
(j) (l) The central office, under the direction of the vice chancellor for administration, shall
provide necessary staff support to the commission, and the office of the chancellor the council and
offices of the chancellors.
(k) (m) Effective on the first day of July, two thousand the The vice chancellor for
administration may administer any program or service authorized or required to be performed by the
board of trustees or the board of directors on the thirtieth day of June, two thousand, and not specifically assigned to another agency. In addition, the vice chancellor for administration may
administer any program or service authorized or required to be performed by the commission, or the
chancellor for higher education council or chancellors, but not assigned specifically to the commission,
or the chancellor council or chancellors. Any such program or service may include, but shall not be
is not limited to, telecommunications activities and other programs and services provided for under
grants and contracts from federal and other external funding sources.
§18B-4-7. Accreditation of institutions of higher education; standards for degrees.
(a) The appropriate governing board council shall make rules for the accreditation of
community and technical colleges in this state and shall determine the minimum standards for
conferring degrees. The commission shall make rules for the accreditation of institutions of higher
education colleges and universities in this state under its jurisdiction and shall determine the minimum
standards for the conferring of degrees. No An institution of higher education may not confer any
degree on any basis of work or merit below the minimum standards prescribed by the appropriate
governing board council or commission. Nothing contained herein shall infringe in this section
infringes upon the rights, including rights to award degrees, granted to any institution by charter given
according to law, or by actions of the governing boards council or commission or their predecessors,
prior to the adoption effective date of this section. With the approval of the commission, governing
boards of institutions which currently offer substantial undergraduate course offerings and a master's
degree in a discipline are authorized to grant baccalaureate degrees in that discipline.
_______________No Except as otherwise provided in this section, a charter or other instrument containing the
right to confer degrees of higher educational education status shall may not be granted by the state of
West Virginia to any institution, association or organization within the state, nor shall may any such degree be awarded, until the condition of conferring such the degree has first been approved in writing
by the appropriate governing board council or commission.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-4. Purchase or acquisition of materials, supplies, equipment, services and printing.
(a) The council, 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 council or commission, as appropriate, and the state
institutions of higher education under their jurisdiction. The commission and council jointly shall
adopt rules governing and controlling acquisitions and purchases in accordance with the provisions
of this section. The rules shall assure that the council, commission and the governing boards:
(1) Do not preclude any person from participating and making sales thereof to the governing
board or to the council or commission except as otherwise provided in section five of this article.
Provision of consultant services such as strategic planning services will not preclude or inhibit the
governing boards, or the council or 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) Establish and prescribe specifications, in all proper cases, for materials, supplies,
equipment, services and printing to be purchased;
(3) Adopt and prescribe such purchase order, requisition or other forms as may be required;
(4) 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) 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;
(6) 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) Provide for purchasing in the open market;
(8) Make provision Provide for vendor notification of bid solicitation and emergency
purchasing; and
(9) Provide that competitive bids are not required for purchases of five twenty-five thousand
dollars or less; and
_______________(10) Provide for not fewer than three bids where bidding is required. If fewer than three bids
are submitted, an award may be made from among those received.
(b) The council, 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 council or 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 council or commission and delivery terms. The preference for resident vendors as provided in section thirty-seven, article three, chapter five-a of
this code apply to the competitive bids made pursuant to this section.
(d) The governing boards, council 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, council 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 A record in the purchase file may
not 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 and council also jointly 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 a person may not 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 this section and sections five through eight, inclusive, of this article and the rules of the interim governing
board and the council and commission. In lieu of separate bonds for such buyers, a blanket surety
bond may be obtained. Any such bond shall be filed with the secretary of state. The cost of any such
bond shall be paid from funds appropriated to the applicable governing board or the council 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, council and the commission may make requisitions upon the auditor
for a sum to be known as an advance allowance account, in no case to not to exceed five percent of
the total of the appropriations for the governing board, council or the commission, and the auditor shall
draw a warrant upon the treasurer for such accounts. All advance allowance accounts shall be
accounted for by the applicable governing board or the council 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 council or commission in the name of the state and shall be approved as to form by the
attorney general. A contract which requires approval as to form by the attorney general and for which
is considered approved if the attorney general has not responded within fifteen days of presentation
of the contract. the contract shall be considered approved. 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 use terms
and conditions or standardized forms previously approved by the attorney general and do not make
substantive changes in the terms and conditions of the contract do not require approval by the attorney general. 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. If requested to do so, the
governing boards, council or the commission shall make all contracts available for inspection by the
state auditor. The governing board, council 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, council 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 is void and of no effect.
(k) Any governing board or the council or 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, council 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, council or the commission, as appropriate, in all such purchases and acquisitions upon such
request.
(l) Each governing board or the council or 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 council or commission. Any private
school desiring to join as purchasers on such purchase contracts shall file with that governing board
or the council or 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 council or commission, as appropriate. The private school shall agree that it is bound by such terms and conditions as that governing board or the council or 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,
council 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,
council and the commission, as appropriate, shall be are responsible for paying the cost of the audit
from funds appropriated to the governing boards, council 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, council 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 or council, as appropriate, 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 never constitutes 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 may not be a charge
against the general credit or taxing powers of the state or any political subdivision thereof. and such
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 and
council. In addition, any lease-purchase agreement which exceeds one hundred thousand dollars total
shall be approved by the attorney general of West Virginia. The interest component of any
lease-purchase obligation shall be is 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 1986, as amended, and any regulations promulgated pursuant thereto
are met, the interest component of any lease-purchase obligation also shall be is 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, council
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, council 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, council or governing boards for the institutions under their
jurisdiction. The chief executive officer of the commission, council 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, council or institution;
(B) That the commission, council 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 currently owned or leased by the commission, council or the institution.
Before executing any rental contract or lease, the commission, council 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, council 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 purchase 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 or council, as appropriate, 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, council or the governing board, as lessee, have has 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 is 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 is considered renewed for each ensuing fiscal year during the term
of the lease unless it is canceled by the commission, council or the governing board before the end of
the then-current fiscal year.
(3) The commission, council 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, council 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, council or governing board, may be signed by the chief executive officer of the
commission, council 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 and council jointly may promulgate rules it considers they consider
necessary to carry out the provisions of this section.
ARTICLE 6. ADVISORY COUNCILS AND BOARDS.
§18B-6-1. Institutional boards of advisors for regional campuses and certain administratively
linked community and technical colleges.
(a) Effective the first day of July, two thousand, There is established at each regional campus
and administratively linked community and technical college, excluding centers and branches thereof,
an institutional board of advisors. Provided, That the institutional board of advisors shall not be
appointed for administratively linked community and technical colleges until provided for in their
compact.
(1) For the transition year beginning on the first day of July, two thousand, through the thirtieth
day of June, two thousand one, only, The lay members of the institutional board of advisors established
for each of the regional campuses of West Virginia university are appointed by the president of the
respective institution. Effective the first day of July, two thousand one,
(a) There is hereby continued or established institutional boards of advisors as follows:
__________(1) For each regional campus. The chairperson of the board of advisors of West Virginia
university at Parkersburg serves as an ex officio, voting member of the governing board of West
Virginia university;
__________(2) For administratively linked community and technical colleges which share a physical
location with the sponsoring institution. This category includes Fairmont state community and technical college, Marshall community and technical college, West Virginia state community and
technical college and the community and technical college at West Virginia university institute of
technology. The chairperson of the board of advisors of each administratively linked community and
technical college serves as an ex officio, voting member of the sponsoring institution's board of
governors or, in the case of the community and technical college at West Virginia university institute
of technology, the chairperson of the board of advisors serves as an ex officio voting member of the
governing board of West Virginia university;
__________(3) For New River community and technical college and the community and technical college
of Shepherd, until these institutions achieve independent accreditation. As long as New River
community and technical college or the community and technical college of Shepherd retains a board
of advisors and remains administratively linked to the baccalaureate institution, the chairperson of that
board of advisors serves as an ex officio, voting member of the governing board of Bluefield state
college or Shepherd college, respectively.
__________(1) (b) The lay members of the institutional boards of advisors for the regional campuses are
appointed by the board of governors.
(2) (c) The lay members of the institutional board boards of advisors established for the
administratively linked community and technical colleges are appointed by the West Virginia council
for community and technical college education.
(b) (d) The board of advisors consists of fifteen members, including a full-time member of the
faculty with the rank of instructor or above duly elected by the faculty of the respective institution; a
member of the student body in good academic standing, enrolled for college credit work and duly
elected by the student body of the respective institution; a member from the institutional classified
employees duly elected by the classified employees of the respective institution; and twelve lay persons appointed pursuant to subsection (a) of this section who have demonstrated a sincere interest in and
concern for the welfare of that institution and who are representative of the population of its
responsibility district and fields of study. At least eight of the twelve lay persons appointed shall be
residents of the state. Of the lay members who are residents of the state, at least two shall be alumni
of the respective institution and no more than a simple majority may be of the same political party.
(c) (e) The student member shall serve serves for a term of one year beginning upon
appointment in July, two thousand four, and ending on the thirtieth day of April, two thousand one
five. Thereafter the term shall begin on the first day of May. The member from the faculty and the
classified employees shall serve, respectively, serves for a term of two years beginning upon
appointment in July, two thousand four, and ending on the thirtieth day of April, two thousand two
five. Thereafter the term shall begin on the first day of May; and the twelve lay members shall serve
terms of four years each beginning upon appointment in July, two thousand four. Thereafter, the term
shall begin on the first day of May. All members are eligible to succeed themselves for no more than
one additional term. A vacancy in an unexpired term of a member shall be filled for the remainder of
the unexpired term within thirty days of the occurrence thereof in the same manner as the original
appointment or election. Except in the case of a vacancy:
(1) Commencing in two thousand five, all elections shall be held and all appointments shall
be made no later than the thirtieth day of April preceding the commencement of the term; and
__________(2) Terms of members begin on the first day of May following election, except for two
thousand four only, terms begin upon appointment in July.
__________(d) (f) Each board of advisors shall hold a regular meeting at least quarterly, commencing in
May of each year. Additional meetings may be held upon the call of the chairperson, president of the institution or upon the written request of at least five members. A majority of the members constitutes
a quorum for conducting the business of the board of advisors.
(e) (g) One of the twelve lay members shall be elected as chairperson by the board of advisors
in May of each year, except that the chairperson elected in two thousand four shall be elected in July.
No member may serve as chairperson for more than two consecutive years.
(f) (h) The president of the institution shall make available resources of the institution for
conducting the business of the board of advisors. The members of the board of advisors shall be
reimbursed for all reasonable and necessary expenses actually incurred in the performance of their
official duties under this section upon presentation of an itemized sworn statement thereof. All
expenses incurred by the boards of advisors and the institutions under this section shall be paid from
funds allocated to the institutions for that purpose.
(g) (i) The Prior to the submission by the president to its governing board, the board of advisors
shall review prior to the submission by the president to its governing board, all proposals of the
institution in the areas of mission, academic programs, budget, capital facilities and such other matters
as requested by the president of the institution or its governing board or otherwise assigned to it by
law. The board of advisors shall comment on each such proposal in writing, with such
recommendations for concurrence therein or revision or rejection thereof as it considers proper. The
written comments and recommendations shall accompany the proposal to the governing board and the
governing board shall include the comments and recommendations in its consideration of and action
on the proposal. The governing board shall promptly acknowledge receipt of the comments and
recommendations and shall notify the board of advisors in writing of any action taken thereon.
(h) (j) The Prior to their implementation by the president, the board of advisors shall review
prior to their implementation by the president, all proposals regarding institution-wide personnel
policies. The board of advisors may comment on the proposals in writing.
(i) (k) The board of advisors shall provide advice and assistance to the president and the
governing board in establishing areas including, but not limited to, the following:
__________(1) Establishing closer connections between higher education and business, labor, government
and community and economic development organizations to give students greater opportunities to
experience the world of work. Examples of such as experiences include business and community
service internships, apprenticeships and cooperative programs; to communicate
(2) Communicating better and serve serving the current work force and work force
development needs of their service area, including the needs of nontraditional students for
college-level skills upgrading and retraining and the needs of employers for specific programs of
limited duration; and to assess
(3) Assessing the performance of the institution's graduates and assist assisting in job
placement.
(j) (l) Upon the occurrence of When a vacancy occurs in the office of president of the
institution, the board of advisors shall serve as a search and screening committee for candidates to fill
the vacancy under guidelines established by the commission council. pursuant to the provisions of
section six, article one-b of this chapter. When serving as a search and screening committee, the board
of advisors and its governing board are each authorized to appoint up to three additional persons to
serve on the committee as long as the search and screening process is in effect. The three additional
appointees of the board of advisors shall be faculty members of the institution. Only for For the
purposes of the search and screening process only, the additional members shall possess the same powers and rights as the regular members of the board of advisors, including reimbursement for all
reasonable and necessary expenses actually incurred. Following the search and screening process, the
committee shall submit the names of at least three candidates to the president of the sponsoring
institution council, or to the governing board in the case of West Virginia university institute of
technology, for consideration. and appointment. If the president council or governing board rejects
all candidates submitted, the committee shall submit the names of at least three additional candidates
and this process shall be repeated until the president appoints council or governing board approves one
of the candidates submitted. In all cases, the governing board shall make the appointment with the
approval of the council or the commission in the case of West Virginia university institute of
technology. The governing board or the council shall provide all necessary staff assistance to the board
of advisors in its role as a search and screening committee.
(k) (m) The boards of advisors shall develop a master plan for each those administratively
linked community and technical college colleges which retain boards of advisors. The ultimate
responsibility for developing and updating the master plans at the institutional level resides with the
institutional board of advisors, but the ultimate responsibility for approving the final version of the
these institutional master plans, including periodic updates, resides with the council commission. The
plan shall include, but not be limited to, the following:
(1) A detailed demonstration of how the master plan will be used to meet the goals and
objectives of the institutional compact;
(2) A well-developed set of goals outlining missions, degree offerings, resource requirements,
physical plant needs, personnel needs, enrollment levels and other planning determinates and
projections necessary in such a plan to assure that the needs of the institution's area of responsibility
for a quality system of higher education are addressed;
(3) Documentation of the involvement of the commission, institutional constituency groups,
clientele of the institution and the general public in the development of all segments of the institutional
master plan.
The plan shall be established for periods of not less than three nor more than six years and shall
be revised periodically as necessary, including recommendations on the addition or deletion of degree
programs as, in the discretion of the board of advisors, may be necessary.
§18B-6-1a. Definitions.
For the purposes of this article, the following words have the meanings specified unless the
context clearly indicates a different meaning:
(a) "Advisory council of classified employees" or "classified council" means the state advisory
organization of classified employees created pursuant to section five of this article.
(b) "Advisory council of faculty" or "faculty council" means the state advisory organization
of faculty created pursuant to section two of this article.
(c) "Advisory council of students" or "student advisory council" means the state advisory
organization of students created pursuant to section four of this article.
(d) "Classified employee", in the singular or plural, means any regular full-time or regular
part-time employee of a governing board, the commission, the council or the West Virginia network
for educational telecomputing who holds a position that is assigned a particular job title and pay grade
in accordance with the personnel classification system established by law.
(e) "Community and technical college" means eastern West Virginia community and technical
college, Fairmont state community and technical college, Marshall community and technical college,
New River community and technical college, West Virginia northern community and technical college, the community and technical college of Shepherd, southern West Virginia community and technical
college, West Virginia state community and technical college, the community and technical college
at West Virginia university institute of technology, West Virginia university at Parkersburg and any
other community and technical college so designated by the Legislature.
(f) "Council" means the West Virginia council for community and technical college education
created pursuant to section three, article two-b of this chapter.
(g) "Institutional classified employee council" or "staff council" means the advisory group of
classified employees formed at a state institution of higher education pursuant to section six of this
article.
(h) "Institutional faculty senate", "faculty senate" or "faculty assembly" means the advisory
group of faculty formed at a state institution of higher education pursuant to section three of this
article.
(i) "State institution of higher education", in the singular or plural, means the institutions as
defined in section two, article one of this chapter and, additionally, Fairmont state community and
technical college, Marshall community and technical college, New River community and technical
college, Potomac state college of West Virginia university, Robert C. Byrd health sciences Charleston
division of West Virginia university, the community and technical college of Shepherd, West Virginia
state community and technical college, West Virginia university at Parkersburg, West Virginia
university institute of technology, the community and technical college at West Virginia university
institute of technology, the higher education policy commission, the West Virginia council for
community and technical college education, the West Virginia network for educational telecomputing
and any other institution so designated by the Legislature.
§18B-6-2. State advisory council of faculty.
(a) There is continued the state advisory council of faculty.
(b) Election of members and terms of office. --
(1) During the month of April of each odd-numbered year, each president of a state institution
of higher education, at the direction of the faculty council and in accordance with procedures
established by the faculty council, shall convene a meeting or otherwise institute a balloting process
to elect one faculty member from each institution of higher education to serve on the faculty council.
(2) Terms of the members are for two years and begin on the first day of July of each
odd-numbered year. Members are eligible to succeed themselves.
(3) For the year two thousand four only, each president of an administratively linked
community and technical college shall consult with the faculty council during the month of July to
establish procedures and convene a meeting or otherwise institute a balloting process to elect one
faculty member from that institution to serve on the faculty council. Members so elected shall take
office upon election and serve until the next regularly scheduled election held pursuant to this section;
thereafter, faculty members elected to represent administratively linked community and technical
colleges serve a regular two-year term.
(c) The faculty council shall meet at least once each quarter and may meet at such other times
as called by the chairperson or by a majority of its members. One of the quarterly meetings shall be
during the month of July, at which meeting the faculty council shall elect a chairperson from among
its members. The chairperson may serve no more than two consecutive terms as chair. A member may
not vote by proxy at the election. In the event of a tie in the last vote taken for such election, a member
authorized by the faculty council shall select the chairperson by lot from the names of those persons
tied. Immediately following the election of a chairperson, and in the manner prescribed by this section
for the election of a chairperson, the faculty council shall elect a member to preside over meetings in the absence of the chairperson. If the chairperson vacates the position, the faculty council shall meet
and elect a new chairperson to fill the unexpired term within thirty days following the vacancy.
(d) The faculty council, through its chairperson and in any appropriate manner, shall
communicate to the commission or the council, as appropriate, matters of higher education in which
the faculty members have an interest.
(e) The commission and council each shall meet annually between the months of October and
December with the faculty council to discuss matters of higher education in which the faculty members
or the commission or council may have an interest.
(f) Members of the faculty council serve without compensation. Members are entitled to
reimbursement for actual and necessary expenses, including travel expenses, incurred in the
performance of their official duties. Expenses are paid from funds allocated to the state institution of
higher education which the member serves.
(g) The faculty council shall prepare minutes of its meetings, which minutes shall be available,
upon request, to any faculty member of a state institution of higher education represented on the faculty
council.
§18B-6-3. Institutional faculty senate.
(a) Effective the first day of July, two thousand four, a faculty senate is established at each
institution of higher education, except for those institutions which choose to establish a faculty
assembly. In the latter case, all faculty participate in the faculty assembly and the requirements of
subsections (b) and (c) of this section do not apply. Members and officers of an organized,
campus-level advisory group of faculty who are serving prior to the effective date of this section may continue to serve with all the rights, privileges and responsibilities prescribed herein until the time that
members elected as set forth in subsection (b) of this section assume office.
(b) Members of each faculty senate are elected as follows:
(1) During the month of April of each even-numbered year, each president of a state institution
of higher education, at the direction of the faculty and in accordance with procedures established by
the faculty, shall convene a meeting or otherwise institute a balloting process to elect the members of
the faculty senates, except that for two thousand four only, the election shall take place in July.
(2) Selection procedures shall provide for appropriate representation of all academic units
within the institution.
(3) The faculty member who is elected to serve on the faculty council is an ex officio, voting
member of the faculty senate and reports to the faculty senate on meetings of the faculty council and
the board of governors.
(c) Members serve a term of two years, which term begins on the first day of July of each
even-numbered year, except for the year two thousand four when terms begin upon election. Members
of the faculty senate are eligible to succeed themselves.
(d) Each faculty senate shall elect a chairperson from among its members. The chairperson
serves a term of two years, and may serve no more than two consecutive terms as chairperson.
(e) The faculty senate meets quarterly and may meet at such other times as called by the
chairperson or by a majority of the members. With appropriate notification to the president of the
institution, the chairperson may convene a faculty senate meeting for the purpose of sharing
information and discussing issues affecting faculty and the effective and efficient management of the
institution.
(f) The president of the institution shall meet at least quarterly with the faculty senate to discuss
matters affecting faculty and the effective and efficient management of the institution.
(g) The governing board of the institution shall meet at least annually with the faculty senate
to discuss matters affecting faculty and the effective and efficient management of the institution.
§18B-6-4. State advisory council of students.
(a) There is continued the state advisory council of students.
(b) During the month of April of each year, each student government organization at each
institution of higher education shall elect a student to serve on the student advisory council. Terms
of the members of the student advisory council are for one year and begin on the first day of September
of each year. A duly elected member currently serving on the advisory council of students may
continue to serve until a new member from that institution is elected pursuant to the provisions of this
section. Members of the student advisory council are eligible to succeed themselves.
(c) The student advisory council shall meet at least once each quarter. One of the quarterly
meetings shall be during the month of September, at which meeting the student advisory council shall
elect a chairperson. A member may not vote by proxy at the election. In the event of a tie in the last
vote taken for the election, a member authorized by the student advisory council shall select the
chairperson by lot from the names of those persons tied. Immediately following the election of a
chairperson, the student advisory council shall elect, in the manner prescribed by this section for the
election of a chairperson, a member of the council to preside over meetings in the absence of the
chairperson. If the chairperson vacates the position, the student advisory council shall meet and elect
a new chairperson to fill the unexpired term within thirty days following the vacancy.
(d) The student advisory council, through its chairperson and in any appropriate manner, shall
communicate to the commission or the council, as appropriate, matters of higher education in which
the student members have an interest.
(e) At the request of the chairperson of the student advisory council, the commission and
council each shall meet annually, between the months of October and December, with the student
advisory council to discuss matters of higher education in which the student members or the
commission or council have an interest.
(f) Members of the student advisory council serve without compensation, but are entitled to
reimbursement for actual and necessary expenses, including travel expenses, incurred in the
performance of their official duties. Expenses are paid from funds allocated to the state institution of
higher education in which the student is enrolled.
(g) The student advisory council shall prepare minutes of its meetings. The minutes shall be
available, upon request, to any student of a state institution of higher education represented on the
council.
§18B-6-5. State advisory councils of classified employees.
(a) There is hereby continued the state advisory council of classified employees.
(b) Election of members and terms of office. --
(1) During the month of April of each odd-numbered year, each president of a state institution
of higher education, at the direction of the classified council and in accordance with procedures
established by the classified council, shall convene a meeting or otherwise institute a balloting process
to elect one classified employee from each institution of higher education to serve on the classified
council.
(2) Terms of the members are for two years and begin on the first day of July of each
odd-numbered year. Members are eligible to succeed themselves.
(3) For the year two thousand four only, each president of an administratively linked
community and technical college shall consult with the classified council during the month of July to
establish procedures and convene a meeting or otherwise institute a balloting process to elect one
classified employee from that institution to serve on the classified council. Members so elected take
office upon election and serve until the next regularly scheduled election held pursuant to this section;
thereafter, classified employees elected to represent administratively linked community and technical
colleges serve a regular two-year term.
(c) The classified council shall meet at least once each quarter and may meet at such other
times as called by the chairperson or by a majority of its members. One of the quarterly meetings shall
be during the month of July, at which meeting the classified council shall elect a chairperson from
among its members. The chairperson may serve no more than two consecutive terms as chairperson.
A member may not vote by proxy at the election. In the event of a tie in the last vote taken for the
election, a member authorized by the classified council shall select the chairperson by lot from the
names of those persons tied. Immediately following the election of a chairperson, the classified
council shall elect, in the manner prescribed by this section for the election of a chairperson, a member
of the classified council to preside over meetings in the absence of the chairperson. If the chairperson
vacates the position, the classified council shall meet and elect a new chairperson to fill the unexpired
term within thirty days following the vacancy.
(d) The classified council, through its chairperson and in any appropriate manner, shall
communicate to the commission or the council, as appropriate, matters of higher education in which
the classified employees have an interest.
(e) The commission and council each shall meet annually, between the months of October and
December, with the classified council to discuss matters of higher education in which the classified
employees or the commission or council have an interest.
(f) Members of the classified council serve without compensation, but are entitled to
reimbursement for actual and necessary expenses, including travel expenses, incurred in the
performance of their official duties. Expenses are paid from funds allocated to the state institution of
higher education which the member serves.
(g) The classified council shall prepare minutes of its meetings. The minutes shall be available,
upon request, to any classified employee of a state institution of higher education represented on the
classified council.
§18B-6-6. Institutional classified employee council.
(a) There is continued at each institution of higher education an institutional classified
employees advisory council to be known as the staff council.
(b) During the month of April of each odd-numbered year, each president of a state institution
of higher education, at the direction of the staff council and in accordance with procedures established
by the staff council, shall convene a meeting or otherwise institute a balloting process to elect members
of the staff council, except that for two thousand four only, the election shall take place in July.
Members are elected as follows:
(1) Two classified employees from the administrative/managerial sector;
(2) Two classified employees from the professional/nonteaching sector;
(3) Two classified employees from the paraprofessional sector;
(4) Two classified employees from the secretarial/clerical sector;
(5) Two classified employees from the physical plant/maintenance sector;
(6) The classified employee who is elected to serve on the advisory council of classified
employees serves as an ex officio, voting member of the staff council. This member shall report to
the staff council on meetings of the classified council and the board of governors; and
(7) 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.
(c) Members serve a term of two years, which term begins on the first day of July of each
odd-numbered year. Members of the staff council are eligible to succeed themselves.
(d) Classified employees shall select one of their members to serve as chairperson. All
classified employees at the institution are eligible to vote for the chairperson by any method approved
by a majority of their members. The chairperson is eligible to succeed himself or herself.
(e) The staff council shall meet at least monthly or at the call of the chairperson. With
appropriate notification to the president of the institution, the chairperson 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.
(f) The president of the institution shall meet at least quarterly with the staff council to discuss
matters affecting classified employees.
(g) The governing board of the institution 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-7-1. Seniority for full-time classified personnel; seniority to be observed in reducing work
force; preferred recall list; renewal of listing; notice of vacancies.
(a) Definitions for terms used in this section are in accordance with those provided in section
two, article nine of this chapter, except that the provisions of this section shall apply only to classified
employees whose employment, if continued, accumulates to a minimum total of one thousand forty
hours during a calendar year and extends over at least nine months of a calendar year. Provided, That
this This section also applies to any classified employee who is involuntarily transferred to a position
in nonclassified status for which he or she did not apply. Provided, however, That any Any classified
employee involuntarily transferred to a position in nonclassified status may only exercise the rights
set out in this section for positions equivalent to or lower than the last job class the employee held.
(b) All decisions by the appropriate governing board, the council or commission or its agents
at state institutions of higher education concerning reductions in work force of full-time classified
personnel, whether by temporary furlough or permanent termination, shall be made in accordance with
this section. For layoffs by classification for reason of lack of funds or work, or abolition of position
or material changes in duties or organization and for recall of employees laid off, consideration shall
be given to an employee's seniority as measured by permanent employment in the service of the state
system of higher education. In the event that the institution wishes desires to lay off a more senior
employee, the institution shall demonstrate that the senior employee cannot perform any other job
duties held by less senior employees of that institution in the same job class or any other equivalent
or lower job class for which the senior employee is qualified. Provided, That if If an employee refuses
to accept a position in a lower job class, the employee shall retain retains all rights of recall provided
in this section. If two or more employees accumulate identical seniority, the priority shall be is
determined by a random selection system established by the employees and approved by the institution.
(c) Any employee laid off during a furlough or reduction in work force shall be is placed upon
a preferred recall list and shall be is recalled to employment by the institution on the basis of seniority.
An employee's listing with an institution shall remain remains active for a period of one calendar year
from the date of termination or furlough or from the date of the most recent renewal. If an employee
fails to renew the listing with the institution, the employee's name may be removed from the list. An
employee placed upon the preferred list shall be recalled to any position opening by the institution
within the classifications in which the employee had previously been employed or to any lateral
position for which the employee is qualified. An employee on the preferred recall list shall does not
forfeit the right to recall by the institution if compelling reasons require the employee to refuse an offer
of reemployment by the institution.
The institution shall notify all employees maintaining active listings on the preferred recall list
of all position openings that from time to time periodically exist. The notice shall be sent by certified
mail to the last known address of the employee. It is the duty of each employee listed to notify the
institution of any change in address and to timely renew the listing with the institution. No position
openings shall A position opening may not be filled by the institution, whether temporary or
permanent, until all employees on the preferred recall list have been properly notified of existing
vacancies and have been given an opportunity to accept reemployment.
(d) A nonexempt classified employee, including a nonexempt employee who has not
accumulated a minimum total of one thousand forty hours during the calendar year or whose contract
does not extend over at least nine months of a calendar year, who applies and meets the minimum
qualifications for a nonexempt job opening at the institution where the employee is currently
employed, whether the job is a lateral transfer or a promotion, and applies for the job shall be
transferred or promoted before a new person is hired. unless
(1) This subsection does not apply if the hiring is affected by:
(A) Mandates in affirmative action plans; or
(B) The requirements of Public Law 101-336, the Americans with Disabilities Act.
(2) This subsection applies to any nonexempt classified employee, including:
__(A) One who has not accumulated a minimum total of one thousand forty hours during the
calendar year; and
__(B) One whose contract does not extend over at least nine months of a calendar year.
__(3) If more than one qualified, nonexempt classified employee applies, the best-qualified
nonexempt classified employee shall be is awarded the position. In instances where the classified
employees are equally qualified, the nonexempt classified employee with the greatest amount of
continuous seniority at that state institution of higher education shall be is awarded the position. (4)
A nonexempt classified employee is one to whom the provisions of the federal Fair Labor Standards
Act, as amended, apply.
(e) In addition to any other information required, any application for personnel governed by
the provisions of this section shall include the applicant's social security number.
(f) Regardless of the level of seniority for any employee, for the purposes of this section:
__(1) In the case of a reduction in force, an employee at a community and technical college may
not displace any employee of an institution under the jurisdiction of the commission.
__(2) In the case of a reduction in force, an employee at an institution under the jurisdiction of
the commission may not displace any employee of a community and technical college.
__(3) For the purpose of this subsection, an employee performing a dual service for a sponsoring
institution and an administratively linked community and technical college is an employee at an institution under the jurisdiction of the commission if the sponsoring institution receives a fee from
the administratively linked community and technical college for the service performed by that
employee.
§18B-7-12. Maintenance of benefits for employees.
(a) On the effective date of this section, any individual employed on the day preceding the
effective date of this section by the chancellor for higher education or commission maintains all
benefits of employment held, accrued and afforded prior to the effective date of this section. Such
benefits include, but are not limited to, retirement benefits, continued membership in the same
retirement system, any insurance coverage, and sick and annual leave. For the purposes of leave
conversion established in section thirteen, article sixteen, chapter five of this code, an employee is not
a new employee, and the prohibition on conversion does not apply if the employee was eligible for
leave conversion on the day preceding the effective date of this section. For the purpose of section
thirteen, article sixteen, chapter five of this code:
(1) Each employee maintains all sick and annual leave accrued, and all rights to convert the
leave that had been accrued on the day preceding the effective date of this section; and
(2) Each employee continues to maintain his or her status for eligibility under the provisions
and application of said section thirteen as applied to the employee on the day preceding the effective
date of this section.
(b) Prior to the first day of October, two thousand four, an employee may not be terminated,
or have his or her salary or benefit levels reduced as the result of the higher education reorganization
set forth in this article.
ARTICLE 9. CLASSIFIED EMPLOYEE SALARY SCHEDULE AND CLASSIFICATION
SYSTEM.
§18B-9-1. Legislative purpose.
The purpose of the Legislature in the enactment of this article is to require the commission
and council jointly to establish, control, supervise and manage a complete, uniform system of
personnel classification in accordance with the provisions of this article for all employees other than
faculty and nonclassified employees at state institutions of higher education.
§18B-9-2. Definitions.
As used in this article:
(a) "Classified employee" or "employee" means any regular full-time or regular part-time
employee of a governing board, or the commission or the council, including all employees of the West
Virginia network for educational telecomputing, who hold a position that is assigned a particular job
title and pay grade in accordance with the personnel classification system established by this article
or by the commission and council;
(b) "Nonclassified employee" means an individual who is responsible for policy formation
at the department or institutional level, or reports directly to the president, or is in a position considered
critical to the institution by the president pursuant to policies adopted by the governing board.
Provided, That the The percentage of personnel placed in the category of "nonclassified" at any given
institution shall may not exceed ten percent of the total number of employees of that institution who
are eligible for membership in any state retirement system of the state of West Virginia or other
retirement plan authorized by the state: Provided, however, That an additional ten percent of the total
number of employees of that institution as defined in this subsection may be placed in the category of "nonclassified" if they are in a position considered critical to the institution by the president. Final
approval of such placement shall be with the appropriate governing board;
(c) "Job description" means the specific listing of duties and responsibilities as determined
by the appropriate governing board, or the commission or council and associated with a particular job
title;
(d) "Job title" means the name of the position or job as defined by the appropriate governing
board, or the commission or council;
(e) "Merit increases and salary adjustments" means the amount of additional salary increase
allowed on a merit basis or to rectify salary inequities or accommodate competitive market conditions
in accordance with rules established by the governing boards, or the commission or council;
(f) "Pay grade" means the number assigned by the commission and council to a particular job
title and refers to the vertical column heading of the salary schedule established in section three of this
article;
(g) "Personnel classification system" means the process of job categorization adopted by the
commission and council jointly by which job title, job description, pay grade and placement on the
salary schedule are determined;
(h) "Salary" means the amount of compensation paid through the state treasury per annum to
a classified employee;
(i) "Schedule" or "salary schedule" means the grid of annual salary figures established in
section three of this article; and
(j) "Years of experience" means the number of years a person has been an employee of the
state of West Virginia and refers to the horizontal column heading of the salary schedule established in section three of this article. For the purpose of placement on the salary schedule, employment for
nine months or more equals one year of experience, but no a classified employee may not accrue more
than one year of experience during any given fiscal year. Employment for less than full time or less
than nine months during any fiscal year shall be prorated. In accordance with rules established by the
commission and council jointly, a classified employee may be granted additional years of experience
not to exceed the actual number of years of prior, relevant work or experience at accredited institutions
of higher education other than state institutions of higher education.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-1b. Special equity fee; purpose; exemptions.
In addition to the other fees provided in this article, each governing board has the authority to
impose, collect and expend the proceeds of a special equity fee under the following conditions:
(a) The fee shall be used solely for the purpose of complying with the athletic provisions of 20
U.S.C. 1681 et seq., known as Title IX of the Education Amendment of 1972;
(b) The fee is exempt from limitations on fee increases set forth in this article for three years
from the effective date of this section;
(c) The fee may not be used by an institution to advance its classification of participation in its
athletics governing body; and
(d) The fee may not be imposed upon part-time students or students enrolled in an
administratively-linked community and technical college.
§18B-10-2. Higher education resource fee.
In addition to the fees specifically provided for in section one of this article, all students
enrolled for credit at a state institution of higher education shall pay a higher education resource fee.
The commission and council jointly shall fix the fee rates for the various institutions and classes of
students under its jurisdiction their respective jurisdictions and may from time to time change these
rates. The amount of the fee charged at each institution shall be prorated for part-time students. The
fee imposed by this section is in addition to the maximum fees allowed to be collected under the
provision of section one of this article and is not limited thereby. Refunds of such the fee may be made
in the same manner as any other fee collected at state institutions of higher education.
Ninety percent of the total fees collected at each institution pursuant to this section shall be
deposited in a special fund in the state treasury for the institution at which the fees are collected and
may be used by the institution for libraries and library supplies, including books, periodicals,
subscriptions and audiovisual materials, instructional equipment and materials; and for the
improvement in quality and scope of student services. Up to ten percent of the fee collections from
institutions under the jurisdiction of the commission shall be deposited in a special fund and expended
or allocated by the commission to meet general operating expenses of the commission or to fund
statewide programs. Up to ten percent of the fee collections from institutions under the jurisdiction
of the council shall be deposited in a special fund and expended or allocated by the council to meet
general operating expenses of the council or to fund statewide programs. Provided, That the board The
boards shall, to the maximum extent practicable, offset the impact, if any, on financially needy students
of any potential fee increases under this section by allocating an appropriate amount of such fee
revenue to the state scholarship program to be expended in accordance with the provisions of article
five, chapter eighteen-c of this code.
The commission and council each shall, on or before the first day of July of each year annually,
provide the legislative auditor with a report of the projected fee collections for the board and each of
its institutions and the expenditures proposed for such fee.
And,
That both houses recede from their respective positions as to the title of the bill and agree to
the same as follows:
S. B. 448 - "A Bill to repeal §18B-1A-8 of the code of West Virginia, 1931, as amended; to
repeal §18B-1B-7 of said code; to repeal §18B-3C-7 of said code; to repeal §18B-6-2a, §18B-6-3a,
§18B-6-4a and §18B-6-4b of said code; to amend and reenact §18-2-1 of said code; to amend and
reenact §18B-1-1a, §18B-1-2, §18B-1-3 and §18B-1-6 of said code; to amend and reenact §18B-1A-2,
§18B-1A-3, §18B-1A-4, §18B-1A-5 and §18B-1A-6 of said code; to amend and reenact §18B-1B-1,
§18B-1B-2, §18B-1B-4, §18B-1B-5 and §18B-1B-6 of said code; to amend said code by adding
thereto a new section, designated §18B-1B-11; to amend and reenact §18B-2A-1 and §18B-2A-4 of
said code; to amend said code by adding thereto a new section, designated §18B-2A-6; to amend and
reenact §18B-2B-1, §18B-2B-2, §18B-2B-3, §18B-2B-4, §18B-2B-5, §18B-2B-6, §18B-2B-7 and
§18B-2B-8 of said code; to amend said code by adding thereto a new section, designated §18B-2B-6a;
to amend and reenact §18B-2C-3 and §18B-2C-4 of said code; to amend and reenact §18B-3C-2,
§18B-3C-3, §18B-3C-4, §18B-3C-5, §18B-3C-6, §18B-3C-8, §18B-3C-9, §18B-3C-10 and
§18B-3C-12 of said code; to amend and reenact §18B-4-1, §18B-4-2 and §18B-4-7 of said code; to
amend and reenact §18B-5-4 of said code; to amend and reenact §18B-6-1 and §18B-6-1a of said
code; to amend said code by adding thereto five new sections, designated §18B-6-2, §18B-6-3,
§18B-6-4, §18B-6-5 and §18B-6-6; to amend and reenact §18B-7-1 of said code; to amend said code
by adding thereto a new section, designated §18B-7-12; to amend and reenact §18B-9-1 and §18B-9-2 of said code; to amend and reenact §18B-10-2 of said code; and to amend said code by adding thereto
a new section, designated §18B-10-1b, all relating to education generally; higher education;
community and technical college education; post-secondary education; state board membership;
powers and duties of higher education policy commission and council for community and technical
college education; goals for post-secondary education; definitions; transferring certain rules and
expanding and clarifying rule-making authority; developing and approving institutional compacts and
master plans; establishing benchmarks and indicators; authorizing emergency rule; selecting peer
institutions; legislative financing goals; budget authority of commission and council; provision of
baccalaureate and graduate education; reducing duration of certain grants; higher education personnel;
developing public policy agenda; commission membership; consistency and cooperation among
commission, council and certain boards and groups; establishing priorities and distributing funds for
capital projects; employment of staff; appointments to boards and commissions; transfer of certain
course credits; approval of new institutions, programs and courses; employment of chancellor for
higher education; powers and duties; evaluations and contracts; appointment of institutional presidents;
evaluations; role of governing and advisory boards, commission and council in appointments;
requiring study of certain institutions providing post-secondary education; requiring reports to
legislative oversight commission on education accountability; powers and duties of governing boards
and institutional boards of advisors; authority of governing board in determining institutional status;
changing status of certain baccalaureate institutions; establishing or continuing governing and advisory
boards for certain institutions; membership; terms of office; legislative findings; employment of
chancellor for community and technical college education; evaluations and contracts; maintenance of
employee benefits; council membership and terms of office; qualifications; jurisdiction and authority
of council; employment of staff; tuition and fees; certain fee transfer; developing standards for remedial and developmental courses; higher education report card; authorization to withdraw certain
powers from a governing board; transfer and expansion of certain administrative, programmatic and
budgetary control; establishing certain deadlines for commission and council; transferring certain fund
and authorizing expenditures; employee transfer; powers and duties of chancellor; establishing and
conforming structure of certain advisory groups; membership and terms of office; exceptions;
meetings; development of search and screening guidelines; establishing certain advisory groups;
clarifying certain expenses; modifying deadline for attaining independent accreditation; exceptions;
council options; district consortia elimination; community and technical college consortia districts
established; consortia powers, duties, responsibilities and operation; modifying title of certain
employees; continuation in office; council authority over certain degree programs; service and fee
requirement modification and limitation; employee reorganization; supervision of certain employees;
essential services; employment of vice chancellor for administration; deadline for employment;
modifying certain purchasing and competitive bidding requirements; certain employee seniority and
displacement authority modification; duty of council regarding personnel classification system;
creation, collection and use of certain fees; and eliminating certain obsolete provisions."
Respectfully submitted,
Robert H. Plymale, Jerry L. Mezzatesta,
Larry J. Edgell, Larry A. Williams,
John R. Unger II, William Stemple,
Jon Blair Hunter, Robert C. Tabb,
Donna J. Boley, Roger Romine,
Conferees on the part Conferees on the part
of the Senate. of the House of Delegates.
On motion of Delegate Mezzatesta, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 737), and there were--yeas
75, nays 24, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Azinger, Blair, Border, Carmichael, Caruth, Duke, Ellem, Faircloth, Frederick, Frich,
Hall, Leggett, Long, Louisos, Overington, Schadler, Schoen, Smirl, Sobonya, Sumner, Trump, Wakim,
G. White and Yeager.
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. 448) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 738), and there were--yeas 81, nays
18, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Azinger, Blair, Border, Carmichael, Caruth, Duke, Faircloth, Frederick, Hall, Long,
Overington, Schadler, Schoen, Smirl, Sobonya, Sumner, Wakim and Yeager.
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. 448) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned
to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
On motion for leave, a concurrent resolution was introduced (Originating in the Committee on
Rules and reported with the recommendation that it be adopted), which was read by its title, as follows:
H. C. R. 94 - "Requesting that the Joint Committee on Government and Finance continue to
study West Virginia's efforts to meet its moral and legal obligation of caring for children in this State
who are caught up in potentially devastating and deeply personal legal and medical matters involving
child welfare, child abuse and neglect, serious emotional disorders, developmental disabilities, and
impaired social functioning; exploring fundamental questions about the wisdom of West Virginia's
current practices for allocating resources for children's services across the wide range of diverse and
often competing agencies and organizations; examining the potential for benefitting children and
ultimately realizing tangible savings to the State as a result of a more coordinated approach to fulfilling
its responsibility to its troubled children and their families; diverting or redirecting resources currently
spent on out-of-state placements that may not be necessary and 'high end' services that could be
avoided or reduced through early identification and prevention services, supplied by in-state service
providers in local facilities and in home and community based settings; attaining and ensuring
successful outcomes for children in permanency, safety and well being; reducing future costs to the
State by reducing the need for medical, legal and correctional services to adults whose problems stem
from a damaged childhood; examining reimbursement rates and the role they play in shaping the
infrastructure of the State's 'system of care' through their financial incentive to provide certain
services and not others; examining and evaluating the work of interagency multidisciplinary teams
('MDTs') that are charged with investigating child abuse and neglect and developing individual service plans for each child involved in court proceedings, including the problem of 'turf' issues, development
of standardized procedures based on best practices and determining the best mechanism for oversight
and accountability of local MDTs; clarifying the roles and responsibilities of individual MDT team
members; considering the facilitation and direction of treatment planning teams by neutral third
parties who have no stake in the outcome of the team's deliberations; monitoring the State's
implementation of its 'Program Improvement Plan for Children and Family Services' and tracking the
funding allocated for meeting deficiencies identified by the federal government; using a standardized
comprehensive assessment and planning system as a way to eliminate unnecessary placement of
children in out-of-state facilities and to enhance communication among all the parties involved;
monitoring and evaluating joint planning efforts undertaken by the various agencies of the State in
partnership with service providers, community leaders and families in need of services; establishing
and reviewing objective performance indicators for the programs which serve children and their
families; and making recommendations for policy and programmatic changes to improve outcomes
for the children of West Virginia and their families."
Whereas, The State of West Virginia is morally and legally responsible for protecting its
children who have been abused, neglected, or abandoned and to provide certain services to children
and their families in cases of serious physical or mental illness, developmental delays and disabilities,
and juvenile justice issues involving delinquency and status offenses; and
Whereas, On any given day, there are approximately 3,000 West Virginia children who have
been placed in residential facilities providing child welfare services; and
Whereas, On average, nearly 15 percent of these children are sent out of state, away from
family and friends, to residential treatment facilities providing services that in most cases can be provided by West Virginia service providers, in home and community based settings, with better
results for children and their families and lower costs to the State, both now and in the future; and
Whereas, West Virginia contributes over $23 million annually to the economies of other
states by sending our children there for treatment; and
Whereas, While some needed services are not available here, most children could remain in
state for treatment, thus providing an economic base that could conceivably create 1,000 new jobs for
West Virginians; and
Whereas, West Virginia can ill afford to export jobs, tax revenue and consumer expenditures
that could be generated by West Virginia businesses and organizations that provide children's services;
and
Whereas, West Virginia's treatment and foster care providers are nationally accredited and
offer some of the best treatment options in the country; and
Whereas, On average, per diem reimbursement rates are no higher at in-state facilities than
those in other states; and
Whereas, There have been ongoing efforts by the legislative, executive and judicial branches
of state government, in partnership with non-profit and private sector providers, families and children's
advocates, to improve this "system of care"; and
Whereas, Legislation currently pending in the Legislature could dramatically affect the
outlook for this perennial problem by making it a matter of public policy that children whose care is
funded, even in part, with state dollars, should remain in this state for treatment, unless needed services
are unavailable or the best interests of the child dictate otherwise; and
Whereas, The Legislature should continue it current, ongoing oversight of the State's child
welfare programs, and expand those efforts by closely monitoring administrative measures aimed at
attaining compliance with federal requirements for permanency, safety and well being; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to continue and
expand its study of the current "system of care" that serves our most vulnerable citizens, our children,
and develop strategies for improving the outcomes of that care and expending public resources in more
prudent and beneficial ways; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, 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.
At the request of Delegate Staton, and by unanimous consent, the resolution (H. C. R. 94) was
taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
On motion for leave, a concurrent resolution was introduced (Originating in the Committee on
Rules and reported with the recommendation that it be adopted), which was read by its title, as follows:
H. C. R. 100 - "Recognizing the importance of continuing the health science graduate
education programs at West Virginia University, Marshall University and the West Virginia School
of Osteopathic Medicine."
Whereas, The citizens of the State of West Virginia deserve access to physicians who are well
educated and well prepared to perform their duties; and
Whereas, The West Virginia University School of Medicine, the Marshall University School
of Medicine and the West Virginia School of Osteopathic Medicine supply the State of West Virginia
with highly skilled physicians and premium health care in various medical specialties; and
Whereas, The schools of medicine supply the State of West Virginia with highly skilled
physicians and premium healthcare in various medical specialties; and
Whereas, The schools of medicine additionally serve as the major referral source for the
necessary healthcare services utilized by all West Virginians, especially enrollees of the Medicaid
program; therefore, be it
Resolved by the Legislature of West Virginia:
That the base general revenue fiscal appropriations for the year ending June 30, 2004, for
Higher Education institutions of health science education are as follows:
WVU - School of Health Sciences $ 43,683,902
WVU - School of Health Sciences - Charleston 3,909,083
WVU - School of Medicine BRIM Subsidy 1,115,519
Marshall Medical School 13,401,248
Marshall University Medical School BRIM Subsidy 564,721
School of Osteopathic Medicine 6,624,876
School of Osteopathic Medicine BRIM Subsidy 90,249
and, be it
Further Resolved, That these appropriations are hereby noted by the Legislature and
memorialized as an investment in our future.
At the request of Delegate Staton, and by unanimous consent, the resolution (H. C. R. 100) was
taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
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. 36, Requesting Division of Highways name bridge on Interstate 68 spanning Route
7 at Sabraton Exit "James and Virginia Herring Memorial Bridge",
And reports the same back with the recommendation that it be adopted.
At the request of Delegate Staton, and by unanimous consent, the resolution (S. C. R. 36) was
taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Special Calendar
Unfinished Business
H. C. R. 87, Requesting a study on the projected costs and potential sources of revenue which
may be made available to support a plan to provide public campaign finances for designated elected
offices
; 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. 139, Creating Tourism Development Act
; 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. 739), and there were--yeas
86, nays 12, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Blair, Border, Carmichael, Hall, Schoen, Sobonya, Sumner, Susman, Trump, Wakim,
Walters and Webb.
Absent And Not Voting: Coleman and Frich.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 139) 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:
Com. Sub. for S. B. 139 - "A Bill to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5B-2E-1, §5B-2E-2, §5B-2E-3, §5B-2E-4, §5B-2E-5, §5B-
2E-6, §5B-2E-7, §5B-2E-8, §5B-2E-9, §5B-2E-10 and §5B-2E-11; and to amend said code by adding
thereto a new section, designated §11-15-34, all relating to the West Virginia tourism development
act; establishing a tourism development project tax credit; specifying short titles; specifying legislative findings and purpose; defining terms; specifying additional powers and duties of the development
office; specifying activity that qualifies for the credit; requiring filing of application for tax credit as
condition precedent to claiming tax credit; specifying procedures for evaluation and approval of
project; providing for hiring of consultants; specifying criteria for evaluating projects; specifying
determination of amount of allowable tax credits; providing maximum amount of credit; specifying
application of tax credits against sales tax collected; termination of applications after a certain date;
providing for forfeiture of unused tax credits; providing for a recapture credit under certain
circumstances; and specifying information required to be annually submitted to the state development
office."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 724, Transferring authority to propose rules relating to water quality standards to
department of environmental protection
; 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. 740), and there were--yeas
85, nays 11, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Fleischauer, Fragale, Hrutkay, Iaquinta, Mahan, Manchin, Manuel, Martin, Perdue,
Staton and R. Thompson.
Absent And Not Voting: Coleman, Foster, Leggett and Long.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 724) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 724 - "A Bill to amend and reenact §22-11-7b of the code of West Virginia, 1931, as
amended; to amend §22-12-4 of said code; and to amend and reenact §22B-3-2 and §22B-3-4 of said
code, all relating to water quality standards generally; transferring authority to propose rules relating
to water quality land groundwater standards from the environmental quality board to the department
of environmental protection; providing that the current rule remains in force and effect until amended
by the department of environmental protection; establishing requirements for water protection;
providing for consultation with the environmental quality board; providing that meetings to develop
water quality standards be open with certain exceptions; and authorizing the department of
environmental protection to issue mine variances."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 741), and there were--yeas 87, nays
11, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Brown, Doyle, Fleischauer, Fragale, Hrutkay, Mahan, Manchin, Manuel, Martin, R.
Thompson and Webster.
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. 724) 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.
Second Reading
Com. Sub. for S. B. 71, Relating to verifying legal employment status of workers employed
in state; on second reading, coming up in regular order was read a second time and ordered to third
reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 742), 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.
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. 743), 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. 71) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 447, Relating to powers and duties of municipal courts to collect certain
moneys
; 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, after the enacting clause, by striking out the remainder of the bill and inserting
in lieu thereof the following:
"CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
§8-10-2b. Suspension of licenses for failure to pay fines and costs or failure to appear in court,
diversion of personal income tax refunds.
(a) If costs, fines, forfeitures or penalties imposed by the municipal court upon conviction of
a person for a criminal offense as defined in section three-c, article three, chapter seventeen-b of this
code are not paid in full within one hundred eighty days of the judgment, the municipal court clerk or,
upon a judgment rendered on appeal, the circuit clerk shall notify the division of motor vehicles of
such the failure to pay: Provided, That at the time the judgment is imposed, the judge shall provide
the person with written notice that failure to pay the same as ordered shall result in the suspension of
such the person's license or privilege to operate a motor vehicle in this state and that such the
suspension could result in the cancellation of, the failure to renew or the failure to issue an automobile
insurance policy providing coverage for such the person or such the person's family: Provided,
however, That the failure of the judge to provide such notice shall does not affect the validity of any
suspension of such the person's license or privilege to operate a motor vehicle in this state. For
purposes of this section, payment shall be stayed during any period an appeal from the conviction
which resulted in the imposition of such costs, fines, forfeitures or penalties is pending.
Upon such notice, the division of motor vehicles shall suspend the person's driver's license
or privilege to operate a motor vehicle in this state until such time that the costs, fines, forfeitures or
penalties are paid.
(b) Notwithstanding the provisions of this section to the contrary, the notice of the failure to
pay such costs, fines, forfeitures or penalties shall may not be given where the municipal court, upon
application of the person upon whom the same costs, fines, forfeitures or penalties were imposed filed
prior to the expiration of the period within which the same these are required to be paid, enters an
order finding that such the person is financially unable to pay all or a portion of the same costs, fines,
forfeitures or penalties: Provided, That where the municipal court, upon finding that the person is
financially unable to pay a portion thereof of the costs, fines, forfeitures or penalties, requires the
person to pay the remaining portion, thereof the municipal court shall notify the division of motor
vehicles of such the person's failure to pay the same if the same is if not paid within the period of time
ordered by such the court.
(c) If a person charged with a criminal offense fails to appear or otherwise respond in court,
the municipal court shall notify the division of motor vehicles thereof within fifteen days of the
scheduled date to appear unless such the person sooner appears or otherwise responds in court to the
satisfaction of the judge. Upon such notice, the division of motor vehicles shall suspend the person's
driver's license or privilege to operate a motor vehicle in this state until such time that the person
appears as required send the licensee an order of suspension to the address of record by certified mail,
return receipt requested. The order of suspension shall indicate that the licensee's privilege to operate
a motor vehicle is suspended as of the date indicated on the order and that the suspension shall
continue until proof of compliance with the citation issued by the municipal court is submitted and all
applicable fees are paid. The suspension order shall also include a notice to the licensee that failure to answer the citation within ninety days of receipt of the suspension order, may result in the
withholding of any income tax refund due the licensee. The date of suspension shall be sixteen days
after the division of motor vehicles receives notification from the municipal court. The municipal
court judge may elect to reissue duplicate notices to the division of motor vehicles for licensees who
remain noncompliant, provided that the duplicate notice is reissued within ten years of the original
judgement on the citation. If the original notification can not be located, the division of motor vehicles
shall accept additional or duplicate notice from the municipal court clerk.
__________If the division of motor vehicles does not receive proof of compliance, the licensee's privilege
to operate a motor vehicle in this state shall remain suspended until such time as the division receives
proof of compliance with the terms of the citation from the licensee, and the appropriate fees are paid.
__________On and after the first day of July, two thousand five, if the licensee fails to respond to the
division of motor vehicles order of suspension within ninety days of receipt of the certified letter, the
municipal court of original jurisdiction shall notify the tax commissioner that the licensee has failed
to pay the fines assessed by the court or has failed to respond to the citation. The notice provided by
the municipal court to the tax commissioner must include the licensee's social security number. The
tax commissioner, or his or her designee, shall withhold from any personal income tax refund due and
owing to a licensee, the fees or fines due to the municipality, the tax commissioner's administration
fee for the withholding and any and all fees that the municipal court would have collected had the
licensee appeared: Provided, That the tax commissioner's administration fee may not exceed twenty-
five dollars: Provided however, That the tax commissioner may change this maximum amount
limitation for this fee for fiscal years beginning on or after the first day of July, two thousand eight by
legislative rule promulgated in accordance with the provisions of article three, chapter twenty-nine-a
of this code. After deduction of the tax commissioner's administration fee, the tax commissioner shall remit to the municipality all remaining amounts withheld pursuant to this section, and the municipal
court shall distribute applicable fines and fees owed to the municipality, the regional jail authority
fund, the crime victims compensation fund, the community corrections fund, the governors
subcommittee on law enforcement training, or any other fund or payee that may be applicable. After
the fees and fines are withheld, the tax commissioner shall refund any remaining balance due the
licensee. If the refund is not sufficient to cover all the fees and fines being withheld pursuant to this
section, the tax commissioner's administration fee shall be retained by the tax commissioner, and the
remaining money withheld shall be remitted by the tax commissioner to the municipality. The
municipality shall then allocate the money so remitted to the municipality in the following manner:
(1) any fees or fines due to the municipality; (2) seventy-five percent of the remaining balance shall
be paid to the appropriate regional jail authority fund; (3) fifteen percent of the remaining balance shall
be paid to the crime victims compensation fund; (4) six percent of the remaining balance shall be paid
into the community corrections fund; and (5) the final four percent shall be paid to the governor's
subcommittee on law-enforcement training. When the fees and fines exceed the licensee's income tax
refund, the tax commissioner shall withhold the remaining balance in subsequent years until such time
as the fees and fines owed are paid in full. The tax commissioner shall remit the moneys that he or she
collects to the appropriate municipality no later than the first day of July of each year.
__________(d) Rules and effective date -- The tax commissioner may promulgate such rules as may be
useful or necessary to carry out the purpose of this section and to implement the intent of the
Legislature, to be effective on the first day of July, two thousand five. Rules shall be promulgated in
accordance with the provisions of article three, chapter twenty-nine-a of this code.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 3. CANCELLATION, SUSPENSION, AND REVOCATION OF LICENSES.
§17B-3-9. Surrender and return of license not required.
The division, upon suspending or revoking a license, shall may not require that the license be
surrendered to and be retained by the division. The surrender of a license shall may not be a
precondition to the commencement and tolling of any applicable period of suspension or revocation:
Provided, That before the license may be reinstated, the licensee shall pay a fee of fifteen dollars, in
addition to all other fees and charges, which shall be collected by the division and deposited in a
special revolving fund to be appropriated to the division for use in the enforcement of the provisions
of this section: Provided, however, That when any license is suspended for failure to maintain motor
vehicle liability insurance or for nonpayment to, or failure to appear in, a municipal court, the
reinstatement fee is fifty dollars."
The bill was then ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 744), and there were--yeas 95, nays
4, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Hrutkay, Paxton, Schoen and Sobonya.
Absent And Not Voting: Coleman.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 745), and
there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as
follows:
Nays: Craig, Hrutkay 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. 447) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 447 - "A Bill to amend and reenact §8-10-2b of the code of West
Virginia, 1931, as amended; and to amend and reenact §17B-3-9 of said code, all relating to the powers
and duties of municipal courts to impose and collect unpaid municipal court fines, costs and fees;
clarifying and amending provisions related to the cancellation, suspension and revocation of driver's
licenses for failure to pay certain municipal court fines, court costs and fees and related notice and
procedural requirements; providing for the withholding of personal income tax refunds for failure to
pay certain municipal court fines, court costs and fees; establishing notice and procedural requirements
related thereto; authorizing municipal court judges to issue duplicate notices of failure of criminal
defendants to appear or otherwise respond in court and specifying conditions for such issuance;
providing that the duration of any suspension of privilege to operate a motor vehicle for failure to pay
municipal court fines, court costs and fees in this state is to remain in effect until the division of motor
vehicles has received proof of compliance and payment of such unpaid municipal court fines, court
costs and fees; providing for the collection and remittance of funds so withheld and collected by the tax commissioner; authorizing a related administration fee to be assessed and collected by the tax
commissioner; authorizing the promulgation of rules by the tax commissioner."
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. 701, Authorizing certain taxes imposed by municipalities; on third
reading, having been postponed until this time, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 746), and there were--yeas
94, nays 4, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Ellem, Overington and Walters.
Absent And Not Voting: Coleman and Webb.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 701) 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:
Com. Sub. for S. B. 701 - "A Bill to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §8-13C-1, §8-13C-2, §8-13C-3, §8-13C-4, §8-13C-5,
§8-13C-5a, §8-13C-6, §8-13C-7, §8-13C-8, §8-13C-9, §8-13C-10, §8-13C-11, §8-13C-12 and §8-
13C-13; to amend and reenact §11-9-2, §11-9-3, §11-9-4, §11-9-5, §11-9-6, §11-9-8 and §11-9-10 of
said code; and to amend and reenact §11-10-3 of said code, all relating to authorizing a qualifying
municipality to impose municipal occupational tax, an alternative municipal sales and service tax and
use tax and a pension relief municipal sales and service tax and use tax; establishing responsibilities of tax commissioner relating to the tax; clarifying application of other state tax laws; creating
qualifying municipal sales and service tax and use tax fund; providing that tax rate applies to purchases
from printed catalogs; limiting use of certain proceeds of the taxes to application toward the unfunded
liability of certain pensions; citing instances where qualifying municipalities lose certain taxing
authority; limiting increase in pension benefits pending imposition of certain taxes; addressing
conflicts and unconstitutionality; establishing prerequisites to imposition of certain taxes; requiring
a study by the chief technology officer on the cost of implementing municipal taxes; imposing criminal
penalties for certain violations relating to municipal tax; applying tax procedure and administration
act to municipal taxes."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
The Clerk announced that, pursuant to House Rule 70a, the following requests had been filed
with him for the removal of bills from the Consent Calendar to the House Calendar:
Com. Sub. for S. B. 50, Com. Sub. for S. B. 89, Com. Sub. for S. B. 629 and S. B. 688, all
on third reading, Consent Calendar, to the House Calendar, by Delegate Amores.
Miscellaneous Business
Delegate Webb announced that he was absent on today when the vote was taken on Roll No.
746, and that had he been present, he would have voted "Nay" thereon.
Delegate Frich announced that she was absent on today when the vote was taken on Roll No.
739, and that had she been present, she would have voted "Nay" thereon.
Delegate Schoen announced that she was absent on today when the vote was taken on Roll No.
635, and that had she been present, she would have voted "Nay" thereon; and that had she been present when the votes were taken on Roll Nos. 651, 652 and 671, she would have voted "Yea"
thereon.
Delegate Frich requested that the Journal record her as voting "Nay" on the Finance
Committee amendment to Com. Sub. for S. B. 197 and on the House amendment to Com. Sub. for S.
B. 133 - inserting the provisions of Com. Sub. for H. B. 4000 into Com. Sub. for S. B. 133, both of
the amendments being offered on Friday, March 12, 2004; and that she also be recorded as voting
"Nay" on the Judiciary Committee amendment to S. B. 573, offered on today.
Delegate Martin announced that he was absent on today when the vote was taken on Roll No.
689, and that had he been present, he would have voted "Yea" thereon.
Delegate Frich asked and obtained unanimous consent that the remarks of Delegate Caruth
regarding S. B. 448 be printed in the Appendix to the Journal.
Delegate Long asked and obtained unanimous consent that the remarks of Delegate Frederick
regarding S. B. 448 be printed in the Appendix to the Journal.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of Conference
on and the passage, as amended by said report, of
Com. Sub. for H. B. 2088, Authorizing local law-enforcement officers who are members of
drug task forces to have access to prescription drug monitoring data.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House
of Delegates to the amendment of the Senate, and the passage, as amended, of
Com. Sub. for H. B. 2200, Creating the felony offense of destruction of property.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House
of Delegates to the amendment of the Senate, and the passage, as amended, to take effect July 1, 2004,
of
Com. Sub. for H. B. 4001, Ensuring safer schools and empowering teachers by automating
student suspension and expulsion data.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House
of Delegates to the amendment of the Senate, and the passage, as amended, of
Com. Sub. for H. B. 4004, Establishing an insurance fraud unit within the office of the
insurance commissioner.
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of Conference
on and the passage, as amended by said report, to take effect from passage, of
H. B. 4084, West Virginia Pharmaceutical Availability and Affordability Act.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House
of Delegates to the amendment of the Senate, and the passage, as amended, of
Com. Sub. for H. B. 4266, Requiring regulatory agencies of government, with exceptions, to
study ways to expedite the issuance of licenses, permits and certificates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of Conference
on and the passage, as amended by said report, to take effect from passage, of
H. B. 4601, Relating to public education generally.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House
of Delegates to the amendment of the Senate, and the passage, as amended, of
Com. Sub. for H. B. 4605, Clarifying certain provisions of the West Virginia Code as they
relate to domestic violence offenses and related protective orders that are issued by various courts.
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:
Com. Sub. for H. B. 2423, Awarding high school diplomas to certain veterans,
Com. Sub. for H. B. 3097, Prescribing proper venue in civil actions involving West Virginia
university and Marshall university,
H. B. 4068, Allowing the hunting of coyotes by use of amber colored artificial light with
certain restrictions,
Com. Sub. for H. B. 4166, Removing the description requirements in deeds for easements and
rights-of-way for mineral leases,
Com. Sub. for H. B. 4257, Increasing the amount of prizes that may be given in the conduct
of charitable raffles without a license,
H. B. 4295, Exempting state bonds from taxation,
Com. Sub. for H. B. 4536, Establishing the law-enforcement reemployment act,
Com. Sub. for H. B. 4561, Authorizing the director of the division of natural resources to
allow nonresidents to train dogs for coon hunting,
H. B. 4627, Honoring academic performance of West Virginians graduating from U.S. military
academies,
H. B. 4641, Establishing a credentialing program for dialysis technicians by the board of
registered professional nurses.
Com. Sub. for H. B. 4655, Giving the children's health insurance program the right of
subrogation,
And,
H. B. 4709, Allowing the commissioner of labor to charge fees for laboratory services and
calibrations.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect July 1, 2004, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3189, Reducing the total tax credits available under the capital company
act during the fiscal year beginning on the first day of July, two thousand four.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect from passage, bills of the House of Delegates as follows:
Com. Sub. for H. B. 4085, Clarifying certain terms related to the Ron Yost Personal
Assistance Services Act,
H. B. 4748, Supplemental appropriation in the state excess lottery revenue fund, to the lottery
commission - refundable credit,
H. B. 4749, Supplementing, amending and increasing items of the existing appropriations from
the state road fund to the department of transportation, division of highways,
H. B. 4750, Supplemental appropriation of federal funds out of the treasury from the balance
of moneys remaining unappropriated to the department of education - state department of education,
H. B. 4751, Supplemental appropriation to the department of military affairs and public safety
- adjutant general - state militia,
H. B. 4752, Supplemental appropriation to the department of tax and revenue - division of
banking,
H. B. 4754, Supplemental appropriation to the department of transportation - division of motor
vehicles,
H. B. 4755, Supplemental appropriation to a new item of appropriation designated the coal
heritage highway authority,
H. B. 4756, Supplemental appropriation to the West Virginia state board of examiners for
licensed practical nurses,
H. B. 4757, Supplemental appropriation to the department of military affairs and public safety
- division of criminal justice services,
And,
H. B. 4758, Supplemental appropriation to the department of military affairs and public safety
- division of criminal justice services - juvenile accountability incentive.
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of Conference
on and the passage, as amended by said report, to take effect from passage, of
H. B. 4107, Allowing licensees of charitable bingo and raffle games to transfer game proceeds
between their bingo and raffle operations.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House
of Delegates to the amendment of the Senate, and the passage, as amended, of
Com. Sub. for H. B. 4266, Requiring regulatory agencies of government, with exceptions, to
study ways to expedite the issuance of licenses, permits and certificates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of
concurrent resolutions of the House of Delegates as follows:
H. C. R. 37, Requesting a study to determine the most appropriate mechanisms to reach the
goal of providing all citizens of the State of West Virginia with comprehensive, quality and affordable
health care,
H. C. R. 54, Requesting a study of the efficacy of collaborative pharmacy practice agreements
between pharmacists and physicians,
H. C. R. 69, Requesting a study on the development of intellectual properties and other
mechanisms to encourage the film industry to conduct business in West Virginia,
H. C. R. 74, Naming the bridge on Route 54, in Wyoming County, the "Charles S. 'Charlie
Boy' Stump, Jr. Memorial Bridge",
And,
H. C. R. 75, Requesting the Governor to take suitable public notice each year of the month of
June as "Mountain Bike Month".
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. 28, Exempting certain personal property from levy, forced sale,
attachment or execution,
Com. Sub. for S. B. 125, Permitting solicitation of certain state employees for contributions
to certain campaigns in local or county elections,
Com. Sub. for S. B. 139, Creating Tourism Development Act,
Com. Sub. for S. B. 143, Relating to small employer accident and sickness insurance policies,
Com. Sub. for S B. 149, Relating generally to department of tax and revenue,
Com. Sub. for S. B. 230, Relating to definitions of casualty insurance and federal flood
insurance; other provisions,
Com. Sub. for S. B. 271, Relating to racial profiling data collection,
Com. Sub. for S. B. 320, Relating to division of motor vehicles application for certificate of
title; exempting modular homes,
S. B. 321, Providing personal income tax adjustment to gross income of certain retirees,
S. B. 406, Relating to victim notification of defendant's release,
S. B. 418, Allowing certain sheriff employees to carry deadly weapons,
Com. Sub. for S. B. 420, Relating generally to motor fuels excise tax,
S. B. 428, Defining "transacting insurance",
S. B. 450, Relating to long-term care insurance policies,
Com. Sub. for S. B. 454, Relating to land-use planning,
Com. Sub. for S. B. 460, Relating to regulating surveyors and underground surveyors,
S. B. 479, Relating to licensing foreign insurers,
Com. Sub. for S. B. 505, Creating motor vehicle classification of "low-speed vehicle",
Com. Sub. for S. B. 513, Relating to jobs investment trust board,
Com. Sub. for S. B. 516, Establishing eastern panhandle transportation authority,
Com. Sub. for S. B. 518, Relating to policemen and firemen required to work during holidays;
compensation,
Com. Sub. for S. B. 533, Authorizing division of corrections charge certain adult offenders
transfer application fee,
Com. Sub. for S. B. 556, Exempting retailers of automobiles and trucks from definition of
credit services organizations,
S. B. 558, Making misuse of power of attorney or fiduciary relationship crime,
S. B. 573, Providing procedure for economic development authority to address problems of
state minorities,
Com. Sub. for S. B. 616, Relating to environmental protection advisory council,
S. B. 636, Relating to employment of members of teachers defined benefit retirement system,
Com. Sub. for S. B. 637, Relating to termination of tenancy of factory-built home site; other
provisions,
S. B. 638, Authorizing special license plate for Davis & Elkins college and plate recognizing
breast cancer survivors,
S. B. 673, Relating to reporting requirements on coal resource transportation roads,
Com. Sub. for S. B. 694, Establishing Fairness in Competitive Bidding Act,
Com. Sub. for S. B. 700, Requiring state agencies make timely payments for
telecommunications services; other provisions,
Com. Sub. for S. B. 701, Authorizing certain taxes imposed by municipalities,
S. B. 717, Terminating agencies following full performance evaluations,
And,
S. B. 7191, Increasing tax on providers of nursing facility services.
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. 327, Authorizing department of administration to promulgate legislative
rules,
Com. Sub. for S. B. 350, Authorizing bureau of commerce to promulgate legislative rules,
Com. Sub. for S. B. 399, Authorizing miscellaneous boards and agencies to promulgate
legislative rules,
Com. Sub. for S. B. 404, Clarifying term "behavioral health services"; removing "community
care services",
Com. Sub. for S. B. 408, Relating generally to levies by county boards of education and
expenditure of property taxes collected,
S. B. 536, Relating to claims against state,
And,
S. B. 718, Authorizing board of examiners of psychologists set fees by rule.
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 July 1, 2004, of
Com. Sub. for S. B. 161, Creating Model Health Plan for Uninsurable Individuals Act,
Com. Sub. for S. B. 204, Relating to strategic research and development tax credit,
And,
Com. Sub. for S. B. 508, Relating to commission on arts.
A message from the Senate, by
The Clerk of the Senate, announced the concurrence of the Senate in the changed effective date,
to take effect from passage, of
S. B. 654, Appointing interim judges to court of claims.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with
amendment, and the passage, as amended, of
Com. Sub. for S. B. 163, Establishing Water Resources Protection Act.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by the
Clerk:
On page one, by striking out everything after the article heading and inserting in lieu thereof
the following:
"§22-25-1. Short title; legislative findings.
(a) Short title - This article may be known and cited as the 'Water Resources Protection Act'.
(b) Legislative findings:
(1) The West Virginia Legislature finds that it is the public policy of the state of West Virginia
to protect and conserve the water resources for the state and to provide for the public welfare. The
state's water resources are vital natural resources of the state that are essential to maintain, preserve
and promote quality of life and economic vitality of the state.
(2) The West Virginia Legislature further finds that it is the public policy of the state that the
water resources of the state be available for the benefit of the citizens of West Virginia, consistent with and preserving all other existing rights and remedies recognized in common law or by statute, while
also preserving this resource within its sovereign powers for the common good.
§22-25-2. Definitions.
For purposes of this article, the following words have the meanings assigned unless the context
indicates otherwise:
(a) 'Beneficial use' means uses that include, but are not limited to, public or private water
supplies, agriculture, tourism, commercial, industrial, coal, oil and gas and other mineral extraction,
preservation of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation and
preservation of cultural values.
(b) 'Consumptive withdrawal' means any withdrawal of water which returns less water to the
water body than is withdrawn.
(c) 'Farm use' means irrigation of any land used for general farming, forage, aquiculture,
pasture, orchards, nurseries, the provision of water supply for farm animals, poultry farming or any
other activity conducted in the course of a farming operation.
(d)'Interbasin transfer' means the permanent removal of water from the watershed from which
it is withdrawn.
(e) 'Maximum potential' means the maximum designed capacity of a facility to withdraw water
under its physical and operational design.
(f) 'Person', 'persons' or 'people' means an individual, public and private business or industry,
public or private water service and governmental entity.
(g) 'Nonconsumptive withdrawal' means any withdrawal of water which is not a consumptive
withdrawal as defined in this section.
(h) 'Secretary' means the secretary of the department of environmental protection or his or her
designee.
(i) 'Water resources', 'water' or 'waters' means any and all water on or beneath the surface of
the ground, whether percolating, standing, diffused, or flowing, wholly or partially within this state,
or bordering this state and within its jurisdiction, and includes, without limiting the generality of the
foregoing, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds, impounding
reservoirs, springs, wells, watercourses and wetlands: Provided, That farm ponds, industrial settling
basins and ponds and waste treatment facilities are excluded from the waters of the state.
(j) 'Watershed' means a hydrologic unit utilized by the United States department of interior's
geological survey, adopted in 1974, as a framework for detailed water and related land-resource
planning, denoted by an eight digit hydrologic unit code, and by which West Virginia is, as of the
effective date of the Act, divided into thirty-two separate hydrologic units.
(k) 'Withdrawal' means the removal or capture of water from a water resource of the state
regardless of whether it is consumptive or non-consumptive: Provided, that water encountered during
coal, oil, gas or other mineral extraction and diverted, but not used for any purpose and not a factor
in low flow conditions for any surface water or groundwater, is not deemed a withdrawal.
§22-25-3. Waters claimed by state; water resources protection survey; need for study;
registration requirements; agency cooperation; information gathering.
(a) The waters of the state of West Virginia are hereby claimed as valuable public natural
resources held by the state for the use and benefit of its citizens. The state shall manage the quantity
of its waters effectively for present and future use and enjoyment and for the protection of the
environment. Therefore, it is necessary for the state to determine the nature and extent of its water
resources, the quantity of water being withdrawn or otherwise used and the nature of the withdrawals or other uses: Provided, That no provisions of this article may be construed to amend or limit any other
rights and remedies created by statute or common law in existence on the date of the enactment of this
article.
(b) The secretary shall conduct a water resources survey of consumptive and nonconsumptive
surface water and groundwater withdrawals in this state. The secretary shall determine the form and
format of the information submitted, including the use of electronic submissions. The survey shall
collect information covering the years two thousand three, two thousand four and two thousand five.
The secretary shall establish a statewide registration program to monitor large quantity users of water
resources of this state beginning in two thousand and six.
(c) Beginning in the year two thousand and three, every person utilizing the state's water
resources whose withdrawal from a water resource during any month exceeds seven hundred fifty
thousand gallons, except those who purchase water from a public or private water utility or other
service that is reporting its total withdrawal, shall provide all requested information regarding
withdrawals of the water resource. Multiple withdrawals of water from a particular water resource that
are made or controlled by a single person and used at one facility or location shall be considered a
single withdrawal of water. Water withdrawals for self-supplied farm use and private households will
be estimated. Water utilities regulated by the public service commission pursuant to article two,
chapter twenty four of the code, are exempted from providing information on interbasin transfers to
the extent those transfers are necessary to provide water utility services within the state.
(d) The secretary shall make a good faith effort to obtain survey and registration information
from persons who are withdrawing water from an in-state water resource but who are located outside
the state borders.
(e) All state agencies that have a regulatory, research or other function relating to water
resources, including, but not limited to, the state geological and economic survey, the division of
natural resources, the public service commission, the bureau for public health, the commissioner of
the department of agriculture, the office of emergency services, Marshall university and West Virginia
university may enter into interagency agreements with the secretary and shall cooperate by: (i)
Providing information relating to the water resources of the state; and (ii) providing any necessary
assistance to the secretary in effectuating the purposes of this article. The secretary shall determine
the form and format of the information submitted by these agencies.
(f) Persons required to participate in the survey and registration shall provide any reasonably
available information on stream flow conditions that impact withdrawal rates.
(g) Persons required to participate in the survey and registration shall provide the most accurate
information available on water withdrawal during seasonal conditions and future potential maximum
withdrawals or other information that the secretary determines is necessary for the completion of the
survey or registration: Provided, That a coal-fired electric generating facility shall also report the
nominal design capacity of the facility, which is the quantity of water withdrawn by the facility's
intake pumps necessary to operate the facility during a calendar day.
(h) The secretary shall, to the extent reliable water withdrawal data is reasonably available from
sources other than persons required to provide data and participate in the survey and registration,
utilize that data to fulfill the requirements of this section. If the data is not reasonably available to the
secretary, persons required to participate in the survey and registration are required to provide the data.
Registered persons that report withdrawals on an annual basis for a period of three consecutive years
are not required to register further withdrawals unless the amount withdrawn annually varies by more
than ten percent from the three year average. Altering locations of intakes and discharge points that result in an impact to the withdrawal of the water resource by an amount of ten percent or more from
the consecutive three year average shall also be reported.
(i) The secretary shall report regularly to the joint legislative oversight commission on state
water resources to advise the commission of the progress of the survey as well as any problems that
may be encountered in conducting the survey and to make recommendations on policy and statutory
changes that may be needed.
(j) Upon completion of the survey, the secretary shall file a final report with the joint committee
on government and finance no later than the thirty-first day of December, two thousand six. In
preparing the final report the secretary shall consult with the commissioner of the department of
agriculture, the bureau for public health, the division of natural resources and the public service
commission. The final report shall include the following:
(1) To the extent the information is available, the location and quantity of all surface water and
groundwater resources in this state;
(2) A discussion of the consumptive and nonconsumptive withdrawals of surface water and
groundwater in this state;
(3) A listing of each person whose consumptive or nonconsumptive withdrawal during any
single month during the calender year exceeds seven hundred fifty thousand gallons, including the
amount of water used, location of the water resource, the nature of the use, location of each intake and
discharge point by longitude and latitude where available and, if the use involves more than one
watershed or basin, the watersheds or basins involved and the amount transferred;
(4) A discussion of any area of concern regarding historical or current conditions that indicate
a low flow condition or where a drought or flood has occurred or is likely to occur that threatens the
beneficial use of the surface water or groundwater in the area;
(5) Current or potential in-stream or off-stream uses that contribute to or are likely to
exacerbate natural low flow conditions to the detriment of the water resource;
(6) Discussion of a potential groundwater well network that provides indicators that
groundwater levels in an area are declining or are expected to decline excessively;
(7) Potential growth areas where competition for water resources may be expected;
(8) Any occurrence of two or more withdrawals that are interfering or may reasonably be
expected to interfere with one another;
(9) Discussion of practices or methods persons have implemented to reduce water withdrawals;
and
(10) Any other information that may be beneficial in adequately assessing water availability
and withdrawal and in determining the need for and the preparation of water resources plans.
(k) In addition to any requirements for completion of the survey established by the secretary,
the survey must accurately reflect both actual and maximum potential water withdrawal. Actual
withdrawal shall be established through metering, measuring or alternative accepted scientific methods
to obtain a reasonable estimate or indirect calculation of actual use.
(l) Upon completion of the survey, the secretary shall make recommendations to the joint
legislative oversight commission created in section five of this article relating to the need to implement
a water quantity management strategy for the state or regions of the state where the quantity of water
resources are found to be currently stressed or likely to be stressed due to emerging beneficial or other uses, ecological conditions or other factors requiring the development of a strategy for management
of these water resources. The report shall include an analysis of the costs and benefits upon persons
potentially impacted by the implementation of a water quantity management strategy.
(m) The secretary may propose rules pursuant to article three, chapter twenty-nine-a of this
code as necessary to implement the survey and registration requirements of this article.
(n) The secretary is authorized to enter into cooperative agreements with the United States
geological survey to obtain federal matching funds, conduct research and analyze survey and
registration data and other agreements as may be necessary to carry out his or her duties under this
article.
§22-25-4. Confidentiality.
(a) Information required to be submitted by a person as part of the water withdrawal survey and
registration that may be a trade secret, contain protected information relating to homeland security, or
be subject to another exemption provided by the state freedom of information act, may be deemed
confidential. Each such document shall be identified by that person as confidential information. The
person claiming confidentiality shall provide written justification to the secretary at the time the
information is submitted stating the reasons for confidentiality and why the information should not be
released or made public. The secretary has the discretion to approve or deny requests for
confidentiality as prescribed by this section.
(b) In addition to records or documents that may be considered confidential under article one,
chapter twenty-nine-b of this code, confidential information means records, reports or information, or
a particular portion thereof, that if made public would:
(1) Divulge production or sales figures or methods, processes or production unique to the
submitting person;
(2) Otherwise tend to adversely affect the competitive position of a person by revealing trade
secrets, including intellectual property rights; or
(3) Present a threat to the safety and security of any water supply, including information
concerning water supply vulnerability assessments.
(c) Information designated as confidential and the written justification shall be maintained in
a file separate from the general records related to the person.
(d) Information designated as confidential may be released when the information is contained
in a report in which the identity of the person has been removed and the confidential information is
aggregated by hydrologic unit or region.
(e) Information designated as confidential may be released to governmental entities, their
employees and agents when compiling and analyzing survey and registration information and as may
be necessary to develop the legislative report required by this section or to develop water resources
plans. Any governmental entity or person receiving information designated confidential shall protect
the information as confidential.
(f) Upon receipt of a request for information that has been designated confidential and prior
to making a determination to grant or deny the request, the secretary shall notify the person claiming
confidentiality of the request and may allow the person an opportunity to respond to the request in
writing within five days.
(g) All requests to inspect or copy documents shall state with reasonable specificity the
documents or type of documents sought to be inspected or copied. Within ten business days of the receipt of a request, the secretary shall: (1) Advise the person making the request in writing of the time
and place where the person may inspect and copy the documents which, if the request addresses
information claimed as confidential, may not be sooner than twenty days following the date of the
determination to disclose, unless an earlier disclosure date is agreed to by the person claiming
confidentiality; or (2) deny the request, stating in writing the reasons for denial. If the request
addresses information claimed as confidential, then notice of the action taken pursuant to this
subsection shall also be provided to the person asserting the claim of confidentiality.
(h) Any person adversely affected by a determination regarding confidential information under
this article may appeal the determination to the appropriate circuit court pursuant to the provisions of
article five, chapter twenty-nine-a of this code. The filing of a timely notice of appeal shall stay any
determination to disclose confidential information pending a final decision on appeal. The scope of
review is limited to the question of whether the portion of the records, reports, data or other
information sought to be deemed confidential, inspected or copied is entitled to be treated as
confidential under this section. The secretary shall afford evidentiary protection in appeals as
necessary to protect the confidentiality of the information at issue, including the use of in camera
proceedings and the sealing of records when appropriate.
§22-25-5. Joint legislative oversight commission on state water resources.
(a) The president of the Senate and the speaker of the House of Delegates shall each designate
five members of their respective houses, at least one of whom shall be a member of the minority party,
to serve on a joint legislative oversight commission charged with immediate and ongoing oversight
of the water resources survey and registration. This commission shall be known as the 'Joint
Legislative Oversight Commission on State Water Resources' and shall regularly investigate and monitor all matters relating to the water resources survey and the need for a water resources strategy
and policy.
(b) The expenses of the commission, including the cost of conducting the survey and
monitoring any subsequent strategy and those incurred in the employment of legal, technical,
investigative, clerical, stenographic, advisory and other personnel, are to be approved by the joint
committee on government and finance and paid from legislative appropriations.
(c) The secretary shall report, at a minimum of quarterly, in sufficient detail for the commission
to monitor the water resources survey and to develop recommendations resulting from the survey. The
secretary shall submit an annual report to the commission by the thirty-first day of December each
year. The secretary shall also file a final report on the water resources survey no later than the thirty-
first day of December, two thousand six.
§22-25-6. Mandatory survey and registration compliance.
(a) The water resources survey and subsequent registry will provide critical information for
protection of the state's water resources and, thus, mandatory compliance with the survey and registry
is necessary.
(b) Any person who fails to complete the survey or register, provides false or misleading
information on the survey or registration, fails to provide other information as required by this article
may be subject to a civil administrative penalty not to exceed five thousand dollars to be collected by
the secretary consistent with the secretary's authority pursuant to this chapter. Every thirty days after
the initial imposition of the civil administrative penalty, another penalty may be assessed if the
information is not provided. The secretary shall provide written notice of failure to comply with this
section thirty days prior to assessing the first administrative penalty."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment to
the House amendment.
The bill, as amended by the House, and as further amended by the Senate, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 747), 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 Yost.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 163) 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 House of Delegates amendment, with
amendments, and the passage, as amended, of
S. B. 148, Creating Tax Amnesty Program of 2004.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House of Delegates amendment were reported by the
Clerk:
On page two, by amending the enacting section, to read as follows:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new
article, designated §11-10D-1, §11-10D-2, §11-10D-3, §11-10D-4, §11-10D-5, §11-10D-6, §11-10D-
7, §11-10D-8, §11-10D-9, §11-10D-10, §11-10D-11, §11-10D-12 and §11-10D-13; to amend and reenacted §11-12-5 of said code; to amend and reenact §11A-1-7 of said code; and to amend and
reenact §11A-2-11 of said code, all to read as follows" followed by a colon.
On page eighteen, article ten-D, after section ten, by inserting the following:
"§11-10D-11. Penalty on liabilities eligible for amnesty for which taxpayer did not apply for
amnesty.
(a) If a taxpayer has a liability that would be eligible for amnesty under this article but the
taxpayer fails to apply for amnesty within the designated amnesty period as determined in this article,
or, after applying for amnesty, fails to satisfy all of the requirements for amnesty, then a penalty in the
amount of ten percent of the unpaid liability shall be added to the amount of any unpaid taxes eligible
for amnesty.
(b) The tax commissioner shall assess the penalty provided din subsection (a) of this section
unless:
(1) Taxpayer provides evidence satisfactory to the commissioner which demonstrates that
taxpayer's failure to apply for amnesty or his or her failure to satisfy all of the requirements for
amnesty was not an intentional attempt to avoid the payment of taxes and was based on the taxpayer's
mistaken belief that he or she did not have any liability eligible for amnesty; or
(2) Taxpayer's failure to apply for amnesty, in the case of an assessment issued before the start
of or during the amnesty period, is due to taxpayer contesting in an administrative or judicial forum
the disputed liability."
And then renumbering the remaining sections.
On page four, article twelve, section five, subsection (b), subdivision (3), by striking out the
words "August, two thousand four" and inserting in lieu thereof the words "July, two thousand five".
And,
On page one, by amending the title to read as follows:
S. B. 148 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto
a new article, designated §11-10D-1, §11-10D-2, §11-10D-3, §11-10D-4, §11-10D-5, §11-10D-6, §11-
10D-7, §11-10D-8, §11-10D-9, §11-10D-10, §11-10D-11, §11-10D-12 and §11-10D-13; to amend and
reenact §11-12-5 of said code; to amend and reenact §11A-1-7 of said code; and to amend and reenact
§11A-2-11 of said code, all relating generally to the collection of delinquent taxes; granting persons
who owe but have not paid one or more taxes administered under West Virginia tax procedure and
administration act an amnesty period during which past-due taxes may be paid or payment agreements
acceptable to tax commissioner executed; providing for waiver of additions to tax, money penalties
and fifty percent of accrued interest on past-due taxes; prohibiting criminal prosecution for default for
which tax amnesty is granted; providing a penalty of ten percent for failure to take advantage of this
amnesty program; setting forth legislative findings and declarations; establishing requirements of and
exceptions and limitations to tax amnesty program; defining certain terms; authorizing tax
commissioner to do all things necessary to implement two-month tax amnesty program during current
calendar year; requiring tax commissioner to report certain information to Legislature and governor
after conclusion of tax amnesty program; authorizing tax commissioner to suspend a business
registration certificate for failure to pay delinquent personal property taxes; requiring the tax
commissioner to refuse to issue or renew a business registration certificate upon certain notice from
the sheriff that the registrant has not paid delinquent personal property taxes; requiring tax
commissioner to propose legislative rules establishing ancillary procedures for the tax commissioner's
suspension of business registration certificates; requiring sheriff to decline to receive current taxes due
on any personal property where a prior year's taxes are unpaid; and providing language for inclusion in publication giving notice of that license to do business in state will be suspended for failure to pay
delinquent personal property taxes."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
to the House amendment.
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. 748), and there were--yeas
96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Hall, Schoen 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 (S. B. 148) 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 July 1, 2004, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4501, Creating exemptions from the consumers sales and services tax for
e-commerce vendors and other high technology businesses.
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 amending the enacting section, to read as follows:
"That §11-15-9g of the code of West Virginia, 1931, as amended, be amended and reenacted;
and that said code be amended by adding thereto a new section, designated §11-15-9h, all to read as
follows" followed by a colon.
On page two, after the article heading, by inserting a new section, designated section nine-g,
to read as follows:
"§11-15-9g. Exemption for clothing, footwear and school supplies for limited period in the year
two thousand four.
(a) The sale of an article of clothing or footwear designed to be worn on or about the human
body and the sale of school supplies, such as pens, pencils, binders, notebooks, reference books, book
bags, lunch boxes, computers, computer accessories and calculators, is exempted from the taxes
imposed by this article if:
(1) The sales price of the article or school supply, except for a computer or computer accessory,
is less than one hundred dollars;
(2) The sales price of a computer is less than seven hundred fifty dollars after credit for any
manufacturer's rebate or computer accessory is less than one hundred dollars after credit for any
manufacturer's rebate; and
(3) The sale takes place during a period beginning at 12:01 a.m. eastern daylight time on the
first Friday in August, two thousand three four, and ending at 12 midnight eastern daylight time on the
following Sunday in August, two thousand three four.
(b) This section does not apply to:
(1) Any special clothing or footwear that is primarily designed for athletic activity or protective
use and that is not normally worn except when used for the athletic activity or protective use for which
it is designed;
(2) Accessories, including jewelry, handbags, luggage, umbrellas, wallets, watches and similar
items carried on or about the human body, without regard to whether worn on the body in a manner
characteristic of clothing;
(3) The rental of clothing, footwear or school supplies;
(4) Furniture; and
(5) Tangible personal property for use in a trade or business."
And,
On page one, by amending the title to read as follows:
Com. Sub. for H. B. 4501 - "A Bill to amend and reenact §11-15-9g of the code of West
Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §11-
15-9h, all relating to the sales tax holiday on back-to-school purchases; providing an exemption from
consumers sales tax for sales of computer hardware and software directly incorporated into
manufactured products; creating exemptions for payment of certain licensing fees, for sales of
computer hardware and software directly used in communication, for sales of electronic data
processing services, for sales of certain educational software to be used in certain educational or
nonprofit institutions, for sales of internet advertising of goods and services and for certain sales of
high technology business services; and providing definitions."
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. 749), 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, 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. 4501) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 750), 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 H. B. 4501) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption 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:
S. C. R. 99 - "Requesting the Joint Committee on Government and Finance study appropriate
sources of revenue to pay for future costs of clean-up at 58 sites currently insured by the Underground
Storage Tank Insurance Fund."
Whereas, The Legislature created the Underground Storage Tank Insurance Fund in 1988 to
provide affordable insurance to owners and operators of underground storage tanks to assist in
compliance with federal financial assurance requirements related to the accidental release of petroleum
into the environment; and
Whereas, The Fund has paid approximately $17 million for the environmental remediation
of underground storage tank sites through October, 2000; and
Whereas, The Fund presently has insufficient assets to pay all of the claims that have been
made by the 58 remaining insured facilities where environmental remediation is incomplete; and
Whereas, The Kanawha County Circuit Court recently issued an order establishing an
equitable plan to distribute all of the Fund's remaining assets to these 58 insured facilities. Even after
that distribution, the facilities are expected to incur costs in the future of up to $14 million to complete
the clean-up of these sites; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study appropriate
sources of revenue to pay for future costs of clean-up at 58 sites currently insured by the Underground
Storage Tank Insurance Fund; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, 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.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the
resolution (S. C. R. 99) 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. 751), 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: Brown and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the resolution (S. C. R. 99) 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, to take effect
from passage, a bill of the House of Delegates as follows:
H. B. 4624, Relating generally to tax increment financing.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 11B. WEST VIRGINIA TAX INCREMENT FINANCING ACT.
§7-11B-2. Findings and legislative purpose.
(a) It is found and declared to be the policy of this state to promote and facilitate the orderly
development and economic stability of its communities. County commissions need the ability to raise
revenue to finance public capital improvements and facilities that are designed to encourage economic
growth and development in geographic areas characterized by high levels of unemployment, stagnate
stagnant employment, slow income growth, contaminated property or inadequate infrastructure. The
construction of necessary public capital improvements in accordance with local economic development
plans will encourage investing in job-producing private development and expand the public tax base.
(b) It is also found and declared that capital improvements or facilities in any area that result
in the increase in the value of property located in the area or encourage increased employment within
the area will serve a public purpose for each taxing unit possessing the authority to impose ad valorem
taxes in the area.
(c) It is the purpose of this article:
(1) To encourage local levying bodies to cooperate in the allocation of future tax revenues that
are used to finance public capital improvements and facilities designed to encourage private
development in selected areas; and
(2) To assist local governments that have a competitive disadvantage in their ability to attract
business, private investment or commercial development due to their location; to encourage
remediation of contaminated property; to prevent or arrest the decay of selected areas due to the
inability of existing financing methods to provide public capital improvements and facilities; and to
encourage private investment designed to promote and facilitate the orderly development or
redevelopment of selected areas.
§7-11B-3. Definitions.
(a) General. -- When used in this article, words and phrases defined in this section shall have
the meanings ascribed to them in this section unless a different meaning is clearly required either by
the context in which the word or phrase is used or by specific definition in this article.
(b) Words and phrases defined. --
(1) 'Agency' includes a municipality, a county or municipal development agency established
pursuant to authority granted in section one, article twelve of this chapter, a port authority, an airport
authority or any other entity created by this state or an agency or instrumentality of this state that
engages in economic development activity.
(2) 'Base assessed value' means:
(A) The taxable assessed value of real and tangible personal property of a project developer
having a tax situs within a development or redevelopment project area or district as shown upon the
landbook and personal property records of the assessor on the first day of July of the year preceding
the effective date of the order authorizing the tax increment financing plan; or
(B) The taxable assessed value of all real and tangible personal property, excluding personal
motor vehicles, having a tax situs within a development or redevelopment project area or district as
shown upon the landbooks and personal property books of the assessor on the first day of July of the
calendar year preceding the formation of effective date of the order or ordinance creating and
establishing the development or redevelopment project area or district.
(3) 'Blighted area' means an area within the boundaries of a development or redevelopment
district located within the territorial limits of a municipality or county in which the structures,
buildings or improvements, by reason of dilapidation, deterioration, age or obsolescence, inadequate
provision for access, ventilation, light, air, sanitation, open spaces, high density of population and overcrowding or the existence of conditions which endanger life or property, are detrimental to the
public health, safety, morals or welfare. 'Blighted area' includes any area which, by reason of the
presence of a substantial number of substandard, slum, deteriorated or deteriorating structures,
predominance of defective or inadequate street layout, faulty lot layout in relation to size, adequacy,
accessibility or usefulness, unsanitary or unsafe conditions, deterioration of site or other improvements,
diversity of ownership, defective or unusual conditions of title or the existence of conditions which
endanger life or property by fire and other causes, or any combination of such factors, substantially
impairs or arrests the sound growth of a municipality, retards the provision of housing
accommodations or constitutes an economic or social liability and is a menace to the public health,
safety, morals or welfare in its present condition and use, or any area which is predominantly open and
which because of lack of accessibility, obsolete platting, diversity of ownership, deterioration of
structures or of site improvements, or otherwise, substantially impairs or arrests the sound growth of
the community.
(4) 'Conservation area' means any improved area within the boundaries of a development or
redevelopment project area or district located within the territorial limits of a municipality or county
in which fifty percent or more of the structures in the area have an age of thirty-five years or more.
A conservation area is not yet a blighted area but is detrimental to the public health, safety, morals or
welfare and may become a blighted area because of any one or more of the following factors:
Dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures
below minimum code standards; abandonment; excessive vacancies; overcrowding of structures and
community facilities; lack of ventilation, light or sanitary facilities; inadequate utilities; excessive land
coverage; deleterious land use or layout; depreciation of physical maintenance; and lack of community
planning. A conservation area shall meet at least three of the factors provided in this subdivision.
(5) 'County commission' means the governing body of a county of this state and, for purposes
of this article only, includes the governing body of a Class I or II municipality in this state.
(6) 'Current assessed value' means:
(A) The annual taxable assessed value of all real and tangible personal property of a project
developer having a tax situs within a development project area as shown upon the landbook and
personal property records of the assessor; or
(B) The annual taxable assessed value of all real and tangible personal property, excluding
personal motor vehicles, having a tax situs within a development or redevelopment project area or
district as shown upon the landbook and personal property records of the assessor.
(7) 'Development office' means the West Virginia development office created in section one,
article two, chapter five-b of this code.
(8) 'Development project' or 'redevelopment project' means a project undertaken by a county
commission or the governing body of a municipality in a development or redevelopment project area
or district for eliminating or preventing the development or spread of slums or deteriorated,
deteriorating or blighted areas, for discouraging the loss of commerce, industry or employment, for
increasing employment or for any combination thereof in accordance with a tax increment financing
plan. A development or redevelopment project may include one or more of the following:
(A) The acquisition of land and improvements, if any, within the development or
redevelopment project area district and clearance of the land so acquired; or
(B) The development, redevelopment, revitalization or conservation of the project area
whenever necessary to provide land for needed public facilities, public housing, or industrial or
commercial development or revitalization, to eliminate unhealthful, unsanitary or unsafe conditions, to lessen density, mitigate or eliminate traffic congestion, reduce traffic hazards, eliminate obsolete
or other uses detrimental to public welfare or otherwise remove or prevent the spread of blight or
deterioration;
(C) The financial or other assistance in the relocation of persons and organizations displaced
as a result of carrying out the development or redevelopment project and other improvements
necessary for carrying out the project plan, together with those site improvements that are necessary
for the preparation of any sites and making any land or improvements acquired in the project area
available, by sale or lease, for public housing or for development, redevelopment or rehabilitation by
private enterprise for commercial or industrial uses in accordance with the plan;
(D) The construction of capital improvements within a development or redevelopment project
area or district designed to increase or enhance the development of commerce, industry or housing
within the development project area; or
(E) Any other projects the county commission or the agency deems appropriate to carry out the
purposes of this article.
(9) 'Development or redevelopment project area or district' means an area proposed by one or
more agencies as a development or redevelopment project area or district, which may include one or
more counties, one or more municipalities or any combination thereof, that has been approved by the
county commission of each county in which the project area is located if the project is located outside
the corporate limits of a municipality, or by the governing body of a municipality if the project area
is located within a municipality, or by both the county commission and the governing body of the
municipality when the development or redevelopment project area or district is located both within and
without a municipality.
(10) 'Economic development area' means any area or portion of an area within the boundaries
of a development or redevelopment district located within the territorial limits of a municipality or
county that does not meet the requirements of subdivisions (3) and (4) of this subsection and for which
the county commission finds that development or redevelopment will not be solely used for
development of commercial businesses that will unfairly compete in the local economy and that
development or redevelopment is in the public interest because it will:
(A) Discourage commerce, industry or manufacturing from moving their operations to another
state;
(B) Result in increased employment in the municipality or county, whichever is applicable; or
(C) Result in preservation or enhancement of the tax base of the county or municipality.
(11) 'Governing body of a municipality' means the city council of a Class I or Class II
municipality in this state.
(12) 'Incremental value', for any development or redevelopment project area or district, means
the difference between the base assessed value and the current assessed value. The incremental value
will be positive if the current value exceeds the base value and the incremental value will be negative
if the current value is less than the base assessed value.
(13) 'Includes' and 'including', when used in a definition contained in this article, shall not be
deemed to exclude other things otherwise within the meaning of the term being defined.
(14) 'Local levying body' means the county board of education, and the county commission,
and includes the governing bodies body of a municipality when the development or redevelopment
project area or district is located, in whole or in part, within the boundaries of the municipality.
(15) 'Obligations' or 'tax increment financing obligations' means bonds, loans, debentures,
notes, special certificates or other evidences of indebtedness issued by a county commission or
municipality pursuant to this article to carry out a development or redevelopment project or to refund
outstanding obligations under this article.
(16) 'Order' means an order of the county commission adopted in conformity with the
provisions of this article and as provided in this chapter.
(17) 'Ordinance' means a law adopted by the governing body of a municipality in conformity
with the provisions of this article and as provided in chapter eight of this code.
(18) 'Payment in lieu of taxes' means those estimated revenues from real property and tangible
personal property having a tax situs in the area selected for a development or redevelopment project,
which revenues according to the development or redevelopment project or plan are to be used for a
private use, which levying bodies would have received had a county or municipality not adopted one
or more tax increment financing plans and which would result from levies made after the date of
adoption of a tax increment financing plan during the time the current assessed value of all taxable real
and tangible personal property in the area selected for the development or redevelopment project
exceeds the total base assessed value of all taxable real and tangible personal property in the
development or redevelopment project area or district until the designation is terminated as provided
in this article.
(19) 'Person' means any natural person, and any corporation, association, partnership, limited
partnership, limited liability company or other entity, regardless of its form, structure or nature, other
than a government agency or instrumentality.
(20) 'Private project' means any project that is subject to ad valorem property taxation in this
state or to a payment in lieu of tax agreement that is undertaken by a project developer in accordance
with a tax increment financing plan in a development or redevelopment project area or district.
(21) 'Project' means any capital improvement, facility or both, as specifically set forth and
defined in the project plan, requiring an investment of capital, including, but not limited to, extensions,
additions or improvements to existing facilities, including water or wastewater facilities, and the
remediation of contaminated property as provided for in article twenty-two, chapter twenty-two of this
code, but does not include performance of any governmental service by a county or municipal
government.
(22) 'Project area' means an area within the boundaries of a development or redevelopment
district in which a development or redevelopment project is undertaken, as specifically set forth and
defined in the project plan.
__(22) (23) 'Project costs' means expenditures made in preparation of the development or
redevelopment project plan and made, or estimated to be made, or monetary obligations incurred, or
estimated to be incurred, by the county commission which are listed in the project plan as costs of
public works or capital improvements within a development or redevelopment project area or district,
plus any costs incidental thereto. 'Project costs' include, but are not limited to:
(A) Capital costs, including, but not limited to, the actual costs of the construction of public
works or improvements, capital improvements and facilities, new buildings, structures and fixtures,
the demolition, alteration, remodeling, repair or reconstruction of existing buildings, structures and
fixtures, environmental remediation, parking and landscaping, the acquisition of equipment and site
clearing, grading and preparation;
(B) Financing costs, including, but not limited to, a an interest paid to holders of evidences of
indebtedness issued to pay for project costs, all costs of issuance and any redemption premiums, credit
enhancement or other related costs;
(C) Real property assembly costs, meaning any deficit incurred resulting from the sale or lease
as lessor by the county commission of real or personal property having a tax situs within a
development or redevelopment project area or district for consideration that is less than its cost to the
county commission;
(D) Professional service costs, including, but not limited to, those costs incurred for
architectural planning, engineering and legal advice and services;
(E) Imputed administrative costs, including, but not limited to, reasonable charges for time
spent by county employees or municipal employees in connection with the implementation of a project
plan;
(F) Relocation costs, including, but not limited to, those relocation payments made following
condemnation and job training and retraining;
(G) Organizational costs, including, but not limited to, the costs of conducting environmental
impact and other studies, and the costs of informing the public with respect to the creation of a project
development area or redevelopment district and the implementation of project plans;
(H) Payments made, in the discretion of the county commission or the governing body of a
municipality, which are found to be necessary or convenient to creation of development or
redevelopment project areas or districts or the implementation of project plans; and
(I) That portion of costs related to the construction of environmental protection devices, storm
or sanitary sewer lines, water lines, amenities or streets or the rebuilding or expansion of streets, or the construction, alteration, rebuilding or expansion of which is necessitated by the project plan for a
development or redevelopment project area or district, whether or not the construction, alteration,
rebuilding or expansion is within the area or on land contiguous thereto.
(23) (24) 'Project developer' means any person who engages in the development of projects
in the state.
(24) 'Project development or redevelopment area' means a contiguous geographic area within
a county, or within two contiguous counties, in which a development or redevelopment project will
be undertaken, as defined and created by order of the county commission, or county commissions in
the case of an area located in two counties.
(25) 'Project plan' means the plan for a development or redevelopment project that is adopted
by a county commission or governing body of a municipality in conformity with the requirements of
this article and this chapter or chapter eight of this code.
(26) 'Real property' means all lands, including improvements and fixtures on them and
property of any nature appurtenant to them or used in connection with them and every estate, interest
and right, legal or equitable, in them, including terms of years and liens by way of judgment, mortgage
or otherwise, and indebtedness secured by the liens.
(27) 'Redevelopment area' means an area designated by a county commission, or the governing
body of a municipality, in respect to which the commission or governing body has made a finding that
there exist conditions which cause the area to be classified as a blighted area, a conservation area, an
economic development area or a combination thereof, which area includes only those parcels of real
property directly and substantially benefitted by the proposed redevelopment project located within
the development or redevelopment project area or district or land contiguous thereto.
(28) 'Redevelopment plan' means the comprehensive program under this article of a county
or municipality for redevelopment intended by the payment of redevelopment costs to reduce or
eliminate those conditions, the existence of which qualified the redevelopment project area or district
as a blighted area, conservation area, economic development area or combination thereof, and to
thereby enhance the tax bases of the levying bodies which extend into the redevelopment project area
or district. Each redevelopment plan shall conform to the requirements of this article.
(29) 'Tax increment' means:
(A) The amount of regular levy property taxes attributable to the amount by which the current
assessed value of a private project in a development or redevelopment project area or district exceeds
the base assessed value, if any, of the private project; or
(B) The amount of regular levy property taxes attributable to the amount by which the current
assessed value of real and tangible personal property having a tax situs in a development or
redevelopment project area or district exceeds the base assessed value of the property.
(30) 'Tax increment financing fund' means a separate fund for a development or
redevelopment project or for a development or redevelopment project area or district established by
the county commission, or governing body of the municipality, that issues tax increment financing
obligations into which all tax increment revenues and other pledged revenues are deposited and from
which projected project costs, debt service and other expenditures authorized by this article are paid.
(31) 'This code' means the code of West Virginia, one thousand nine hundred thirty-one, as
amended by the Legislature.
(32) 'Total ad valorem property tax regular levy rate' means the aggregate levy rate of all
levying bodies on all taxable property having a tax situs within a development or redevelopment project area or district in a tax year but does not include excess levies, levies for general obligation
bonded indebtedness or any other levies that are not regular levies.
§7-11B-4. Powers generally.
In addition to any other powers conferred by law, a county commission or governing body of
a Class I or II municipality may exercise any powers necessary and convenient to carry out the purpose
of this article, including the power to:
(1) Create development and redevelopment areas or districts and to define the boundaries of
those areas or districts;
(2) Cause project plans to be prepared, to approve the project plans, and to implement the
provisions and effectuate the purposes of the project plans;
__(3) Establish tax increment financing funds for each development or redevelopment district;
__(3) (4) Issue tax increment financing obligations and pledge tax increments and other revenues
for repayment of the obligations;
(4) (5) Deposit moneys into the tax increment financing fund for any development or
redevelopment project area or district, or project;
(5) (6) Enter into any contracts or agreements, including, but not limited to, agreements with
project developers, consultants, professionals, financing institutions, trustees and bondholders
determined by the county commission to be necessary or convenient to implement the provisions and
effectuate the purposes of project plans;
(6) (7) Receive from the federal government or the state loans and grants for, or in aid of, a
development or redevelopment project and to receive contributions from any other source to defray
project costs;
(7) (8) Exercise the right of eminent domain to condemn property for the purposes of
implementing the project plan. The rules and procedures set forth in chapter fifty-four of this code shall
govern all condemnation proceedings authorized in this article;
(8) (9) Make relocation payments to those persons, businesses, or organizations that are
displaced as a result of carrying out the development or redevelopment project;
(9) (10) Clear and improve property acquired by the county commission pursuant to the project
plan and construct public facilities on it or contract for the construction, development, redevelopment,
rehabilitation, remodeling, alteration or repair of the property;
(10) (11) Cause parks, playgrounds or water, sewer or drainage facilities or any other public
improvements, including, but not limited to, fire stations, community centers and other public
buildings, which the county commission is otherwise authorized to undertake to be laid out,
constructed or furnished in connection with the development or redevelopment project. When the
public improvement of the county commission is to be located, in whole or in part, within the
corporate limits of a municipality, the county commission shall consult with the mayor and the
governing body of the municipality regarding the public improvement and shall pay for the cost of the
public improvement from the tax increment financing fund;
(11) (12) Lay out and construct, alter, relocate, change the grade of, make specific repairs upon
or discontinue public ways and construct sidewalks in, or adjacent to, the development or
redevelopment project area: Provided, That when the public way or sidewalk is located within a
municipality, the governing body of the municipality shall consent to the same and if the public way
is a state road, the consent of the commissioner of highways shall be necessary;
(12) (13) Cause private ways, sidewalks, ways for vehicular travel, playgrounds or water, sewer
or drainage facilities and similar improvements to be constructed within the development or redevelopment project area for the particular use of the development or redevelopment project area
or district or those dwelling or working in it;
(13) (14) Construct any capital improvements of a public nature;
(14) (15) Construct capital improvements to be leased or sold to private entities in connection
with the goals of the development or redevelopment project;
__(16) Cause capital improvements owned by one or more private entities to be constructed
within the development or redevelopment district;
__(15) (17) Designate one or more official or employee of the county commission to make
decisions and handle the affairs of development and redevelopment project areas or districts created
by the county commission pursuant to this article;
(16) (18) Adopt orders, ordinances or bylaws or repeal or modify such ordinances or bylaws
or establish exceptions to existing ordinances and bylaws regulating the design, construction and use
of buildings within the development or redevelopment project area or district created by a county
commission or governing body of a municipality under this article;
(17) (19) Enter orders, adopt bylaws or repeal or modify such orders or bylaws or establish
exceptions to existing orders and bylaws regulating the design, construction and use of buildings
within the development or redevelopment project area or district created by a county commission or
governing body of a municipality under this article;
(18) (20) Sell, mortgage, lease, transfer or dispose of any property or interest therein, by
contract or auction, acquired by it pursuant to the project plan for development, redevelopment or
rehabilitation in accordance with the project plan;
(19) (21) Expend project revenues as provided in this article; and
(20) (22) Do all things necessary or convenient to carry out the powers granted in this article.
§7-11B-6. Application for development or redevelopment plan.
(a) An agency or a project developer may apply to a county commission or the governing body
of a municipality for adoption of a development or redevelopment plan with respect to a development
or redevelopment project plan to be developed in conjunction with a private project of a project
developer. The application shall state the project's economic impact, viability, estimated revenues and
potential for job creation and such other information as the county commission or the governing body
of the municipality may require.
(b) Copies of the application shall be made available to the public in the county clerk's office
or the municipal recorder's office when the application is filed with the governing body of a
municipality.
§7-11B-7. Creation of a development or redevelopment or district.
(a) County commissions and the governing bodies of Class I and II municipalities, upon their
own initiative or upon application of an agency or a developer, may propose creation of a development
or redevelopment project area or district and designate the boundaries of the area or district: Provided,
That an area or a district may not include noncontiguous land.
(b) The county commission or municipality proposing creation of a development or
redevelopment area or district shall then hold a public hearing at which interested parties are afforded
a reasonable opportunity to express their views on the proposed creation of a development or
redevelopment project area or district and its proposed boundaries.
(1) Notice of the hearing shall be published once each week for three successive weeks
immediately preceding the public hearing as a Class III II legal advertisement in accordance with
section two, article three, chapter fifty-nine of this code.
(2) The notice shall include the time, place and purpose of the public hearing, describe in
sufficient detail the tax increment financing plan, the proposed boundaries of the development or
redevelopment project area or district and, when a development or redevelopment project plan is being
proposed, the proposed tax increment financing obligations to be issued to finance the development
or redevelopment project costs.
(3) Prior to the first day of publication, a copy of the notice shall be sent by first-class mail to
the director of the development office and to the chief executive officer of all other local levying
bodies having the power to levy taxes on real and tangible personal property located within the
proposed development or redevelopment project area or district.
(4) All parties who appear at the hearing shall be afforded an opportunity to express their views
on the proposal to create the development or redevelopment district and, if applicable, the development
or redevelopment project plan and proposed tax increment financing obligations undertake and finance
the project.
(c) After the public hearing, the county commission, or the governing body of the municipality,
shall finalize the development or redevelopment project plan and the boundaries of the development
or redevelopment project area or district, the development or redevelopment project plan, or both, and
submit it the same to the director of the development office for his or her review and approval. The
director, within sixty days after receipt of the plan application, shall approve the plan application as
submitted, reject the plan application or return the plan application to the county commission or
governing body of the municipality for further development or review in accordance with instructions of the director of the development office. A plan development or redevelopment district or
development or redevelopment project plan may not be adopted by the county commission or the
governing body of a municipality until after it has been approved by the executive director of the
development office.
(d) Upon approval of the development or redevelopment plan application by the development
office, the county commission may enter an order and the governing body of the municipality
proposing the plan district or development or redevelopment project plan may adopt an ordinance, that:
(1) Describes the boundaries of a development or redevelopment project area or district
sufficiently to identify with ordinary and reasonable certainty the territory included in the area or
district, which boundaries shall create a contiguous area or district;
(2) Creates the development or redevelopment project area or district as of a date provided in
the order or ordinance;
(3) Assigns a name to the development or redevelopment project area or district for
identification purposes.
(A) The name may include a geographic or other designation, shall identify the county or
municipality authorizing the area or district and shall be assigned a number, beginning with the number
one.
(B) Each subsequently created area or district in the county or municipality shall be assigned
the next consecutive number;
(4) Contains findings that the real property within the development or redevelopment project
area or district will be benefitted by eliminating or preventing the development or spread of slums or blighted, deteriorated or deteriorating areas, discouraging the loss of commerce, industry or
employment, increasing employment or any combination thereof;
(5) Approves the development or redevelopment project plan, if applicable;
(6) Establishes a tax increment financing fund as a separate fund into which all tax increment
revenues and other revenues designated by the county commission, or governing body of the
municipality, for the benefit of the development or redevelopment project area or district shall be
deposited, and from which all project costs shall be paid, which may be assigned to and held by a
trustee for the benefit of bondholders if tax increment financing obligations are issued by the county
commission or the governing body of the municipality; and
(7) Provides that ad valorem property taxes on real and tangible personal property having a tax
situs in the development or redevelopment project area or district shall be assessed, collected and
allocated in the following manner, commencing upon the date of adoption of such order or ordinance
and continuing for so long as any tax increment financing obligations are payable from the tax
increment financing fund, hereinafter authorized, are outstanding and unpaid:
(A) For each tax year, the county assessor shall record in the land and personal property books
both the base assessed value and the current assessed value of the real and tangible personal property
having a tax situs in the development or redevelopment project area or district;
(B) Ad valorem taxes collected from regular levies upon real and tangible personal property
having a tax situs in the area or district that are attributable to the lower of the base assessed value or
the current assessed value of real and tangible personal property located in the development project
area shall be allocated to the levying bodies in the same manner as applicable to the tax year in which
the development or redevelopment project plan is adopted by order of the county commission or by
ordinance adopted by the governing body of the municipality;
(C) The tax increment with respect to real and tangible personal property in the development
or redevelopment project area or district shall be allocated and paid into the tax increment financing
fund and shall be used to pay the principal of and interest on tax increment financing obligations issued
to finance the costs of the development or redevelopment projects in the development or
redevelopment project area or district. Any levying body having a development or redevelopment
project area or district within its taxing jurisdiction shall not receive any portion of the annual tax
increment except as otherwise provided in this article; and
(D) In no event shall the tax increment include any taxes collected from excess levies, levies
for general obligation bonded indebtedness or any levies other than the regular levies provided for in
article eight, chapter eleven of this code.
(e) Proceeds from tax increment financing obligations issued under this article may only be
used to pay for costs of development and redevelopment projects to foster economic development in
the development or redevelopment project area or district or land contiguous thereto, including
infrastructure and other public improvements prerequisite to private improvements, when such
development or redevelopment project or projects would not reasonably be expected to occur without
tax increment financing.
(f) Notwithstanding subsection (e) of this section, a county commission may not enter an order
approving a development or redevelopment project plan unless the county commission expressly finds
and states in the order that the primary development or redevelopment project is not reasonably
expected to occur without the use of tax increment financing.
(g) Notwithstanding subsection (e) of this section, the governing body of a municipality may
not adopt an ordinance approving a development or redevelopment project plan unless the governing body expressly finds and states in the ordinance that the primary development or redevelopment
project is not reasonably expected to occur without the use of tax increment financing.
(h) No county commission shall establish a development or redevelopment project area or
district any portion of which is within the boundaries of a Class I, II, III or IV municipality without the
formal consent of the governing body of the such municipality.
(i) A tax increment financing plan that has been approved by a county commission or the
governing body of a municipality may be amended by following the procedures set forth in this article
for adoption of a new development or redevelopment project plan.
(j) The county commission may modify the boundaries of the development or redevelopment
project area or district, from time to time, by entry of an order modifying the order creating the
development or redevelopment project area or district.
(k) The governing body of a municipality may modify the boundaries of the development or
redevelopment project area or district, from time to time, by amending the ordinance establishing the
boundaries of the area or district.
(l) Before a county commission or the governing body of a municipality may enter amend such
an order or amend the ordinance, the county commission or municipality shall give the public notice,
hold a public hearing and obtain the approval of the director of the development office, following the
procedures for establishing a new development or redevelopment project area or district. In the event
any tax increment financing obligations are outstanding with respect to the development or
redevelopment project area or district, any change in the boundaries shall not reduce the amount of tax
increment available to secure the outstanding tax increment financing obligations.
§7-11B-8. Project plan - approval.
(a) Upon the creation of the development or redevelopment area or district, the The county
commission or municipality creating the area or district shall cause the preparation of a project plan
for each development or redevelopment area or district and the project plan shall be adopted by order
of the county commission, or ordinance adopted by the governing body of the municipality, after it is
approved by the executive director of the development office. This process shall conform to the
procedures set forth in this section.
(b) Each project plan shall include:
(1) A statement listing the kind, number and location of all proposed public works or other
improvements within the area or district and on land outside but contiguous to the area or district;
(2) A cost-benefit analysis showing the economic impact of the plan on each levying body that
is at least partially within the boundaries of the development or redevelopment project area or district.
This analysis shall show the impact on the economy if the project is not built and is built pursuant to
the development or redevelopment plan under consideration. The cost-benefit analysis shall include
a fiscal impact study on every affected levying body and sufficient information from the developer for
the agency, if any proposing the plan, the county commission be asked to approve the project and the
development office to evaluate whether the project as proposed is financially feasible.
(3) An economic feasibility study;
(4) A detailed list of estimated project costs;
(5) A description of the methods of financing all estimated project costs, including the issuance
of tax increment obligations and the time when the costs or monetary obligations related thereto are
to be incurred;
(6) A certification by the county assessor of the base assessed value of real and tangible
personal property having a tax situs in a development or redevelopment project area or district:
Provided, That if such certification is made during the months of January or February of each year, the
county assessor may certify an estimated base assessed value of real and tangible personal property
having a tax situs in a development or redevelopment district: Provided, however, That prior to
issuance of tax increment obligations, the county assessor shall certify a final base assessed value for
the estimated base assessed value permitted by this section;
(7) The type and amount of any other revenues that are expected to be deposited to the tax
increment financing fund of the development or redevelopment project area or district;
(8) A map showing existing uses and conditions of real property in the development or
redevelopment project area or district;
(9) A map of proposed improvements and uses in the area or district;
(10) Proposed changes of zoning ordinances, if any;
(11) Appropriate cross-references to any master plan, map, building codes and municipal
ordinances or county commission orders affected by the project plan;
(12) A list of estimated nonproject costs; and
(13) A statement of the proposed method for the relocation of any persons, businesses or
organizations to be displaced.;
__(14) A certificate from the executive director of the workers' compensation commission, the
commissioner of the bureau of employment programs and the state tax commissioner that the project
developer is in good standing with the workers' compensation commission, the bureau of employment
programs and the state tax division; and
__(15) A certificate from the sheriff of the county or counties in which the development or
redevelopment district is located that the project developer is not delinquent on payment of any real
and personal property taxes in such county.
(c) If the project plan is to include tax increment financing, the tax increment financing portion
of the plan shall set forth:
(1) The amount of indebtedness to be incurred pursuant to this article;
(2) An estimate of the tax increment to be generated as a result of the project;
(3) The method for calculating the tax increment, which shall be in conformance with the
provisions of this article, together with any provision for adjustment of the method of calculation;
(4) Any other revenues, such as payment in lieu of tax revenues, to be used to secure the tax
increment financing; and
(5) Any other provisions as may be deemed necessary in order to carry out any tax increment
financing to be used for the development or redevelopment project.
(d) If less than all of the tax increment is to be used to fund a development or redevelopment
project or to pay project costs or retire tax increment financing, the project plan shall set forth the
portion of the tax increment to be deposited in the tax increment financing fund of the development
or redevelopment project area or district and provide for the distribution of the remaining portion of
the tax increment to the levying bodies in whose jurisdiction the area or district lies.
(e) The county commission or governing body of the municipality that established the tax
increment financing fund shall hold a public hearing at which interested parties shall be afforded a
reasonable opportunity to express their views on the proposed project plan being considered by the
county commission or the governing body of the municipality.
(1) Notice of the hearing shall be published in a newspaper of general circulation in the county
or the municipality, if the development or redevelopment project is located in a municipality, at least
fifteen days prior to the hearing as a Class II legal advertisement in accordance with section two, article
three, chapter fifty-nine of this code.
(2) Prior to this publication, a copy of the notice shall be sent by first-class mail to the chief
executive officer of all other levying bodies having the power to levy taxes on property located within
the proposed development or redevelopment area or district.
(f) Approval by the county commission or the governing body of a municipality of a an initial
development or redevelopment project plan must be within one year after the date of the county
assessor's certification required by subdivision (5) (6), subsection (b) of this section: Provided, That
additional development or redevelopment project plans may be approved by the county commission
or the governing body of a municipality in subsequent years, so long as the development or
redevelopment district continues to exist. The approval shall be by order of the county commission
or ordinance of the municipality, which shall contain a finding that the plan is economically feasible.
§7-11B-9. Project plan - amendment.
(a) The county commission may by order, or the governing body of a municipality by
ordinance, adopt an amendment to a project plan.
(b) Adoption of an amendment to a project plan shall be preceded by a public hearing held by
the county commission, or governing body of the municipality, at which interested parties shall be
afforded a reasonable opportunity to express their views on the amendment.
(1) Notice of the hearing shall be published in a newspaper of general circulation in the county
or municipality in which the project is to be located once a week for three consecutive weeks prior to the date of the public hearing as a Class II legal advertisement in accordance with section two, article
three, chapter fifty-nine of this code.
(2) Prior to publication, a copy of the notice shall be sent by first-class mail to the chief
executive officer of all other local levying bodies having the power to levy taxes on property within
the development or redevelopment project area or district.
(3) Copies of the proposed plan amendments shall be made available to the public at the county
clerk's office or municipal clerk's office at least fifteen days prior to the hearing.
(c) One or more existing development or redevelopment areas or districts may be combined
pursuant to lawfully adopted amendments to the original plans for each area or district: Provided, That
the county commission, or governing body of the municipality, finds that the combination of the areas
or districts will not impair the security for any tax increment financing obligations previously issued
pursuant to this article.
§7-11B-10. Termination of development or redevelopment district.
(a) No development or redevelopment project area or district may be in existence for a period
longer than thirty years and no tax increment financing obligations may have a final maturity date later
than the termination date of the area or district.
(b) The county commission or governing body of the municipality creating the development
or redevelopment area or district may set a shorter period for the existence of the area or district. In
this event, no tax increment financing obligations may have a final maturity date later than the
termination date of the area or district.
(c) Upon termination of the area or district, no further ad valorem tax revenues shall be
distributed to the tax increment financing fund of the area or district.
(d) The county commission shall adopt, upon the expiration of the time periods set forth in this
section, an order terminating the development or redevelopment project area or district created by the
county commission: Provided, That no area or district shall be terminated so long as bonds with
respect to the area or district remain outstanding.
(e) The governing body of the county commission shall repeal, upon the expiration of the time
periods set forth in this section, the ordinance establishing the development or redevelopment project
area or district: Provided, That no area or district shall be terminated so long as bonds with respect
to the area or district remain outstanding.
§7-11B-11. Costs of formation of development or redevelopment district.
(a) The county commission, or the governing body of a municipality, may pay, but shall have
no obligation to pay, the costs of preparing the project plan or forming the development or
redevelopment project area or district created by them.
(b) If the county commission, or the governing body of the municipality, elects not to incur
those costs, they shall be made project costs of the area or district and reimbursed from bond proceeds
or other financing or may be paid by developers, property owners or other persons interested in the
success of the development or redevelopment project.
§7-11B-12. Overlapping districts prohibited.
The boundaries of any development and redevelopment project areas or districts shall not
overlap with any other development or redevelopment project area or district.
§7-11B-13. Conflicts of interest; required disclosures and abstention.
(a) If any member of the governing body of the an agency applying for a development or
redevelopment project district or a development or redevelopment project plan, a member of the county commission considering the application or a member of the governing body of a municipality
considering the application or an employee or consultant of the agency, county commission or
municipality involved in the planning and preparation of a development or redevelopment plan, or a
development or redevelopment project for a development or redevelopment project area or district, or
a proposed development or redevelopment project area or district, owns or controls an interest, direct
or indirect, in any property included in any the development or redevelopment project area or district,
or a proposed development or redevelopment project area or district, he or she shall disclose the same
in writing to the clerk of the county commission, or to recorder of the municipality if he or she is an
official or employee of the municipality, and shall also so disclose the dates, terms, and conditions of
any disposition of any such interest, which disclosures shall be acknowledged by county commission,
or the governing body of the municipality if he or she is an official or employee of the municipality,
and entered upon the minutes books of the county commission, or the governing body of the
municipality, acknowledging the disclosure.
(b) If an individual holds or held an interest required to be disclosed under subsection (a) of
this section, then that individual shall refrain from any further official involvement in regard to the
development or redevelopment plan, the development or redevelopment project or the development
or redevelopment project area or district such application shall abstain from voting on any matter
pertaining to the development or redevelopment plan, the development or redevelopment project or
the development or redevelopment project area or district such application, and shall abstain from
communicating with other members concerning any matter pertaining to that plan, project or area such
application.
(b) With respect to development or redevelopment projects, the provisions of subsection (a),
section fifteen, article ten, chapter sixty-one of this code do not apply to any person who, or person whose spouse, is a salaried employee of a project developer under a contract subject to the provisions
of said subsection if the employee, his or her spouse or child:
__(1) Is not a party to the contract;
__(2) Is not an owner, a shareholder, a director or an officer of a private entity under the contract;
__(3) Receives no commission, bonus or other direct remuneration or thing of value by virtue of
the contract;
__(4) Does not participate in the deliberations or awarding of the contract; and
__(5) Does not approve, vote for or otherwise authorize the payment of public funds, including,
but not limited to, tax increment revenues, pursuant to or as a result of the contract.
(c) Additionally, no member of the county commission or governing body of a municipality
considering a development or redevelopment district or project or plan no member of the governing
body of an agency proposing a development or redevelopment district or project or plan, or any
employee of the county, municipality or agency shall acquire any interest, direct or indirect, in any
property in a development or redevelopment project area or district or project area, or a proposed
development or redevelopment project area or district or project area, after either: (1) The during the
period of time between when the individual first obtains personal knowledge of the development or
redevelopment district or project plan or project; or (2) and the first published public notice completion
of the plan, public hearing regarding the development or redevelopment district or project or area,
whichever first occurs plan or on a date which the county commission or governing body of a
municipality publicly announces that the development or redevelopment district or project plan is no
longer under consideration.
§7-11B-15. Reports by county commissions and municipalities, contents, and publication;
procedure to determine progress of project; reports by development office,
content of reports; rule-making authority; development office to provide
manual and assistance.
(a) Each year, the county commission, or its designee, and the governing body of a
municipality, or its designee, that has approved a development or redevelopment project plan shall
prepare a report giving the status of each plan and each development and redevelopment project
included in the plan and file it with the executive director of the development office by the first day
of October each year. The report shall include the following information:
(1) The aggregate amount and the amount by source of revenue in the tax increment financing
fund;
(2) The amount and purpose of expenditures from the tax increment financing fund;
(3) The amount of any pledge of revenues, including principal and interest on any outstanding
tax increment financing indebtedness;
(4) The base assessed value of the development or redevelopment project or the development
or redevelopment project area or district, as appropriate;
(5) The assessed value for the current tax year of the development or redevelopment project
property or of the taxable property having a tax situs in the development or redevelopment project area
or district, as appropriate;
(6) The assessed value added to base assessed value of the development or redevelopment
project or the taxable property having a tax situs in the development or redevelopment area or district,
as the case may be;
(7) Payments made in lieu of taxes received and expended;
(8) Reports on contracts made incidental to the implementation and furtherance of a
development or redevelopment plan or project;
(9) A copy of any development or redevelopment plan, which shall include the required
findings and cost-benefit analysis;
(10) The cost of any property acquired, disposed of, rehabilitated, reconstructed, repaired or
remodeled;
(11) The number of parcels of land acquired by or through initiation of eminent domain
proceedings;
(12) The number and types of jobs projected by the project developer to be created, if any, and
the estimated annualized wages and benefits paid or to be paid to persons filling those jobs;
(13) The number, type and duration of the jobs created, if any, and the annualized wages and
benefits paid;
(14) The amount of disbursements from the tax increment financing fund during the most
recently completed fiscal year, in the aggregate and in such detail as the executive director of the
development office may require;
(15) An annual statement showing payments made in lieu of taxes received and expended
during the fiscal year;
(16) The status of the development or redevelopment plan and projects therein;
(17) The amount of outstanding tax increment financing obligations; and
(18) Any additional information the county commission or the municipality preparing the
report deems necessary or that the executive director of the development office may by procedural rule
require.
(b) Data contained in the report required by subsection (a) of this section shall be deemed a
public record as defined in article one, chapter twenty-nine-b of this code.
(1) The county commission's annual report shall be published on its web site, if it has a web
site. If the county does not have a web site, the annual report shall be published on the web site of the
development office.
(2) The municipality's annual report shall be published on its web site, if it has a web site. If
the municipality does not have a web site, the annual report shall be published on the web site of the
development office.
(c) After the close of the fiscal year, but on or before the first day of October each year, the
county commission and the governing body of a municipality that approved a development or
redevelopment plan shall publish in a newspaper of general circulation in the county or municipality,
as appropriate, an annual statement showing for each development or redevelopment project or plan
for which tax increment financing obligations have been issued:
(1) A summary of receipts and disbursements, by major category, of moneys in the tax
increment financing fund during that fiscal year;
(2) A summary of the status of the development or redevelopment plan and each project
therein;
(3) The amount of tax increment financing principal outstanding as of the close of the fiscal
year; and
(4) Any additional information the county commission or municipality deems necessary or
appropriate to publish.
(d) Five years after the establishment of a development or redevelopment plan, and every five
years thereafter, the county commission or municipality that approved the plan shall hold a public
hearing regarding that development or redevelopment plan and the projects created or to be created
in the development or redevelopment project area or district pursuant to this article.
(1) The purpose of the public hearing is to determine if the development or redevelopment plan
and the proposed project or projects are making satisfactory progress under the proposed time schedule
contained within the approved plans for completion of the projects.
(2) Notice of this public hearing shall be given in a newspaper of general circulation in the
county, or in the municipality for a municipal plan, once each week for four successive weeks
immediately prior to the hearing.
(3) Public hearings on development and redevelopment plans and projects may be held as part
of a regular or special meeting of the county commission, or governing body of the municipality, that
adopted the plan.
(e) The executive director of the development office shall submit a report to the governor, the
speaker of the House of Delegates and the president of the Senate no later than February first of each
year. The report shall contain a summary of all information received by the executive director pursuant
to this section.
(f) For the purpose of facilitating and coordinating the reports required by this section, the
executive director of the development office may promulgate procedural rules in the manner provided
in article three, chapter twenty-nine-a of this code to ensure compliance with this section.
(g) The executive director of the development office shall provide information and technical
assistance, as requested by a county commission or the governing body of a municipality, on the
requirements of this article. The information and technical assistance shall be provided in the form of
a manual, written in an easy-to-follow manner, and through consultations with staff of the development
office.
(h) By the first day of October each year, each agency that proposed a development or
redevelopment plan that was approved by a county commission, or the governing body of a
municipality, and each county commission, or governing body of a municipality, that approved a
development or redevelopment plan that was not proposed by an agency shall report to the executive
director of the development office the name, address, phone number and primary line of business of
any business that relocates to the development or redevelopment project area or district during the
immediately preceding fiscal year of the state. The executive director shall compile and report the
same to the governor, the speaker of the House of Delegates and the president of the Senate by the first
day of February of the next calendar year.
§7-11B-16. Valuation of real property.
(a) Upon and after the effective date of the creation of a development or redevelopment project
area or district, the county assessor of the county in which the area or district is located shall transmit
to the county clerk a certified statement of the base assessed value, total ad valorem regular levy rate,
total general obligation bond debt service ad valorem rate and total excess levy rate applicable for the
development or redevelopment area or district.
(1) The assessor shall undertake, upon request of the county commission, or the governing
body of the municipality, creating the development or redevelopment project area or district, an
investigation, examination and inspection of the taxable real and tangible personal property having a tax situs in the area or district and shall reaffirm or revalue the base value for assessment of the
property in accordance with the findings of the investigation, examination and inspection.
(2) The county assessor shall determine, according to his or her best judgment from all sources
available to him or her, the full aggregate assessed value of the taxable property in the area or district,
which aggregate assessed valuation, upon certification thereof by the assessor to the clerk, constitutes
the base value of the development or redevelopment project area or district.
(b) The county assessor shall give notice annually to the designated finance officer of each
levying body having the power to levy taxes on property within each area or district of the current
value and the incremental value of the property in the development or redevelopment project area or
district.
(c) The assessor shall also determine the tax increment by applying the applicable ad valorem
regular levy rates to the incremental value.
(d) The notice shall also explain that the entire amount of the tax increment allocable to
property within the development or redevelopment project area or district will be paid to the tax
increment financing fund of the development or redevelopment project area or district until it is
terminated.
(e) The assessor shall identify upon the landbooks those parcels of property that are within each
existing development or redevelopment project area or district, specifying on landbooks the name of
each area or district.
§7-11B-17. Division of ad valorem real property tax revenue.
(a) For so long as the development or redevelopment project area or district exists, the county
sheriff shall divide the ad valorem tax revenue collected, with respect to taxable property in the area
or district, as follows:
(1) The assessor shall determine for each tax year:
(A) The amount of ad valorem property tax revenue that should be generated by multiplying
the assessed value of the property for the then current tax year by the aggregate of applicable levy rates
for the tax year;
(B) The amount of ad valorem tax revenue that should be generated by multiplying the base
assessed value of the property by the applicable regular ad valorem levy rates for the tax year;
(C) The amount of ad valorem tax revenue that should be generated by multiplying the assessed
value of the property for the current tax year by the applicable levy rates for general obligation bond
debt service for the tax year;
(D) The amount of ad valorem property tax revenue that should be generated by multiplying
the assessed value of the property for the current tax year by the applicable excess levy rates for the
tax year; and
(E) The amount of ad valorem property tax revenue that should be generated by multiplying
the incremental value by the applicable regular levy rates for the tax year.
(2) The sheriff shall determine from the calculations set forth in subdivision (1) of this
subsection the percentage share of total ad valorem revenue for each levying body according to
paragraphs (B) through (D), inclusive, of said subdivision by dividing each of such amounts by the
total ad valorem revenue figure determined by the calculation in paragraph (A) of said subdivision;
and
(3) On each date on which ad valorem tax revenue is to be distributed to the levying bodies,
such revenue shall be distributed by:
(A) Applying the percentage share determined according to paragraph (B), subdivision (1) of
this subsection to the revenues received and distributing such share to the levying bodies entitled to
such distribution pursuant to current law;
(B) Applying the percentage share determined according to paragraph (C), subdivision (1) of
this subsection to the revenues received and distributing such share to the levying bodies entitled to
such distribution by reason of having general obligation bonds outstanding;
(C) Applying the percentage share determined according to paragraph (D), subdivision (1) of
this subsection to the revenues received and distributing such share to the levying bodies entitled to
such distribution by reason of having excess levies in effect for the tax year; and
(D) Applying the percentage share determined according to paragraph (E), subdivision (1) of
this subsection to the revenues received and distributing such share to the tax increment financing fund
of the development or redevelopment project area or district.
(b) In each year for which there is a positive tax increment, the county sheriff shall remit to the
tax increment financing fund of the development or redevelopment project area or district that portion
of the ad valorem property taxes collected that consists of the tax increment.
(c) Any additional moneys appropriated to the development or redevelopment project area or
district pursuant to an appropriation by the county commission that created the district and any
additional moneys dedicated to the fund from other sources shall be deposited to the tax increment
financing fund for the development or redevelopment project area or district by the sheriff.
(d) Any funds deposited into the tax increment financing fund of the development or
redevelopment project area or district may be used to pay project costs, principal and interest on bonds
and the cost of any other improvements in the development or redevelopment project area or district
deemed proper by the county commission.
(e) Unless otherwise directed pursuant to any agreement with the holders of tax increment
financing obligations, moneys in the tax increment financing fund may be temporarily invested in the
same manner as other funds of the county commission, or the municipality, that established the fund.
(f) If less than all of the tax increment is to be used for project costs or pledged to secure tax
increment financing as provided in the plan for the development or redevelopment project area or
district, the sheriff shall account for that fact in distributing the ad valorem property tax revenues.
§7-11B-18. Payments in lieu of taxes and other revenues.
(a) The county commission or municipality that created the development or redevelopment
project area or district shall deposit in the tax increment financing fund of the development or
redevelopment project area or district all payments in lieu of taxes received pursuant to any agreement
entered into on or subsequent to the date of creation of a development or redevelopment district on tax
exempt property located within the development or redevelopment project area or district.
(b) As a condition of receiving tax increment financing, the The lessee of property that is
exempt from property taxes because it is owned by this state, a political subdivision of this state or an
agency or instrumentality thereof, the lessee which is the lessee of any facilities financed, in whole or
in part, with tax increment financing obligations, shall execute a payment in lieu of tax agreement that
shall remain in effect until the tax increment financing obligations are paid, during which period of
time the lessee agrees to pay to the county sheriff an amount equal to the amount of ad valorem
property taxes that would have been levied against the assessed value of the property were it owned by the lessee rather than a tax exempt entity. The portion of the payment in lieu of taxes attributable
to the incremental value shall be deposited in the tax increment financing fund. The remaining portion
of the in lieu payment shall be distributed among the levying bodies as follows:
(1) The portion of the in lieu tax payment attributable to the base value of the property shall
be distributed to the levying bodies in the same manner as taxes attributable to the base value of other
property in the area or district are distributed; and
(2) The portions of the in lieu tax payment attributable to levies for bonded indebtedness and
excess levies shall be distributed in the same manner as those levies on other property in the area or
district are distributed.
(c) Other revenues to be derived from the development or redevelopment project area or district
may also be deposited in the tax increment financing fund at the direction of the county commission.
§7-11B-19. Tax increment obligations generally.
(a) Tax increment obligations may be issued by a county commission, or the governing body
of the municipality, to pay project costs for projects included in the development or redevelopment
plan approved by the development office and adopted by the county commission, or the governing
body of the municipality, that are located in a development or redevelopment project area or district
or on land not in the district that is contiguous to the area or district and which contain infrastructure
or other facilities which serve the district.
(1) Tax increment financing obligations may be issued for project costs, as defined in section
three of this article, which may include interest prior to and during the carrying out acquisition,
construction and equipping of a project and for a reasonable time thereafter, with such reserves as may be required by any agreement securing the obligations and all other expenses incidental to planning,
carrying out and financing the project.
(2) The proceeds of tax increment financing obligations may also be used to reimburse the
costs of any interim financing or cash expenditures entered on behalf of projects in the development
or redevelopment project area or district.
(b) Tax increment financing obligations issued under this article shall be payable solely from
the tax increment or other revenues deposited to the credit of the tax increment financing fund of the
development or redevelopment project area or district.
(c) Under no event shall tax increment financing obligations be secured or be deemed to be
secured by the full faith and credit of the county commission or the municipality issuing the tax
increment financing obligations.
(d) Every tax increment financing bond, note or other obligation issued under this article shall
recite on its face that it is a special obligation payable solely from the tax increment and other revenues
pledged for its repayment.
§7-11B-20. Tax increment financing obligations -- authority to issue.
For the purpose of paying project costs, or for the purpose of refunding notes issued under this
article for the purpose of paying project costs, the county commission or municipality creating the
development or redevelopment project area or district may issue tax increment financing obligations
payable out of positive tax increments and other revenues deposited to the tax increment financing
fund of the development or redevelopment project area or district.
§7-11B-21. Tax increment financing obligations -- authorizing resolution.
(a) Issuance of tax increment financing obligations shall be authorized by order of the county
commission, or resolution of the municipality, that created the development or redevelopment project
area or district.
(b) The order, or resolution, shall state the name of the development or redevelopment project
area or district, the amount of tax increment financing obligations authorized, the type of obligation
authorized and the interest rate or rates to be borne by the bonds, notes or other tax increment
financing obligations.
(c) The order or ordinance may prescribe the terms, form and content of the tax increment
financing obligations and other particulars or information the county commission, or governing body
of the municipality, issuing the obligations deems useful or it may include by reference the terms and
conditions set forth in a trust indenture or other document securing the development or redevelopment
project tax increment financing obligations.
§7-11B-22. Tax increment financing obligations -- terms, conditions.
(a) Tax increment financing obligations may not be issued in an amount exceeding the
estimated aggregate project costs, including all costs of issuance of the tax increment financing
obligations.
(b) Tax increment financing obligations shall not be included in the computation of the
constitutional debt limitation of the county commission or municipality issuing the tax increment
financing obligations.
(c) Tax increment financing obligations shall mature over a period not exceeding thirty years
from the date of entry of the county commission's order, or the effective date of the municipal
ordinance, creating the development or redevelopment project area or district and approving the development or redevelopment plan, or a period terminating with the date of termination of the
development or redevelopment project area or district, whichever period terminates earlier.
(d) Tax increment financing obligations may contain a provision authorizing their redemption,
in whole or in part, at stipulated prices, at the option of the county commission or municipality issuing
the obligations, on any interest payment date and, if so, the obligations shall provide the method of
selecting the tax increment financing obligations to be redeemed.
(e) The principal and interest on tax increment financing obligations may be payable at any
place set forth in the resolution, trust indenture or other document governing the obligations.
(f) Bonds or notes shall be issued in registered form.
(g) Bonds or notes may be issued in any denomination.
(h) Each tax increment financing obligation issued under this article is declared to be a
negotiable instrument.
(i) The tax increment financing obligations may be sold at public or private sale.
(j) Insofar as they are consistent with subdivision (1), subsection (a) and subsections (a), (b)
and (c) of this section, the procedures for issuance, form, contents, execution, negotiation and
registration of county and municipal industrial or commercial revenue bonds set forth in article two-c,
chapter thirteen of this code are incorporated by reference herein.
(k) The bonds may be refunded or refinanced and refunding bonds may be issued in any
principal amount: Provided, That the last maturity of the refunding bonds shall not be later than the
last maturity of the bonds being refunded.
§7-11B-23. Tax increment financing obligations -- security -- marketability.
To increase the security and marketability of tax increment financing obligations, the county
commission or municipality issuing the obligations may:
(1) Create a lien for the benefit of the holders of the obligations upon any public improvements
or public works capital improvements, facilities or both financed by the obligations; or
(2) Make such covenants and do any and all such actions, not inconsistent with the constitution
of this state, which may be necessary, convenient or desirable in order to additionally secure the
obligations or which tend to make the obligations more marketable according to the best judgment of
the county commission or municipality issuing the tax increment financing obligations.
§7-11B-24. Tax increment financing obligations -- special fund for repayment.
(a) Tax increment financing obligations issued by a county commission or municipality are
payable out of the tax increment financing fund created for each development and redevelopment
project area or district created under this article.
(b) The county commission or municipality issuing the tax increment financing obligations
shall irrevocably pledge all or part of the tax increment financing fund to the payment of the
obligations. The tax increment financing fund, or the designated part thereof, may thereafter be used
only for the payment of the obligations and their interest until they have been fully paid.
(c) A holder of the tax increment financing obligations shall have a lien against the tax
increment financing fund for payment of the obligations and interest on them and may bring suit to
enforce the lien.
__(d) A county commission or municipality may issue and secure additional bonds payable out
of the tax increment fund created for each development or redevelopment district created under this article, which bonds may rank on a parity with, or be subordinate or superior to, other bonds issued
by the county commission or municipality from each such tax increment fund.
§7-11B-26. Excess funds.
(a) Moneys received in the tax increment financing fund of the development or redevelopment
project area or district in excess of amounts needed to pay project costs and debt service may be used
by the county commission or municipality that created the development or redevelopment project area
or district for other projects within the area or district or distributed to the levying bodies as provided
in this article.
(b) Upon termination of the area or district, all amounts in the tax increment financing fund of
the area or district shall be paid over to the levying bodies in the same proportion that ad valorem
property taxes on the base value was paid over to those levying bodies for the tax year in which the
area or district is terminated."
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. 752), 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, Blair, Border, Calvert, Carmichael, Duke, Ellem, Hall, Hamilton, Howard,
Overington, Schoen, Sobonya, R. Thompson, Trump and Wakim.
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. 4624) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 753), and there were--yeas 93, nays
6, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Border, Carmichael, Duke, Ellem, Hamilton and Overington.
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. 4624) 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, a bill of the
House of Delegates as follows:
Com. Sub. for H. B. 4156, Providing the West Virginia state police with the ability to define
and draw DNA samples from convicted felons for the purpose of maintaining a DNA database.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 2B. DNA DATA.
§15-2B-3. Definitions.
As used in this article the following terms have the meanings specified mean:
(a) 'DNA' means deoxyribonucleic acid. DNA is located in the nucleus of cells and provides
an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human
heredity and forensic identification.
(b) 'DNA record' means DNA identification information stored in any state DNA database
pursuant to this article. The DNA record is the result obtained from DNA typing tests. The DNA
record is comprised of the characteristics of a DNA sample which are of value in establishing the
identity of individuals. The results of all DNA identification tests on an individual's DNA sample are
also included as a 'DNA record'.
(c) 'DNA sample' means the DNA extracted from a blood sample a tissue, fluid or other bodily
sample, suitable for testing, provided by any person convicted of a felony offenses covered by this
article offense under the West Virginia code pursuant to this article or submitted to the division
laboratory for analysis pursuant to a criminal investigation.
(d) 'FBI' means the federal bureau of investigation.
(e) 'State DNA database' means all DNA identification records included in the system
administered by the West Virginia division of public safety state police.
(f) 'State DNA data-bank databank' means the repository of DNA samples collected under the
provisions of this article.
(g) 'Division' means the West Virginia division of public safety state police.
§15-2B-6. DNA sample required for DNA analysis upon conviction; DNA sample required for
certain prisoners.
(a) Any person convicted of an offense described in section one, two, three, four, seven, nine,
nine-a (when that offense constitutes a felony), ten, ten-a, ten-b, twelve, fourteen or fourteen-a, article two, chapter sixty-one of this code or section twelve, article eight of said chapter (when that offense
constitutes a felony), shall provide a DNA sample to be used for DNA analysis as described in this
article. Further, any person convicted of any offense described in article eight-b or eight-d of said
chapter shall provide a DNA sample to be used for DNA analysis as described in this article.
(b) All persons Any person presently incarcerated in a state correctional facility or any a county
or regional jail in this state who are incarcerated due to the after conviction of any offense listed in
subsection (a) of this section who are incarcerated On the first day of July, one thousand nine hundred
ninety-five, or who are convicted of any such offense on or after the first day of July, one thousand
nine hundred ninety-five, shall have provide a DNA sample drawn for to be used for purposes of DNA
analysis and storage of the DNA as described in this article.
(c) Any person convicted after the first day of July, two thousand, of a violation of section five
or thirteen, article two, chapter sixty-one of this code, section one, two, three, four, five, seven, eleven,
twelve(when that offense constitutes a felony) or subsection (a), section thirteen, article three of said
chapter, section three, four, five or ten, article three-e of said chapter or section three, article four of
said chapter, shall provide a DNA sample to be used For for DNA analysis as described in this article.
(d) Any person convicted after the first day of July, two thousand two, of an offense which
constitutes a felony violation of the provisions of article four, chapter sixty-a of this code; or of an
attempt to commit a violation of section one or section fourteen-a, article two, chapter sixty-one of this
code; or an attempt to commit a violation of article eight-b of said chapter shall provide a DNA sample
to be used for DNA analysis as described in this article.
(e) For the purposes of this section, the term 'DNA sample' means a tissue, fluid or other
bodily sample of an individual on which a DNA analysis can be done. The method of taking the DNA
sample is subject to the testing methods utilized by the West Virginia state police crime lab.
(f) When a person who is required to provide a DNA sample as required by pursuant to this
section refuses to comply with any DNA testing, the state shall apply to a circuit court for an order
requiring the person to provide a DNA sample. to be withdrawn for the purpose of DNA typing and
testing. Upon a finding of failure to comply, the circuit court shall order the person to submit to DNA
testing in conformity with the provisions of this article.
(g) The West Virginia state police may, where not otherwise mandated, require any person
convicted of a felony offense under the provisions of this code, to provide a DNA sample to be used
for the sole purpose of criminal identification of the convicted person who provided the sample:
Provided, That the person is under the supervision of the criminal justice system at the time the request
for the sample is made. Supervision includes prison, the regional jail system, parole, probation, home
confinement, community corrections program, and work release.
(h) No part of the genetic information that is authorized to be collected pursuant to this article
may be used for any purpose other than to establish the identity of the individual. The biological
sample obtained to conduct the identity tests but not necessary to establish identity shall be destroyed
following the performance of the identity analysis.
§15-2B-14. Right to DNA testing.
(a) A person convicted of a felony currently serving a term of imprisonment may make a
written motion before the trial court that entered the judgment of conviction for performance (DNA)
testing.
(b) (1) An indigent convicted person may request appointment of counsel to prepare a motion
under this section by sending a written request to the court. The request must include the person's
statement that he or she was not the perpetrator of the crime and that DNA testing is relevant to his or her assertion of innocence. The request must also include the person's statement as to whether he
or she previously had appointed counsel under this section.
(2) If any of the information required in subdivision (1) of this section is missing from the
request, the court shall return the request to the convicted person and advise him or her that the matter
cannot be considered without the missing information.
(3) (A) Upon a finding of indigency, the inclusion of information required in subdivision (1)
of this section, and that counsel has not previously been appointed pursuant to this subdivision, the
court shall appoint counsel. Counsel shall investigate and, if appropriate, file a motion for DNA testing
under this section. Counsel represents the indigent person solely for the purpose of obtaining DNA
testing under this section.
(B) Upon a finding of indigency, and that counsel has been previously appointed pursuant to
this subdivision, the court may, in its discretion, appoint counsel. Counsel shall investigate and, if
appropriate, file a motion for DNA testing under this section. Counsel represents the person solely for
the purpose of obtaining DNA testing under this section.
(4) Nothing in this section provides for a right to the appointment of counsel in a post-
conviction collateral proceeding or sets a precedent for any such right. The representation provided
an indigent convicted person under this article is solely for the limited purpose of filing and litigating
a motion for DNA testing pursuant to this section.
(c) (1) The motion shall be verified by the convicted person under penalty of perjury and must
do the following:
(A) Explain why the identity of the perpetrator was, or should have been, a significant issue
in the case.
(B) Explain, in light of all the evidence, how the requested DNA testing would raise a
reasonable probability the convicted person's verdict or sentence would be more favorable if the
results of DNA testing had been available at the time of conviction.
(C) Make every reasonable attempt to identify both the evidence that should be tested and the
specific type of DNA testing sought.
(D) Reveal the results of any DNA or other biological testing previously conducted by either
the prosecution or defense, if known.
(E) State whether any motion for testing under this section has been filed previously and the
results of that motion, if known.
(2) Notice of the motion shall be served on the prosecuting attorney in the county of conviction
and, if known, the governmental agency or laboratory holding the evidence sought to be tested.
Responses, if any, shall be filed within sixty days of the date on which the prosecuting attorney is
served with the motion, unless a continuance is granted for good cause.
(d) If the court finds evidence was subject to prior DNA or other forensic testing, by either the
prosecution or defense, it shall order the party at whose request the testing was conducted to provide
all parties and the court with access to the laboratory reports, underlying data, and laboratory notes
prepared in connection with the DNA or other biological evidence testing.
(e) The court, in its discretion, may order a hearing on the motion. The motion shall be heard
by the judge who conducted the trial or accepted the convicted person's plea, unless the presiding
judge determines that judge is unavailable. Upon request of either party, the court may order, in the
interest of justice, that the convicted person be present at the hearing of the motion.
(f) The court shall grant the motion for DNA testing if it determines all of the following have
been established:
(1) The evidence to be tested is available and in a condition that would permit the DNA testing
requested in the motion;
(2) The evidence to be tested has been subject to a chain of custody sufficient to establish it has
not been substituted, tampered with, replaced or altered in any material aspect;
(3) The identity of the perpetrator of the crime was, or should have been, a significant issue in
the case;
(4) The convicted person has made a prima facie showing that the evidence sought for testing
is material to the issue of the convicted person's identity as the perpetrator of or accomplice to, the
crime, special circumstance, or enhancement allegation resulting in the conviction or sentence;
(5) The requested DNA testing results would raise a reasonable probability that, in light of all
the evidence, the convicted person's verdict or sentence would have been more favorable if DNA
testing results had been available at the time of conviction. The court in its discretion may consider
any evidence regardless of whether it was introduced at trial;
(6) The evidence sought for testing meets either of the following conditions:
(A) The evidence was not previously tested;
(B) The evidence was tested previously, but the requested DNA test would provide results that
are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or
have a reasonable probability of contradicting prior test results;
(7) The testing requested employs a method generally accepted within the relevant scientific
community;
(8) The evidence or the presently desired method of testing DNA were not available to the
defendant at the time of trial or a court has found ineffective assistance of counsel at the trial court
level;
(9) The motion is not made solely for the purpose of delay.
(g) If the court grants the motion for DNA testing, the court order shall identify the specific
evidence to be tested and the DNA technology to be used. Testing shall be conducted by a DNA
forensic laboratory in this state.
(h) The result of any testing ordered under this section shall be fully disclosed to the person
filing the motion and the prosecuting attorney. If requested by any party, the court shall order
production of the underlying laboratory data and notes.
(i) If testing was requested by the state or the individual is an indigent, the cost of DNA testing
shall be borne by the state.
(j) An order granting or denying a motion for DNA testing under this section is not to be
appealable and is subject to review only through a petition for writ of mandamus or prohibition filed
with the supreme court of appeals by the person seeking DNA testing or the prosecuting attorney. The
petition shall be filed within twenty days of the court's order granting or denying the motion for DNA
testing. The court shall expedite its review of a petition for writ of mandamus or prohibition filed
under this subsection.
(k) DNA testing ordered by the court pursuant to this section shall be done as soon as
practicable. However, if the court finds that a miscarriage of justice will otherwise occur and that it
is necessary in the interests of justice to give priority to the DNA testing, the court may require the DNA laboratory to give priority to the DNA testing ordered pursuant to this section over the
laboratory's other pending casework.
(l) DNA profile information from biological samples taken from a convicted person pursuant
to a motion for post-conviction DNA testing is exempt from any law requiring disclosure of
information to the public.
(m) Notwithstanding any other provision of law, the right to file a motion for post-conviction
DNA testing provided by this section is absolute and may not be waived. This prohibition applies to,
but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo
contendre."
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. 754), 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 Frederick.
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. 4156) 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. 4552, Relating to grounds for the revocation of teacher certificates.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL
DEVELOPMENT.
§18A-3-6. Grounds for revocation of certificates; recalling certificates for correction.
The state superintendent may, after ten days' notice and upon proper evidence, revoke the
certificates of any teacher for drunkenness, untruthfulness, immorality, or for any physical, mental or
moral defect which would render him unfit for the proper performance of his duties as a teacher, or
for any neglect of duty or refusal to perform the same, or for using fraudulent, unapproved, or
insufficient credit, or for any other cause which would have justified the withholding of a certificate
when the same was issued any of the following causes: Intemperance; untruthfulness; cruelty;
immorality; the conviction of a felony or a guilty plea or a plea of no contest to a felony charge; the
conviction, guilty plea or plea of no contest to any charge involving sexual misconduct with a minor
or a student; or for using fraudulent, unapproved or insufficient credit to obtain the certificates:
Provided, That the certificates of a teacher may not be revoked for any matter for which the teacher
was disciplined, less than dismissal, by the county board that employs the teacher, nor for which the
teacher is meeting or has met an improvement plan determined by the county board, unless it can be
proven by clear and convincing evidence that the teacher has committed one of the offences listed in
this subsection and his or her actions render him or her unfit to teach: Provided, however, That in order for any conduct of a teacher involving intemperance; cruelty; immorality; or using fraudulent,
unapproved or insufficient credit to obtain the certificates to constitute grounds for the revocation of
the certificates of the teacher, there must be a rational nexus between the conduct of the teacher and
the performance of his or her job. The state superintendent may designate the West Virginia
commission for professional teaching standards or members thereof to conduct hearings on revocations
or licensure certificate denials and make recommendations for action by the state superintendent.
It shall be the duty of any county superintendent who knows of any immorality or neglect of
duty acts on the part of any teacher for which a certificate may be revoked in accordance with this
section to report the same, together with all the facts and evidence, to the state superintendent for such
action as in his the state superintendent's judgment may be proper.
If a certificate has been granted through an error, oversight, or misinformation, the state
superintendent of schools shall have has authority to recall the certificate and make such corrections
as will conform to the requirements of law and the state board. of education."
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. 755), 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. 4552) 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. 4009, Creating a position for a state Americans with disabilities
coordinator within the department of administration.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 1. DEPARTMENT OF ADMINISTRATION.
§5A-1-11. State Americans with disabilities coordinator.
(a) There is hereby created within the department of administration the position of the state
Americans with disabilities coordinator, who shall be appointed by the secretary of the department of
administration with input from the chairperson from each of the following four councils:
(1) The developmental disabilities council;
(2) The statewide independent living council;
(3) The mental health planning council; and
(4) The state rehabilitation council.
(b) The coordinator shall be a full-time employee, and shall have an in-depth working
knowledge of the challenges facing persons with disabilities. The coordinator may be a current
employee of the department of administration or other state agency employee.
(c) The coordinator shall:
(1) Advise the director of personnel in the development of comprehensive policies and
programs for the development, implementation and monitoring of a statewide program to assure
compliance with 42 U.S.C. §12101, et seq., the federal Americans with Disabilities Act;
(2) Assist in the formulation of rules and standards relating to the review, investigation and
resolution of complaints of discrimination in employment, education, housing and public
accommodation;
(3) Consult and collaborate with state and federal agency officials in the state plan
development;
(4) Consult and collaborate with agency Americans with disabilities officers on the appropriate
training for managers and supervisors on regulations and issues;
(5) Represent the state on local, state and national committees and panels related to Americans
with disabilities;
(6) Advise the governor and agency heads on Americans with disabilities issues;
(7) Consult with state equal employment opportunity officers on the hiring of persons with
disabilities; and
(8) Be available to inspect and advise the leasing section of the division of purchasing on all
physical properties owned or leased by the state of West Virginia for compliance with 42 U.S.C.
§12101, et seq., the federal Americans with disabilities act.
(d)(1) The secretary of the department of administration may assess, charge and collect fees
from each state spending unit which utilizes the services of the coordinator, for the direct costs and expenses incurred by the coordinator in providing those services. Costs and expenses include travel,
materials, equipment and supplies. Moneys shall be collected through the division of finance.
(2) A state spending unit shall agree in writing to all costs and expenses before the services by
the Americans with disabilities coordinator are rendered.
(e) There is hereby created in the department of administration a special fund to be named the
'Americans with Disabilities Coordinator Fund', which shall be an interest-bearing account and may
be invested in accordance with the provisions of article six, chapter twelve of this code, with the
interest income a proper credit to the fund. Funds paid into the account may be derived from the
following sources:
(1) All moneys received from state spending units for the costs and expenses incurred by the
state Americans with disabilities coordinator for providing services related to the state's
implementation and compliance with 42 U.S.C. §12101, et seq., the federal Americans with disabilities
act;
(2) Any gifts, grants, bequests, transfers or donations which may be received from any
governmental entity or unit or any person, firm, foundation or corporation; and
(3) All interest or return on investment accruing to the fund.
(f) Moneys in the fund are to be used for the costs and expenses incurred pursuant to this
section. Any balance including accrued interest in this special fund at the end of any fiscal year shall
not revert to the general revenue fund, but shall remain in the fund for use by the secretary of the
department of administration for providing additional Americans with disabilities coordinator services
within the state of West Virginia in the ensuing fiscal years.
(g) The secretary of the department of administration shall report annually on the fund to the
governor, president of the Senate and speaker of the House of Delegates. The report must be on CD
ROM or other electronic media and shall not be in print format.
(h) The state Americans with disabilities coordinator shall continue to exist until the first day
of July, two thousand nine, unless sooner terminated, continued or reestablished pursuant to the
provisions of article ten, chapter four of this code."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4009 - "A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §5A-1-11, relating to creating the position of state
Americans with disabilities coordinator within the department of administration; powers and duties;
authorizing assessing fees to other state agencies for the coordinator's services; creating special fund;
annual report; and sunset 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. 756), 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. 4009) 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. 4623, Repealing the section of the code relating to expenditure of excess in collections
upon approval of governor.
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, after the enacting clause, by striking out the article heading and inserting in lieu
thereof a new article heading, to read as follows: "ARTICLE 2. STATE BUDGET OFFICE."
On page one, section one, line one, by striking out the word "five-a" and inserting in lieu
thereof the word "eleven-b".
And,
On page one, by amending the title to read as follows:
H. B. 4623 - "A Bill to repeal §11B-2-18 of the code of West Virginia, 1931, as amended,
relating to expenditure of excess in collections upon approval of governor."
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. 757), 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. 4623) 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. 4119, Allowing a phase-in of the transfer of hotel taxing authority when a municipality
annexes a hotel to allow the retirement of any debt incurred by the county or to otherwise phase in the
transfer of taxing authority to the municipality.
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 four, line three, by striking out the words "A majority" and inserting in
lieu thereof the word "All".
On page five, section four, line five, by striking out the words "a majority of".
And,
On page one, by amending the title to read as follows:
H. B. 4119 - "A Bill to amend and reenact §7-18-1 of the code of West Virginia, 1931, as
amended; and to amend and reenact §8-6-4 of said code, all relating to annexation generally; limiting
imposition and collection of hotel tax by municipality after annexation under certain circumstances;
providing for a phase out of collection and imposition of hotel tax by county commission in certain circumstances; requiring county commission to provide hotel tax information to annexing municipality
upon request; requiring municipality considering annexation without an election to provide notice to
county commission; requiring municipality considering annexation without an election to hold a public
hearing, and requiring all voters and freeholders to agree to annexation without election."
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. 758), 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, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4119) 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 House of Delegates amendment, with
amendments, and the passage, as amended, of
S. B. 444, Requiring county litter control officers to enforce litter laws.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House of Delegates amendment were reported by the
Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §7-1-3ff of the code of West Virginia, 1931, as amended, be amended and reenacted, to
read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ff. Authority of county commission to enact ordinances regulating the repair, alteration,
improvement, vacating, closing, removal or demolition of unsafe or
unsanitary structures and the clearance and removal of refuse, debris,
overgrown vegetation, toxic spills or toxic seepage on private land;
authority to create enforcement agency; procedure for complaints;
promulgation of rules governing investigation and hearing of complaints;
remedies for failure to comply with commission-ordered repairs or
alterations; lien and sale of land to recover costs; entry on land to perform
repairs and alterations or to satisfy lien; receipt of grants and subsidies.
(a) Plenary power and authority are hereby conferred upon every county commission to adopt
ordinances regulating the repair, alteration or improvement, or the vacating and closing or removal or
demolition, or any combination thereof, of any dwellings or other buildings, except for buildings
utilized for farm purposes on land actually being used for farming, unfit for human habitation due to
dilapidation, defects increasing the hazard of fire, accidents or other calamities, lack of ventilation,
light or sanitary facilities or any other conditions prevailing in any dwelling or building, whether used
for human habitation or not, which would cause the dwellings or other buildings to be unsafe,
unsanitary, dangerous or detrimental to the public safety or welfare, whether the result of natural or
manmade force or effect.
(b) Plenary power and authority are hereby conferred upon every county commission to adopt
ordinances regulating the removal and cleanup of any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage located on private lands which is determined to be unsafe,
unsanitary, dangerous or detrimental to the public safety or welfare, whether the result of natural or
manmade force or effect.
(c) The county commission, in formally adopting ordinances, shall designate an enforcement
agency which shall consist of the county engineer (or other technically qualified county employee or
consulting engineer), county health officer or his or her designee, a fire chief from a county fire
company, the county litter control officer, if the commission chooses to hire one, and two members
at large selected by the county commission to serve two-year terms. The county sheriff shall serve as
an ex officio member of the enforcement agency and the county officer charged with enforcing the
orders of the county commission under this section.
(d) In addition to the powers and duties imposed by this section, county litter control officers
shall have authority to issue citations for violations of the provisions of section twenty-six, article
seven, chapter twenty of this code, after completing a training course offered by the West Virginia
division of natural resources. Nothing in this subsection supercedes the authority or duty of other law-
enforcement officers to preserve law and order, and enforce the litter control program.
__________(d) (e) Any ordinance adopted pursuant to the provisions of this section shall provide fair and
equitable rules of procedure and any other standards considered necessary to guide the enforcement
agency, or its agents, in the investigation of dwelling or building conditions, accumulation of refuse
or debris, overgrown vegetation or toxic spillage or toxic seepage and shall provide for fair and
equitable rules of procedure for instituting and conducting hearings in the matters before the county commission. Any entrance upon premises for the purpose of making examinations shall be made in
a manner as to cause the least possible inconvenience to the persons in possession.
(e) (f) Any county commission adopting ordinances authorized by this section shall hear and
determine complaints of the enforcement agency. Complaints shall be initiated by citation issued by
the county litter control officer or petition of the county engineer (or other technically qualified county
employee or consulting engineer) on behalf of and at the direction of the enforcement agency, but only
after that agency has investigated and determined that any dwelling, building, accumulation of refuse
or debris, overgrown vegetation or toxic spillage or toxic seepage is unsafe, unsanitary, dangerous or
detrimental to the public safety or welfare and should be repaired, altered, improved, vacated,
removed, closed, cleaned or demolished. The county commission shall cause the owner or owners of
the private land in question to be served with a copy of the complaint. Service shall be accomplished
in the manner provided in rule four of the West Virginia rules of civil procedure. The complaint shall
state the findings and recommendations of the enforcement agency and that unless the owner or owners
of the property file with the clerk of the county commission a written request for a hearing within ten
days of receipt of the complaint, an order will be issued by the county commission implementing the
recommendations of the enforcement agency. If the owner or owners of the property file a request for
a hearing, the county commission shall issue an order setting this matter down for hearing within
twenty days. Hearings shall be recorded by electronic device or by court reporter. The West Virginia
rules of evidence do not apply to the proceedings, but each party has the right to present evidence and
examine and cross examine all witnesses. The enforcement agency has the burden of proving its
allegation by a preponderance of the evidence and has the duty to go forward with the evidence. At
the conclusion of the hearing the county commission shall make findings of fact, determinations and
conclusions of law as to whether the dwelling or building: Is unfit for human habitation due to dilapidation; has defects that increase the hazard of fire, accidents or other calamities, lacks ventilation,
light or sanitary facilities; or any other conditions prevailing in the dwelling or building, whether used
for human habitation or not and whether the result of natural or manmade force or effect, which would
cause such dwelling or other building to be unsafe, unsanitary, dangerous or detrimental to the public
safety or welfare; or whether there is an accumulation of refuse or debris, overgrown vegetation, toxic
spillage or toxic seepage on private lands which is determined to be unsafe, unsanitary, dangerous or
detrimental to the public safety or welfare, whether the result of natural or manmade force or effect.
The county commission has authority to order the owner or owners thereof to repair, alter, improve,
vacate, remove, close, clean up or demolish the dwelling or building in question or to remove or
cleanup any accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage
within a reasonable time and to impose daily civil monetary penalties on the owner or owners who fail
to obey an order. Appeals from the county commission to the circuit court shall be in accordance with
the provisions of article three, chapter fifty-eight of this code.
(f) (g) Upon the failure of the owner or owners of the private land to perform the ordered duties
and obligations as set forth in the order of the county commission, the county commission may
advertise for and seek contractors to make the ordered repairs, alterations or improvements, or the
ordered demolition, removal or cleanup. The county commission may enter into any contract with any
contractor to accomplish the ordered repairs, alterations or improvements or the ordered demolition,
removal or cleanup.
(g) (h) A civil proceeding may be brought in circuit court by the county commission against
the owner or owners of the private land which is the subject matter of the order of the county
commission to subject the private land in question to a lien for the amount of the contractor's costs in
making these ordered repairs, alterations or improvements or ordered demolition, removal or cleanup, together with any daily civil monetary penalty imposed and reasonable attorney fees and court costs
and to order and decree the sale of the private land in question to satisfy the lien and to order and
decree that the contractor may enter upon the private land in question at any and all times necessary
to make improvements, or ordered repairs, alterations or improvements, or ordered demolition,
removal or cleanup. In addition, the county commission shall have the authority to institute a civil
action in a court of competent jurisdiction against the landowner or other responsible party for all costs
incurred by the county with respect to the property and for reasonable attorney fees and court costs
incurred in the prosecution of the action.
(h) (i) County commissions have the power and authority to receive and accept grants,
subsidies, donations and services in kind consistent with the objectives of this section."
And,
By amending the title of the bill to read as follows:
S. B. 444 - "A Bill to amend and reenact §7-1-3ff of the code of West Virginia, 1931, as
amended, relating to authority of county commissions to hire litter control officer; and requiring county
litter control officer to enforce litter laws under the litter control program."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
to the House amendment.
The bill, as amended by the House, and as further amended by the Senate, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 759), and there were--yeas
97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Canterbury.
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 (S. B. 444) 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 House of Delegates amendment, with
amendments, and the passage, as amended, of
Com. Sub. for S. B. 176, Relating to investments and investment practices of insurance
companies.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House of Delegates amendment were reported by the
Clerk:
On page two, by striking out all of section two in its entirety.
On page two, by amending the enacting section to read as follows:
"That §33-3-6 of the code of West Virginia, 1931, as amended, be amended and reenacted; that
§33-8-1, §33-8-2, §33-8-3, §33-8-4, §33-8-5, §33-8-6, §33-8-7, §33-8-8, §33-8-9, §33-8-10, §33-8-11,
§33-8-12, §33-8-13, §33-8-14, §33-8-15, §33-8-16, §33-8-17, §33-8-18, §33-8-19, §33-8-20,
§33-8-21, §33-8-22, §33-8-23, §33-8-24 and §33-8-25 of said code be amended and reenacted; that
said code be amended by adding thereto seven new sections, designated §33-8-26, §33-8-27, §33-8-28,
§33-8-29, §33-8-30, §33-8-31 and §33-8-32; that §33-9-3 of said code be amended and reenacted; that
§33-22-11 of said code be amended and reenacted; that §33-23-31 of said code be amended and reenacted; that §33-24-10 of said code be amended and reenacted; that §33-25A-4 of said code be
amended and reenacted; that §33-25D-5 of said code be amended and reenacted; and that §33-27-2a
of said code be amended and reenacted, all to read as follows" followed by a colon.
And,
On page one, by amending the title to read as follows:
Com. Sub. for S. B. 176 - "A Bill to amend and reenact §33-3-6 of the code of West Virginia,
1931, as amended; to amend and reenact §33-8-1, §33-8-2, §33-8-3, §33-8-4, §33-8-5, §33-8-6,
§33-8-7, §33-8-8, §33-8-9, §33-8-10, §33-8-11, §33-8-12, §33-8-13, §33-8-14, §33-8-15, §33-8-16,
§33-8-17, §33-8-18, §33-8-19, §33-8-20, §33-8-21, §33-8-22, §33-8-23, §33-8-24 and §33-8-25 of
said code; to amend said code by adding thereto seven new sections, designated §33-8-26, §33-8-27,
§33-8-28, §33-8-29, §33-8-30, §33-8-31 and §33-8-32; to amend and reenact §33-9-3 of said code;
to amend and reenact §33-22-11 of said code; to amend and reenact §33-23-31 of said code; to amend
and reenact §33-24-10 of said code; to amend and reenact §33-25A-4 of said code; to amend and
reenact §33-25D-5 of said code; and to amend and reenact §33-27-2a of said code, all relating to
investments and investment practices of insurance companies; and correcting references to amended
sections of article eight, chapter thirty-three of said code."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
to the House amendment.
The bill, as amended by the House, and as further amended by the Senate, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 760), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Sobonya.
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 176) 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 House of Delegates amendment, with
amendments, and the passage, as amended, to take effect from passage, of
Com. Sub. for S. B. 197, Relating generally to distribution of net terminal income of racetrack
video lottery terminals.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House of Delegates amendment were reported by the
Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto three new
sections, designated §5A-4-5a, §5A-4-6 and §5A-4-7; and that §5B-2-12 of said code be amended and
reenacted and that §29-22A-10 and §29-22A-10b of said code be amended and reenacted, all to read
as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION
ARTICLE 4. GENERAL SERVICES DIVISION.
§5A-4-5a. Construction of parking garage for general public; creation of fund.
(a) It is the intent of the Legislature to provide a parking facility for the general public and to
direct the secretary of the department of administration to plan and construct a parking garage at the
state capitol complex that will provide sufficient and additional parking exclusively for the general
public.
(b) There is created the state treasury to be administered by the department of administration
a special fund to be named the '2004 capitol complex parking garage fund' in which shall be deposited
funds that are appropriated and funds from other sources to be used for the construction and
maintenance of a parking garage on or adjacent to the state capitol complex.
§5A-4-6. Distribution of funds.
Notwithstanding any other provision of this code to the contrary, in each fiscal year beginning
after the thirtieth day of June, two thousand four, the total amount of the remainder of the one percent
of net terminal income described in subparagraph (ii), paragraph (B), subdivision (9), subsection (c),
section ten, article twenty-two-a, chapter twenty-nine of this code and all of the one percent of net
terminal income described in subdivision (9), subsection (a), section ten-b of said article twenty-two-a
shall be distributed as follows:
(1) Equal amounts of the total shall be deposited in the capitol dome and improvements fund
created under section two, article four, chapter five-a of this code and cultural facilities and capitol
resources matching grant program fund created under section three, article one of this chapter until a
total of one million five hundred thousand dollars is deposited into the cultural facilities and capitol resources matching grant program fund; thereafter, the remainder shall be deposited into the capitol
dome and improvements fund.
§5A-4-7. Renovation and improvement of capitol building and capitol complex.
(a) It is the intent of the Legislature to provide renovation and improvement of the existing state
capitol building and the capitol complex and to direct the secretary of the department of administration
to plan and make renovations and improvements of the existing state capitol building and the capitol
complex for the purpose of reversing deterioration to existing facilities, securing the safety of the
general public and state employees, promoting efficiency of governmental operations and to enhance
tourism in the state.
(b) There is created the state treasury to be administered by the department of administration
a special fund to be named the 'capitol renovation and improvement fund' in which shall be deposited
funds that are appropriated and funds from other sources to be used for renovations and improvements
of the existing state capitol building and the capitol complex.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-12. Tourism promotion fund continued; use of funds.
There is hereby continued in the state treasury the special revenue fund known as the 'tourism
promotion fund' created under prior enactment of section nine, article one of this chapter.
(a) A minimum of five percent of the moneys deposited in the fund each year shall be used
solely for direct advertising for West Virginia travel and tourism: Provided, That no less than twenty
percent of these funds be expended with the approval of the director of the division of natural
resources to effectively promote and market the state's parks, state forests, state recreation areas and wildlife recreational resources. Direct advertising means advertising which is limited to television,
radio, mailings, newspaper, magazines and outdoor billboards, or any combination thereof;.
(b) The balance of the moneys deposited in the fund shall be used for direct advertising within
the state's travel regions as defined by the commission. The funds shall be made available to these
districts beginning the first day of July, one thousand nine hundred ninety-five, according to legislative
rules promulgated authorized for promulgation by the tourism commission. : Provided, That
emergency rules for the distribution of funds for the fiscal year ending the thirtieth day of June, one
thousand nine hundred ninety-six, are specifically authorized; and
(c) All advertising expenditures over twenty-five thousand dollars from the tourism promotion
fund require prior approval by recorded vote of the commission. No member of the commission or
of any committee created by the commission to evaluate applications for advertising or other grants
may participate in the discussion of, or action upon, an application for or an award of any grant in
which the member has a direct financial interest.
__(d) Notwithstanding any other provision of this code to the contrary:
__(1) In the fiscal year beginning the first day of July, two thousand four, the total amount of the
three percent of net terminal income described in paragraph (B), subdivision (8), subsection (c),
section ten, article twenty-two-a, chapter twenty-nine of this code and the three percent of net terminal
income described in paragraph (B), subdivision (9), subsection (a), section ten-b of said article twenty-
two-a shall be distributed as follows:
__(A) Not more than six million dollars shall be deposited in the tourism promotion fund;
__(B) Not more than five hundred thousand dollars shall be deposited in the state treasury in a
special fund of the department of administration, created under section five-a, article four, chapter five-a of this code to be used for construction and maintenance of a parking garage on or adjacent to the
state capitol complex;
__(C) Not more than five million five hundred thousand dollars shall be deposited in the state
treasury in a special fund of the department of administration, created under section seven, article four,
chapter five-a of this code to be used for renovation and improvement of the existing state capitol
building and the capitol complex; and
__(D) The remainder of the three percent of net terminal income shall be available only upon
appropriation by the Legislature as part of the state budget.
__(2) In each fiscal year beginning after the thirtieth day of June, two thousand five, the total
amount of the three percent of net terminal income described in paragraph (B), subdivision (8),
subsection (c), section ten, article twenty-two-a, chapter twenty-nine of this code and the three percent
of net terminal income described in paragraph (B), subdivision (9), subsection (a), section ten-b of said
article twenty-two-a shall be distributed as follows:
__(A) Not more than eleven million dollars shall be deposited in the tourism promotion fund;
__(B) Not more than five hundred thousand dollars shall be deposited in the state treasury in a
special fund of the department of administration, created under section five-a, article four, chapter five-
a of this code to be used for construction and maintenance of a parking garage on or adjacent to the
state capitol complex;
__(C) Not more than five million five hundred thousand dollars shall be deposited in the state
treasury in a special fund of the department of administration, created under section seven, article four,
chapter five-a of this code to be used for renovation and improvement of the existing state capitol
building and the capitol complex; and
__(D) The remainder of the three percent of net terminal income shall be available only upon
appropriation by the Legislature as part of the state budget.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; commission to provide communications protocol data;
distribution of net terminal income; remittance through electronic transfer
of funds; establishment of accounts and nonpayment penalties; commission
control of accounting for net terminal income; settlement of accounts;
manual reporting and payment may be required; request for reports;
examination of accounts and records.
(a) The commission shall provide to manufacturers, or applicants applying for a manufacturer's
permit, the protocol documentation data necessary to enable the respective manufacturer's video
lottery terminals to communicate with the commission's central computer for transmitting auditing
program information and for activation and disabling of video lottery terminals.
(b) The gross terminal income of a licensed racetrack shall be remitted to the commission
through the electronic transfer of funds. Licensed racetracks shall furnish to the commission all
information and bank authorizations required to facilitate the timely transfer of moneys to the
commission. Licensed racetracks must provide the commission thirty days' advance notice of any
proposed account changes in order to assure the uninterrupted electronic transfer of funds. From the
gross terminal income remitted by the licensee to the commission, the commission shall deduct an
amount sufficient to reimburse the commission for its actual costs and expenses incurred in
administering racetrack video lottery at the licensed racetrack and the resulting amount after the
deduction is the net terminal income. The amount deducted for administrative costs and expenses of
the commission may not exceed four percent of gross terminal income: Provided, That any amounts
deducted by the commission for its actual costs and expenses that exceeds its actual costs and expenses
shall be deposited into the state lottery fund. For all fiscal years beginning on or after the first day of July, two thousand one, the commission shall not receive an amount of gross terminal income in
excess of the amount of gross terminal income received during the fiscal year ending on the thirtieth
day of June, two thousand one, but four percent of any amount of gross terminal income received in
excess of the amount of gross terminal income received during the fiscal year ending on the thirtieth
day of June, two thousand one, shall be deposited into the fund established in section eighteen-a,
article twenty-two of this chapter.
(c) Net terminal income shall be divided as set out in this subsection. For all fiscal years
beginning on or after the first day of July, two thousand one, any amount of net terminal income
received in excess of the amount of net terminal income received during the fiscal year ending on the
thirtieth day of June, two thousand one, shall be divided as set out in section ten-b of this article. The
licensed racetrack's share is in lieu of all lottery agent commissions and is considered to cover all costs
and expenses required to be expended by the licensed racetrack in connection with video lottery
operations. The division shall be made as follows:
(1) The commission shall receive thirty percent of net terminal income, which shall be paid into
the state lottery fund as provided in section ten-a of this article.
(2) Fourteen percent of net terminal income at a licensed racetrack shall be deposited in the
special fund established by the licensee and used for payment of regular purses in addition to other
amounts provided for in article twenty-three, chapter nineteen of this code;
(3) The county where the video lottery terminals are located shall receive two percent of the
net terminal income: Provided, That:
(A) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, any
Any amount in excess of the two percent received during fiscal year one thousand nine hundred ninety-
nine by a county in which a racetrack is located that has participated in the West Virginia thoroughbred
development fund since on or before the first day of January, one thousand nine hundred ninety-nine,
shall be divided as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipalities of the county shall receive fifty percent of the excess amount, the fifty
percent to be divided among the municipalities on a per capita basis as determined by the most recent
decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, any
Any amount in excess of the two percent received during fiscal year one thousand nine hundred ninety-
nine by a county in which a racetrack other than a racetrack described in paragraph (A) of this proviso
is located and where the racetrack has been located in a municipality within the county since on or
before the first day of January, one thousand nine hundred ninety-nine, shall be divided, if applicable,
as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipality shall receive fifty percent of the excess amount; and
(C) This proviso shall not affect the amount to be received under this subdivision by any county
other than a county described in paragraph (A) or (B) of this subdivision;
(4) One half of one percent of net terminal income shall be paid for and on behalf of all
employees of the licensed racing association by making a deposit into a special fund to be established
by the racing commission to be used for payment into the pension plan for all employees of the
licensed racing association;
(5) The West Virginia thoroughbred development fund created under section thirteen-b, article
twenty-three, chapter nineteen of this code and the West Virginia greyhound breeding development
fund created under section ten of said article shall receive an equal share of a total of not less than one
and one-half percent of the net terminal income: Provided, That for any racetrack which does not have
a breeder's program supported by the thoroughbred development fund or the greyhound breeding
development fund, the one and one-half percent provided for in this subdivision shall be deposited in
the special fund established by the licensee and used for payment of regular purses in addition to other
amounts provided for in subdivision (2) of this subsection and article twenty-three, chapter nineteen
of this code;
(6) The West Virginia racing commission shall receive one percent of the net terminal income
which shall be deposited and used as provided in section thirteen-c, article twenty-three, chapter
nineteen of this code;
(7) A licensee shall receive forty-seven percent of net terminal income;
(8)(A) The tourism promotion fund established in section twelve, article two, chapter five-b
of this code shall receive three percent of the net terminal income: Provided, That for the fiscal year
beginning the first day of July, two thousand three, the tourism commission shall transfer from the
tourism promotion fund no more than five million dollars of the three percent of the net terminal
income into the fund administered by the West Virginia economic development authority pursuant to
section seven, article fifteen, chapter thirty-one of this code; and
_____(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for each
fiscal year beginning after the thirtieth day of June, two thousand four, this three percent of net
terminal income shall be distributed pursuant to the provisions of subsection (d), section twelve, article
two, chapter five-b of this code; and
(9) The remaining one percent of net terminal income shall be deposited as follows:
_____(A) For the fiscal year beginning the first day of July, two thousand three the, The veterans
memorial program shall receive that one percent of the net terminal income until sufficient moneys
have been received to complete the veterans memorial on the grounds of the state capitol complex in
Charleston, West Virginia. The moneys shall be deposited in the state treasury in the division of
culture and history special fund created under section three, article one-i, chapter twenty-nine of this
code: Provided, That only after sufficient moneys have been deposited in the fund to complete the
veterans memorial and to pay in full the annual bonded indebtedness on the veterans memorial, not
more than twenty thousand dollars of the one percent of net terminal income provided for in this
subdivision shall be deposited into a special revenue fund in the state treasury, to be known as the
'John F. "Jack" Bennett Fund'. The moneys in this fund shall be expended by the division of veterans
affairs to provide for the placement of markers for the graves of veterans in perpetual cemeteries in
this state. The division of veterans affairs shall promulgate legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code specifying the manner in which the funds are spent,
determine the ability of the surviving spouse to pay for the placement of the marker and setting forth
the standards to be used to determine the priority in which the veterans grave markers will be placed
in the event that there are not sufficient funds to complete the placement of veterans grave markers in
any one year, or at all. Upon payment in full of the bonded indebtedness on the veterans memorial,
one hundred thousand dollars of the one percent of net terminal income provided for in this
subdivision shall be deposited in the special fund in the division of culture and history created under
section three, article one-i, chapter twenty-nine of this code and be expended by the division of culture
and history to establish a West Virginia veterans memorial archives within the cultural center to serve
as a repository for the documents and records pertaining to the veterans memorial, to restore and
maintain the monuments and memorial on the capitol grounds: Provided, however, That five hundred
thousand dollars of the one percent of net terminal income shall be deposited in the state treasury in
a special fund of the department of administration, created under section five, article four, chapter five-
a of this code, to be used for construction and maintenance of a parking garage on the state capitol
complex; and Provided further, That the remainder of the one percent of net terminal income shall be
deposited in equal amounts in the capitol dome and improvements fund created under section two,
article four, chapter five-a of this code and cultural facilities and capitol resources matching grant
program fund created under section three, article one of this chapter.
(B) For each fiscal year beginning after the thirtieth day of June, two thousand four:
_____(i) Five hundred thousand dollars of the one percent of net terminal income shall be deposited
in the state treasury in a special fund of the department of administration, created under section five,
article four, chapter five-a of this code, to be used for construction and maintenance of a parking
garage on the state capitol complex; and
_____(ii) The remainder of the one percent of net terminal income shall be distributed pursuant to
the provisions of section six, article four, chapter five-a of this code.
(d) Each licensed racetrack shall maintain in its account an amount equal to or greater than the
gross terminal income from its operation of video lottery machines, to be electronically transferred by the commission on dates established by the commission. Upon a licensed racetrack's failure to
maintain this balance, the commission may disable all of a licensed racetrack's video lottery terminals
until full payment of all amounts due is made. Interest shall accrue on any unpaid balance at a rate
consistent with the amount charged for state income tax delinquency under chapter eleven of this code.
The interest shall begin to accrue on the date payment is due to the commission.
(e) The commission's central control computer shall keep accurate records of all income
generated by each video lottery terminal. The commission shall prepare and mail to the licensed
racetrack a statement reflecting the gross terminal income generated by the licensee's video lottery
terminals. Each licensed racetrack shall report to the commission any discrepancies between the
commission's statement and each terminal's mechanical and electronic meter readings. The licensed
racetrack is solely responsible for resolving income discrepancies between actual money collected and
the amount shown on the accounting meters or on the commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of the licensed racetrack, the
commission may make no credit adjustments. For any video lottery terminal reflecting a discrepancy,
the licensed racetrack shall submit to the commission the maintenance log which includes current
mechanical meter readings and the audit ticket which contains electronic meter readings generated by
the terminal's software. If the meter readings and the commission's records cannot be reconciled, final
disposition of the matter shall be determined by the commission. Any accounting discrepancies which
cannot be otherwise resolved shall be resolved in favor of the commission.
(g) Licensed racetracks shall remit payment by mail if the electronic transfer of funds is not
operational or the commission notifies licensed racetracks that remittance by this method is required.
The licensed racetracks shall report an amount equal to the total amount of cash inserted into each
video lottery terminal operated by a licensee, minus the total value of game credits which are cleared
from the video lottery terminal in exchange for winning redemption tickets, and remit the amount as
generated from its terminals during the reporting period. The remittance shall be sealed in a properly
addressed and stamped envelope and deposited in the United States mail no later than noon on the day
when the payment would otherwise be completed through electronic funds transfer.
(h) Licensed racetracks may, upon request, receive additional reports of play transactions for
their respective video lottery terminals and other marketing information not considered confidential
by the commission. The commission may charge a reasonable fee for the cost of producing and
mailing any report other than the billing statements.
(i) The commission has the right to examine all accounts, bank accounts, financial statements
and records in a licensed racetrack's possession under its control or in which it has an interest and the
licensed racetrack shall authorize all third parties in possession or in control of the accounts or records
to allow examination of any of those accounts or records by the commission.
§29-22A-10b. Distribution of excess net terminal income.
(a) For all years beginning on or after the first day of July, two thousand one, any amount of
net terminal income generated annually by a licensed racetrack in excess of the amount of net terminal
income generated by that licensed racetrack during the fiscal year ending on the thirtieth day of June,
two thousand one, shall be divided as follows:
(1) The commission shall receive forty-one percent of net terminal income, which the
commission shall deposit in the state excess lottery revenue fund created in section eighteen-a, article
twenty-two of this chapter;
(2) Eight percent of net terminal income at a licensed racetrack shall be deposited in the special
fund established by the licensee, and used for payment of regular purses in addition to other amounts
provided for in article twenty-three, chapter nineteen of this code;
(3) The county where the video lottery terminals are located shall receive two percent of the
net terminal income: Provided, That:
(A) Any amount by which the total amount under this section and subdivision (3), subsection
(c), section ten of this article is in excess of the two percent received during fiscal year one thousand
nine hundred ninety-nine by a county in which a racetrack is located that has participated in the West
Virginia thoroughbred development fund since on or before the first day of January, one thousand nine
hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipalities of the county shall receive fifty percent of the excess amount, the fifty
percent to be divided among the municipalities on a per capita basis as determined by the most recent
decennial United States census of population; and
(B) Any amount by which the total amount under this section and subdivision (3), subsection
(c), section ten of this article is in excess of the two percent received during fiscal year one thousand
nine hundred ninety-nine by a county in which a racetrack other than a racetrack described in
paragraph (A) of this proviso is located and where the racetrack has been located in a municipality
within the county since on or before the first day of January, one thousand nine hundred ninety-nine,
shall be divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipality shall receive fifty percent of the excess amount; and
(C) This proviso shall not affect the amount to be received under this subdivision by any county
other than a county described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be paid for and on behalf of all
employees of the licensed racing association by making a deposit into a special fund to be established
by the racing commission to be used for payment into the pension plan for all employees of the
licensed racing association;
(5) The West Virginia thoroughbred development fund created under section thirteen-b, article
twenty-three, chapter nineteen of this code and the West Virginia greyhound breeding development
fund created under section ten, article twenty-three, chapter nineteen of this code shall receive an equal
share of a total of not less than one and one-half percent of the net terminal income: Provided, That
for any racetrack which does not have a breeder's program supported by the thoroughbred
development fund or the greyhound breeding development fund, the one and one-half percent provided
for in this subdivision shall be deposited in the special fund established by the licensee and used for payment of regular purses, in addition to other amounts provided for in subdivision (2) of this
subsection and article twenty-three, chapter nineteen of this code;
(6) The West Virginia racing commission shall receive one percent of the net terminal income
which shall be deposited and used as provided in section thirteen-c, article twenty-three, chapter
nineteen of this code;
(7) A licensee shall receive forty-two percent of net terminal income;
(8) The tourism promotion fund established in section twelve, article two, chapter five-b of this
code shall receive three percent of the net terminal income Provided, That for each fiscal year
beginning after the thirtieth day of June, two thousand four, this three percent of net terminal income
shall be distributed pursuant to the provisions of subsection (d), section twelve, article two, chapter
five-b of this code; and
(9)(A) One percent of the net terminal income shall be deposited in equal amounts in the
capitol dome and improvements fund created under section two, article four, chapter five-a of this code
and cultural facilities and capitol resources matching grant program fund created under section three,
article one of this chapter; and
_____(B) Notwithstanding any provision of paragraph (A)of this subdivision to the contrary, for each
fiscal year beginning after the thirtieth day of June, two thousand four, this one percent of net terminal
income shall be distributed pursuant to the provisions of section six, article four, chapter five-a of this
code..
(b) The commission may establish orderly and effective procedures for the collection and
distribution of funds under this section in accordance with the provisions of this section and section
ten of this article."
And,
On page one, by amending the title to read as follows:
Com. Sub. for S. B. 197 - "A Bill to amend the code of West Virginia, 1931, as amended, by
adding thereto three new sections, designated §5A-4-5a, §5A-4-6 and §5A-4-7; and to amend and reenact §5B-2-12 of said code; and to amend and reenact §29-22A-10 and §29-22A-10b of said code,
all relating generally to distribution of net terminal income of racetrack video lottery terminals for
funding purposes; creation of a fund to be used for the construction and maintenance of a parking
garage; distribution of net terminal income to funds for the construction and maintenance of parking
garages, to the capitol dome and improvements fund, to the cultural facilities and capitol resources
matching grant program fund, to the capitol renovation and improvement fund, to the tourism
promotion fund and to purposes determined by appropriation in the state budget; creation of a fund for
renovations and improvements of the existing state capitol building and the capitol complex; and
prohibiting members of the tourism commission from participating in the discussion of, or action upon,
an application for or an award of any grant in which the member has a direct financial interest."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
to the House amendment.
The bill, as amended by the House, and as further amended by the Senate, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 761), and there were--yeas
60, nays 39, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Blair, Border, Brown, Butcher, Calvert,
Canterbury, Caputo, Carmichael, DeLong, Duke, Ellem, Ennis, Evans, Frich, Hall, Hamilton, Hatfield,
Howard, Hrutkay, Kuhn, Leggett, Louisos, Manchin, Overington, Schoen, Smirl, Sobonya, Sumner,
Susman, R. Thompson, Trump, Tucker, Walters, Webb and Yeager.
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 S. B. 197) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 762), and there were--yeas 66, nays
31, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Blair, Border, Butcher, Calvert, Canterbury,
Caputo, Carmichael, Duke, Ellem, Evans, Frich, Hall, Hamilton, Hatfield, Howard, Hrutkay, Leggett,
Louisos, Manchin, Overington, Smirl, Sobonya, Sumner, Susman, Walters, Webb and Yeager.
Absent And Not Voting: Coleman, Doyle and Schoen.
So, two thirds of the members elected to the House of Delegates not having voted in the
affirmative, the motion to make the bill (Com. Sub. for S. B. 197) effective from its passage did not
prevail.
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. 4523, Allowing certain racing associations or licensees qualifying for an alternate tax to
increase the number of races each performance.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page six, section three, line seventy-eight, by striking out the word "either".
On page six, section three, line seventy-eight, by striking out the word "or".
On page six, section three, line eighty-five, following the word "reports", by changing the
period to a semicolon and striking out the remainder of the paragraph.
On page thirty-nine, section thirteen, line thirty-four, after the word "subsection", by changing
the colon to a period and striking out the following proviso: "Provided, That in the event there are
more than ten races in any performance, the moneys distributed from the separate accounts provided
for in this section will be allocated in a total amount as if there were no more than ten races in any
given performance."
On page forty, section thirteen, line fifty, after the word "race", by changing the period to a
colon and inserting the following proviso: "Provided, however, That in the event there are more than
ten races in any performance, the award to the resident owner of the winning horse will be that
fractional share of the purse with a numerator of one and a denominator representing the number of
races on the day of the performance."
On page forty, section thirteen, line sixty-two, after the word "horse", by changing the
semicolon to a colon and inserting the following proviso: "Provided, however, That in the event there
are more than ten races in any performance, the award to the breeder will be that fractional share of
the purse with a numerator of one and a denominator representing the number of races on the day of
the performance" followed by a semicolon.
On page forty-one, section thirteen, line sixty-eight, after the word "horse", by changing the
semicolon to a colon and inserting the following proviso: "Provided, however, That in the event there
are more than ten races in any performance, the award to the owner of the stallion will be percentage
of the purse based upon the fractional share represented by the number of races on the day of the
performance" followed by a semicolon.
And,
On page forty-four, section thirteen, after line one hundred thirty-six, by adding a new
subsection, designated subsection (f), to read as follows:
"(f) The racing commission is authorized to promulgate emergency rules, prior to the first day
of July, two thousand four, to incorporate the revisions to this article enacted during the two thousand
four regular legislative session."
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. 763), and there were--yeas
67, nays 32, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Canterbury, Carmichael,
Caruth, Duke, Ellem, Evans, Frederick, Frich, Hall, Hamilton, Hatfield, Howard, Leggett, Louisos,
Overington, Schadler, Schoen, Smirl, Sobonya, Sumner, Susman, Trump, Walters, Webb and Yeager.
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. 4523) 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. 4671, Relating to the disposal of law enforcement weapons when replaced due to routine
wear.
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 forty-three, line ten, by striking out the word "department" and inserting
in lieu thereof the words "West Virginia state police".
On page three, section forty-three, line twenty, by striking out the words "is hereby authorized
to" and inserting in lieu thereof the word "may".
On page three, section forty-three, line twenty-two, by striking out the word "utilized" and
inserting in lieu thereof the word "used".
On page four, section one-d, line twenty-two, by striking out the words "is hereby authorized
to" and inserting in lieu thereof the word "may".
And,
On page four, section one-d, line twenty-five, by striking out the words "utilized" and inserting
in lieu thereof the word "used".
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. 764), 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 elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4671) 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. 4634, Requiring persons incarcerated in county and regional jails who have been
convicted of a misdemeanor reimburse the county for the cost incurred for his or her incarceration.
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 after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 8. JAIL AND JAILER.
§7-8-14. Reimbursement for costs of incarceration.
(a) Notwithstanding any provision to the code to the contrary and in addition to any fine, cost
assessment or fee authorized or required to be imposed upon a person by virtue of his or her conviction of a criminal provision of this code, or a lawfully enacted ordinance of a political subdivision of this
state, a person convicted and incarcerated in a regional jail by virtue of said conviction may be
assessed the costs of up to thirty days of his or her incarceration.
(b) Prior to any person being required to pay the cost of his or her incarceration pursuant to the
provisions of subsection (a) of this section, a hearing shall be held before the sentencing court to
determine his or her ability to pay. The court may not sentence a defendant to pay his or her costs of
incarceration unless he or she is or in the foreseeable future will be able to pay them. In determining
the amount and method of payment of costs, the court shall take account of the financial resources of
the defendant and the nature of the burden that payment of costs will impose.
(c) A defendant who has been sentenced to pay costs and who is not in willful default in the
payment of the costs may at any time petition the sentencing court for remission of the payment of
costs or of any unpaid portion of the costs. If it appears to the satisfaction of the court that payment
of the amount due will impose manifest hardship on the defendant or the defendant's family or
dependents, the court may excuse payment of all or part of the amount due in costs, or modify the
method of payment."
And,
On page one, by amending the title to read as follows:
H. B. 4634 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto
a new section, designated §7-8-14, relating to requiring persons incarcerated in county or regional jails
who have been convicted of a misdemeanor to pay for the costs of up to thirty days of their
incarceration; requiring determination of ability to pay; and allowing for modification of assessment
based upon need."
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. 765), 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. 4634) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The Speaker stated that the hour of Midnight had arrived and declared the constitutional
expiration of the session.
At 12 o'clock Midnight, Sunday, March 14, 2004, on motion of Delegate Staton, the House
of Delegates adjourned until 12:01 a.m., Sunday, March 15, 2004.