Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, and by unanimous consent, returned
to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 5:14 p.m. today:
Eng. House Bill No. 4107,
Allowing licensees of charitable
bingo and raffle games to transfer game proceeds between their
bingo and raffle operations.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 735, Supplementing, amending, reducing
and increasing items of existing appropriations from state fund,
general revenue, to department of military affairs and public
safety, West Virginia parole board.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S. B. No. 735) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 735) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 736, Expiring funds to unappropriated
balance in general revenue from higher education improvement fund.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 736) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 736) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Joint Resolution No. 114, Veterans Bonus Amendment
of 2004.
On third reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Hunter, unanimous consent was
granted to offer an amendment to the resolution on third reading.
Thereupon, on motion of Senator Hunter, the following
amendment to the resolution was reported by the Clerk and adopted:
On page seven, lines one hundred nine through one hundred
fifteen, 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 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.
The resolution (Eng. H. J. R. No. 114), as amended, was then
read a third time and put upon its adoption.
On the adoption of the resolution, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the resolution (Eng. H. J. R. No. 114) adopted, as follows:
Eng. House Joint Resolution No. 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.
__________
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 communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 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.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2801) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 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.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4047) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4083, Continuing the veterans' council.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4083) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4086, Including Gulf War and
Afghanistan conflict veterans on the veterans' council.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4086) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 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 Iraq conflict veterans to the
veterans' council; and deleting outdated language.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 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 third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4119) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4123, Authorizing the
supreme court of appeals to create a panel of senior magistrate
court clerks.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4123) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4134, Substituting the governor's chief
technology officer as a member of the employee suggestion award
program.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4134) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4266, Requiring regulatory
agencies of government, with exceptions, to study ways to expedite
the issuance of licenses, permits and certificates.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4266) passed.
At the request of Senator Bowman, as chair of the Committee on
Government Organization, and by unanimous consent, the unreported
Government Organization committee amendment to the title of the
bill was withdrawn.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
O
n page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 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.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4318, Imposing personal
income tax on funds withdrawn from a prepaid college tuition
contract or other college savings plans.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick,
Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear,
Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Weeks, White and Tomblin (Mr. President)--28.
The nays were: Chafin, Guills, Harrison, Sprouse and
Unger--5.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4318) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4364, Including division of
forestry employees in the assault and battery statute with similar
state personnel.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4364) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 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 third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4388) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 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.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4388) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4403, Repealing the requirement of
affidavits acknowledging receipt of compensation.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4403) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4418, Continuing the board of architects.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4418) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4419, Continuing the board of landscape
architects.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4419) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 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.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4456) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4456) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 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.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4464) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4464) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 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.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4468) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4480, Continuing West Virginia's
participation in the interstate commission on the Potomac River
basin.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4480) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4531, Continuing the public employees
insurance agency finance board.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 4531) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4532, Continuing the state fire
commission.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4532) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4581, Continuing the division of
protective services.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4581) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4622, Repealing the section of the code
relating to the exemption of lottery prizes from taxation.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4622) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4622) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4625, Authorizing the tourism commission
the use of the tourism promotion fund to support the 2004 Pete Dye
West Virginia Classic.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending extended discussion,
The question being "Shall Engrossed House Bill No. 4625 pass?"
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Helmick, Jenkins, Kessler, McCabe, McKenzie, Minard, Minear,
Oliverio, Plymale, Prezioso, Ross, Sharpe, Snyder, Unger, Weeks and
Tomblin (Mr. President)--25.
The nays were: Guills, Harrison, Hunter, Love, Rowe, Smith,
Sprouse and White--8.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4625) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Jenkins,
Kessler, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Ross, Sharpe, Snyder, Unger, Weeks and Tomblin (Mr.
President)--25.
The nays were: Guills, Harrison, Hunter, Love, Rowe, Smith,
Sprouse and White--8.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4625) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4672, Relating to calculation of workers'
compensation premiums for members of limited liability companies.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4672) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4672) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 3097, Prescribing proper
venue in civil actions involving West Virginia university and Marshall university.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3150, Barring state officers, agencies or
entities from requiring that surety, payment, performance or bid
bonds be obtained from any particular company.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Bowman, as chair of the Committee on
Government Organization, and by unanimous consent, the unreported
Government Organization committee amendment to the bill was
withdrawn.
On motion of Senator Bowman, the following amendment to the
bill was reported by the Clerk and adopted:
On pages two through four,
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".
_____(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.
The bill (Eng. H. B. No. 3150), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. H. B. No. 3150) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: Kessler and Sprouse--2.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3150) passed.
On motion of Senator Bowman, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On page one, by striking out the title and substituting therefor a new title, to read as follows:
Eng. House Bill No. 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.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4009, Creating a position
for a state Americans with disabilities coordinator within the
department of administration.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk:
On page 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 unit
s 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 annual
ly on the fund to the governor, president of the
Senate and speaker of the House. 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.
The following amendment to the Government Organization committee amendment to the bill (Eng. Com. Sub. for H. B. No.
4009), from the Committee on Finance, was reported by the Clerk and
adopted:
On page four, section eleven, line five, after the word
"House" by inserting the words "of Delegates".
The question now being on the adoption of the Government
Organization committee amendment to the bill, as amended, the same
was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 4009), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4009) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4009) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 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.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4055, Creating a compact between states
for the protection and return of juvenile offenders, runaways and
other juveniles.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 4068, Allowing the hunting of coyotes by
use of amber colored artificial light with certain restrictions.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4085, Clarifying certain
terms related to the Ron Yost Personal Assistance Services Act.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4148, Allowing bail bondsmen
to deliver offenders to county or regional jails without bailpiece
if a magistrate or circuit clerk is inaccessible.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Chafin, the following amendment to the
bill was reported by the Clerk and adopted:
On page two, before the article heading, 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 motion of Senator Chafin, the following amendment to the
bill was next reported by the Clerk and adopted:
On page two, by striking out the enacting section and
inserting in lieu thereof a new 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:.
The bill (Eng. Com. Sub. for H. B. No. 4148), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4148) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Unger, Weeks, White and Tomblin (Mr.
President)--32.
The nays were: Sprouse--1.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4148) passed.
On motion of Senator Chafin, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 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 t
he supreme court of appeals 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.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4166, Removing the
description requirements in deeds for easements and rights-of-way
for mineral leases.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4247, Clarifying that the board of
registration for professional engineers may assess civil penalties.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
the Judiciary, were reported by the Clerk, considered
simultaneously, and adopted:
On page two, section twenty-one, line three, after the word
"probation," 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, after 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 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".
The bill (Eng. H. B. No. 4247), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. H. B. No. 4247) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4247) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4247) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4257, Increasing the amount
of prizes that may be given in the conduct of charitable raffles
without a license.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4295, Exempting state bonds from taxation.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4303, Relating to Gramm-Leach-Bliley and reciprocity.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk:
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.
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) 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 Senator Minard, the following amendment to the
Banking and Insurance committee amendment to the bill (Eng. Com.
Sub. for H. B. No. 4303) was reported by the Clerk and adopted:
On page twenty-nine, section one, lines eight and nine, by
striking out the words "Notwithstanding the above, the following
persons are not considered managing general agents for the purposes
of this article:" and inserting in lieu thereof a new subdivision
(3), to read as follows:
"(3) Notwithstanding the above, the following persons are not
considered managing general agents for the purposes of this article:
".
The question now being on the adoption of the Banking and
Insurance committee amendment to the bill, as amended, the same was
put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 4303), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4303) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4303) passed with it title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4374, Relating to
manufactured housing construction and safety standards.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
On page 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-
12
a, 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 homeowner. 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 nothing
(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.
The bill (Eng. Com. Sub. for H. B. No. 4374), as amended, was
then ordered to third reading.
Senator Chafin moved that the constitutional rule requiring a
bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Boley, Bowman, Caldwell,
Chafin, Dempsey, Edgell, Fanning, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, Minard, Oliverio, Plymale, Rowe, Sharpe,
Snyder and Tomblin (Mr. President)--20.
The nays were: Deem, Facemyer, Guills, Harrison, McKenzie, Minear, Prezioso, Ross, Smith, Sprouse, Unger, Weeks and White--13.
Absent: Bailey--1.
So, less than four fifths of the members present and voting
having voted in the affirmative, the President declared the motion
to suspend the constitutional rule rejected.
Eng. Com. Sub. for House Bill No. 4516, Relating to the state
conservation committee and conservation districts.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Bowman, as chair of the Committee on
Government Organization, and by unanimous consent, the unreported
Government Organization committee amendment to the bill was
withdrawn.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 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, as additional members of by
and with the consent of the Senate, 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
and requires. 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 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 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 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 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.
The bill (Eng. Com. Sub. for H. B. No. 4516), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4516) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4516) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. House Bill No. 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.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 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 second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk, considered simultaneously, and
adopted:
On page two, section twenty, line seven, after 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".
The bill (Eng. H. B. No. 4521), as amended, was then ordered
to third reading.
Senator Chafin moved that the constitutional rule requiring a
bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bowman, Caldwell,
Chafin, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Unger, White and
Tomblin (Mr. President)--26.
The nays were: Boley, Deem, Guills, Harrison, Smith, Sprouse
and Weeks--7.
Absent: Bailey--1.
So, less than four fifths of the members present and voting
having voted in the affirmative, the President declared the motion
to suspend the constitutional rule rejected.
Eng. Com. Sub. for House Bill No. 4536, Establishing the
law-enforcement reemployment act.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4553, Relating to standards for awarding
certificates to teach in the public schools.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 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.
The bill (Eng. H. B. No. 4553), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. H. B. No. 4553) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4553) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 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.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4553) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4587, Including persons who are members or
consultants to review organizations within the definition of health
care professionals for peer review purposes.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Health and Human Resources, was reported by the Clerk and adopted:
On pages two through four, section one, by striking out
everything after the section caption 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.
The bill (Eng. H. B. No. 4587), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. H. B. No. 4587) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4587) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 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 second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §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 V. 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 twenty-seven of this chapter, 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 VI. 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 IV. 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 a : (1) 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 IX. 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 X. 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 XI. 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 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
a restraining order
as a result of a domestic violence act as
defined in that section, or because of a verified petition of
domestic violence as provided for in article two-a twenty-seven,
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 which precludes him or her
possessing firearms 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.
On motion of Senator Kessler, the following amendment to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 4605) was reported by the Clerk and adopted:
On page seventeen, section four, line twenty-three, by
striking out the words "which precludes him or her possessing
firearms".
The question now being on the adoption of the Judiciary
committee amendment to the bill (Eng. Com. Sub. for H. B. No.
4605), as amended, the same was put and prevailed.
The bill, as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4605) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4605) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 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.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4607, Conferring the duties
of the industrial revenue bond allocation review committee to the
board of the West Virginia economic development authority.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 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) pursuant to
subdivision (3), subsections (b) and(c) of said section.
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.
The bill (Eng. Com. Sub. for H. B. No. 4607), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4607) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4607) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4641, Establishing a credentialing program
for dialysis technicians by the board of registered professional
nurses.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4655, Giving the children's
health insurance program the right of subrogation.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4709, Allowing the commissioner of labor
to charge fees for laboratory services and calibrations.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4746, Relating generally to the state
treasurer's office.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On pages three and four, by striking out everything after the
enacting section and inserting in lieu thereof the following:
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 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 must meet if the financial
institution 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 of this code, 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,
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
said article 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.
The bill (Eng. H. B. No. 4746), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. H. B. No. 4746) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4746) passed.
At the request of Senator Bowman, as chair of the Committee on
Government Organization, and by unanimous consent, the unreported
Government Organization committee amendment to the title of the
bill was withdrawn.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
On pages one through three, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 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.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Kessler, and by unanimous consent,
the Senate returned to the sixth order of business.
At the request of Senator Kessler, unanimous consent being
granted, Senator Kessler offered the following resolution from the
floor:
Senate Concurrent Resolution No. 97--Extending the committee
of conference relating to consideration of
Eng. Com. Sub. for House Bill No. 4377, Assessing a penalty on
those physicians who fail to pay the special assessment.
Resolved by the Legislature of West Virginia:
That pursuant to Rule No. 3 of the Joint Rules of the Senate
and House of Delegates, under the provisions of Joint Rule No. 24,
the committee of conference is hereby extended until the hour of
6:00 P.M., March 13, 2004, for the express purpose of consideration
of matters of disagreement between the two houses, as to Engrossed
Committee Substitute for House Bill No. 4377; and, be it
Further Resolved, That the provisions of Joint Rule No. 3 are
hereby suspended for the aforementioned purpose.
At the request of Senator Kessler, unanimous consent being
granted, the resolution was taken up for immediate consideration
and reference to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Rowe, from the Joint Committee on Enrolled Bills,
submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found
truly enrolled, and on the 12th day of March, 2004, presented to His Excellency, the Governor, for his action, the following bills,
signed by the President of the Senate and the Speaker of the House
of Delegates:
(S. B. No. 199), Relating to appointments to commission for
deaf and hard-of-hearing.
(S. B. No. 296), Continuing center for professional
development board.
And,
(S. B. No. 471), Continuing state board of risk and insurance
management.
Respectfully submitted,
Larry L. Rowe,
Chair, Senate Committee.
Sharon Spencer,
Chair, House Committee.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 69, Requesting Joint
Committee on Government and Finance study creating Film Commission.
Senate Concurrent Resolution No. 86, Requesting Joint
Committee on Government and Finance study providing services and
support for disabled persons.
Senate Concurrent Resolution No. 88, Requesting Joint
Committee on Government and Finance study effects of legislative
acts amending laws governing workers' compensation.
Senate Concurrent Resolution No. 89, Requesting Joint
Committee on Government and Finance study nonprofit entities that
receive state and federal funds.
And,
House Concurrent Resolution No. 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.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 98 (originating in the
Committee on Finance)--Authorizing the issuance of revenue bonds
payable from the excess lottery revenue fund to provide new capital
improvements consisting of facilities, buildings and structures for
state institutions of higher education.
Whereas, Section eighteen-a, article twenty-two, chapter
twenty-nine of the code of West Virginia, 1931, as amended,
provides for the allocation and appropriation of State excess
lottery revenues; and
Whereas, The West Virginia Higher Education Policy Commission is a governmental instrumentality of the State of West Virginia
empowered and authorized to issue bonds by sections one and eight,
article ten, chapter eighteen-b of the code of West Virginia, 1931,
as amended, and section one, article twelve-b, chapter eighteen of
said code; and
Whereas, In accordance with the provisions of section
eighteen-a, article twenty-two, chapter twenty-nine of the code of
West Virginia, 1931, as amended, a special revenue fund within the
state lottery fund in the state treasury was established and is
known as the "state excess lottery revenue fund". From this fund
the State Lottery Commission is to deposit ten million dollars
annually to the Higher Education Improvement Fund for Higher
Education; and
Whereas, In accordance with the provisions of section
eighteen-a, article twenty-two, chapter twenty-nine of the code of
West Virginia, 1931, as amended, the adoption of a concurrent
resolution by the Legislature authorizes the issuance of bonds and
payment of debt service on the bonds from the Higher Education
Improvement Fund for Higher Education. The bonds may be issued by
the Higher Education Policy Commission, payable from the Higher
Education Improvement Fund for Higher Education, and as may be
authorized by the Commission, from revenues pledged from a
combination of tuition and registration fees. The Lottery
Commission shall deposit into the Higher Education Improvement Fund
for Higher Education, created pursuant to said section, the sum of
ten million dollars in each fiscal year to be used to pay debt service on the revenue bonds issued by the Commission to finance
improvements for state institutions of higher education. The
revenues pledged for the repayment of principal and interest of
these bonds may also include tuition and registration fees
authorized by sections one and eight, article ten, chapter
eighteen-b of said code and section one, article twelve-b, chapter
eighteen of said code; and
Whereas, Every issue of the Commission's bonds shall be
special obligations of the Commission, payable solely from the
tuition and registration fees, the excess lottery revenue fund and
such other sources as may be authorized by the Commission; and
Whereas, The bonds shall be authorized by resolution of the
Commission, shall bear the date, shall mature at time or times, not
exceeding forty years from the date of issue, and shall bear such
rate or rates of interest as the resolution may provide; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Legislature, hereby authorizes the issuance of
revenue bonds payable from the excess lottery revenue fund to
provide new capital improvements consisting of facilities,
buildings and structures for state institutions of higher
education; and, be it
Further Resolved, That the Higher Education Policy Commission
may pledge for the repayment of principal and interest of revenue
bonds issued pursuant to sections one and eight, article ten,
chapter eighteen-b of the code of West Virginia, 1931, as amended, and section one, article twelve-b, chapter eighteen of said code,
the revenues in the Higher Education Improvement Fund for Higher
Education authorized by section eighteen-a, article twenty-two,
chapter twenty-nine of said code and other revenues as may be
authorized by the Commission. The revenues pledged for the
repayment of principal and interest of such bonds may also include
tuition and registration fees authorized by sections one and eight,
article ten, chapter eighteen-b of said code and section one,
article twelve-b, chapter eighteen of said code; and, be it
Further Resolved, That every issue of its bonds shall be
special obligations of the Commission, payable solely from the
tuition and registration fees or other sources available to the
Commission which are pledged therefor, including the Higher
Education Improvement Fund for Higher Education; and, be it
Further Resolved, That, upon resolution of the Commission, the
funds deposited into the Higher Education Improvement Fund for
Higher Education shall be deposited into the State System Tuition
Fee Special Capital Improvement Fund created under section two,
article twelve-b, chapter eighteen of the code of West Virginia,
1931, as amended, and used to pay debt service on bonds authorized
to be issued pursuant to this resolution and any funds not so
applied may be used by the Commission only to make capital
improvements at state institutions of higher education; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the Governor and
the Commission.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4001, Ensuring safer schools
and empowering teachers by automating student suspension and
expulsion data.
With amendments from the Committee on Education pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 9, 2004;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4001) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
At the request of Senator Plymale, as chair of the Comittee on
Education, and by unanimous consent, the unreported Education committee amendment to the bill was withdrawn.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page three, by striking out everything after the enacting
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.
The bill (Eng. Com. Sub. for H. B. No. 4001), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. Com. Sub for H. B. No.
4001) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4001) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
O
n pages one through three, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 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.
Senator Chafin moved that the bill take effect July 1, 2004.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4001) takes effect July 1, 2004.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Kessler, and by unanimous consent,
the Senate returned to the second order of business and the
introduction of guests.
The Senate again proceeded to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4008, Abolishing the insurance and
retirement division and creating a new employee and insurance
services division.
With amendments from the Committee on Government Organization
pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 8, 2004;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4008) contained in the preceding report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
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 childrens 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.
The bill (Eng. H. B. No. 4008), as amended, was then ordered
to third reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4072, Providing for a unified
approach to the long-term planning and implementation of technology
in the public schools.
With amendments from the Committee on Education pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 5, 2004;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Education to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4072) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §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 positions 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.
The bill (Eng. Com. Sub. for H. B. No. 4072), as amended, was
then ordered to third reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4453, Relating to the deputy sheriff's
retirement system.
With amendments from the Committee on Pensions pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 8, 2004;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Pensions to which the bill was
first referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4453) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendment to the bill, from the Committee on
Pensions, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 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.
The bill (Eng. H. B. No. 4453), as amended, was then ordered
to third reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4523, Allowing certain racing associations
or licensees qualifying for an alternate tax to increase the number
of races each performance.
With amendments from the Committee on the Judiciary pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 11, 2004;
And reports the same back with the recommendation that it do
pass as amended by the Committee on the Judiciary to which the bill
was first referred; and as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4523) contained in the preceding report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendments to the bill, from the Committee on the
Judiciary, were reported by the Clerk, considered simultaneously,
and adopted:
O
n 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;";
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;";
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.
The following amendments to the bill (Eng. H. B. No. 4523),
from the Committee on Finance, were next reported by the Clerk,
considered simultaneously, and adopted:
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";
And,
On page six, section three, line eighty-five, after the word
"reports" by changing the period to a semicolon and striking out the
remainder of the paragraph.
The bill (Eng. H. B. No. 4523), as amended, was then ordered
to third reading.
Senator Plymale, from the Committee on Education, submitted the
following report, which was received:
Your Committee on Education has had under consideration
Eng. House Bill No. 4552, Relating to grounds for the
revocation of teacher certificates.
And has amended same.
Now on second reading, having been read a first time and
rereferred to the Committee on Education on March 11, 2004;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the bill (Eng. H. B. No. 4552) contained in the preceding
report from the Committee on Education was taken up for immediate
consideration and read a second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 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 Senator Smith, the following amendments to the
Education committee amendment to the bill (Eng. H. B. No. 4552), were reported by the Clerk and considered simultaneously:
On page one, section six, line nineteen, after the word
"immorality;" by inserting the words "battery on a child or parent
of a student; the commission of acts which were with malicious
purpose; the commission of acts which were in bad faith; the
commission of acts which were in a wanton or reckless manner;";
And,
On page two, section six, line seven, after the words
"Provided, however," by inserting the words "That if it is proven
by a preponderance of the evidence that the teacher has committed
any of the offenses in this section against a child or the parent
of a student then the state superintendent shall revoke the
certificate of the teacher regardless of any discipline that may
have been taken by the county board that employs the teacher. For
purposes of revocation under this proviso, the conviction, guilty
plea or plea of no contest to a charge resulting from the commission
of an offense listed in this section against a child or parent of
a student, or the finding of liability by a civil court against the
teacher shall constitute proof by a preponderance of the evidence.
If there is no conviction, guilty plea or plea of no contest to a
charge resulting from the commission of an offence listed in this
section against a child or parent of a student, or the finding of
liability by a civil court against the teacher, then the state
superintendent shall determine if there is a preponderance of
evidence: Provided further, That".
The question being on the adoption of Senator Smith's
amendments to the Education committee amendment to the bill (Eng.
H. B. No. 4552), and on this question, Senator Smith demanded the
yeas and nays.
Following discussion,
At the request of Senator Smith, and by unanimous consent, her
demand for the yeas and nays was withdrawn.
The question being on the adoption of Senator Smith's
amendments to the Education committee amendment to the bill (Eng.
H. B. No. 4552), the same was put and did not prevail.
The question now being on the adoption of the Education
committee amendment to the bill, the same was put and prevailed.
The bill (Eng. H. B. No. 4552), as amended, was then ordered
to third reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4567, Relating to the motor carrier road
tax and international fuel tax agreement.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4567) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and White--2.
The bill (Eng. H. B. No. 4567) was then read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page three, by striking out everything after the enacting
section and inserting in lieu thereof the following:
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 uncanceled 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.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 4567) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe,
Smith, Snyder, Sprouse, Unger, Weeks and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and White--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4567) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 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.
With amendments from the Committee on the Judiciary pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 10, 2004;
And reports the same back with the recommendation that it do
pass as amended by the Committee on the Judiciary to which the bill
was first referred; and as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4634) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
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
so 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 contumacious default in the payment thereof may at any time
petition the sentencing court for remission of the payment of costs
or of any unpaid portion thereof. 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.
The following amendments to the Judiciary committee amendment
to the bill (Eng. H. B. No. 4634), from the Committee on Finance,
were reported by the Clerk, considered simultaneously, and adopted:
On page one, section fourteen, line eight, by striking out the
word "so";
On page two, section fourteen, line three, by striking out the
word "contumacious" and inserting in lieu thereof the word
"willful";
On page two, section fourteen, line three, by striking out the
word "thereof" and inserting in lieu thereof the words "of the
costs";
And,
On page two, section fourteen, line five, by striking out the
word "thereof" and inserting in lieu thereof the words "of the
costs".
The question now being on the adoption of the Judiciary
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. H. B. No. 4634), as amended, was then ordered
to third reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4671, Relating to the disposal of law
enforcement weapons when replaced due to routine wear.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 9, 2004;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 4671) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk, considered simultaneously, and
adopted:
On page 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".
The bill (Eng. H. B. No. 4671), as amended, was then ordered
to third reading.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4748, Supplemental appropriation in the
state excess lottery revenue fund, to the lottery commission -
refundable credit.
Eng. House Bill No. 4749, Supplementing, amending and
increasing items of the existing appropriations from the state road
fund to the department of transportation, division of highways.
Eng. House Bill No. 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.
Eng. House Bill No. 4751, Supplemental appropriation to the
department of military affairs and public safety - adjutant general
- state militia.
Eng. House Bill No. 4752, Supplemental appropriation to the
department of tax and revenue - division of banking.
Eng. House Bill No. 4754, Supplemental appropriation to the
department of transportation - division of motor vehicles.
Eng. House Bill No. 4755, Supplemental appropriation to a new
item of appropriation designated the coal heritage highway
authority.
Eng. House Bill No. 4756, Supplemental appropriation to the
West Virginia state board of examiners for licensed practical nurses.
Eng. House Bill No. 4757, Supplemental appropriation to the
department of military affairs and public safety - division of
criminal justice services.
And,
Eng. House Bill No. 4758, Supplemental appropriation to the
department of military affairs and public safety - division of
criminal justice services - juvenile accountability incentive.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
House Concurrent Resolution No. 54, Requesting a study of the
efficacy of collaborative pharmacy practice agreements between
pharmacists and physicians.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Harrison, the name of Senator
Harrison was removed as a sponsor of Engrossed Senate Bill No. 501
(Relating to disqualification for public retirement plan benefits;
other provisions) and Engrossed Senate Bill No. 502 (Relating to
rights of members of teachers defined contribution retirement
system).
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Saturday, March 13, 2004, at 11 a.m.
____________