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Evening Session

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At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.


Committee Reports


On motion for leave, a resolution was introduced (Originating in the Committee on Banking and Insurance and reported with the recommendation that it be adopted), which was read by its title and referred to the Committee on Rules:
By Delegates H. White, R. M. Thompson, Hrutkay, Perry, Perdue, Canterbury, Butcher, Morgan, Iaquinta, Foster, Walters, Azinger, Hartman and G. White:


H. C. R. 82 - "Requesting the Joint Committee on Government Finance to conduct a study of the impact of credit card fraud upon businesses in West Virginia and means to ensure the effective prosecution of these crimes."

Whereas, Many businesses in West Virginia accept credit cards; and

Whereas, Due to the nature of credit card transactions, there are instances when individuals may fraudulently use credit cards to purchase products or services; and

Whereas, Credit card transactions which are conducted via the Internet or U.S. Mail are particularly subject to credit card fraud; and

Whereas, Credit card fraud results in significant financial losses for West Virginia businesses; and

Whereas, West Virginia businesses have an interest in exploring means of eliminating credit card fraud; and

Whereas, Both citizens and businesses have an interest in ensuring that these actions are prosecuted; and

Whereas, There may be instances where companies which issue credit cards may be able to supply information to county prosecutors to help facilitate effective prosecution of these matters; and

Whereas, Successful prosecution of crimes relating to credit card fraud can result in savings to consumers while at the same time fostering a stable business environment for West Virginia companies; therefore, be it
Resolved by the Legislature of West Virginia:


That the Joint Committee on Government and Finance is hereby directed to conduct a study of the impact of credit card fraud on businesses in West Virginia and means to ensure the effective prosecution of these crimes; and, be it

Further Resolved, That the Joint Committee on Government and Finance report its findings and recommendations resulting from the study to the regular session of the Legislature, 2005, together with drafts of any proposed legislation necessary to effectuate such recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

On motions for leave, resolutions were introduced (Originating in the Committee on Banking and Insurance and reported with the recommendation that they each be adopted), which were read by their titles and referred to the Committee on Rules:
By Delegates H. White, R. M. Thompson, Hrutkay, Perry, Perdue, Canterbury, Butcher, Frich, Morgan, Iaquinta, Foster, Walters, Azinger, Hartman and G. White:


H. C. R. 83 - "Requesting the Joint Committee on Government Finance to conduct a study of the impact of nonrenewal laws on the availability and affordability of automobile and homeowners' insurance in West Virginia."

Whereas, The availability and affordability of automobile and homeowners' insurance is a concern for citizens in West Virginia; and

Whereas, Certain national insurance companies offering insurance coverage have announced that they will no longer be writing new business in the State; and

Whereas, The citizens of West Virginia and businesses may be adversely affected by their inability to obtain both adequate and affordable coverage for their automobiles and homes; and

Whereas, The effective regulation of insurance is important to both insurers and citizens; and

Whereas, The laws of this State governing the nonrenewal of automobile and homeowners' insurance policies impact both insurers and consumers; and

Whereas, Both insurers and consumers would benefit from a study of the impact of the laws of the State relating to restrictions on the nonrenewal of automobile and homeowner insurance policies; and

Whereas, The consumers and insurers in West Virginia would benefit from a study to determine the underlying factors affecting the availability and affordability of automobile coverage and to determine the effect of state regulation on this industry; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to conduct a study of the impact of nonrenewal laws on the availability and affordability of automobile and homeowners' insurance in West Virginia; and, be it

Further Resolved, That the Joint Committee on Government and Finance report its findings and recommendations resulting from the study to the regular session of Legislature, 2005, together with drafts of any proposed legislation necessary to effectuate such recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

And,
By Delegates H. White, R. M. Thompson, Hrutkay, Perry, Perdue, Canterbury, Butcher, Frich, Morgan, Iaquinta, Foster, Azinger, Hartman and G. White:


H. C. R. 84 - "Requesting the Joint Committee on Government Finance to conduct a study of the impact of laws governing the filing and approval of rates and forms for insurance companies in West Virginia."

Whereas, The availability and affordability of insurance is a concern for citizens in West Virginia; and

Whereas, Many states are modernizing their laws which govern the filing requirements for rates and forms; and

Whereas, Laws regulating the filing requirements for rates and forms can impact the cost of an insurance product and hence adversely effect consumers; and

Whereas, The effective regulation of insurance is important to both insurers and citizens; and

Whereas, Providing a streamlined method of rate and form filing may be a means of encouraging insurance companies to enter the West Virginia market; and

Whereas, Both insurers and consumers would benefit from a study of the impact of the laws of the State relating to the requirements for the filing and approval of rates and forms by the insurance commissioner; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby directed to conduct a study of the impact of laws governing the filing and approval of rates and forms for insurance companies in West Virginia; and, be it

Further Resolved, That the Joint Committee on Government and Finance report its findings and recommendations resulting from the study to the regular session of the Legislature, 2005, together with drafts of any proposed legislation necessary to effectuate such recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Chairman Warner, from the Committee on Roads and Transportation, submitted the following report, which was received:

Your Committee on Roads and Transportation has had under consideration:

Com. Sub. for S. B. 484, Requiring motor vehicle license plates contain yellow outline of state,

And reports the same back, with the recommendation that it do pass, but that it first be referred to the Committee on Finance.

In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 484) was referred to the Committee on Finance.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
S. B. 418, Allowing certain sheriff employees to carry deadly weapons,


And,

Com. Sub. for S. B. 556, Exempting retailers of automobiles and trucks from definition of credit services organizations,

And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that they each do pass, as amended.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, S. B. 418 will be placed on the Consent Calendar.
At the respective requests of Delegate Staton, and by unanimous consent, Com. Sub for S. B. 556 was taken up for immediate consideration, read a first time, ordered to second reading and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 320, Relating to division of motor vehicles application for certificate of title; exempting modular homes,

And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended, and with the recommendation that second reference of the bill to the Committee on Finance be dispensed with.

In the absence of objection, reference of the bill (Com. Sub. for S. B. 320) to the Committee on Finance was abrogated.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 320) will be placed on the Consent Calendar.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 505, Creating motor vehicle classification of "low-speed vehicle",

And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 505) will be placed on the Consent Calendar.

On motion for leave, a resolution was introduced (Originating in the Committee on Government Organization and reported with the recommendation that it be adopted), which was read by its title and referred to the Committee on Rules:
By Delegates Beane, Ennis, Butcher, Iaquinta, Louisos, Manchin, Manuel, Martin, Perdue, Spencer, Talbott, Wright, Yeager, Yost, Leggett, Azinger, Blair and Frich:


H. C. R 85 - "Requesting that the Joint Committee on Government and Finance study complaints regarding home improvement contractors, home building contractors and other complaints against contractors and possible changes to the complaint process and other laws to remedy the problems of affected citizens."

Whereas, The West Virginia Department of Labor's authority over, and available sanctions against, unlicensed contractors is very limited; and

Whereas, Home repair complaints are the most frequent complaints that the citizens of this State make against both unlicensed and licensed contractors; and

Whereas, The legal remedies available to consumers are limited regarding applicable penalties against persons without a contractor's license; and

Whereas, Home improvement contractors who violate existing law, or fail to provide a written contract, or fail to substantially perform the work and commit other violations, substantially discredit and place at a professional disadvantage reputable licensed contractors; therefore, be it

Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby directed to study complaints against the practice of home improvement contractors and home building contractors, and potential legal remedies to address the problems of adversely affected citizens; and, be it

Further Resolved, That Joint Committee on Government and Finance shall report to the Legislature on or before the eighth day of January 2005, on its findings, conclusions and recommendations, and shall submit drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Chairman Beane, from the Committee on Government Organization, submitted the following report, which was received:

Your Committee on Government Organization has had under consideration:

S. B. 717, Terminating agencies following full performance evaluations,

And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (S. B. 717) will be placed on the Consent Calendar.

Chairman Beane, from the Committee on Government Organization, submitted the following report, which was received:

Your Committee on Government Organization has had under consideration:

S. B. 574, Allowing commissioner to sell liquor warehouse under certain circumstances,

And reports the same back with the recommendation that it do pass.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 271, Relating to racial profiling data collection,

And reports the same back without recommendation as to its passage.

At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for S. B. 271) was taken up for immediate consideration, read a first time, ordered to second reading and then recommitted to the Committee on the Judiciary.

Chairman Spencer, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:

Your Joint Committee on Enrolled Bills has examined, found truly enrolled and, on the 10th 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:

(H. B. 4286), Repealing the section of the code relating to coverage for alcoholic treatment because it is superseded by another part of the code,

(H. B. 4449), Allowing both residents and nonresidents to apply for and obtain a Class Q permit for disabled persons,

And,

(H. B. 4560), Requiring that firefighters and security guards employed by the adjutant general of the national guard be members of the national guard.

Chairman Michael, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration:

Com. Sub. for S. B. 121, Relating to powers of investment management board; other provisions,

Com. Sub. for S. B. 139, Creating Tourism Development Act,

S. B. 148, Creating Tax Amnesty Program of 2004,

Com. Sub. for S. B. 221, Establishing Public-Private Transportation Facilities Act of 2004,

Com. Sub. for S. B. 408, Relating generally to levies by county boards of education and expenditure of property taxes collected,

Com. Sub. for S. B. 516, Establishing eastern panhandle highway authority,

Com. Sub. for S. B. 653, Providing that certain judges not required to contribute to retirement system,
S. B. 678, Providing reduced tax rate applies to certain underground mines,

Com. Sub. for S. B. 700, Requiring state agencies make timely payments for telecommunications services; other provisions,

And,

Com. Sub. for S. B. 701, Authorizing certain taxes imposed by municipalities,

And reports the same back, without recommendation as to their passage, but with the recommendation that they each be recommitted to the Committee on Finance.

At the respective requests of Delegate Staton, and by unanimous consent, the bills (Com. Sub. for S. B. 121, Com. Sub. for S. B. 139, S. B. 148, Com. Sub. for S. B. 221, Com. Sub. for S. B. 408, Com. Sub. for S. B. 516, Com. Sub. for S. B. 653, S. B. 678, Com. Sub. for S. B. 700 and Com. Sub. for S. B. 701) were each taken up for immediate consideration, read a first time, ordered to second reading and then recommitted to the Committee on Finance.

Chairman Michael, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 165, Simplifying state higher education tuition and fee system,

Com. Sub. for S. B. 197, Relating generally to distribution of net terminal income of racetrack video lottery terminals,

Com. Sub. for S. B. 143, Relating to small employer accident and sickness insurance policies,

And,

S. B. 673, Relating to reporting requirements on coal resource transportation roads,

And reports the same back, with amendment, with the recommendation that they each do pass, as amended.

Chairman Michael, from the Committee on Finance, submitted the following report, which was received:

Your Committee on has had under consideration:

Com. Sub. for S. B. 149, Relating generally to department of tax and revenue,

And,

Com. Sub. for S. B. 204, Relating to strategic research and development tax credit,

And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that they each do pass, as amended.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bills (Com. Sub. for S. B. 149 and Com. Sub. for 204) will be placed on the Consent Calendar.

Chairman Michael, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration:

Com. Sub. for S. B. 230, Relating to definitions of casualty insurance and federal flood insurance; other provisions,

And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 230) will be placed on the Consent Calendar.

Chairman Michael, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 675, Relating to outdoor advertising revenues,

And reports the same back with the recommendation that it do pass.


Messages from the Senate


A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to

H. B. 4107, Allowing licensees of charitable bingo and raffle games to transfer game proceeds between their bingo and raffle operations.

The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:

Senators Fanning, Minard and McKenzie.

On motion of Delegate Staton, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.

Whereupon,

The Speaker appointed as conferees on the part of the House of Delegates the following:

Delegates Kominar, Stemple and Schadler.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4168, Requiring lenders to have the funds for mortgage loans available at the appropriate time.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:

"That §31-17-2 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be further amended by adding thereto a new article, designated §46A-6K-1, §46A-6K-2, §46A-6K-3, §46A-6K-4 and §46A-6K-5, all to read as follows:


CHAPTER 31. CORPORATIONS.


ARTICLE 17. WEST VIRGINIA RESIDENTIAL MORTGAGE LENDER, BROKER AND SERVICER ACT.

§31-17-2. License required for lender, broker or loan originator; exemptions.


(a) No person shall engage in this state in the business of lender, broker or loan originator unless and until he or she shall first obtain a license to do so from the commissioner, which license remains unexpired, unsuspended and unrevoked, and no foreign corporation shall engage in business in this state unless it is registered with the secretary of state to transact business in this state.

(b) Brokerage fees, additional charges and finance charges imposed by licensed mortgage brokers, lenders and loan originators are exempt from the tax imposed by article fifteen, chapter eleven of this code beginning on the first day of January, two thousand four.

(b) (c) The provisions of this article do not apply to loans made by the following:
(1) Federally insured depository institutions;


(2) Regulated consumer lender licensees;

(3) Insurance companies;

(4) Any other lender licensed by and under the regular supervision and examination for consumer compliance of any agency of the federal government;

(5) Any agency or instrumentality of this state, federal, county or municipal government or on behalf of the agency or instrumentality;

(6) By a nonprofit community development organization making mortgage loans to promote home ownership or improvements for the disadvantaged which loans are subject to federal, state, county or municipal government supervision and oversight; or

(7) Habitat for humanity international, inc., and its affiliates providing low-income housing within this state.

Loans made subject to this exemption may be assigned, transferred, sold or otherwise securitized to any person and shall remain exempt from the provisions of this article, except as to reporting requirements in the discretion of the commissioner where the person is a licensee under this article. Nothing herein shall prohibit a broker licensed under this article from acting as broker of an exempt loan and receiving compensation as permitted under the provisions of this article.

(c)(d) A person or entity designated in subsection (b) (c) of this section may take assignments of a primary or subordinate mortgage loan from a licensed lender and the assignments of said loans that they themselves could have lawfully made as exempt from the provisions of this article under this section do not make that person or entity subject to the licensing, bonding, reporting or other provisions of this article except as the defense or claim would be preserved pursuant to section one hundred two, article two, chapter forty-six-a of this code.

(d)(e) The placement or sale for securitization of a primary or subordinate mortgage loan into a secondary market by a licensee may not subject the warehouser or final securitization holder or trustee to the provisions of this article: Provided, That the warehouser, final securitization holder or trustee under an arrangement is either a licensee, or person or entity entitled to make exempt loans of that type under this section, or the loan is held with right of recourse to a licensee.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT

AND PROTECTION ACT.

ARTICLE 6K. GOOD FUNDS SETTLEMENT ACT.
§46A-6K-1. Applicability.
This article applies to the settlement of loans secured by deeds of trust on owner-occupied residential dwellings with accommodations for not more than four families. This article does not apply to construction loans or any other loans which, by agreement of the parties, provide for the disbursement of the proceeds in stages.
§46A-6K-2. Definitions.

(a) 'Collected funds' or 'good funds' means moneys used to fund the disbursement of settlement proceeds deposited and irrevocably credited to a settlement agent's account.

(b) 'Disbursement of loan funds' means the delivery of the loan funds by the lender to the settlement agent in the form of:

(1) Cash;

(2) Wired funds;

(3) Certified check;

(4) Checks issued by the United States treasury, the state of West Virginia or an instrumentality of the United States or state of West Virginia;

(5) Cashier's check or teller's check or other similar draft or obligation of a federally insured bank, savings bank, savings and loan association or credit union or of any holding company or wholly owned subsidiary of the foregoing;

(6) Checks issued by a licensed lender qualified to do business in West Virginia which has posted the surety bond required by subsection (b), section four, article seventeen, chapter thirty-one of this code;

(7) Checks issued by an insurance company licensed and regulated by the West Virginia insurance commission, which checks are drawn on a federally insured financial institution;

(8) Checks drawn on the escrow account of an attorney licensed to practice law in West Virginia or on the escrow account of a real estate broker licensed in West Virginia; or

(9) Personal check or checks in an aggregate amount not exceeding five thousand dollars per loan closing.

(c) 'Disbursement of settlement proceeds' means the payment of all proceeds of the transaction by the settlement agent to the persons entitled thereto.

(d) 'Lender' means any person regularly engaged in making loans secured by deeds of trust to secure debt on West Virginia real estate. A person is considered to be regularly engaged in making loans if he or she makes more than five such loans in any one calendar year.

(e) 'Loan closing' means that time agreed upon by the borrower, lender, seller, if applicable, and settlement agent when the execution by the borrower and delivery of the loan documents to the settlement agent occur.

(f) 'Loan documents' means the note evidencing the debt due the lender, the deed of trust, or mortgage securing the debt due to the lender, and any other documents required by the lender to be executed by the borrower as a part of the transaction.

(g) 'Loan funds' means the gross or net proceeds of the loan to be disbursed by or on behalf of the lender at loan closing.

(h) 'Parties', as used in this subsection, means the seller, purchaser, borrower, lender and the settlement agent, as applicable.
(i) 'Settlement' means the time when the settlement agent has received the duly executed deed, loan funds, loan documents and other documents and funds required to carry out the terms of the contract between the parties.

(j) 'Settlement agent' means the person authorized by law to be responsible for conducting the settlement and disbursement of the settlement proceeds.
§46A-6K-3. Duty of lender.

The lender shall, at or before loan closing, cause disbursement of loan funds to the settlement agent; however, in the case of a refinancing, or any other loan where a right of rescission applies, the lender shall, within one business day after the expiration of the rescission period required under the federal Truth-in-Lending Act (15 U. S. C. §1601 et seq.), cause disbursement of loan funds to the settlement agent, unless the loan is rescinded by the customer. All funds disbursed by the lender to the settlement agent must be collected funds. The lender is not entitled to receive or charge any interest on the loan until disbursement of loan funds and loan closing has occurred.
§46A-6K-4. Validity of loan documents.

Failure to comply with the provisions of this article does not affect the validity or enforceability of any loan documents executed.
§46A-6K-5. Penalty.

Any persons suffering losses due to the failure of the lender or the settlement agent to disburse settlement proceeds as required by this chapter shall be entitled to recover, in addition to other actual damages, double the amount of any interest collected in violation of section three of this article plus reasonable attorneys' fees incurred in the collection thereof."

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4168 - "A Bill to amend §31-17-2 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §46A-6K-1, §46A- 6K-2, §46A-6K-3, §46A-6K-4 and §46A-6K-5, all relating to mortgage loans; exempting mortgage loan closing costs from consumer sales and service tax levied on brokerage fees, additional charges and finance charges; requiring that funds are available for settlement of a real estate mortgage transaction; defining applicability of the law; providing definition of terms used; establishing duty of lender; maintaining validity of loan documents; and providing a penalty for violations of the article."

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 482), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Long.

Absent And Not Voting: Coleman, Crosier, Ferrell and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4168) passed.

Delegate Long submitted a statement to the Clerk stating that he had erroneously voted "Nay" on the passage of the bill and that he had intended to vote "Yea" thereon.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:

H. B. 4248, Continuing the office of environmental advocate.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4373, Making it a crime to alter a traffic-control device with an infrared or electronic device.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. TRAFFIC SIGNS, SIGNALS AND MARKINGS.
§17C-3-10. Interference with official traffic-control devices by infrared or electronic devices.

(a) The possession or use of a mobile infrared transmitter (MIRT), or any type of infrared or electronic device capable of changing a traffic control signal, by anyone other than the operator of an authorized emergency vehicle, is prohibited.

(b) Any person violating the provisions of subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or confined in the county or regional jail not more than three days, or both; and upon a second conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail not more than six days, or both; and upon a third or subsequent conviction thereof, shall be fined not less than five hundred dollars nor more than two thousand five hundred dollars or confined in a county or regional jail one year, or both.

(c) Notwithstanding the provisions of subsection (a) of this section, any person convicted of a violation of subsection (a) of this section which results in physical injury to another shall be guilty of a felony and, upon conviction, shall be imprisoned in a state correctional facility for not less than one nor more than three years or fined not more than five thousand dollars, or both.

(d) The provisions of this section shall not apply to any device which simply makes a vehicle visible or its presence known to a sensor which triggers the changing of a traffic light after the vehicle operator has complied with the traffic signal indication."

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4373 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-3-10, relating to making it a crime to possess or use a traffic-control device with an infrared or electronic device designed to change traffic light indication; exceptions; and providing for penalties."

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 483), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Schoen.

Absent And Not Voting: Coleman, Crosier, Ferrell and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4373) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4491, Relating to mine inspectors and instructors employed by the office of miners' health, safety and training.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page six, section nine, lines nineteen through twenty-one, by striking out the words "and who has been a supervisor on a working section for at least three years".

On page eight, section nine, line fifty-eight, following the word "of", by inserting the word "their".

On page twelve, section twelve, line twelve, following the word "years", by inserting the words "of which have been".

On page sixteen, section twelve, lines seventy-nine and eighty, by striking out the words "his or her" and inserting in lieu thereof the word "the".

And,

On page nineteen, section thirteen, line ten, following the word "years", by inserting the words "of which have been".

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 484), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent And Not Voting: Blair, Coleman, Crosier, Ferrell and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4491) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:

H. B. 4601, Relating to public education generally.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:

"That §18-9A-7 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of said code be amended and reenacted, all to read as follows:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-7. Foundation allowance for transportation cost.


The allowance in the foundation school program for each county for transportation shall be the sum of the following computations:

(1) Eighty-five percent of the transportation cost within each high-density county and ninety percent of the transportation cost within each low-density county for maintenance, operation and related costs, exclusive of all salaries: Provided, That for the school year beginning the first day of July, one thousand nine hundred ninety-eight, and thereafter, in the event a for any county that uses an alternative fuel such as compressed natural gas or other acceptable alternative fuel for the operation of all or any portion of its school bus system, then the allowance in the foundation school program for each such the county for that portion of its school bus system shall be ninety-five percent of the transportation cost for maintenance, operation and related costs, exclusive of all salaries, incurred by the use of the alternatively fueled school buses: Provided, however, That any county using an alternative fuel and qualifying for the additional allowance shall submit a plan regarding the intended future use of alternatively fueled school buses;

(2) The total cost, within each county, of insurance premiums on buses, buildings and equipment used in transportation: Provided, That such the premiums were procured through competitive bidding;

(3) For the school year beginning the first day of July, one thousand nine hundred ninety- nine, and thereafter, an An amount equal to eight and one-third percent of the current replacement value of the bus fleet within each county as determined by the state board. such The amount to be used only shall only be used for the replacement of buses. Buses purchased after the first day of July, one thousand nine hundred ninety-nine, that are driven one hundred eighty thousand miles, regardless of year model, will be subject to the replacement value of eight and one-third percent as determined by the state board: Provided, That for the school year beginning on the first day of July, two thousand four, only, the allowance in the foundation school program for each county for transportation shall not include an amount for the replacement of buses. In addition, in any school year in which its net enrollment increases when compared to the net enrollment the year immediately preceding, a school district may apply to the state superintendent for funding for an additional bus. The state superintendent shall make a decision regarding each application based upon an analysis of the individual school district's net enrollment history and transportation needs: Provided, however, That the superintendent shall not consider any application which fails to document that the county has applied for federal funding for additional buses. If the state superintendent finds that a need exists, a request for funding shall be included in the budget request submitted by the state board for the upcoming fiscal year;

(4) Eighty-five percent of the cost of contracted transportation services and public utility transportation within each high-density county and ninety percent of the cost of contracted transportation services and public utility transportation within each low-density county;

(5) Aid in lieu of transportation equal to the state average amount per pupil for each pupil receiving such the aid within each county; and

(6) Ninety-five percent of the transportation cost for maintenance, operation and related costs, exclusive of all salaries, for transporting students to and from classes at a multicounty vocational center.

The total state share for this purpose shall be the sum of the county shares: Provided, That no county shall receive an allowance which is greater than one-third above the computed state average allowance per transportation mile multiplied by the total transportation mileage in the county: Provided, however, That one half of one percent of the transportation allowance distributed to each county shall be for the purpose of trips related to academic classroom curriculum and not related to any extracurricular activity: Provided further, That for the school year beginning on the first day of July, two thousand four, only, the transportation allowance of each county shall include an allocation for the purpose of trips related to academic classroom curriculum and not related to any extracurricular activity. The allocation shall equal the amount distributed to the county for this purpose in the school year beginning on the first day of July, two thousand three: And provided further, That any remaining funds credited to a county for the purpose of trips related to academic classroom curriculum during the fiscal year shall be carried over for use in the same manner the next fiscal year and shall be separate and apart from, and in addition to, the appropriation for the next fiscal year: And provided further, That the state board may request a county to document the use of funds for trips related to academic classroom curriculum if the board deems it determines that it is necessary.

The state department of education shall cause a comprehensive study to be made relating to student transportation. The study shall examine, but is not limited to, the issues of funding, timeliness of data used for formula distribution, service personnel needed, inter-county service, regionalization of services, bus routes, amount of time students spend on buses, maintenance, safety training, and alternative transportation systems. The state department of education shall submit a report of the study to the legislative oversight commission on education accountability by the fifteenth day of January, one thousand nine hundred ninety-nine.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-2. Definitions.


The following terms, wherever used or referred to in this article, have the following meanings unless a different meaning clearly appears from the context:

(1) 'Authority' means the school building authority of West Virginia or, if said the authority shall be is abolished, any board or officer succeeding to the principal functions thereof of the school building authority or to whom the powers given to said the authority shall be are given by law;

(2) 'Bonds' means bonds issued by the authority pursuant to this article;

(3) 'Construction project' means a project in the furtherance of a facilities plan with a cost of the project greater than five hundred thousand dollars for the new construction, expansion or major renovation of facilities, buildings and structures for school purposes, including the acquisition of land for current or future use in connection therewith with the construction project, as well as new or substantial upgrading of existing equipment, machinery, furnishings, installation of utilities and other similar items convenient in connection with placing the foregoing construction project into operation: Provided, That a construction project may not include such items as books, computers or equipment used for instructional purposes, fuel, supplies, routine utility services fees, routine maintenance costs, ordinary course of business improvements and other items which are customarily deemed considered to result in a current or ordinary course of business operating charge: Provided, however, That a construction project may not include a major improvement project;

(4) 'Cost of project' means the cost of construction, expansion, renovation, repair and safety upgrading of facilities, buildings and structures for school purposes; the cost of land, equipment, machinery, furnishings, installation of utilities and other similar items convenient in connection with placing the foregoing project into operation; and the cost of financing, interest during construction, professional service fees and all other charges or expenses necessary, appurtenant or incidental to the foregoing, including the cost of administration of this article;

(5) 'Facilities plan' means the a ten-year countywide comprehensive educational facilities plan established by the county board in accordance with guidelines adopted by the authority to meet the goals and objectives of this article that: (i) Addresses the existing school facilities and facility needs of the county to provide a thorough and efficient education in accordance with the provisions of this code and policies of the state board; (ii) best serves the needs of the individual student, the general school population and the communities served by the facilities; (iii) includes a school major improvement plan as defined in this section; (iv) is updated annually to reflect projects completed, current enrollment projections and new or continuing needs; and (v) is approved by the state board and the authority for school facilities required prior to the distribution of state funds pursuant to this article to any county board or other entity applying for funds; pursuant to subsection (a), section sixteen of this article;

(6) 'Project' means a construction project or a major improvement project;

(7) 'Region' means the area encompassed within and serviced by a regional educational service agency established pursuant to section twenty-six, article two of this chapter;

(8) 'Revenue' or 'revenues' means moneys deposited in the school building capital improvements fund pursuant to the operation of section ten, article nine-a of this chapter; moneys deposited in the school construction fund pursuant to the operation of section thirty, article fifteen, chapter eleven of this code and pursuant to the operation of section eighteen, article twenty-two, chapter twenty-nine of this code; moneys deposited in the school building debt service fund pursuant to section eighteen, article twenty-two, chapter twenty-nine of this code; moneys deposited in the school major improvement fund pursuant to the operation of section thirty, article fifteen, chapter eleven of this code; any moneys received, directly or indirectly, from any source for use in any project completed pursuant to this article; and any other moneys received by the authority for the purposes of this article;

(9) 'School major improvement plan' means the a ten-year school maintenance plan to be that: (i) Is prepared by each a county board of education in accordance with the guidelines established by the authority and incorporated in its countywide comprehensive educational facilities plan or is prepared by the state board of education or the administrative council of an area vocational educational center in accordance with the guidelines if such entity seeks the entities seek funding from the authority for a major improvement project; which school major improvement plan (ii) addresses the regularly scheduled maintenance for all school facilities of the county or under the jurisdiction of the entity seeking funding; (iii) includes a projected repair and replacement schedule for all school facilities of the county or of entity seeking funding; (iv) addresses the major improvement needs of each school within the county or under the jurisdiction of the entity seeking funding; and (v) is required prior to the distribution of state funds for a major improvement project pursuant to subsection (b), section sixteen of this article to the county board, state board or administrative council; and

(10) 'School major improvement project' means a project with a cost greater than fifty thousand dollars and less than five hundred thousand dollars for the renovation, expansion, the repair and safety upgrading of existing school facilities, buildings and structures, including the substantial repair or upgrading of equipment, machinery, building systems, utilities and other similar items convenient in connection with such renovation, repair or upgrading in the furtherance of a school major improvement plan: Provided, That a major improvement project may not include such items as books, computers or equipment used for instructional purposes, fuel, supplies, routine utility services fees, routine maintenance costs, ordinary course of business improvements and other items which are customarily deemed considered to result in a current or ordinary course of business operating charge.
§18-9D-6. School building capital improvements fund in state treasury; school construction fund in state treasury; school building debt service fund in state treasury; school improvement fund in state treasury; collections to be paid into special funds; authority to pledge the collections as security for refunding revenue bonds; authority to finance projects on a cash basis.

(a) There is continued in the state treasury a school building capital improvements fund to be expended by the authority as provided in this article. The school building capital improvements fund shall be an interest-bearing account with interest credited to and deposited in the school building capital improvements fund and expended in accordance with the provisions of this article.
The school building authority may pledge all or any part of the revenues paid into the school building capital improvements fund that are needed to meet the requirements of any revenue bond issue or issues authorized by this article prior to the twentieth day of July, one thousand nine hundred ninety-three, or revenue bonds issued to refund revenue bonds issued prior to that date, including the payment of principal of, interest and redemption premium, if any, on the revenue bonds and the establishing and maintaining of a reserve fund or funds for the payment of the principal of, interest and redemption premium, if any, on the revenue bond issue or issues when other moneys pledged may be insufficient for the payment of the principal, interest and redemption premium, including any additional protective pledge of revenues that the authority in its discretion has provided by resolution authorizing the issuance of the bonds or in any trust agreement made in connection with the bond issue. Additionally, the authority may provide in the resolution and in the trust agreement for priorities on the revenues paid into the school building capital improvements fund that are necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this article.
Any balance remaining in the school building capital improvements fund after the authority has issued bonds authorized by this article and after the requirements of all funds, including reserve funds established in connection with the bonds issued prior to the twentieth day of July, one thousand nine hundred ninety-three, pursuant to this article have been satisfied may be used for the redemption of any of the outstanding bonds issued under this article which by their terms are then redeemable, or for the purchase of the bonds at the market price, but not exceeding the price, if any, at which the bonds are in the same year redeemable and all bonds redeemed or purchased shall immediately be canceled and shall not again be issued.
The school building authority, in its discretion, may use the moneys in the school building capital improvements fund to finance the cost of projects authorized in accordance with the provisions of section sixteen of this article on a cash basis. Any pledge of moneys in the fund for revenue bonds issued prior to the twentieth day of July, one thousand nine hundred ninety-three, is a prior and superior charge on the fund over the use of any of the moneys in the fund to pay for the cost of any project on a cash basis: Provided, That any expenditures from the fund, other than for the retirement of revenue bonds, may only be made by the authority in accordance with the provisions of this article.
(b) There is continued in the state treasury a special revenue fund named the school building debt service fund into which shall be deposited the amounts specified in section eighteen, article twenty-two, chapter twenty-nine of this code. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this article: Provided, That deposited moneys may not be pledged to the repayment of any revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four, or with respect to revenue bonds issued for the purpose of refunding revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four. Additionally, the authority may provide in the resolution and in the trust agreement for priorities on the revenues paid into the school building debt service fund that are necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this article. On or prior to the first day of May of each year, the authority shall certify to the state lottery director the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds issued on or after the first day of January, one thousand nine hundred ninety-four, and for which moneys deposited in the school building debt service fund have been pledged, or will be pledged, for repayment pursuant to this section.
After the authority has issued bonds authorized by this article and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this article, any balance remaining in the school building debt service fund may be used for the redemption of any of the outstanding bonds issued under this article which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which the bonds are redeemable and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued: Provided, That after the authority has issued bonds authorized by this article and after the requirements of debt service and all associated funds have been satisfied for the fiscal year, including coverage and reserve funds established in connection with the bonds issued pursuant to this article, any remaining balance in the school building debt service fund may be transferred to the school construction fund created in subsection (c) of this section and used by the school building authority in its discretion to finance the cost of school construction or improvement projects authorized in accordance with the provisions of section sixteen of this article on a cash basis.
(c) There is continued in the state treasury a special revenue fund named the school construction fund into which shall be deposited the amounts specified in section thirty, article fifteen, chapter eleven of this code and section eighteen-a, article twenty-two, chapter twenty-nine of this code, together with any moneys appropriated to the fund by the Legislature: Provided, That for the school year beginning the first day of July, two thousand and four, only, funds from the excess lottery allocated in section eighteen-a, article twenty-two, chapter twenty-nine of this code shall not be transferred to the school construction fund and, in lieu thereof, made available for legislative appropriation. Expenditures from the school construction fund shall be for the purposes set forth in this article, including lease-purchase payments under agreements made pursuant to subsection (e), section fifteen of this article and section nine, article five of this chapter and are authorized from collections in accordance with the provisions of article three, chapter twelve of this code and from other revenues annually appropriated by the Legislature from lottery revenues as authorized by section eighteen, article twenty-two, chapter twenty-nine of this code pursuant to the provisions set forth in article two, chapter five-a of this code. Amounts collected which are found, from time to time, to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. The school construction fund shall be an interest-bearing account, with the interest credited to and deposited in the school construction fund and expended in accordance with the provisions of this article. Deposits to and expenditures from the school construction fund are subject to the provisions of subsection (i), subsection (k), section fifteen of this article.
(d) There is continued in the state treasury a special revenue fund named the school major improvement fund into which shall be deposited the amounts specified in section thirty, article fifteen, chapter eleven of this code, together with any moneys appropriated to the fund by the Legislature. Expenditures from the school major improvement fund shall be for the purposes set forth in this article and are authorized from collections in accordance with the provisions of article three, chapter twelve of this code and from other revenues annually appropriated by the Legislature from lottery revenues as authorized by section eighteen, article twenty-two, chapter twenty-nine of this code pursuant to the provisions set forth in article two, chapter five-a of this code. Amounts collected which are found, from time to time, to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. The school major improvement fund shall be an interest-bearing account, with interest being credited to and deposited in the school major improvement fund and expended in accordance with the provisions of this article.
(e) The Legislature finds and declares that the supreme court of appeals of West Virginia has held that the issuance of additional revenue bonds authorized under the school building authority act, as enacted in this article prior to the twentieth day of July, one thousand nine hundred ninety-three, constituted an indebtedness of the state in violation of section four, article X of the constitution of West Virginia, but that revenue bonds issued under this article prior to the twentieth day of July, one thousand nine hundred ninety-three, are not invalid. The Legislature further finds and declares that the financial capacity of a county to construct, lease and improve school facilities depends upon the county's bonding capacity (local property wealth), voter willingness to pass bond issues and the county's ability to reallocate other available county funds instead of criteria related to educational needs or upon the ability of the school building authority created in this article to issue bonds that comply with the holding of the West Virginia supreme court of appeals or otherwise assist counties with the financing of facilities construction and improvement. The Legislature further finds and declares that this section, as well as section eighteen, article twenty-two, chapter twenty-nine of this code, have been reenacted during the first extraordinary session of the West Virginia Legislature in the year one thousand nine hundred ninety-four in an attempt to comply with the holding of the supreme court of appeals of West Virginia.
The Legislature further finds and declares that it intends, through the reenactment of this section and section eighteen, article twenty-two, chapter twenty-nine of this code, to dedicate a source of state revenues to special revenue funds for the purposes of paying the debt service on bonds and refunding bonds issued subsequent to the first day of January, one thousand nine hundred ninety-four, the proceeds of which will be used for the construction and improvement of school building facilities. The Legislature further finds and declares that it intends, through the reenactment of this section and section thirty, article fifteen, chapter eleven of this code and section eighteen, article twenty-two, chapter twenty-nine of this code, to appropriate revenues to two special revenue funds for the purposes of construction and improvement of school building facilities. Furthermore, the Legislature intends to encourage county boards to maintain existing levels of county funding for construction, improvement and maintenance of school building facilities and to generate additional county funds for those purposes through bonds and special levies whenever possible. The Legislature further encourages the school building authority, the state board and county boards of education to propose uniform project specifications for comparable projects whenever possible to meet county needs at the lowest possible cost.
The Legislature further finds and declares that it intends, through the reenactment of this section and section eighteen, article twenty-two, chapter twenty-nine of this code, to comply with the provisions of sections four and six, article X of the constitution of West Virginia; and section one, article XII of said constitution.
§18-9D-8. Use of proceeds of bonds; bonds exempt from taxation.
(a) The maximum aggregate face value of bonds that may be issued by the authority, for which the moneys in the school building debt service fund are to be pledged, is four hundred million dollars. The issuance of revenue bonds under the provisions of this article shall be authorized, from time to time, by resolution or resolutions of the school building authority which shall set forth the proposed projects authorized in accordance with the provisions of section sixteen of this article and provide for the issuance of bonds in amounts sufficient, when sold as hereinafter provided in this section, to provide moneys considered sufficient by the authority to pay the costs, less the amounts of any other funds available for the costs or from any appropriation, grant or gift for the costs: Provided, That bond issues from which bond revenues are to be distributed in accordance with section fifteen of this article shall for projects authorized pursuant to the provisions of section sixteen of this article are not be required to set forth the proposed projects in the resolution. The resolution shall prescribe the rights and duties of the bondholders and the school building authority and, for that purpose, may prescribe the form of the trust agreement hereinafter referred to in this section. The bonds may be issued, from time to time, in such amounts; shall be of such series; bear such date or dates; mature at such time or times not exceeding forty years from their respective dates; bear interest at such rate or rates; be in such denominations; be in such form, either coupon or registered, carrying such registration, exchangeability and interchangeability privileges; be payable in such medium of payment and at such place or places within or without the state; be subject to such terms of redemption at such prices not exceeding one hundred five percent of the principal amount of the bonds; and be entitled to such priorities on the revenues paid into the fund pledged for repayment of the bonds as may be provided in the resolution authorizing the issuance of the bonds or in any trust agreement made in connection with the bonds: Provided, however, That revenue bonds issued on or after the first day of January, one thousand nine hundred ninety-four, which are secured by lottery proceeds shall mature at such time or times not exceeding ten years from their respective dates.
(b) The bonds shall be signed by the governor, and by the president or vice president of the authority, under the great seal of the state, attested by the secretary of state, and the coupons attached to the bonds shall bear the facsimile signature of the president or vice president of the authority. In case any of the officers whose signatures appear on the bonds or coupons cease to be officers before the delivery of the bonds, the signatures shall nevertheless be valid and sufficient for all purposes the same as if such the officers had remained in office until such the delivery. The revenue bonds shall be sold in the manner determined by the authority to be for the best interests of the state.
(c) Any pledge of revenues made by the school building authority for revenue bonds issued prior to the twentieth day of July, one thousand nine hundred ninety-three, pursuant to this article is valid and binding between the parties from the time the pledge is made; and the revenues pledged shall immediately be subject to the lien of the pledge without any further physical delivery thereof of the revenues pledged or further act. The lien of the pledge is valid and binding against all parties having claims of any kind in tort, contract or otherwise, irrespective of whether the parties have notice of the lien of the pledge, and the pledge shall be a prior and superior charge over any other use of the revenues pledged.
(d) The proceeds of any bonds shall be used solely for the purpose or purposes as may be generally or specifically set forth in the resolution authorizing those bonds and shall be disbursed in the manner and with the restrictions, if any, that the authority provides in the resolution authorizing the issuance of the bonds or in the trust agreement hereinafter referred to in this section securing the same bonds. If the proceeds of the bonds, by error in calculations or otherwise, are less than the cost of any projects specifically set forth in the resolution, additional bonds may in like manner be issued to provide the amount of the deficiency; and unless otherwise provided for in the resolution or trust agreement hereinafter mentioned, the additional bonds shall be considered to be of the same issue and are entitled to payment from the same fund, without preference or priority, as the bonds before issued for the projects. If the proceeds of bonds issued for the projects specifically set forth in the resolution authorizing the bonds issued by the authority exceed the cost of the bonds, the surplus may be used for any other projects determined by the school building authority authorized in accordance with the provisions of section sixteen of this article or in any other manner that the resolution authorizing the bonds provides. Prior to the preparation of definitive bonds, the authority may, under like restrictions, issue temporary bonds with or without coupons, exchangeable for definitive bonds upon the issuance of the definitive bonds.
(e) After the issuance of any of revenue bonds, the revenues pledged for the revenue bonds shall not be reduced as long as any of the revenue bonds are outstanding and unpaid except under the terms, provisions and conditions that are contained in the resolution, trust agreement or other proceedings under which the revenue bonds were issued.
(f) The revenue bonds and the revenue refunding bonds and bonds issued for combined purposes, together with the interest on the bonds, are exempt from all taxation by the state of West Virginia, or by any county, school district, municipality or political subdivision thereof.
(g) To meet the operational costs of the school building authority, the school building authority may transfer to a special revenue account in the state treasury interest on any debt service reserve funds created within any resolution authorizing the issue of bonds or any trust agreement made in connection with the bonds for expenditure in accordance with legislative appropriation or allocation of appropriation.
(h) Any school construction bonds issued under this section shall be issued on parity with any existing school building authority bonds previously issued under this article.
§18-9D-15. Legislative intent; allocation of money among categories of projects; lease purchase options; limitation on time period for expenditure of project allocation; county maintenance budget requirements; project disbursements over period of years; preference for multicounty arrangements; submission of project designs; set-aside to encourage local participation; etc.

(a) It is the intent of the Legislature to empower the school building authority to facilitate and provide state funds and to administer all federal funds provided for the construction and major improvement of school facilities so as to meet the educational needs of the people of this state in an efficient and economical manner. The authority shall make funding determinations in accordance with the provisions of this article and shall assess existing school facilities and each facility's school major improvement plan in relation to the needs of the individual student, the general school population, the communities served by the facilities and facility needs statewide.
(b) An amount that is no more than three percent of the sum of moneys that are determined by the authority to be available for distribution during the then current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys paid into the school major improvement fund pursuant to section six of this article, may be allocated and may be expended by the authority for projects authorized in accordance with the provisions of section sixteen of this article that service the educational community statewide or, upon application by the state board, for educational programs that are under the jurisdiction of the state board. In addition, upon application by the state board or the administrative council of an area vocational educational center established pursuant to article two-b of this chapter, the authority may allocate and expend under this subsection moneys for school major improvement projects authorized in accordance with the provisions of section sixteen of this article proposed by the state board or an administrative council for school facilities under the direct supervision of the state board or an administrative council, respectively. Furthermore, upon application by a county board, the authority may allocate and expend under this subsection moneys for school major improvement projects for vocational programs at comprehensive high schools, vocational schools cooperating with community and technical college programs, or both. Each county board is encouraged to cooperate with community and technical colleges in the use of existing or development of new vocational technical facilities. All projects eligible for funds from this subsection shall be submitted directly to the authority which shall be solely responsible for the project's evaluation: Provided, That the authority may not expend any moneys for a school major improvement project proposed by the state board or the administrative council of an area vocational educational center unless the state board or an administrative council has submitted a ten-year school major improvement plan, to be updated annually, pursuant to section sixteen of this article: facilities plan: Provided, however, That the authority shall, before allocating any moneys to the state board or the administrative council of an area vocational educational center for a school improvement project, consider all other funding sources available for the project.
(c) An amount that is no more than two percent of the moneys that are determined by the authority to be available for distribution during the current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys deposited into the school major improvement fund, shall be set aside by the authority as an emergency fund to be distributed in accordance with the guidelines adopted by the authority.
(d) An amount that is no more than five percent of the moneys that are determined by the authority to be available for distribution during the current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys deposited into the school major improvement fund, may be reserved by the authority for multiuse vocational-technical education facilities projects that may include post-secondary programs as a first priority use. The authority may allocate and expend under this subsection moneys for any purposes authorized in this article on multiuse vocational-technical education facilities projects, including equipment and equipment updates at the facilities, authorized in accordance with the provisions of section sixteen of this article. and for equipment and equipment updates at the facilities. If the projects approved under this subsection do not require the full amount of moneys reserved, moneys above the amount required may be allocated and expended in accordance with other provisions of this article. A county board, the state board, an administrative council or the joint administrative board of a vocational-technical education facility which includes post-secondary programs may propose projects for facilities or equipment, or both, which are under the direct supervision of the respective body: Provided, That the authority shall, before allocating any moneys for a project under this subsection, consider all other funding sources available for the project.
(e) The remaining moneys determined by the authority to be available for distribution during the then current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys deposited into the school major improvement fund, shall be allocated and expended on the basis of need and efficient use of resources the basis to be determined by the authority for projects funded in accordance with the provisions of section sixteen of this article.
(f) If a county board of education proposes to finance a project that is approved pursuant to authorized in accordance with section sixteen of this article through a lease with an option to purchase leased premises upon the expiration of the total lease period pursuant to an investment contract, the authority may allocate no moneys to the county board in connection with the project: Provided, That the authority may transfer moneys to the state board of education which, with the authority, shall lend the amount transferred to the county board to be used only for a one-time payment due at the beginning of the lease term, made for the purpose of reducing annual lease payments under the investment contract, subject to the following conditions:
(1) The loan shall be secured in the manner required by the authority, in consultation with the state board, and shall be repaid in a period and bear interest at a rate as determined by the state board and the authority and shall have such any terms and conditions as that are required by the authority, all of which shall be set forth in a loan agreement among the authority, the state board and the county board;
(2) The loan agreement shall provide for the state board and the authority to defer the payment of principal and interest upon any loan made to the county board during the term of the investment contract, and annual renewals of the investment contract, among the state board, the authority, the county board and a lessor: Provided, That in the event a county board which has received a loan from the authority for a one-time payment at the beginning of the lease term does not renew the subject lease annually until performance of the investment contract in its entirety is completed, the county board is in default and the principal of the loan, together with all unpaid interest accrued to the date of the default, shall, at the option of the authority, in consultation with the state board, become due and payable immediately or subject to renegotiation among the state board, the authority and the county board: Provided, however, That if a county board renews the lease annually through the performance of the investment contract in its entirety, the county board shall exercise its option to purchase the leased premises: Provided further, That the failure of the county board to make a scheduled payment pursuant to the investment contract constitutes an event of default under the loan agreement: And provided further, That upon a default by a county board, the principal of the loan, together with all unpaid interest accrued to the date of the default, shall, at the option of the authority, in consultation with the state board, become due and payable immediately or subject to renegotiation among the state board, the authority and the county board: And provided further, That if the loan becomes due and payable immediately, the authority, in consultation with the state board, shall use all means available under the loan agreement and law to collect the outstanding principal balance of the loan, together with all unpaid interest accrued to the date of payment of the outstanding principal balance; and
(3) The loan agreement shall provide for the state board and the authority to forgive all principal and interest of the loan upon the county board purchasing the leased premises pursuant to the investment contract and performance of the investment contract in its entirety.
(g) To encourage county boards to proceed promptly with facilities planning and to prepare for the expenditure of any state moneys derived from the sources described in this subsection section, any county board failing or other entity to whom moneys are allocated by the authority that fails to expend the money within three years of the allocation to the county board shall forfeit the allocation and thereafter is ineligible for further allocations pursuant to this subsection section until the county board it is ready to expend funds in accordance with an approved facilities plan: Provided, That the authority may authorize an extension beyond the three-year forfeiture period not to exceed an additional two years. Any amount forfeited shall be added to the total funds available in the school construction fund of the authority for future allocation and distribution. Funds may not be distributed to any county board that does not have a comprehensive educational facility for any project under this article unless the responsible entity has a facilities plan approved by the state board and the school building authority or to any county board that is not and is prepared to commence expenditure of the funds during the fiscal year in which the moneys are distributed.
(h) The remaining moneys that are determined by the authority to be available for distribution during the then current fiscal year from moneys paid into the school major improvement fund pursuant to section six of this article shall be allocated and distributed on the basis of need and efficient use of resources the basis to be determined by the authority for projects authorized in accordance with the provisions of section sixteen of this article: Provided, That the moneys may not be distributed to any county board that does not have an approved school major improvement for any project under this section unless the responsible entity has a facilities plan or to any county board that is not prepared approved by the state board and the authority and is to commence expenditures of the funds during the fiscal year in which the moneys are distributed: Provided, however, That any moneys allocated to a county board project and not distributed to that county board for that project shall be deposited in an account to the credit of that county board the project, the principal amount to remain to the credit of and available to the county board project for a period of two years. Any moneys which are unexpended after a two-year period shall be redistributed on the basis of need from the school major improvement fund in that fiscal year.
(i) No local matching funds may be required under the provisions of this section. However, the responsibilities of the county boards of education to maintain school facilities are not negated by the provisions of this article. To be eligible to receive an allocation of school major improvement funds from the authority, a county board must have expended in the previous fiscal year an amount of county moneys equal to or exceeding the lowest average amount of money included in the county board's maintenance budget over any three of the previous five years and must have budgeted an amount equal to or greater than the average in the current fiscal year: Provided, That the state board of education shall promulgate rules relating to county boards' maintenance budgets, including items which shall be included in the budgets.
(j) Any county board may use moneys provided by the authority under this article in conjunction with local funds derived from bonding, special levy or other sources. Distribution to a county board, or to the state board or the administrative council of an area vocational educational center pursuant to subsection (b) of this section, may be in a lump sum or in accordance with a schedule of payments adopted by the authority pursuant to guidelines adopted by the authority.
(k) Funds in the school construction fund shall first be transferred and expended as follows:
Any funds deposited in the school construction fund shall be expended first in accordance with an appropriation by the Legislature. To the extent that funds are available in the school construction fund in excess of that amount appropriated in any fiscal year, the excess funds may be expended for projects authorized in accordance with the provisions of section sixteen of this article. Any projects which the authority identified and announced for funding on or before the first day of August, one thousand nine hundred ninety-five, or identified and announced for funding on or before the thirty-first day of December, one thousand nine hundred ninety-five, shall be funded by the authority in an amount which is not less than the amount specified when the project was identified and announced.
(l) It is the intent of the Legislature to encourage county boards to explore and consider arrangements with other counties that may facilitate the highest and best use of all available funds, which may result in improved transportation arrangements for students or which otherwise may create efficiencies for county boards and the students. In order to address the intent of the Legislature contained in this subsection, the authority shall grant preference to those projects which involve multicounty arrangements as the authority shall determine reasonable and proper.
(m) County boards shall submit all designs for construction of new school buildings to the school building authority for review and approval prior to preparation of final bid documents: Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, inclusive, article three, chapter five-a of this code, may not bid on or be awarded a contract under this section.
(n) The authority may elect to disburse funds for approved construction projects over a period of more than one year subject to the following:
(1) The authority may not approve the funding of a school construction project for over a period of more than three years;
(2) The authority may not approve the use of more than fifty percent of the revenue available for distribution in any given fiscal year for projects that are to be funded over a period of more than one year; and
(3) In order to encourage local participation in funding school construction projects, the authority may set aside limited funding, not to exceed five hundred thousand dollars, in reserve for one additional year to provide a county the opportunity to complete financial planning for a project prior to the allocation of construction funds. Any such funding shall be on a reserve basis and converted to a part of the construction grant only after all project budget funds have been secured and all county commitments have been fulfilled. Failure of the county to solidify the project budget and meet its obligations to the state within eighteen months of the date the funding is set aside by the authority will result in expiration of the reserve and the funds shall be reallocated by the authority in the succeeding funding cycle.
§18-9D-16. Authority to establish guidelines and procedures for facilities and major improvement plans; guidelines for modifications and updates, etc.; guidelines for project evaluation; submission of certified list of projects to be funded; department on-site inspection of facilities; enforcement of required changes or additions to project plans.

(a) The authority shall establish guidelines and procedures to promote the intent and purposes of this article and assure the prudent and resourceful expenditure of state funds for projects under this article including, but not limited to, the following:
(1) Guidelines and procedures for the facilities plans, school major improvement plans and projects submitted in the furtherance of said the plans that address, but are not limited to, the following:
(A) All of the elements of the respective plans as defined in section two of this article;
(B) The procedures for a county to submit a preliminary plan, a plan outline or a proposal for a plan to the authority prior to the submission of the facilities plan. The preliminary plan, plan outline or proposal for a plan shall be the basis for a consultation meeting between representatives of the county and members of the authority, including at least one citizen member, which shall be held promptly following submission of the preliminary plan, plan outline or proposal for a plan to assure understanding of the general goals of this article and the objective criteria by which projects will be evaluated, to discuss ways the plan may be structured to meet those goals, and to assure efficiency and productivity in the project approval process;
(C) The manner, time line and process for the submission of each plan and annual plan updates to the authority;
(D) The requirements for public hearings, comments or other means of providing broad-based input on plans and projects under this article within a reasonable time period as the authority may consider appropriate. The submission of each plan must be accompanied by a synopsis of all comments received and a formal comment by the county board, the state board or the administrative council of an area vocational educational center submitting the plan;
(E) Any project specifications and maintenance specifications considered appropriate by the authority including, but not limited to, such matters as energy efficiency, preferred siting, construction materials, maintenance plan and any other matter related to how the project is to proceed;
(F) A prioritization by the county board, the state board or the administrative council submitting the plan of each project contained in the plan. In prioritizing the projects, the county board, the state board or the administrative council submitting the plan shall make determinations in accordance with the objective criteria formulated by the school building authority in accordance with this section. The priority list is one of the criteria that shall be considered by the authority deciding how the available funds should be expended;
(G) The objective means to be set forth in the plan and used in evaluating implementation of the overall plan and each project included in the plan. The evaluation must measure how the plan addresses the goals of this article and any guidelines adopted hereunder under this article, and how each project is in furtherance of the facilities plan and school major improvement plan, as applicable, as well as the importance of the project to the overall success of the facilities plan or school major improvement plan and the overall goals of the authority; and
(H) Any other matters considered by the authority to be important reflections of how a construction project or a major improvement project or projects will further the overall goals of this article.
(2) Guidelines and procedures which may be adopted by the authority for requiring that a county board modify, update, supplement or otherwise submit changes or additions to an approved facilities plan or for requiring that a county board, the state board or the administrative council of an area vocational educational center modify, update, supplement or otherwise submit changes or additions to an approved school major improvement plan. The authority shall provide reasonable notification and sufficient time for the change or addition as delineated in guidelines developed by the authority.
(3) Guidelines and procedures for evaluating project proposals that are submitted to the authority that address, but are not limited to, the following:
(A) Any project funded by the authority must be in furtherance of the facilities plan or school major improvement plan and in compliance with the guidelines established by the authority;
(B) If a project is to benefit more than one county in the region, the facilities plan must state the manner in which the cost and funding of the project will be apportioned among the counties;
(C) If a county board proposes to finance a construction project through a lease with an option to purchase pursuant to an investment contract as described in subsection (f), section fifteen of this article, the specifications for the project must include the term of the lease, the amount of each lease payment, including the payment due upon exercise of the option to purchase, and the terms and conditions of the proposed investment contract; and
(D) The objective criteria for the evaluation of projects which shall include, but are not limited to, the following:
(i) How the current facilities do not meet and how the plan and any project thereunder does meet under the plan meets the following:
(I) Student health and safety including, but not limited to, critical health and safety needs;
(II) Economies of scale, including compatibility with similar schools that have achieved the most economical organization, facility use and pupil-teacher ratios;
(III) Reasonable travel time and practical means of addressing other demographic considerations;
(IV) Multicounty and regional planning to achieve the most effective and efficient instructional delivery system;
(V) Curriculum improvement and diversification, including the use of instructional technology, distance learning and access to advanced courses in science, mathematics, language arts and social studies;
(VI) Innovations in education;
(VII) Adequate space for projected student enrollments;
(VIII) The history of efforts taken by the county board to propose or adopt local school bond issues or special levies to the extent constitutionally permissible; and
(IX) Regularly scheduled preventive maintenance; and
(ii) How the project will assure the prudent and resourceful expenditure of state funds and achieve the purposes of this article for constructing, expanding, renovating or otherwise improving and maintaining school facilities for a thorough and efficient education.
(4) Guidelines and procedures for evaluating projects for funding that address, but are not limited to, the following:
(A) Requiring each county board's facilities plan and school major improvement plan to prioritize all the construction projects or major improvement projects, respectively, within the county. A school major improvement plan submitted by the state board or the administrative council of an area vocational educational center shall prioritize all the school improvement projects contained in the plan. The priority list shall be one of the criteria to be considered by the authority in determining how available funds shall be expended. In prioritizing the projects, the county board, the state board or the administrative council submitting a plan shall make determinations in accordance with the objective criteria formulated by the school building authority;
(B) The return to each county submitting a project proposal an explanation of the evaluative factors underlying the decision of the authority to fund or not to fund the project; and
(C) The allocation and expenditure of funds in accordance with this article, subject to the availability of funds.
(b) The state department of education shall conduct on-site inspections, at least annually, of all facilities which have been funded wholly or in part by moneys from the authority or state board to ensure compliance with the county board's facilities plan and school major improvement plan as related to the facilities; to preserve the physical integrity of the facilities to the extent possible; and to otherwise extend the useful life of the facilities: Provided, That the state board shall submit reports regarding its on-site inspections of facilities to the authority within thirty days of completion of the on-site inspections: Provided, however, That the state board shall promulgate rules regarding the on-site inspections and matters relating thereto, in consultation with the authority, as soon as practical and shall submit proposed rules for legislative review no later than the first day of December, one thousand nine hundred ninety-four.
(c) Based on its on-site inspection or notification by the authority to the state board that the changes or additions to a county's board facilities plan or school major improvement plan required by the authority have not been implemented within the time period prescribed by the authority, the state board shall restrict the use of the necessary funds or otherwise allocate funds from moneys appropriated by the Legislature for those purposes set forth in section nine, article nine-a of this chapter."
And,
By amending the title of the bill to read as follows:
H. B. 4601 - "A Bill to amend and reenact §18-9A-7 of the code of West Virginia, 1931, as amended; to amend and reenact §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of said code, all relating to public education; suspending basic foundation allocation for bus replacement and providing allocation for academic trips for one school year; school building authority; redefining certain terms; correcting references; allowing expenditure of certain moneys for vocational programs at comprehensive high schools and vocational schools cooperating with community and technical college programs; encouraging cooperation relating to vocational technical facilities; providing that excess lottery revenues not be transferred to school construction fund for the next school year only, with funds made available for legislative appropriation; project submission and evaluation relating to certain funds; requiring facilities plan as condition of receiving certain funds; providing for certain guidelines and procedures by authority for plans, plan modifications and evaluating projects; and clarifying that certain revenues can only be expended on projects authorized in accordance with the guidelines and procedures section."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of concurrent resolutions of the House of Delegates as follows:
H. C. R. 3, Naming a portion of state route 75 and U. S. route 52, the "Big Green Memorial Highway",
H. C. R. 4, Establishing a "Robert L. Bradley, M. D., Ph. D., Brigadier General Memorial Highway",
H. C. R. 23, Naming the bridge, located approximately one mile east of the Huntington Mall on Route 60, the "George Adam Floding Bridge",
H. C. R. 29, Requesting the Division of Highways to name the bridge crossing the Elk River on State Route 4 south of Gassaway, the "Veterans Memorial Bridge",
H. C. R. 31, Requesting a study on the use of credit scoring being used as a factor in determining the amount of a premium charged for issuance of an insurance policy,
H. C. R. 32, Erecting a plaque dedicating the "Bowers Bridge", located at Mannington in Marion County, to Herbert "Pete" Bonnell, Charles Brumage, Clarence Roberts, Louie Starsick and Sam Hunter,
And,
H. C. R. 57, Expressing the full support of the West Virginia Legislature for the Republic of China on Taiwan to be permitted to appropriate and meaningful participation in activities of the World Health Organization.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendment, and the passage, as amended, of
S. B. 563, Relating to public employees retirement act.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by the Clerk:
On page two, by striking out everything after the article heading and inserting in lieu thereof the following:
"§5-10-2. Definitions.
Unless a different meaning is clearly indicated by the context, the following words and phrases as used in this article, have the following meanings:
(1) 'State' means the state of West Virginia;

(2) 'Retirement system' or 'system' means the West Virginia public employees retirement system created and established by this article;
(3) 'Board of trustees' or 'board' means the board of trustees of the West Virginia public employees retirement system;
(4) 'Political subdivision' means the state of West Virginia, a county, city or town in the state; a school corporation or corporate unit; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; and any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns: Provided, That any mental health agency participating in the public employees retirement system before the first day of July, one thousand nine hundred ninety-seven, is considered a political subdivision solely for the purpose of permitting those employees who are members of the public employees retirement system to remain members and continue to participate in the retirement system at their option after the first day of July, one thousand nine hundred ninety-seven: Provided, however, That the regional community policing institute which participated in the public employees retirement system before the first day of July, two thousand, is considered a political subdivision solely for the purpose of permitting those employees who are members of the public employees retirement system to remain members and continue to participate in the public employees retirement system after the first day of July, two thousand;
(5) 'Participating public employer' means the state of West Virginia, any board, commission, department, institution or spending unit, and includes any agency created by rule of the supreme court of appeals having full-time employees, which for the purposes of this article is considered a department of state government; and any political subdivision in the state which has elected to cover its employees, as defined in this article, under the West Virginia public employees retirement system;
(6) 'Employee' means any person who serves regularly as an officer or employee, full time, on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the service of, and whose compensation is payable, in whole or in part, by any political subdivision, or an officer or employee whose compensation is calculated on a daily basis and paid monthly or on completion of assignment, including technicians and other personnel employed by the West Virginia national guard whose compensation, in whole or in part, is paid by the federal government: Provided, That members of the Legislature, the clerk of the House of Delegates, the clerk of the Senate, employees of the Legislature whose term of employment is otherwise classified as temporary and who are employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who have been or are employed during regular sessions or during the interim between regular sessions in seven consecutive calendar years, as certified by the clerk of the house in which the employee served, members of the legislative body of any political subdivision and judges of the state court of claims are considered to be employees, anything contained in this article to the contrary notwithstanding. In any case of doubt as to who is an employee within the meaning of this article, the board of trustees shall decide the question;
(7) 'Member' means any person who is included in the membership of the retirement system;
(8) 'Retirant' means any member who retires with an annuity payable by the retirement system;
(9) 'Beneficiary' means any person, except a retirant, who is entitled to, or will be entitled to, an annuity or other benefit payable by the retirement system;
(10) 'Service' means personal service rendered to a participating public employer by an employee, as defined in this article, of a participating public employer;
(11) 'Prior service' means service rendered prior to the first day of July, one thousand nine hundred sixty-one, to the extent credited a member as provided in this article;
(12) 'Contributing service' means service rendered by a member within this state and for which the member made contributions to a public retirement system account of this state, to the extent credited him or her as provided by this article. This revised definition is retroactive and applicable to the first day of April, one thousand nine hundred eighty-eight, and thereafter;
(13) 'Credited service' means the sum of a member's prior service credit and contributing service credit standing to his or her credit as provided in this article;
(14) 'Limited credited service' means service by employees of the West Virginia educational broadcasting authority, in the employment of West Virginia university, during a period when the employee made contributions to another retirement system, as required by West Virginia university, and did not make contributions to the public employees retirement system: Provided, That while limited credited service can be used for the formula set forth in subsection (e), section twenty-one of this article, it may not be used to increase benefits calculated under section twenty-two of this article;
(15) 'Compensation' means the remuneration paid a member by a participating public employer for personal services rendered by him or her to the participating public employer. In the event a member's remuneration is not all paid in money, his or her participating public employer shall fix the value of the portion of his or her remuneration which is not paid in money;
(16) 'Final average salary' means either:
(A) The average of the highest annual compensation received by a member (including a member of the Legislature who participates in the retirement system in the year one thousand nine hundred seventy-one or thereafter) during any period of three consecutive years of his or her credited service contained within his or her ten years of credited service immediately preceding the date his or her employment with a participating public employer last terminated; or
(B) If he or she has less than five years of credited service, the average of the annual rate of compensation received by him or her during his or her total years of credited service; and in determining the annual compensation, under either paragraph (A) or (B) of this subdivision, of a member of the Legislature who participates in the retirement system as a member of the Legislature in the year one thousand nine hundred seventy-one or in any year thereafter, his or her actual legislative compensation (the total of all compensation paid under sections two, three, four and five, article two-a, chapter four of this code) in the year one thousand nine hundred seventy-one or in any year thereafter, plus any other compensation he or she receives in any year from any other participating public employer including the state of West Virginia, without any multiple in excess of one times his or her actual legislative compensation and other compensation, shall be used: Provided, That 'final average salary' for any former member of the Legislature or for any member of the Legislature in the year one thousand nine hundred seventy-one who, in either event, was a member of the Legislature on the thirtieth day of November, one thousand nine hundred sixty-eight, or the thirtieth day of November, one thousand nine hundred sixty-nine, or the thirtieth day of November, one thousand nine hundred seventy, or on the thirtieth day of November in any one or more of those three years and who participated in the retirement system as a member of the Legislature in any one or more of those years means: (i) Either (notwithstanding the provisions of this subdivision preceding this proviso) one thousand five hundred dollars multiplied by eight, plus the highest other compensation the former member or member received in any one of the three years from any other participating public employer including the state of West Virginia; or (ii) 'final average salary' determined in accordance with paragraph (A) or (B) of this subdivision, whichever computation produces the higher final average salary (and in determining the annual compensation under (ii) of this proviso, the legislative compensation of the former member shall be computed on the basis of one thousand five hundred dollars multiplied by eight, and the legislative compensation of the member shall be computed on the basis set forth in the provisions of this subdivision immediately preceding this proviso or on the basis of one thousand five hundred dollars multiplied by eight, whichever computation as to the member produces the higher annual compensation);
(17) 'Accumulated contributions' means the sum of all amounts deducted from the compensations of a member and credited to his or her individual account in the members' deposit fund, together with regular interest on the contributions;
(18) 'Regular interest' means the rate or rates of interest per annum, compounded annually, as the board of trustees adopts from time to time;
(19) 'Annuity' means an annual amount payable by the retirement system throughout the life of a person. All annuities shall be paid in equal monthly installments, using the upper cent for any fraction of a cent;
(20) 'Annuity reserve' means the present value of all payments to be made to a retirant or beneficiary of a retirant on account of any annuity, computed upon the basis of mortality and other tables of experience, and regular interest, adopted by the board of trustees from time to time;
(21) 'Retirement' means a member's withdrawal from the employ of a participating public employer with an annuity payable by the retirement system;
(22) 'Actuarial equivalent' means a benefit of equal value computed upon the basis of a mortality table and regular interest adopted by the board of trustees from time to time;
(23) 'Retroactive service' means: (1) Service an employee was entitled to, but which the employer has not withheld or paid for; or (2) that service from the first day of July, one thousand nine hundred sixty-one, and the date an employer decides to become a participating member of the public employees retirement system; or (3) service prior to the first day of July, one thousand nine hundred sixty-one, for which the employee is not entitled to prior service at no cost in accordance with 162 CSR 5.16;
(24) 'Required beginning date' means the first day of April of the calendar year following the later of: (A) The calendar year in which the member attains age seventy and one-half; or (B) the calendar year in which the member ceases providing service covered under this system to a participating employer;
(25) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as it has been amended; and
(26) 'Plan year' means the same as referenced in section forty-two of this article.
(1) 'Accumulated contributions' means the sum of all amounts deducted from the compensations of a member and credited to his or her individual account in the members' deposit fund, together with regular interest on the contributions;
(2) 'Accumulated net benefit' means the aggregate amount of all benefits paid to or on behalf of a retired member;
(3) 'Actuarial equivalent' means a benefit of equal value computed upon the basis of a mortality table and regular interest adopted by the board of trustees from time to time;
(4) 'Annuity' means an annual amount payable by the retirement system throughout the life of a person. All annuities shall be paid in equal monthly installments using the upper cent for any fraction of a cent;
(5) 'Annuity reserve' means the present value of all payments to be made to a retirant or beneficiary of a retirant on account of any annuity, computed upon the basis of mortality and other tables of experience, and regular interest, adopted by the board of trustees from time to time;
(6) 'Beneficiary' means any person, except a retirant, who is entitled to, or will be entitled to, an annuity or other benefit payable by the retirement system;
(7) 'Board of trustees' or 'board' means the board of trustees of the West Virginia public employees retirement system;
(8) 'Compensation' means the remuneration paid a member by a participating public employer for personal services rendered by him or her to the participating public employer. In the event a member's remuneration is not all paid in money, his or her participating public employer shall fix the value of the portion of his or her remuneration which is not paid in money;
(9) 'Contributing service' means service rendered by a member within this state and for which the member made contributions to a public retirement system account of this state to the extent credited him or her as provided by this article. This revised definition is retroactive and applicable to the first day of April, one thousand nine hundred eighty-eight, and thereafter;
(10) 'Credited service' means the sum of a member's prior service credit, military service credit and contributing service credit standing to his or her credit as provided in this article;
(11) 'Employee' means any person who serves regularly as an officer or employee, full time, on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the service of, and whose compensation is payable, in whole or in part, by any political subdivision, or an officer or employee whose compensation is calculated on a daily basis and paid monthly or on completion of assignment, including technicians and other personnel employed by the West Virginia national guard whose compensation, in whole or in part, is paid by the federal government:
Provided, That members of the Legislature, the clerk of the House of Delegates, the clerk of the Senate, employees of the Legislature whose term of employment is otherwise classified as temporary and who are employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who have been or are employed during regular sessions or during the interim between regular sessions in seven consecutive calendar years, as certified by the clerk of the house in which the employee served, members of the legislative body of any political subdivision and judges of the state court of claims are considered to be employees receiving one year of service credit for each one year term served and prorated service credit for any partial term served, any thing contained in this article to the contrary notwithstanding. In any case of doubt as to who is an employee within the meaning of this article, the board of trustees shall decide the question;
(12) 'Employer error' means an omission, misrepresentation or violation of relevant provisions of the West Virginia code and/or West Virginia code of state regulations by the participating public employer that has resulted in an underpayment or overpayment of contributions required. A deliberate act contrary to the provisions of this section by a participating public employer shall not constitute employer error;

(13) 'Final average salary' means either:
(A) The average of the highest annual compensation received by a member (including a member of the Legislature who participates in the retirement system in the year one thousand nine hundred seventy-one or thereafter) during any period of three consecutive years of the member's credited service contained within his or her fifteen years of credited service immediately preceding the date of last termination of employment with a participating public employer; or
(B) If the member has less than five years of credited service, the average of the annual rate of compensation received by him or her during the member's total years of credited service; and in determining the annual compensation, under either this paragraph or paragraph (A) of this subdivision, of a member of the Legislature who participates in the retirement system as a member of the Legislature in the year one thousand nine hundred seventy-one or in any year thereafter, his or her actual legislative compensation (the total of all compensation paid under sections two, three, four and five, article two-a, chapter four of this code) in the year one thousand nine hundred seventy-one or in any year thereafter, plus any other compensation he or she receives in any year from any other participating public employer including the state of West Virginia, without any multiple in excess of one times his or her actual legislative compensation and other compensation, shall be used:
Provided, That 'final average salary' for any former member of the Legislature or for any member of the Legislature in the year one thousand nine hundred seventy-one who, in either event, was a member of the Legislature on the thirtieth day of November, one thousand nine hundred sixty-eight, or the thirtieth day of November, one thousand nine hundred sixty-nine, or the thirtieth day of November, one thousand nine hundred seventy, or on the thirtieth day of November in any one or more of those three years and who participated in the retirement system as a member of the Legislature in any one or more of those years means: (i) Either (notwithstanding the provisions of this subdivision preceding this proviso) one thousand five hundred dollars multiplied by eight, plus the highest other compensation the former member or member received in any one of the three years from any other participating public employer including the state of West Virginia; or (ii) 'final average salary' determined in accordance with this paragraph or paragraph (A) of this subdivision, whichever computation produces the higher final average salary (and in determining the annual compensation under subparagraph (ii) of this paragraph, the legislative compensation of the former member shall be computed on the basis of one thousand five hundred dollars multiplied by eight, and the legislative compensation of the member shall be computed on the basis set forth in the provisions of this subdivision immediately preceding this proviso or on the basis of one thousand five hundred dollars multiplied by eight, whichever computation as to the member produces the higher annual compensation);
(14) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as amended;
(15) 'Limited credited service' means service by employees of the West Virginia educational broadcasting authority, in the employment of West Virginia university, during a period when the employee made contributions to another retirement system, as required by West Virginia university, and did not make contributions to the public employees retirement system: Provided, That while limited credited service can be used for the formula set forth in subsection (e), section twenty-one of this article, it may not be used to increase benefits calculated under section twenty-two of this article;
(16) 'Member' means any person who is included in the membership of the retirement system;
(17) 'Participating public employer' means the state of West Virginia, any board, commission, department, institution or spending unit and includes any agency created by rule of the supreme court of appeals having full-time employees, which for the purposes of this article is considered a department of state government; and any political subdivision in the state which has elected to cover its employees, as defined in this article, under the West Virginia public employees retirement system;
(18) 'Plan year' means the same as referenced in section forty-two of this article;
(19) 'Political subdivision' means the state of West Virginia, a county, city or town in the state; a school corporation or corporate unit; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; and any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns: Provided, That any mental health agency participating in the public employees retirement system before the first day of July, one thousand nine hundred ninety-seven, is considered a political subdivision solely for the purpose of permitting those employees who are members of the public employees retirement system to remain members and continue to participate in the retirement system at their option after the first day of July, one thousand nine hundred ninety-seven: Provided, however, That the regional community policing institute which participated in the public employees retirement system before the first day of July, two thousand, is considered a political subdivision solely for the purpose of permitting those employees who are members of the public employees retirement system to remain members and continue to participate in the public employees retirement system after the first day of July, two thousand;
(20) 'Prior service' means service rendered prior to the first day of July, one thousand nine hundred sixty-one, to the extent credited a member as provided in this article;
(21) 'Regular interest' means the rate or rates of interest per annum, compounded annually, as the board of trustees adopts from time to time;
(22) 'Required beginning date' means the first day of April of the calendar year following the later of: (A) The calendar year in which the member attains age seventy and one-half; or (B) the calendar year in which the member ceases providing service covered under this system to a participating employer;
(23) 'Retirant' means any member who retires with an annuity payable by the retirement system;
(24) 'Retirement' means a member's withdrawal from the employ of a participating public employer with an annuity payable by the retirement system;
(25) 'Retirement system' or 'system' means the West Virginia public employees retirement system created and established by this article;
(26) 'Retroactive service' means: (A) Service from the first day of July, one thousand nine hundred sixty-one, and the date an employer decides to become a participating member of the public employees retirement system; or (B) service prior to the first day of July, one thousand nine hundred sixty-one, for which the employee is not entitled to prior service at no cost in accordance with 162 CSR 5.13; or (C) service of any member of a legislative body or employees of the state Legislature whose term of employment is otherwise classified as temporary for which the employee is eligible, but which the employee did not elect to participate at that time;
(27) 'Service' means personal service rendered to a participating public employer by an employee, as defined in this article, of a participating public employer; and
(28) 'State' means the state of West Virginia.
§5-10-17. Retirement system membership.
The membership of the retirement system consists of the following persons:
(a) All employees, as defined in section two of this article, who are in the employ of a political subdivision the day preceding the date it becomes a participating public employer and who continue in the employ of the participating public employer on and after that date shall become members of the retirement system; and all persons who become employees of a participating public employer on or after that date shall thereupon become members of the system; except as provided in subdivisions (b) and (c) of this section.
(b) The membership of the retirement system shall may not include any person who is a an active contributing member of, or who has been retired by, any of the state teachers retirement systems, the judges retirement system, the retirement system of the division of public safety West Virginia state police death, disability and retirement fund, the West Virginia state police retirement system, the deputy sheriff retirement system or any municipal retirement system for either, or both, policemen or firemen; and the bureau of employment programs, by the commissioner of the bureau, may elect whether its employees will accept coverage under this article or be covered under the authorization of a separate enactment: Provided, That the exclusions of membership shall may not apply to any member of the state Legislature, the clerk of the House of Delegates, the clerk of the state Senate or to any member of the legislative body of any political subdivision provided he or she once becomes a contributing member of the retirement system: Provided, however, That any retired member of the retirement system of the division of public safety West Virginia state police death, disability and retirement fund, the West Virginia state police retirement system, the deputy sheriff retirement system and any retired member of any municipal retirement system for either, or both, policemen or firemen may on and after the effective date of this section become a member of the retirement system as provided in this article, without receiving credit for prior service as a municipal policeman or fireman or as a member of the division of public safety West Virginia state police death, disability and retirement fund, the West Virginia state police retirement system or of the deputy sheriff retirement system: Provided further, That the membership of the retirement system does not include any person who becomes employed by the Prestera center for mental health services, valley comprehensive mental health center, Westbrook health services or eastern panhandle mental health center on or after the first day of July, one thousand nine hundred ninety-seven: And provided further, That membership of the retirement system does not include any person who becomes a member of the federal railroad retirement act on or after the first day of July, two thousand.
(c) Any member of the state Legislature, the clerk of the House of Delegates, the clerk of the state Senate and any employee of the state Legislature whose employment is otherwise classified as temporary and who is employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who has been or is so employed during regular sessions or during the interim between sessions in seven consecutive calendar years, as certified by the clerk of the house in which the employee served, or any member of the legislative body of any other political subdivision shall become a member of the retirement system provided he or she notifies the retirement system in writing of his or her intention to be a member of the system and files a membership enrollment form as prescribed by the board of trustees, and each person, upon filing his or her written notice to participate in the retirement system, shall by that act authorize the clerk of the House of Delegates or the clerk of the state Senate or such person or legislative agency as the legislative body of any other political subdivision shall designate to deduct the member's contribution, as provided in subsection (b), section twenty-nine of this article, and after the deductions have been made from the member's compensation, the deductions shall be forwarded to the retirement system.
(d) If question arises regarding the membership status of any employee, the board of trustees has the final power to decide the question.
(e) Any individual who is a leased employee is not eligible to participate in the system. For the purposes of this article, the term 'leased employee' means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. If a question arises regarding the status of an individual as a leased employee, the board has final authority to decide the question.
§5-10-21. Deferred retirement and early retirement.
(a) Any member who has five or more years of credited service in force, of which at least three years are contributing service, and who leaves the employ of a participating public employer prior to his or her attaining age sixty years for any reason except his or her disability retirement or death shall be entitled to an annuity computed according to section twenty-two of this article as that section was in force as of the date of his or her separation from the employ of a participating public employer: Provided, That he or she does not withdraw his or her accumulated contributions from the members' deposit fund: Provided, however, That on and after the first day of July, two thousand two, any person who becomes a new member of this retirement system shall, in qualifying for retirement hereunder, have five or more years of service, all of which years shall be actual, contributory ones. His or her annuity shall begin the first day of the calendar month next following the month in which his or her application for same is filed with the board of trustees on or after his or her attaining age sixty-two years.
(b) Any member who qualifies for deferred retirement benefits in accordance with subsection (a) of this section and has ten or more years of credited service in force and who has attained age fifty-five as of the date of his or her separation, may, prior to the effective date of his or her retirement, but not thereafter, elect to receive the actuarial equivalent of his or her deferred retirement annuity as a reduced annuity commencing on the first day of any calendar month between his or her date of separation and his or her attainment of age sixty-two years and payable throughout his or her life.
(c) Any member who qualifies for deferred retirement benefits in accordance with subsection (a) of this section and has twenty or more years of credited service in force may elect to receive the actuarial equivalent of his or her deferred retirement annuity as a reduced annuity commencing on the first day of any calendar month between his or her fifty-fifth birthday and his or her attainment of age sixty-two years and payable throughout his or her life.
(d) Notwithstanding any of the other provisions of this section or of this article, except sections twenty-seven-a and twenty-seven-b of this article, and pursuant to rules promulgated by the board, any member who has thirty or more years of credited service in force, at least three of which are contributing service, and who elects to take early retirement, which for the purposes of this subsection means retirement prior to age sixty, whether an active employee or a separated employee at the time of application, shall be entitled to the full computation of annuity according to section twenty-two of this article, as that section was in force as of the date of retirement application, but with the reduced actuarial equivalent of the annuity the member would have received if his or her benefit had commenced at age sixty when he or she would have been entitled to full computation of benefit without any reduction.
(e) Notwithstanding any of the other provisions of this section or of this article, except sections twenty-seven-a and twenty-seven-b of this article, any member of the retirement system may retire with full pension rights, without reduction of benefits, if he or she is at least fifty-five years of age and the sum of his or her age plus years of contributing service and limited credited service, as defined in section two of this article, equals or exceeds eighty. An annuity shall begin the first day of the calendar month next following the month in which application for the annuity is filed with the board of trustees.
§5-10-23. Terminal payment following retirement.

For the purposes of this section, the term 'accumulated net benefit' means the aggregate amount of all benefits paid to or on behalf of a member. This includes, without limitation: (a) Benefits paid to the member as an annuity; (b) any lump sum distributions paid to the member or to any other person on account of the member's rights to benefits from the plan; (c) survivor benefits paid to any person or persons on account of the member's rights to benefits from the plan; and (d) any other distributions on account of the member's rights to benefits from the plan whether they are paid in the nature of a refund of contributions, interest on contributions, lump sum distributions, or annuity type benefits. The amounts counted will be the amounts actually paid without regard to any optional form of any annuity benefit.

For the purposes of this section, the term 'accumulated employee contributions' means all money the member has contributed to the plan, whether the form of the contribution was after tax deductions from wages, before tax deductions from wages, direct remittance by the member to repay contributions and interest previously distributed and direct remittance by the member to pay imputed contributions for periods which were not subject to contributions but may be counted for benefit purposes under the plan. The term accumulated employee contributions does not include any amount credited under the provisions of the plan as interest on member contributions.

For the purposes of this section, the term 'member's account' means the excess of the accumulated employee contributions over the accumulated net benefit payments at any point in time and the term 'member' includes retirant. (a) This section provides for the payment of the balance in the a retired member's account in the event that all claims to benefits payable to, or on behalf of, a member expire before his or her member account has been fully exhausted. The expiration of such rights to benefits would be on the occasion of later of either the death of the retired member and any and all beneficiaries who might have a claim to regular benefit payments under the plan, for any form of benefit. Without limitation, this would include the demise of beneficiaries of survivor annuities and beneficiaries of any lump sum distributions drawing benefits under a straight life annuity or the death of a survivor annuitant drawing benefits under any optional form of benefit selected by the retired member.

(b) In the event that all claims to benefit benefits payable to, or on behalf of, a retired member expire and the accumulated employee contributions exceed his or her the accumulated net benefit payments paid to or on behalf of the retired member, the balance in the retired member's account shall be paid to the person or persons as the member has nominated by the retired member by written designation duly executed and filed with the board of trustees. If there be is no designated person or persons surviving the retired member following the expiration of claims, the excess of the accumulated employee contributions over the accumulated net benefit, if any, shall be paid to his or her the retired member's estate: In no case may the plan retain any amount of the accumulated employee contributions remaining in the member's account, but it shall retain interest earned on the same accumulated employee contributions in the instance of a member's or beneficiary's post-retirement death Provided, That the provisions of this section shall be retroactive for all members who entered retirement status on or after the ninth day of June, two thousand.
§5-10-26. Reexamination of disability retirants; reemployment; adjustment of annuity for earnings.


(a) At least once each year during the first five years following the retirement of a member on account of disability, as provided in section twenty-five hereof, and at least once in each three-year period thereafter, the board of trustees may, and upon the retirant's application, shall require a disability retirant, who has not attained age sixty years, to undergo a medical examination to be made by or under the direction of a physician designated by the board submit a statement from the disability retirant's physician certifying continued disability and to submit a copy of the disability retirant's income tax return from the previous tax year. Should the said retirant refuse to submit to such medical examination required documentation in any such period, his the retirant's disability annuity may be discontinued by the board until his withdrawal of such refusal the board receives the required documentation. Should such refusal continue for one year, all his the retirant's rights in and to his the annuity may be revoked by the board. If, upon such medical examination of a disability retirant, the said a physician reports to the board that the retirant is physically able and capable of resuming employment with a participating public employer, he the retirant shall be returned to the employ of the participating public employer from whose employment he or she retired and his or her disability annuity shall terminate: Provided, That the report of the said physician is concurred in by the board concurs with the physician's report.

(b) A disability retirant who is returned to the employ of a participating public employer shall again become a member of the retirement system and his or her credited service in force at the time of his retirement shall be restored to his or her credit.

(c) If a disability retirant, who has not attained age sixty years, becomes engaged in a gainful occupation, business or employment, and the sum of his earnings from such occupation, business or employment, and his disability annuity exceeds his annual rate of compensation at the time of his retirement, his disability annuity shall be reduced to an amount which when added to the amount so earned by him shall equal his said annual rate of compensation. If his earnings are later changed, his disability annuity shall be correspondingly adjusted.
§5-10-27. Preretirement death annuities.
(a) In the event any member who has ten or more years of credited service or any former member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: may at any time prior to the effective date of his or her retirement, by written declaration duly executed and filed with the board of trustees, in the same manner as if he or she were then retiring from the employ of a participating public employer, elect option A provided for in section twenty-four of this article and nominate a beneficiary whom the board finds to have had an insurable interest in the life of the member. Prior to the effective date of his or her retirement, a member may revoke his or her election of option A and nomination of beneficiary and he or she may again prior to his or her retirement elect option A and nominate a beneficiary as provided in this subsection. Upon the death of a member who has an option A election in force, his or her beneficiary, if living, shall immediately receive an annuity computed in the same manner in all respects as if the same member had retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty years, and elected the said option A. If at the time of his or her retirement a member has an option A election in force, his or her election of option A and nomination of beneficiary shall thereafter continue in force (1) Dies without leaving surviving him or her a spouse; but (2) leaves surviving him or her a child who is financially dependent on the member by virtue of a permanent mental or physical disability upon evidence satisfactory to the board; and (3) has named such disabled child as sole beneficiary, the disabled child shall immediately receive an annuity computed in the same manner in all respects as if the said member had: (i) Retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty or sixty-two years, as the case may be; (ii) elected option A provided in section twenty-four of this article; and (iii) nominated his or her disabled child as beneficiary. As an alternative to annuity option A, A member or former member with ten or more years of credited service who does not leave surviving him or her a spouse or a disabled child may elect to have the preretirement death benefit paid as a return of accumulated contributions in a lump sum amount to any beneficiary or beneficiaries he or she chooses.

(b) In the event any member who has ten or more years of credited service, or any former member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: (1) Dies; and (2) leaves a surviving spouse, the surviving spouse shall immediately receive an annuity computed in the same manner in all respects as if the said member had: (1) Retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty or sixty-two years, as the case may be; (2) elected option A provided for in section twenty-four of this article; and (3) nominated his or her surviving spouse as beneficiary. However, the surviving spouse shall have the right to waive the annuity provided for in this section: Provided, That he or she executes a valid and notarized waiver on a form provided by the retirement board and that the member or former member attests to the waiver. If the waiver is presented to and accepted by the retirement board, the member or former member shall may nominate, a beneficiary who has an insurable interest in the member's or former member's life upon evidence satisfactory to the board, a child who is financially dependent on the member by virtue of a permanent mental or physical disability under annuity option A. As an alternative to annuity option A, the member or former member may elect to have the preretirement death benefit paid as a return of accumulated contributions in a lump sum amount to any beneficiary or beneficiaries he or she chooses in the event a waiver, as provided for in this section, has been presented to and accepted by the retirement board.

(c) In the event any member who has ten or more years of credited service or any former member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: (1) Dies without leaving surviving him or her a spouse; but (2) leaves surviving him or her an infant child or children; and (3) does not have a beneficiary nominated as provided in subsection (a) of this section, the infant child or children shall be entitled to an annuity to be calculated as follows: The annuity reserve shall be calculated as though the member had retired as of the date of his or her decease and elected a straight life annuity and the amount of the annuity reserve shall be paid in equal monthly installments to said member's infant child or children until the child or children attain age twenty-one or sooner marry or become emancipated; however, in no event shall any child or children receive more than two hundred fifty dollars per month each. The annuity payments shall be computed as of the date of the death of the member and the amount of the annuity shall remain constant during the period of payment. The annual amount of the annuities payable by this section shall not exceed sixty percent of the deceased member's final average salary.

(d) In the event any member or former member does not have ten or more years of credited service, no preretirement death annuity may be authorized, owed or awarded under this section.
§5-10-44. Correction of errors.
Should any change or employer error in the records of any participating public employer or the retirement system result in any person receiving from the system more or less than he the person would have been entitled to receive had the records been correct, the board of trustees shall correct such error the records, and as far as is practicable shall adjust the payment of the benefit in such manner that the actuarial equivalent of the benefit to which such the person was correctly entitled shall be paid. Any employer error resulting in an underpayment to the retirement system may be corrected by the employee remitting the required employee contribution and the participating public employer remitting the required employer contribution. Interest shall accumulate in accordance with 162 CSR 7.4.1.2 and any interest owed on the employee and employer contributions resulting from employer error shall be the responsibility of the participating public employer. The participating public employer may remit total payment and the employee reimburse the participating public employer through payroll deduction over a period equivalent to the time period during which the employer error occurred not to exceed two thousand dollars. The participating public employer shall submit proof that employer error was not willful, wanton or reckless."

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment to the House amendments.

The bill, as amended by the House and as further amended by the Senate, was then put upon its passage.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 485), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent And Not Voting: Blair, Coleman, Crosier, Ferrell and Mezzatesta.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 563) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 23 - "Requesting the Joint Committee on Government and Finance study the need for creating a forensic science task force."

Whereas, The state needs to consider the coordination and/or consolidation of the various state testing laboratories and other functions, including, but not limited to, the creation of a statewide laboratory complex; and

Whereas, The state has a shortage of specialists in certain forensic science fields; and

Whereas, The lack of forensic science specialists affects the state's ability to address emergency situations; and

Whereas, An improvement in the state's forensic science capabilities would enhance the ability of law enforcement to solve crimes and prosecute criminals; and

Whereas, There is a need to coordinate efforts to enhance laboratory accreditation, training of specialists and sharing of equipment among forensic organizations in the state; and

Whereas, Future federal funding for crime laboratories may require the establishment of a statewide plan for organizing forensic science capabilities; and

Whereas, The Legislature has studied this topic during the 2003 interim session and has recommended that this subject receive further study during the 2004 interim session; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the need for creating a forensic science task force; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 24 - "Requesting the Joint Committee on Government and Finance study the feasibility of establishing a special residential community for senior citizens."

Whereas, The establishment of a special residential community for senior citizens would enhance West Virginia's opportunity to display its natural beauty and attract senior citizens to our state; and

Whereas, A residential community for senior citizens could be located where it would be accessible to activities designed for senior citizens and to skilled medical care and other assisted living services for seniors to age in place; and

Whereas, The establishment of a senior community in West Virginia would generate revenue, enhance business and provide jobs; and

Whereas, The Legislature has studied this topic during the 2003 interim session and has recommended that this subject receive further study during the 2004 interim session; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the feasibility of establishing a special residential community for senior citizens; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 26 - "Requesting the Joint Committee on Government and Finance study the medicaid program preferred drug list, including the psychopharmacological data thereunder."

Whereas, The Legislature has studied this topic during the 2003 interim session and has recommended that this subject receive further study during the 2004 interim session; therefore, be it

Resolved by the Legislature of West Virginia:


That the Joint Committee on Government and Finance is hereby requested to study the medicaid program preferred drug list, including the psychopharmacological data thereunder; and, be it

Further Resolved, That the Joint Committee on Government and Finance is also requested to study the effects of section fifteen, article five, chapter nine of the code of West Virginia on medicaid recipients, the medicaid program, physicians and pharmacies; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C R. 47 - "Requesting the Joint Committee on Government and Finance conduct an interim study of all governmental agencies involved in resolving the problem of widespread flooding of streams in West Virginia."

Whereas, Heavy rainfalls in West Virginia have caused widespread flooding with consequent property damage and human tragedy; and

Whereas, It is the duty of the Legislature, insofar as possible, to relieve the pain and anguish of citizens who live under the threat of flooding; and

Whereas, The streams of West Virginia are regularly reduced in capacity by natural processes such as stream bank sloughing and the accumulation of natural woody debris, as well as refuse dumping; and

Whereas, Those streams whose channels have been reduced in capacity are primary contributors to the frequency, extent and severity of flooding; and

Whereas, Many citizens who live near or adjacent to these streams live in fear of floodwaters inundating their homes; and

Whereas, During every heavy rain, elderly, frail and isolated West Virginians fear that clogged streams will leave them vulnerable to property damage which could be prevented; and

Whereas, Scientific hydrologic studies have established that the combination of extraordinary rainfall on saturated soil, combined with a reduction in stream channel capacity, determines the extent and magnitude of flooding in suburban and rural landscapes and that activities related to farming, timber harvesting and mining have little or no such impact; and

Whereas, Individuals and businesses are no longer permitted to clean and clear impediments from natural watercourses; and

Whereas, Several regulatory agencies with separate statutory regulations are aware of the problems that exist with cleaning clogged streams that cause flooding; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to conduct an interim study of all governmental agencies involved in resolving the problem of widespread flooding of streams in West Virginia; and, be it

Further Resolved, That every agency, including the United States Army Corps of Engineers, whose primary mission is the prevention of flooding should be included in the study; and, be it

Further Resolved, That the study should be structured as a forum to hear testimony from everyone involved in order to establish a combination of regulatory agency authority and responsibility to ease the ability of citizens to clear clogged streams that cause flooding; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 56 - "Requesting the Joint Committee on Government and Finance study the current administrative structure of the Division of Personnel and its policies, procedures and functions to determine whether it can effectively meet the future needs of state government."

Whereas, The current structure of the Division of Personnel is burdened by archaic and unnecessary rules, regulations and policies; and

Whereas, A personnel system for any organization requires continuous improvement, innovation and effective use of modern technology to maintain the highest level of performance and to ensure qualified employees are hired for state government jobs; and

Whereas, It is essential that the state's personnel system be organized, structured and made ready to meet the demands for recruiting, training and maintaining highly trained, skilled and effective employees for state government; therefore, be it
Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the current administrative structure of the Division of Personnel and its policies, procedures and functions to determine whether it can effectively meet the future needs of state government; and, be it

Further Resolved,
That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 59 - "Requesting the Joint Committee on Government and Finance study the tax laws relating to property taxes and consider revisions to the state's tax laws."

Whereas, The tax laws of West Virginia need to be modified to better meet the fiscal challenges and changing needs of populations, infrastructure, services, future development of the state and its subdivisions and to ease the financial burdens of its citizens who are already overly tax- burdened; and

Whereas, Changing the standard methods of taxing property, as well as considering the concept of land value taxation, may lead to changes in the state's tax structure which may result in the elimination or reduction of other taxes; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the tax laws relating to property taxes and consider revisions to the state's tax laws; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 70 - "Requesting the Joint Committee on Government and Finance study the financial operations of senior centers and programs in each county of the State."

Whereas, Senior citizens make up a large portion of the West Virginia population; and

Whereas, A significant number of seniors in West Virginia rely on services provided by senior centers and programs in the various counties in West Virginia which are predominately funded by state and federal government appropriations; and

Whereas, The citizens of West Virginia have the right to demand that much of the money provided to senior centers and programs be spent on providing services to seniors rather than exorbitant salaries for employees and contractors; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the financial operations of senior centers and programs in each county of the state; and, be it

Further Resolved, That the Joint Committee on Government and Finance determine if senior centers and programs are inappropriately using state and federal funding by paying employees and contractors exorbitant salaries and fees; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 76 - "Requesting the Joint Committee on Government and Finance study the awarding of state contracts, loans, grants and industrial revenue bonds to companies outsourcing certain jobs."

Whereas, In recent years, a number of companies have replaced highly skilled workers from this state with lower-paid, foreign laborers, a practice known as outsourcing; and

Whereas, In many cases, the impetus for the outsourcing is pressure from domestic and foreign capital venture companies that see foreign labor as a way of increasing their already significant profits; and

Whereas, The preservation of jobs in this state is of critical importance to the economic vitality of the state and the local communities within the state; and

Whereas, The economic dislocation caused by outsourcing jobs threatens the health, safety and welfare of the people of this state; and

Whereas, A company that engages in outsourcing should not enjoy the benefits of a lucrative state or local procurement contract and should be prohibited from receiving any economic development assistance or subsidies from state or local government; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the awarding of state contracts, loans, grants and industrial revenue bonds to companies outsourcing certain jobs; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 78 - "Requesting the Joint Committee on Government and Finance study the State Wage Payment and Collection Act."

Whereas, Inconsistent terminology, confusing provisions and case law have all impacted the Act since its initial passage by the Legislature in 1891; and

Whereas, The Wage Payment and Collection Act is in dire need of review to eliminate antiquated terms, confusing procedures and lack of consistent duties and responsibilities for employers and employees; and

Whereas, The Wage Payment and Collection Act has not undergone a thorough review and updating in a number of years; therefore, be it

Resolved by the Legislature of West Virginia:


That the Joint Committee on Government and Finance is hereby requested to study the State Wage Payment and Collection Act; and, be it

Further Resolved, That the Joint Committee on Government and Finance's study of the Wage Payment and Collection Act include the development of consistent terminology and clear, concise and uniform procedure; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 81 - "Requesting the Joint Committee on Government and Finance study the procedure for applying for funding economic development projects."

Whereas, Numerous state agencies, including the Council for Community and Economic Development, the Housing Development Fund, the Economic Development Authority, the Infrastructure and Jobs Development Council, the Department of Transportation, the Jobs Investment Trust, the Parkways, Economic Development and Tourism Authority, the School Building Authority and the Tourism Commission, receive applications for funding for economic development projects; and

Whereas, There is insufficient funding resources for every worthy project and no clear procedure to prescreen and coordinate the application process; and

Whereas, Senate Bill No. 617, introduced during the regular session of the Legislature, 2004, proposes an Economic Development Funding Committee, composed of representatives of state agencies that fund economic development projects, to develop uniform guidelines for review and evaluation of applications to determine whether the application should be funded and from what source; and

Whereas, Under section eleven, article fifteen-a, chapter thirty-one of the code of West Virginia, all West Virginia infrastructure fund applications must first be reviewed and recommended by the Council for Community and Economic Development; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the procedure for applying for funding for economic development projects; and, be it

Further Resolved, That every state agency participating in economic development funding should be included in the study; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.


Messages from the Executive


The Speaker laid before the House of Delegates a Proclamation from His Excellency, the Governor, which was read by the Clerk as follows:
State of West Virginia

EXECUTIVE DEPARTMENT

Charleston



A P R O C L A M A T I O N

By the Governor


Whereas, the Constitution of West Virginia delineates the respective powers, duties and responsibilities of the three separate branches of government; and

Whereas, Article 6, Section 22 of the Constitution of West Virginia provides that this regular session of the Legislature not exceed sixty calendar days computed from and including the second Wednesday of January; and

Whereas, pursuant to Article 6, Section 22 of the Constitution of West Virginia, the 2004 regular session of the Legislature concludes on March 13, 2004; and

Whereas, Article 6, Section 51 of the Constitution of West Virginia sets forth the legal authority of the Governor and the Legislature relating to the preparation and enactment of the Budget Bill; and

Whereas, Subsection D of said section requires the Governor to issue a proclamation to extend the regular session of the Legislature if the Budget Bill shall not have been fully acted upon by the Legislature three days before the expiration of its regular session; and

Whereas, the Legislature has not finally acted upon the Budget Bill three days before the expiration of this current regular session of the State Legislature.

Now, Therefore, I, Bob Wise, Governor of the State of West Virginia, do hereby issue the following proclamation, in accordance with Article 6, Section 51, Subsection D(8) of the Constitution of West Virginia, extending this regular session of the State Legislature for consideration of the Budget Bill for a period not to exceed eight days beyond the conclusion of this regular session, including any extension thereof, under the provisions of Section 22 of Article 6 of the Constitution of West Virginia; but no matters other than the Budget Bill and a provision for the cost of said extended session shall be considered during this extension of the session.

In Witness Whereof, I have hereunto set my hand and caused the Great Seal of the State of West Virginia to be affixed.

(Insert Great Seal)
DONE at the Capitol in the City of Charleston, State of West Virginia, on this the tenth day of March, in the year of our Lord, Two Thousand Four, and in the One Hundred Forty-First year of the State.



Bob Wise,

Governor
By the Governor
Joe Manchin, III
Secretary of State
Miscellaneous Business

Delegate Blair announced that he was absent when the votes were taken on Roll Nos. 484 and 485, and that had he been present, he would have voted "Yea" thereon.
At 6:14 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00 a.m., Thursday, March, 11, 2004.